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NICOS TSANGARIDES AND OTHERS (NO. 1) ν. REPUBLIC (MINISTER OF DEFENCE AND ANOTHER) (1975) 3 CLR 1

NICOS TSANGARIDES AND OTHERS (NO. 1) ν. REPUBLIC (MINISTER OF DEFENCE AND ANOTHER)

(1975)3 CLR 1 ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ CyLaw | Αναφορικά μ'εμάς | " target="_top">Επικοινωνία | Όροι χρήσης Έρευνα - Κατάλογος Αποφάσεων - Εμφάνιση Αναφορών (Noteup on) - Αρχείο σε μορφή PDF - Αφαίρεση Υπογραμμίσεων
(1975)3 CLR 1 1975 January 11 [MALACHTOS, J.] IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION NICOS TSANGARIDES AND OTHERS (NO. 1), Applicants, and THE REPUBLIC OF CYPRUS, THROUGH
  1. THE MINISTER OF DEFENCE,
  2. THE COMMANDER OF NATIONAL GUARD, Respondents. (Case No. 384/74). Administrative Law-Administrative Acts-Negative and positive acts-Acts of ascertainment-Creative or main acts-Whether acts of ascertainment have retrospective effect-Military service-Refusal to release from National Guard on completion of period of service provided by s. 5
(1)of the National Guard Laws, 1964 to 1968-No demobilization upon such completion but continuation of service by virtue of proclamation for mobilization-Subsequent decision ascertaining nature of such service-Is not a new decision but a mere ascertainment which covers applicants' case and ascertains the fact that after the lapse of time of their regular service they are serving in their capacity as reserves-Section 15 of the National Guard Laws (supra)-Refusal a valid one. Military Service-National Guard-Completion of period of service provided by s. 5
(1)of the National Guard Laws, 1964 to 1968- No release but continuation of service by virtue of proclamation of mobilization-Nature of such service-See, also, under "Administrative Law". Equality-Article 28.1 of the Constitution-Principle of equality-It entails equal or similar treatment of all those who are in the same situation-Decision releasing from National Guard only persons who had secured admission in the University before a certain date-Applicants who had not secured such admission not in the same situation with those persons-Principle of equality not contravened. The applicants in the instant recourse complain against the refusal of the respondents to release them from the National Guard after completion of the twenty-four months period of service provided by s. 5
(1)of the National Guard Laws, 1964 to
  1. The applicants in the usual course of events should have been demobilised by the 21st July,
  2. They were not, however, demobilised, because shortly after the Turkish invasion there was issued a proclamation for mobilisation, presumably under s. 16 of the law, calling upon certain categories of citizens of the Republic, including the applicants, to serve in the National Guard. By a decision (exhibit 1) of the then Council of Ministers taken on 29.8.1974 it was decided inter alia, to release from the National Guard "all conscripts on regular service who have completed a period of service of more than twenty-four months and satisfy the Minister that they have secured admission in Universities or Schools of Higher Education abroad". A subsequent decision (exhibit.3) of the Council of Ministers taken on the 19th September, 1974, stated that "because a question arose regarding the nature of the obligation for service of the conscripts who are to-day serving in the National Guard the Council of Ministers ascertain that the, obligation for service in the National Guard of those conscripts who after the completion of their regular service continue to serve in the National Guard is an obligation to serve as reserves as is the obligation of those reserves who have been called and are now in the service". Counsel for the applicants argued that the refusal to release applicants is contrary to section 5 of the National Guard Laws (supra). He submitted that the applicants are serving in the National Guard neither as regulars nor as reserves. He further submitted, on the assumption that the applicants are serving as reserves, that in the light of the above decision, exhibit 1, they are subjected to unequal treatment contrary to Article 28.1, in view of the fact that they were not in a position to secure their admission in a University before the 29th August, 1974, due to the situation created as a result of the Turkish invasion, in contradistinction to other persons serving in the National Guard, who were lucky enough to secure such admission. The main point under consideration in the recourse is the nature of the service of the applicants in the National Guard after the expiration of their twenty-four months service. Held,
(1)Administrative acts depending on their contents are classified as "negative" and as "positive". The positive acts are of two categories i.e. the ascertainments and the creative or main acts. (See Law of Administrative Acts by Stassinopoullos 1951 edition at pages 134, 135, 136 and 139).
(2)The decision of the Council of Ministers of the 19th September, 1974, exhibit 3, which is not a new decision but a mere ascertainment, covers the case of the applicants and ascertains the fact that after the lapse of time of their regular service they are serving in the National Guard in their capacity as reserves under section 15 of the Law. Therefore, the refusal to release them was a valid one.
(3)The principle of equality entails the equal or similar treatment of all those who are found to be in the same situation. In the present case, it cannot be said that the applicants were in the same situation with those that had already secured admission to Universities before the 29th August, 1974 (see, inter alia, Mikrommatis and The Republic, 2 R.S.C.C. 125 and Arakian and Others v. The Republic
(1972)3 C.L.R. 294. Application dismissed. Cases referred to: Arakian and Others v. The Republic
(1972)3 C.L.R. 294, at pp. 298-
  1. Recourse. Recourse against the omission and/or refusal of the respondents to release the applicants from the National Guard. L. Papaphilippou, for the applicants. R. Gavrielides, Counsel of the Republic, for the respondents. Cur. adv. vult. The following judgment* was delivered by:- MALACHTOS J.: The four applicants in this recourse claim a declaration of the Court that the omission and/or refusal of the respondents to release the applicants from the National Guard, is null and void and of no legal effect whatsoever. The facts relevant to the issues in this recourse are as follows: Applicant No. 1 was born on 29/3/54 and on 12/9/74 he secured admission as a student of Philosophy in the University of Athens. Applicant No. 2 was born on 3/2/54 and on 23/9/74 he was admitted in the Athens University as a student of Economics. Applicant No. 3 was born on 19/8/54 and on 25/9/74 he was admitted as a student of the Highest School of Economic and Commercial Sciences of the Athens University, and Applicant No. 4 was born on 4/6/53 and on 10/10/74 was admitted as a student of the Highest School of Economic and Commercial Sciences of the Athens University. The first three applicants were enlisted in the National Guard on 20/7/72 and the 4th applicant on 21/7/72 in order to discharge their obligation for military service under the National Guard Laws, 1964 to
  2. According to section 5
(1)of the National Guard Laws, 1964 to 1968 the duration of military service is fixed for twenty-four months, unless by its relative decision the Council of Ministers fixes the duration of such service for any class of conscripts to eighteen months. No such decision was ever taken by the Council of Ministers. By its decision No. 13591 dated 1/7/74 published in the 4th supplement to the Official Gazette of the Republic of 12/7/74, under Not. No. 64, the Council of Ministers abridged the period of service to fourteen months of all those then serving in the National Guard, irrespective of class, and of those conscripts already called or to be called in the future for enlistment. This decision, as stated therein, was taken by virtue of proviso (a) to section 5
(1)of the Law, which reads as follows: "Νοείται ότι: (α) Μετά πάροδον θητείας ενός έτους ή οσάκις η στρατιωτική επάρκεια και ανάγκαι της χώρας επιτρέπωσιν ή λόγοι δημοσίου συμφέροντος επιβάλλωσι τούτο το Υπουργικόν Συμβούλιον δύναται δι' αποφάσεως αυτού, δημοσιευομένης εις την επίσημον εφημερίδα της Δημοκρατίας να συντάμη την περίοδον θητείας εις οιανδήποτε περίοδον ουχί μικροτέραν των έξ μηνών, είτε κατά κλάσιν ή τμήμα αυτής είτε κατά περιφέρειας ή κατηγορίας ή εις εξαιρετικάς περιπτώσεις κατ' άτομα τη αιτήσει τούτων και λόγω ειδικών περιστάσεων". I have not been invited to pronounce on the validity of this decision of the Council of Ministers and the case was argued on the assumption that the said decision is non existent or that it is not valid. As a matter of fact, counsel for applicants did not rely on the said decision and submitted that it is not a valid one as it was taken by the Council of Ministers in excess of their power. At any rate, in the case in hand it would have made no substantial difference as the applicants had almost served at the time of the publication of the said decision, the period of twenty-four months fixed by section 5
(1)of the Law. Be that as it may, the applicants in the usual course of events should have in any case been demobilised as regards the first three on the 20th and as regards the fourth one on the 21st July, 1974. A certificate of discharge would then be issued to them whereupon by virtue of section 15
(1)(a) of the Law they would be members of the reserve force. However, early in the morning of the, 20th July, 1974, the Turkish invasion took place and an emergency situation has been since then created as a result of which the applicants were not demobilised but are still kept serving in the National Guard. The Turkish invasion followed the overthrow of the elected President of Cyprus, Archbishop Makarios and his government by the Military Junta of Athens by the force of arms on the 15th July, 1974 and the appointment of a new government that assumed the administration of the country. This government on the 20th July, 1974, shortly after the Turkish invasion, issued a proclamation for mobilisation, exhibit 2, presumably under section 16 of the law, calling upon certain categories of citizens of the Republic for service in the National Guard. One of the said categories was that of all officers and men of the reserve force of the 1958 class onwards. It is not disputed that this mobilization was lawful although it was called by a government which seized power by unconstitutional means. After the fall of the military Junta in Greece the President of the House of Representatives, Mr. Gl. Clerides, took over as President of the Republic under Article 36 of the Constitution, due to the absence abroad at the time of the elected President. On the 29th August, 1974, the Council of Ministers by its decision No. 13435, exhibit 1, decided for the release from military service of certain categories of persons serving at the time in the National Guard. This decision reads as follows: " Απόσπασμα εκ των Πρακτικών της Συνεδρίας του Υπουργικού Συμβουλίου Ημερομηνίας 29.8.1974. Απόλυσις Εφέδρων και άλλων στρατευσίμων 1. Το Υπουργικόν Συμβούλιον, ασκούν τας εις αυτό χορηγούμενας εξουσίας υπό του άρθρου 9
(1)των περί της Εθνικής Φρουράς Νόμων του 1964 έως 1968, διά της παρούσης αποφάσεως απολύει- (α) άπαντας τους εφέδρους των κλάσεων 1958 έως 1964 αμφοτέρων συμπεριλαμβανομένων (β) άπαντας τους εφέδρους τους φοιτώντας εις Πανεπιστήμια ή Ανωτάτας Σχολάς του εξωτερικού (γ) άπαντας τους εφέδρους τους αποδεδειγμένως διαμένοντας μονίμως εις το εξωτερικόν (δ) τους κανονικώς υπηρετούντας στρατευσίμους και συμπληρώσαντας περίοδον θητείας πέραν των εικοσιτεσσάρων μηνών, τους ικανοπιούντας τον Υπουργόν ότι:- (ι) έχουν εγγραφή εις Πανεπιστήμια ή Ανωτάτας Σχολάς του εξωτερικού (ιι) έχουν τύχει, κατόπιν επιλογής υπό Επιτροπής τυγχανούσης της εγκρίσεως του Υπουργικού Συμβουλίου και δια περίοδον ουχί μικροτέραν ενός ακαδημαικού έτους, υποτροφίας διά πανεπιστημιακάς ή μεταπτυχιακάς σπουδάς εις Πανεπιστήμια ή Ανωτάτας Σχολάς ή ιδρύματα ισότιμα προς Πανεπιστήμια εις το εξωτερικόν ίνα ούτοι δυνηθώσι να φοιτήσωσιν εις αυτά κατά το προσεχές ακαδημαϊκόν έτος 1974-
  2. Ο χρόνος απολύσεως των υπό στοιχεία (β) και (δ)(ι) και (ιι) ανωτέρω θα καθορισθή υπό του Υπουργού αναλόγως του χρόνου ενάρξεως του ακαδημαϊκού έτους εις εκάστην περίπτωσιν". On the 19th September, 1974, the Council of Ministers, as regards the nature of the service of mobilised persons in the National Guard issued decision No. 13510, exhibit 3, which reads as follows: "Αντίγραφον από τα Πρακτικά της Συνεδρίας του Υπουργικού Συμβουλίου ημερομηνίας 19.9.
  3. Φύσις υπηρεσίας στρατευσίμων εν τη Εθνική Φρουρά.
  4. Επειδή εγεννήθη ζήτημα ως προς την φύσιν της προς υπηρεσίαν υποχρεώσεως των σήμερον υπηρετούντων εν τη Εθνική Φρουρά στρατευσίμων το Υπουργικόν Συμβούλιον διαπιστοί ότι η εν τη Εθνική Φρουρά υποχρέωσις υπηρεσίας των μετά την κανονικήν λήξιν της θητείας αυτών εξακολουθούντων να υπηρετούν εν αυτή στρατευσίμων είναι υποχρέωσις υπηρεσίας εφέδρου ως και η υποχρέωσις υπηρεσίας των εν αυτή κληθέντων και υπηρετούντων εφέδρων. Γενικόν Διευθυντήν Υπουργείου Εσωτερικών, Η ως άνω Απόφασις διαβιβάζεται προς ενημέρωσίν σας. (Ύπ) Κ. Κλεάνθους Γραμματεύς Υπουργικού Συμβουλίου 25ης Σεπτ. 1974". The case of the applicants, as argued by their counsel, is that the refusal and/or omission of the respondents to release and/or demobilise them, on the completion of their twenty-four months service in the National Guard, is in excess and/or abuse of power and contrary to section 5 of the National Guard Laws, 1964 to
  5. He submitted that the applicants today are serving in the National Guard neither as regulars nor as reserves. The time provided for their regular service under section 5 of the law has elapsed since the 20th July, 1974 and they were not demobilised so that to be called as reserves to serve under section 15 of the law. They are just subjects of inhuman and unconstitutional treatment. He also submitted, on the assumption that the applicants are serving in the National Guard as reserves, that in the light of the decision of the Council of Ministers of the 29/8/74, exhibit 1, they are subjected to unequal treatment contrary to Article 28.1 of the Constitution which provides that "all persons are equal before the law, the administration and justice and are entitled to equal protection thereof and treatment thereby", in view of the fact that they were not in a position to secure their admission in the University before the 29th August, 1974, due to the situation created as a result of the Turkish invasion, in contradistinction to other persons serving in the National Guard, who were lucky enough to secure such admission. Another argument of counsel for applicants is that no decision of the Council of Ministers under section 16 of the law, which provides that the call of reserves as made by a decision of the Council of Ministers, has been published in the Official Gazette of the Republic. Finally, he submitted that the decision of the Council of Ministers of the 19/9/74 under No. 13453, exhibit 3, cannot have retrospective effect so that to cover the case of the applicants. We are not concerned in this recourse with the legal status of the persons who proclaimed the mobilization of the 20th July, 1974, since, as I have already said, it is not in dispute that the said mobilization was lawful. The fact that it was not published in the Official Gazette of the Republic is of no significance taking into consideration the state of emergency and the conditions prevailing at the time. The main point under consideration in this recourse is the nature of the service of the applicants in the National Guard after the expiration of their twenty-four months service. They are certainly not serving as regulars under section 5
(1)of the law and, therefore, they are either serving as reserves under section 15 or they are kept by the respondent authorities serving in the National Guard by unlawful means and, consequently, entitled to be released forthwith. We must, therefore, consider the legal status of the applicants in the light of the decision of the 20th July, 1974, proclaiming the mobilisation, exhibit 2, and the decision of the Council of Ministers of 19/9/74, exhibit 3. The decision of the Council of Ministers of 19/9/74, as stated therein, is an ascertaining act (διαπιστωτική πράξις). As it is stated in the Law of Administrative Acts by Stassinopoullos 1951 edition, at pages 134 to 136, the administrative acts depending on their contents are classified as "negative" (αρνητικαί) and as "positive" (θετικαί) acts. The positive acts are of two categories i.e. A. the ascertainments (διαπιστώσεις) and B. the creative or main acts (δημιουργικάς ή κυρίως πράξεις). The basis of the distinction to ascertainments and main acts is the observation, that the contents of certain administrative acts are exhausted in the ascertainment of certain situation which only by the authentic verification of its existence produces the legal consequences, without the administrative act that ascertains it creating any new relation or situation deriving directly through the will of the administration. And at page 139 of the same book it is stated that "the act of ascertainment does not necessarily possess retrospective power, as it is accepted in the German theory as regards acts of recognition. Certainly the contents of the ascertainment refer to the past, since the ascertained fact took place before the time of the ascertainment. But such reference to the past of the contents of the ascertainment merely constitutes a psychological element because the legal effect of the ascertainment really starts from the time in which the existence of the ascertainment is created, and is the only one to which the law contracts legal consequences. But the act that follows the ascertainment, usually creative according to the above notion, may have retrospective effect starting from the time in which the ascertained fact took place, if such retrospectivity is the result of special circumstances and is not prohibited by law". It follows from the above that the decision of the Council of Ministers of 19/9/74, exhibit 3, which is not a new decision but a mere ascertainment, covers the case of the applicants and ascertains the fact that after the lapse of time of their regular service they are serving in the National Guard in their capacity as reserves under section 15 of the law. The last point that remains for consideration is the complaint of the applicants for unequal treatment under Article 28.1 of the Constitution. In the case of Nishian Arakian and Others v. The Republic
(1972)3 C.L.R. 294 at pages 298-299 we read: "The application of the 'principle of equality' has been considered in Mikrommatis and The Republic, 2 R.S.C.C., 125, where it was stated (at p. 131) that 'equal before the law' in paragraph 1 of Article 28 does not convey the notion of exact arithmetical equality but it safeguards only against arbitrary differentiations and does not exclude reasonable distinctions which have to be made in view of the intrinsic nature of things'; and the Mikrommatis case was followed in, inter alia, Panayides and The Republic,
(1965)3 C.L.R. 107, Louca and The Republic,
(1965)3 C.L.R. 383, and Impalex Agencies Ltd. and The Republic,
(1970)3 C.L.R. 361". Therefore, the principle of equality entails the equal or similar treatment of all those who are found to be in the same situation. In the present case, it cannot be said that the applicants were in the same situation with those that had already secured admission to universities before the 29/8/
  1. For the reasons stated above, this recourse fails. There will be no order as to costs. Application dismissed. No order as to costs. English translation of the Greek text appearing at p. 5 ante. "Provided that: (a) After the lapse of one year's military service or whenever the military efficiency and the needs of the country so permit or considerations of public interest so demand, the Council of Ministers may, by decision published in the official gazette of the Republic, shorten the period of military service to any period being not less than six months, either by age group or part thereof or by areas or categories or in exceptional cases, by persons, on their application and because of special circumstances". English translation of the Greek text appearing at pp. 6-7 ante. "Extract from the Minutes of the meeting of the Council of Ministers dated 29.8.
  2. Release of reserves and other conscripts-
  3. The Council of Ministers, in exercise of its powers granted by s. 9
(1)of the National Guard Laws, 1964 to 1968, by this decision hereby releases. (
  1. a)All the reserves of age groups 1958 to 1964 both inclusive; (
  2. b)All the reserves who are attending Universities or Schools of Higher Education abroad; (
  3. c)All reserves who are proved to reside permanently abroad; (
  4. d)The conscripts who are on regular service and have completed a period of service of more than 24 months, and satisfy the Minister that:- (
  5. i)They have secured admission in Universities or Schools of Higher Education abroad; (
  6. ii)they have, following selection by a Committee approved by the Council of Ministers and for a period not shorter than one academic year, been granted scholarships for University or post graduate studies at Universities or Schools of Higher Education or Institutes equivalent to Universities abroad so that they may be able to attend them during the next academic year1974-75. 2. The time of release of those under (
  7. b)and (
  8. d)(
  9. i)and (
  10. ii)above will be determined by the Minister according to the time of commencement of the Academic Year in each case". English translation of the Greek text appearing at pp. 7-8 ante. "Copy from the Minutes of the Meeting of the Council of Ministers dated 19.9.1974. Nature of Service of Conscripts in the National Guard. 23. Because a question arose regarding the nature of the obligation for service of the conscripts who are to-day serving in the National Guard the Council of Ministers ascertains that the obligation for service in the National Guard of those conscripts who after the completion of their regular service continue to serve in the National Guard is an obligation to serve as reserves as is the obligation of those reserves who have been called and are now in the service. Director General, Ministry of Interior, The above decision is forwarded for your information. (Sd.) C. Cleanthous, Secretary, Council of Ministers. 25th September, 1974." cylaw.org: Από το ΚΙΝOΠ/CyLii για τον Παγκύπριο Δικηγορικό Σύλλογο

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