Held ,that only an executor act or decision can be made the subject matter of an administrative recourse
; that a confirmatory or informative act is not executor that the call-up of 19th October 1981 is, indeed, an act of executory nature in respect of which, however, the present recourse is out of time,
.3 of the Constitution, because it was filed only on 8th July 1982; that the fact that, there was later granted a deferment of the enlistment of the applicant did not deprive the call-up of 19th October 1981 of its executory character, because such deferment merely postponed the date on which the applicant had to comply with such call-up; that the letter to counsel for the applicant dated 21st June 1982 did not convey a new executory decision, and so, it is only confirmatory and informative, reiterating the adherence of the administration to its already adopted stand; that likewise, the call-up of 16th June 1982, is, also, of a confirmatory nature and the mere fact that failure to comply with such call-up may entail criminal responsibility on the part of the applicant does not render it, in the circumstances of this case, an executory act, because his criminal, responsibility stems from the fact that he had refusedto enlist as he had been required to do by the previous call-up of 19th October 1981; thus the present recourse could not be made,
of the Constitution, in respect of either the contents of the aforesaid letter of 21st June 1982, or the call-up of 16th June 1982. Held, further, that a final judgment of an administrative Court creates a res judicata as regards the validity of the particular act challenged by the recourse; that the judgment in the earlier successful recourse of the applicant created a res judicata only as regards the particular administrative act which was challenged in that case; that, however, after the legal basis of such judgment ceased to be operative in view of the judgment on appeal by a Full Bench of this Court in the Droushiotis case it was open to the appropriate authorities to call upon the applicant to enlist once again and such call-up was new administrative action justified by the effect of the relevant legislation as elucidated in the Droushiotis case. Application dismissed. Cases referred to: Pieri v. Republic
As regards the cardinal principle that only an executory act or decision can be made the subject-matter of an administrative recourse
The fact that, as already stated, there was later granted a deferment of the enlistment of the applicant up to 30th June 1982 did not deprive the call-up of 19th October 1981 of its executory character, because such deferment merely postponed the date on which the applicant had to comply with such call-up. The letter to counsel of the applicant dated 21st June 1982, did not convey a new executory decision, and, so, it is only confirmatory and informative, reiterating the adherence of the administration to its already adopted stand. Likewise, the call-up of 16th June 1982 is, also, of a confirmatory nature and the mere fact that failure to comply with such call-up may entail criminal responsibility on the part of the applicant does not render it, in the circumstances of this case, an executory act, because his criminal responsibility stems from the fact that he had refused to enlist as he had been required to do by the previous call-up of 19th October 1981. Thus the present recourse could not be made,
of the Constitution, in respect of either the contents of the aforesaid letter of 21st June 1982 or the call-up of 16th June 1982; nor could it be said that there exists an omission to examine the requests of the applicant for further suspension of the date on which he had to enlist, because it is abundantly clear that from the failure to reply to any such a request there was to be implied a refusal to accede to it for reasons already known to the applicant. Consequently, this recourse has to be dismissed. In any event, even if it could, notwithstanding all the foregoing, be found that this recourse could have been proceeded with, I should state that it cannot be held that because the Republic did not appeal against the aforesaid first instance judgment in the earlier successful recourse of the applicant (see the Pieri case, supra), such judgment constitutes a res judicata entitling the applicant to avoid the completion of his military service in accordance with the relevant legislative provisions the effect of which was finally expounded subsequently, on appeal, in the Droushiotis case, supra. A final judgment of an administrative Court creates a res judicata as regards the validity of the particuar act challenged by a recourse (and see, in this connection, inter alia, Kyriacopoulos on Greek Administrative Law-Κυριακοπούλου Ελληνικόν Διοικητικόν Δίκαιον-4th ed., vol. C, pp. 60, 61, 156-159, and Dendias on Administrative Law-Δενδία, Διοικητικών Δίκαιον-2nd ed., vol. C., pp. 364-367). The judgment in the earlier successful recourse of the applicant (see the Pieri case, supra) created a res judicata only as regards the particular administrative act which was challenged in that case. However, after the legal basis of such judgment ceased to be operative in view of the judgment on appeal by a Full Bench of this Court in the Droushiotis case, supra, it was open to the appropriate authorities to call upon the applicant to enlist once again and such call-up was new administrative action justified by the effect of the relevant legislation as elucidated in the Droushiotis case, supra, (see, in this respect, inter alia, Kyriacopoullos, supra, at p. 61, and Dendias, supra, at p. 365). For all the above reasons the present recourse fails and has to be dismissed; but rather reluctantly, indeed, I have decided to make no order as to its costs against the applicant. Recourse dismissed with no order as to costs. cylaw.org: Από το ΚΙΝOΠ/CyLii για τον Παγκύπριο Δικηγορικό Σύλλογο
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