clr/1967/1967_3_259.pdf

(3)(στ), as amended by Laws No. 26 and No. 44 of 1965, respectively—Appeal against judgment of one of the Judges of the Supreme Court dismissing Appellant's recourse underArticle 146 of the Constitution against Respondent's decision not to exempt him from military service—Meaning of "Dependants" insubsection

(3)of section 4of the Law,asamended. supra—Whether in each case the dependants are being maintained by the conscript ("συντηρούνται ύττό τοϋ στρατευσίμου"), withinsection 2 (hi)of theaforesaid amending LawNo.44 o/1965, is a question of fact to he determined on the circumstances of the particular case—Dependants must substantially depend on the_earningsof the conscript concerned. Conscript—Exemption from military sen ice—Sec~aboYc.~~ Exemption jrom military service—See above. National Guard—Exemption from military service—See above. Dependants—Dependants within the meaning of the National Guard Law, 1964 as amended, supra—See above. This is an appeal from the decision of one of the Judges of the Supreme Court, under the proviso to sub-section

(2)of section 11 of the Administration of Justice (Miscellaneous Provisions) Law, 1964. The Appellant challenges the decision (reported in

(1966)3 C.L.R. 774) dismissing his recourseagainst 259 - 1967 April 25 the decision of the appropriate statutory authority to refuse his (Appellant's)apphcation for exemption from military service ANTOMOS The material parts of the legislative provisions as well as the facts of the case are set out in thejudgment of the Court, post CHRISTOU ANTONIOU V REPUBLIC (MINISTER OF The Court in dismissing the appeal INTERIOR A N D DEFENCE) Held,

(1)It is, we think, sufficiently clear that theintention of the legislator was to exempt from military service persons whose earnings from their work, were necessary for the maintenance of more than three dependants, necessary to, at least, a substantial extent

(2)We taketheviewthat thequestion whether thedependants ineach case aremaintainedby theconscriptwithin section 2 (in) of the amending Law No. 44 of 1965 (supra), is a question of fact to be determined on the circumstances of the particular case, and, also, a question of degree which the trial Judge described with the expression "main bread winner"

(3)On the material before us we think that the recourse was rightly decided. Therefore, we will not interfere with the decision appealed from. Appealdismissed with costs. Appeal. Appeal against thejugment of a Judge of the Supreme Court of Cyprus (Tnrntafyllides J.) given on the 21.10.66 (Revisional Jurisdiction Case No 140/66) whereby Applicant's recourse against the decision of theRespondent to refuse his apphcation for exemption from military service was dismissed. R. Michaettdes with A Lemis for the Appellant L Demetriades for the Respondent. The Judgment of the Court was delivered by: VASSILIADES, Ρ · This is an appeal from the decision of one of the Judges of this Court, under the proviso to sub­ section

(2)of section 11 of the Administration of Justice (Miscellaneous Provisions) Law, 1964 260 The Appellant challenges the decision* dismissing his recourse against the decision of the appropriate statutory authority to refuse his (Appellant's) application for exemption from military service. 1967 April 25 ANTONIOS CHRISTOU ANTONIO υ The appeal is taken on seven different grounds appearing in the elaborately prepared notice, which, however, may be summarised in two contentions upon which the appeal was argued before us this morning, namely: v. REPUBLIC (MINISTER OF INTERIOR AND DEFENCE)

(1)that the trial Judge erred in his assessment of the evidence and the findings made thereon; and

(2)that in any case the Appellant is entitled to exemption on the common ground in the factual aspect of the case. TheAppellant, a young man of the age of 19,was called upon for military service under the provisions of the NationalGuard Law, 1964, (No. 20 of 1964). The relevant section of the statute is section 4 which in the original text of the law reads: "4

(1). Τηρουμένων των διατάξεων τοΰ εδαφίου

(3)άπαντες ot τΓολϊτσι της Δημοκρατίας άπό της Ιης 'Ιανουαρίου τοΰ έτους καθ* δ συνεπλήρωσαν το δέκατον όγδοου έτος της ηλικίας των μέχρι της 1ης Ιανουαρίου τοΰ έτους καθ' δ συνεττλήρωσαν το πεντηκοστού έτος της ηλικίας των, υπό­ κεινται είς τάς διατάξεις τοΰ παρόντος Νόμου και υπέχουν ύποχρέωσιν υπηρεσίας έν τη Δυνάμει". Subsection

(3)of this section, as amended by Law 26 of 1965, providing for the exemption from military service, reads: "4

(3). ΈΕαΐ|Μϋντ^^ς"ύπό'τοΰ-έδαφίου-

(1)_υποχρεώσεως— ~ (β) () (στ) "Απαντες oi έχοντες κατά την ήμερομηνίαν της κλήσεως των προς ύπηρεσίαν πλέον τών τριών εξαρτωμένων προσώπων: Νοείται οτι πάς στρατεύσιμος υπηρετών έυ τη δυνά­ μει καΐ όστις κατά τήν διάρκειαν της υπηρεσίας του ήθελεν αποκτήσει πλέον των τριών εξαρτωμένων προσώπων εξαιρείται περαιτέρω υπηρεσίας". *Note: Decision reported in

(1966)3 C.L.R. 774. 261 1967 April 25 ANTONIOS CHRISTOU ANTONIOU V. REPUBLIC By subsequent amendment of the Principal Law, enacted and published in August 1965 as Law No.44 of 1965, the expression "έξαρτώμενον" in subsection

(3)of section 4, was defined by section 2 of the amending law, as follows: " Δ α τους σκοπούςτης παρούσηςπαραγράφου ό δρος 'έΐαρτώμενοΓ σημαίνει: (MINISTER OF INTERIOR AND DEFENCE) (i) τέκνα έχοντα ήλικίαν κάτω των δεκαοκτώ ετών, (ϋ) σύζυγον (iii) εξώγαμα τέκνα,τέκναάνωτών δεκαοκτώ ετών, γονείς, αδελφούς και άδελφάς, οΐ όποιοι συντηρούνταιύπό τού στρατευσίμου". It is the contention of theAppellant that being a person with more than three dependants (as provided in (στ) above) consisting of his two parents, three younger brothers and a sister (falling within (iii) above), the Appellant is entitled to exemption from military service. The material facts upon which this appeal turns are not in dispute, and may be summarised as follows: When he came under the provisions of the National Guard Law as a conscript for military service, the Appellant was living in his parental home together with the restof thefamily consisting of his father, mother, three younger brothers and one sister. The family live in a rented house for which they pay £10 per month.The Appellant is the owner of a house which yields £25 per month rent; but this is said to be going towards payment of the house. The family depended for their subsistence at the material time, on the earnings of the father as a cook, amounting to £30 per month; the earnings of the Appellant as a "technical manager" of a firm of brandy manufacturers, with a salary of £50 per month; and the earnings of Appellant's younger brother aged 17, amounting to £9 per month. Besides the house referred to above, the Appellant also owns 49% of the shares of the firm of brandy manufacturers who employ him, which, however, are said to yield no income to the Appellant under the terms in which they were transferred to him. Be that as it may, and on the footing that the family depended on the earnings of the father and the two sons, as above, the appropriate statutory committee who reported to the Minister upon the matter, (in order to enable the Minister to decide 262 on the meritsof theAppellant's Application for exemption) took the view in their report, (which is before the Court as Exhibit 4) that the father being primarily the supporter of the three elder members of the family (his wife, his boy of 17, and himself) the Appellant could not be a person having more than three dependants, even if he were to be considered as the supporter of the three younger members of the family. Learned counsel for theAppellant submitted that this approach of the committee, to the question of dependency of the members of this family, was not correct. The family cannot be split in this arbitrary manner, learned counsel argued. It must be taken as a whole, i.e. a family consisting of the parents and the five children, (including Appellant) depending on the earnings of the three elder members of the family, !.e. the father, the Appellant and the younger son of 17. This being a question of fact, with different merits in each particular case, we are inclined to accept the submission in the circumstances of the present case. We are, therefore, concerned with a family of seven persons (including the Appellant) depending for its living on the earnings of three of its members, one being the Appellant. Inthese circumstances, the question arises whether the members of his family can be considered as the "dependants"of theAppellant for the purposes of the National Guard Law, in its present form. Obviously they do not depend entirely on him; but they depend partly on the Appellant. In this connection, the learned trial Judge felt inclined to think^ that "partial maintenance of parents, brothers or sisters, falling~short~of-totaI maintenance^but being, nevertheless, the main source of maintenance, would possibly^suffice-inorder to entitle a conscript to exemption from military service."; rejecting in this way, the contrary opinion adopted by the Minister on the advice of his committee. "In any case" — the learned trial Judge went on to say — "the question of partial maintenance could only have arisen as a material consideration in this case, if it were to be found that the Applicant was the main source of maintenance of his family, its main bread winner; and it has been found, as already stated earlier in this judgment that this was not so at all". (Page 44 B,C, and Fof the record). The relative provision in the statute, in the definition of dependants set out above, speaks of persons who"συντηρούνται" by the conscript. 263 1967 April 25 ANTONIOS CHRISTOU ANTONIOU V. REPUBLIC (MINISTER OF INTERIOR AND DEFENCE) 1967 April 25 ANTONIOS CHRISTOU ANTONIO υ V. REPUBLIC ( M I N I S T E R OF INTERIOR AND DEFENCE) We are unanimously of the opinion that where such persons "συντηρούνται" partly by the conscript and partly from other sources, exemption from service can only be claimed if the conscript can show that the dependantsin question substantially depend upon his earnings; and not otherwise. It is a question of fact in each case; and question of degree which the trial Judge described with the expression "main bread winner". It is, we think, sufficiently clear that the intention of the legislator in making this provision, was to exempt from military service persons whose earnings from their work, were necessary for the maintenance of more than three dependants; necessary to, at least, a substantial extent. So that such dependants may not find themselves destitute and without the minimum necessaries of life when the conscript answers the call. We take the view that the question whether the dependants in each case "συντηρούνταιύττότοΰ στρατευσίμου"is a question of fact to be determined on the circumstances of the particular case. In the case before us, the Minister, acting upon the reports of his officers (Exhibit 3) and of his advisory committee (Exhibit 4) who apparently went very carefully into the facts of the case, refused the application for exemption. The Minister's decision challenged by this recourse, was not interfered with by the trial Judge for the reasons stated in his long and careful judgment, where he dealt with every aspect of the case. We are unanimously of the opinion that we should not interfere with his decision. On the material before us we think that the recourse was rightly decided; and the appeal must fail. Appeal dismissed, with costs. Order accordingly. 264