ls? u 2 ul ANTONIOS P., STAVRINIDES, HADJI ANASTASSIOU, A. Loizou, MALACHTOS, JJ.] [TRIANTAFYLLIDES, ANTONIOS KOURRIS, KOURRIS Applicant, V. THB SUPREME COUNCIL OF JUDICATURE anif THE SUPREME COUNCIL

Article 146

of the Constitution—Paragraph 1 of that Article 146—Supreme Council of Judicature—Set up and functioning

section 10

that Article—Because the functions of the Supreme Council are very closely connected with the exercise of judicial powers—Consequently the Supreme Court has no jurisdiction to entertain the present recourse directed against the aforesaid promotions of judicial officers (Judges)—Recourse dismissed on that ground i.e. on the ground that it is not maintainable. Recourse

Article 146

of the Constitution and the Jurisdiction of the Supreme Court on such recourse— Criterion adopted for the exercise of such jurisdiction is that of the essential nature of the decision, act or 390 omission which is being challenged—See further supra. Construction and Interpretation of Constitutional provisions— Article 146.1 of the Constitution—Act or decision (or omission) of an organ, authority or person exercising executive or administrative functions—See also supra. Statutes—Construction—Construction of section 10

Article 146

of the Constitution—It does not lie against decisions or acts (or omissions) of the Supreme Council of Judicature concerning appointments, promotions etc. of judicial officers (Judges etc.). Judicial Service—Judicial appointments or promotions—Made by the Supreme Council of Judicature set up

section 10

Article 146

of the Constitution lies against the validity of such appointments or promotions. Advocates and Recourse

Article 146

of the Constitution—Advocates—Conduct and Etiquette—Law Officer (Senior Counsel of the Republic) on leave prior to leaving the Public Service—Enrolled as an advocate and holding the relevant annual licence to practise— Section ll(l)(a)(b) of the Advocates Law, Cap. 2 (as amended)—Whether he can validly file a recourse against the State—He can, irrespective of whether or not the aci of the said counsel is against the rules of etiquette. Recourse

Article hereabove. 146—Advocates—See immediately The applicant is a judicial officer holding the substantive post of a District Judge. The Supreme*Council of Judicature promoted the interested parties to the post of Acting Presidents, District Courts, instead of the applicant. By his present 391 1972 Aug. 8 ANTONIOS KOURRIS V. THE SUPREME COUNCIL OF JUDICATURE 1972 Aug. 8 ANTONIOS KOURRIS V. THE SUPREME COUNCIL OF JUDICATURE recourse

Article 146of the Constitution the applicant seeks a declaration of rhe Supreme Court to the effect that:

that Article 146. The Supreme Court by majority (HadjiAnastassiou and A. Lotzou, JJ. dissenting) dismissed the recourse on the ground that it is not maintainable

the said Article 146 of the Constitution and held that the Supreme Council of Judicature, established by section 10

Article 146

against any act, decision or omission of the said Council because the functions of such Council are very closely connected with the exercise of judicial power. It is to be noted that the Court unanimously disposed of a minor issue viz. whether the present recourse having been filed by a Senior Counsel of the Republic on leave prior to retirement, it can be held that the recourse has been validly filed. The answer to that was given by the Court in the affirmative holding :

the relevant Law and he had taken out the annual licence to practise as an advocate as required by the relevant Law (viz. The Advocates Law, Cap. 2).

section 24

­ take, while being a public officer on leave prior to leaving the public service, a case against the State of which he still continued to be an employee («Θα ήτο αντίθετος ηρός την δεοντολογίαν τοϋ δικηγορικού επαγγέλματος ή ύπό δικηγόρου, δημοσίου υπαλλήλου τελούντος έπ' άδείρ πρό της ημερομηνίας της άφυπηρετήσεως αύτοΰ, άνάληψις υποθέσεως εναντίον τοΰ Κράτους του οποίου εισέτι εξα­ κολουθεί νά είναι υπάλληλος»). There were notified in writing accordingly the applicant, the respondent Supreme Council of Judicature, the five judicial officers affected by the recourse, the Attorney-General of the Republic and the Bar Council. It was further directed by the Court that on the same date any party appearing before it could also raise the question of the jurisdiction of the Court to entertain' the recourse

Article 146

of the Consti­ tution—

which it was made—as this cardinal legal issue had not been determined in any previous case. There appeared before the Court counsel for the applicant, for the Attorney-General and for the Bar Council; the respondent Supreme Council of Judicature informed the Chief Registrar that it had decided not to take part at that stage of the proceedings but it reserved the right to raise the issue of jurisdiction later if it were not decided at such stage. The five affected judicial officers chose not to take part at all in the proceedings. Counsel for the Bar Council was heard on the issue of the validity of the filing of the recourse and counsel for the Attorney-' General raised the issue of the jurisdiction of the Court to entertain the recourse; and counsel for the applicant was heard in reply on both issues; I feel that the highest appreciation of the Court should be expressed for the very able and learned arguments put forward by all counsel. The hearing regarding the above two preliminary issues was concluded on the 22nd June, 1972, and the decision on both of them was reserved. On the 6th July, 1972, the Court announced its decision to treat the recourse as duly filed on t h e .10th January, 1972, and stated that it would give its reasons therefor later together 396 with its decision on the issue of jurisdiction. Thus, today, before proceeding to deal with the issue of jurisdiction, the reasons will be given for treating the recourse as duly filed : When the applicant instructed his counsel to file this recourse, as well as when such counsel proceeded to file it, they were both acting in good faith, honestly believing that counsel for the applicant was entitled to act as he has done. The recourse was accepted by the Registry of this Court on the 10th January, 1972,and it was only afterwards that it wasnoticed that counsel for the applicant was still on leave prior to the taking of effect of his resignation from the public service. So what we had to decide was whether the applicant should be deprived of his right to proceed with a recourse which had already been filed. The aforementioned decision of the Bar Council, regarding the professional etiquette and practice aspect of the matter, is undoubtedly correct; and sight has not been lost of the provisions of section 64 of the Public Service Law,1967 (Law 33/67) which restrict the right of a public officer to

take private work while in the public service. But the matter of the validity of the filing of this recourse could not be decided on the basis either of professional etiquette and practice or of the provisions of section 64 of Law 33/67; and, actually, counsel for the Bar Council pointed out. very fairly indeed, that though as a matter of professional etiquette and practice the' recourse ought not to have been filed by counsel for the applicant nevertheless the question whether the applicant should be deprived on this ground of his right to proceed with his recourse was an altogether different matter. By the Supreme Constitutional Court Rules, which are applicable to the present proceeding it is provided (see rule 3) that "Whenever anything may be done byany person or organ or authority of, or in, the Republic, it may, unless the context otherwise requires, or the Court otherwise directs, be done by an advocate acting on behalf of such person, organ or authority and duly authorized in writing for the purpose." Counsel for the applicant was duly authorized in writing—as it appears from the file of the proceedings—397 1972 Aug. 8 ANTONIOS KOURRIS V. THE SUPREME COUNCIL OF JUDICATURE Triantafyiiides, P. 1972 __1 to make this recourse on behalf of the applicant; and, at the material time, irrespective of the fact that he was on ANTONIOS leave prior to the taking of effect of his resignation from KOURRIS the post of Senior Counsel of the Republic, he was an v. advocate enrolled

section 1 l(l)(a) of Cap. 2 and THE SUPREME he had taken out an annual licence to practise as an COUNCIL OF advocate in 1972

section ll(l)(b) of Cap. 2. The JUDICATURE proviso to section 11

Article 144

of the Constitution, had not been made in the proper manner as regards formalities, it should non the less proceed to deal with such issue, because, as stated in its judgment (at p. 117), it decided in the interests of justice and in the public interest in general and in order to avoid further delay, to direct that the reference should be accepted by the Registry of the Court and filed therewith in spite of the fact that it was still in an unsatisfactory form; such course was adopted without in any way intending it to become a precedent. In the light of the above and in view of the very special circumstances of the matter—such as that counsel for the applicant when he filed this recourse was entitled,

Cap. 2, to practise as an advocate and that he acted in perfectly good faith—we decided to hold that the recourse was duly filed on the 10th January, 1972. I come next to the issue of the jurisdiction 398 of this Court to entertain the applicant's recourse

Article 146

of the Constitution; as in relation to this issue the Court is not unanimous—as it is in relation to the matter of the validity of the filing of the recourse—I shall proceed to state my own opinion regarding such - issue. the matters It has to be decided whether as regards complained of by the applicant a recourse can be made

Article 146

; and to decide this it is necessary to construe the relevant part of Article 146, which is its paragraph 1 and reads as follows :" 1 . The Supreme Constitutional Court shall have exclusive jurisdiction to adjudicate finally on a recourse made to it on a complaint that a decision, an act or omission of any organ, authority or person, exercising any executive or administrative authority is contrary to any of the provisions of this Constitution or of any law or is made in excess or in abuse of powers vested in such organ or authority or person." («To Άνώτατον Συνταγματικόν Δικαστήριον κέ­ κτηται αποκλειστικήν δικαιοδοσίαν νά άποφασί^η οριστικώς και αμετακλήτως επί πάσης προσφυγής υποβαλλομένης κατ' αποφάσεως, πράΕεως ή παρα­ λείψεως οιουδήποτε οργάνου, αρχής ή προσώπου ασκούντων έκτελεστικήν ή διοικητικήν λειτουργίαν έπϊ τφ λόγω οτι αΰτη εϊνσι αντίθετος προς τάς δια­ τάζεις τοϋ Συντάγματος ή τον νόμον ή έγένετο καθ' ύπέρβασιν ή κατάχρησιν της εξουσίας της έμπεπιστευμένης εις τό όργανον ή την αρχήν ή το πρόσωπον τοϋτο.») It should be borne in mind that the jurisdiction to grant a remedy by means of a recourse for annulment as provided by Article 146.1 is not an innovation of the drafters of the Constitution of Cyprus but it was vested in the Supreme Constitutional Court in order to create thus an administrative court on the model of admini­ strative courts, such as Councils of State, in other countries. This has been recognized on more than one occasion by the Supreme Constitutional Court (see, inter alia, The Holy See of Kitium and The Municipal Council of Limassol, 1 R.S.C.C. 15, at p. 21, and Kyriakides and The Republic, 1 R.S.C.C. 66, at p. 69). So, even though 399 1972 Aug. 8 ANTONIOS KOURRIS V. 1HK SUPREME COUNCIL OF JUDICATURE Triantafyiiides, P. 1972 the wording of Article 146.1 is somewhat different from _1 provisions defining the jurisdiction of administrative ANTONIOS courts in other countries, general principles of AdminiKOURRIS strative Law governing the availability of the remedy .

Article 146

.1 have to be taken, as far as possible, v mt0 THE SUPREME account in defining the extent of the jurisdiction COUNCIL OF

the said Article (see, inter alia, Kyriakides, supra, at p. 73, and Demetrion and The Republic, 3 R.S.C.C. Triantafyiiides, 1 2 1 , at p. 128). P. The fact that by virtue of sections 9(a) and 11 of the Administration of Justice (Miscellaneous Provisions) Law, 1964 (Law 33/64) (regarding _the constitutionality of which see the judgments in Attorney-General v. Ibrahim, 1964 C.L.R. 195)—the jurisdiction

Article 146

.1 is not now exercised by the Supreme Constitutional Court but is exercised by this Supreme Court does not affect at all the extent of such jurisdiction; section 9(a) provides, in effect, about the vesting in this Court of, inter alia, the jurisdiction

Article 146

.1 and section 11 " provides about the manner, from the procedural point of view, of the exercise of such jurisdiction; neither of these two sections nor any other provision of Law 33/64 can be properly construed as having enlarged or restricted in any way the said jurisdiction which exists by virtue of the Constitution. An examination of our case-law shows that the applicability of Article 146.1 has as a rule been tested mainly on the basis of the essential nature of the decision, act or omission being challenged (see, inter alia, Papaphilippou and The Republic, 1 R.S.C.C. 62, at p. 65; Stamatiou and The Electricity Authority of Cyprus, 3 R.S.C.C. 44, at p. 46; Demetriou, supra, at p. 127; Eraclidou and Hellenic Mining Co. Ltd. and Others, 3 R.S.C.C. 153, at p. 156; Constantinides and The Cyprus Broadcasting Corporation, 5 R.S.C.C. 34, at p. 39; Sevastides v. The Electricity Authority of Cyprus

Article 146

.1 is available only in relation to administrative decisions, acts or omissions in the domain of public law (see, inter alia, HadjiKyriacou and Hadjiapostolou, 3 R.S.C.C. 89; Valana and The Republic, 3 R.S.C.C. 9 1 ; Charalambides and The Republic, 4 R.S.C.C. 24, and Pilavaki v. The Republic, 1964 C.L.R. 164), even though the wording of Article 146.1 might otherwise be taken as warranting its applicability to administrative decisions, acts or omissions in the domain of private law too. With the foregoing in mind I shall now proceed to examine whether the appointments challenged, and the omission complained of, by the applicant in this case come within the ambit of Article 146.1. Such appointments were made by, and the omission is attributed to, the 401 1972 Aug. 8 ANTONIOS KOURRIS V. THE SUPREME COUNCIL OF JUDICATURE Triantafyiiides, P. Supreme Council of Judicature which has been set up

section 10

Article 157

.2 cannot be described as "judicial" in the strict sense because it does not entail dealing with litigation, but in my opinion such function, in view of its essential nature, is obviously so very closely connected with the exercise of the judicial power that, in the light of what has already been stated in this judgment in relation to the jurisdiction

Article 146

.1, no recourse would lie,

Article 146

.1, in respect of any decision, act or omission of the Council in the exercise of its powers

Article 157

.2; and it is due to the very close connection of the function of the Council,

Article 157

.2, with the exercise of the judicial power that Article 157 was included in Part X 404 of the Constitution which provides about the administra­ tion of justice by the High Court and subordinate courts. . 1972 Aug. 8 In 1964, due to the events which are referred to in the preamble to Law 33/64 and are mentioned in the judgments in the case of The Attorney-General v. Ibrahim (supra), the functioning of the Supreme Constitutional Court and of the High Court was rendered impossible. As a result,-by section 9(a) of Law 33/64, there were transferred to this Supreme Court, which was set up by section 3 of the same Law, the jurisdiction and powers which had been vested till then in, and were capable of being exercised by, the Supreme Constitutional Court and the High Court; and the powers of the Supreme Council of Judicature,

Article 157.2, were, by means of section 10

Article 157.2, and which were vested, by means of section 10

section 10

Article 157

.2, very closely connected with the exercise of the judicial power; and, therefore, no recourse can be made

Article 146

.1 in respect of any decision, act or omission of the Council in the exercise of its powers

section 10

section 10

Article 146.1.

It is useful to note that in the case of in re CM. un advocate (supra), in which the point was taken that a decision of the Disciplinary Board, which has been set up

the Advocates Law, Cap. 2, and consists of advocates

the chairmanship of the Attorney-Genera!, was an administrative decision which should have been challenged by recourse

Article 146

.1, it was held that such decision was not within the ambit of the jurisdiction

Article 146

.1 because advocates are officers of the Supreme Court—(sec, also, section 15 of Cap. 2)—and disciplinary matters concerning them arc considered as being related to the administration of justice. A disciplinary decision of the Supreme Council of Judicature regarding a judicial officer, cither

Article 157or section 10

Article 146

.1; and if such a decision is outside the scope of Article 146 then surely a decision of the Council concerning the appointment of a judicial officer is. likewise, outside the scope of such Article.

section 10

Article 157

—but, in addition to the President and the two senior judges of the Supreme Court, ii comprises the Attorney-General of the Republic, the senior President of a District Court, the senior District Judge and a practising advocate elected by the Cyprus Bar Associa­ tion. Though i do think thai it Is desirable to amend section 10

the Advocates (Amendment) Law, 1961—Law 42/61), I have no doubt ai all that the present composition of the Council cannot be treated as preventing its decisions, acts or omissions

section 10

Article 146

.1; the majority of the members of the Council are judicial officers and, in this respect, I am not prepared to accept that the two less senior in rank judicial officers —the President of a District Court and the District Judge—can be regarded as being in the least less judi­ cially minded than judges of the Supreme Court; the Attorney-General by virtue of both the nature of the duties of his office and the fact that he is the Chairman of the Bar Council is a person very closely related to the administration of justice; and, likewise, the practising advocate, being an officer of the Supreme Court (see section 15 of Cap. 2), ought to be regarded, also, as being closely related to the functioning of the judicial power. The significantly very close connection of the advocates with the administration of justice is not only shown by the fact that, as stated, advocates arc officers of the Supreme Court, but has, also, been judicially recognized "(see, inter alia, In re CD. an advocate

Article 157the Supreme Council of Judicature, had been rendered impossible. Such construction of section 10

lined show an COUNCIL OF intention to provide a new composition for an existing JUDICATURE institution. Another factor which supports this construTriantafyiiides, ction of section 10

Article 157.1; it is clear, therefore, that the Supreme Council of Judicature established by section 10

Article 157.1.

It might be observed in relation to the application of Laws 14/60 and 33/64 that there was no need to amend by Law 33/64 the definition of the Supreme Council of Judicature in section 2 of Law 14/60 because such defi­ nition must be read as having been modified by section 10

Article 146

.1 to enter­ tain the recourse of the applicant I have also examined the relevant law in Greece and France : In Greece the jurisdiction which corresponds to that

our Article 146.1 is being exercised, by the Council of State, on the basis of the nature of the organ 408 concerned and not on the basis of the nature of the action the validity of which is being challenged; the criterion being whether the organ from which an act has emanated is an administrative organ, because only in relation to actions of administrative organs can a recourse for annulment be made (see, inter alia, The Conclusions from the Case-law of the Council of State—«Πορίσματα Νομο­ λογίας τοϋ Συμβουλίου της Επικρατείας» 1929/1959, at ρ. 228); this is so due to the effect of relevant constitu­ tional provisions (see Article 82 of the Constitution of 1911, Article 102 of the Constitution of 1927. Article 83 of the Constitution of 1952 and Article 107 of the Constitution of 1968) and of relevant legislation (see section 46 of Law 3713/1928). It is to be noted that, though in Greece the basis for the exercise of the jurisdiction in question is, as stated above, the administrative nature of the organ from which an act complained of has emanated, acts which are related to the exercise of the judicial power have been treated by the Council of State as being outside the ambit of such jurisdiction even when emanating from admini­ strative organs (see the Conclusions from the Case-Law of the Council of State 1929/1959, at p. 230). In this respect useful reference may be made to the following three cases which were decided by the Council of State : In Case 1486/1950 it was held that no recourse could be made against a decision of the Minister of Justice about the transfer of a convict from one prison to another, because such decision related to the mode of execution of a sentence imposed by the judicial power and, therefore, it possessed no legal effect of an admi­ nistrative nature («στερείται εννόμου αποτελέσματος δι­ οικητικής φύσεως»); in Case 1093/1955 it was held that no recourse could be made against an administrative decision regarding the place where a Court order pro­ viding for police supervision would take effect, because such decision though emanating from an administrative organ was not of an administrative nature as it was closely related to the exercise of the judicial power; it, therefore, was not an administrative function («... αίτησις ακυρώσεως ενώπιον τοϋ Συμβουλίου της 'Επικρατείας χωρεί κατά των εκτελεστών πράξεων των διοικητικών άρχων, ήτοι κατά τών πράΕεων εκείνων, σϊτινες προερ409 1972 Aug. 8 ANTONIOS KOURRIS V. THE SUPREMh COUNCIL O F IUDICATUPH Triantafyiiides. P. 1972 Aug. 8 ANTONIOS KOUKRI.S V. ΓΜΗ SUl'REMG ( OUNC1I. OF JlJOlCVnji'.l. Triantafyiiides, P. χόμεναι πσρΰ διοικητικών άρ^ών εΐσ! καΐ καθ' εαυτός διοικητικοί . . . ή προσβαλλομένη άπόφασις .. συνδέε­ ται στενώς προς την ασκησιν της ποινικής δικαιοσύνης και τήν έκτέλεσιν των αποφύσεων ούτής, εξερχόμενη οϋτω των πλαισίων της διοικητικής λειτουργίας καΐ συ­ νεπώς δεν είναι δεκτική προοδολής επί ακυρώσει»); and in Case 168/1956 it was held that no recourse couid be made in respect of an omission by the Minister of Justice to institute criminal proceedings against judicial officers, as there were not within the jurisdiction of the Council of State not only judicial acts but also acts οΐ an administrative nature which emanated from judicial or administrative organs and related to the exercise of the judicial pov/cr {«. ., της αρμοδιότητος τοϋ Συμβουλίου της Επικρατείας εξαιρούνται ού μόνον αί καθαρώς δι­ καστικοί πράξεις, αλλά καΐ αί διοικητικοί κατά το περιεχόμενον πράξεις δικαστικών είτε καΐ διοικητικών αρχών, οϊ· τίνες όμως άφορώσιν εις τήν εϋρυθμον λειτουργίαν και ύπονομήν τής τακτικής δικαιοσύνης καΐ συνδέονται προς τήν σσκησιν τής δικαστικής λειτουργίας τής Πολιτείας»).

Article 90

of the Constitution of Greece of 1952 the—inter alia—promotions of judicial officers were to be made with the concurrence of a Supreme Council of Judicature («Άνώτατον Δικαστικόν Συμθούλιον») consisting of members of die Supreme Court («"Αρειος Πάγος»); and the third paragraph of the same Article provided that decisions of the Supreme Council ot" Judicature could not be challenged by proceedings before the Council of State. This exclusion of the compe­ tence of the Council of State was nol an innovation introduced by a constitutional provision; Article 90 merely gave Constitutional effect to principles which had been expounded already by means of case-Jaw (sec Sgiju.ritsaN on Constitutional Law—"Σγουρίτσα Συνταγμα­ τικών Δίκαιον» —3ί\\ ed.. vol. A, p.

1. and Stasinopoulos on the Law of Administrative Disputes—^Στασι­ νόπουλου Δίκαιον των Διοικητικών Διαφορών»—4th ed., p. J 57). As observed by Vavaretos in his Commentary on the Constitution of Greece of 1952—«Βαβαρέτου To Σύνταγμα τής 'Ελλάδος 1952»—3rd ed., p.
2. the third paragraph of Article 90 was based on the view that the Supreme Council of Judicature, though acting as a collective administrative organ, was not an on?an of AiO the administration so that its decisions could be challenged by recourse to the Council of State ( « . . . το Άνώτατον Δικαστικόν Συμθούλιον ενεργεί μεν ώς συλλογικόν διοικητικόν όργανον, αλλά δεν είναι όργανον τής διοικήσεως, ώστε αί πράξεις του νά υπόκεινται εις προσφυγήν ενώ­ πιον τοϋ Συμβουλίου Επικρατείας»). Prior to the exclusion of rhc competence of the Council of State by means of Article 90, the Council of State had decided in Case 812/1947 (reported in Themis («Θέμις») 1947, p. 14i) that a decision of the Supreme Council of Judicature for a promotion to the post of procurator («είσαγγελεύς»)—who in Greece is a judicial officer—could not be attacked by recourse because the Supreme Council of Judicature was not an organ forming part of the administrative structure («,. ώς εκδοθείσα παρ' αρχής μή εντεταγμένης εις τήν Δισικητικήν ίεραρχίαν...»); as stated in its decision the Council of State followed in this respect its earlier case-law. The decision in Case 812/1947 was criticized in an article by Pratsikas (see Themis, supra, p. 141 et seq.); nevertheless the criticism of the learned professor did not prevent the inclusion in the Constitution of 1952 of the third paragraph of Article 90, which gave consti­ tutional effect to the relevant case-law of the Council of State; and similar constitutional provision was made by Article 102 of the Constitution of
3. Decisions of organs which in Greece arc part of the judicial structure, and not of the administrative structure. have been held by the Council of State not to be subject to a recourse for annulment; for example, in Case 2027/1965 it was held that the decision of a Board regarding appointments of clerks of Tribunals for Tax Cases was outside the jurisdiction of the Council, because the Board, in view of its composition and competence, was an authority forming part of the judicial structure. and not of the administrative structure, of the State («.. αποτελεί αρχήν έντεταγμένην εις τά πλαίσια τής δικαστικής καΐ ουχί τής διοικητικής οργανώσεως τής Πολιτείας»). Useful reference may, also, be made to Cases 718/64 and 1344/1964 in which the Council of State in Greece held that no recourse for annulment could be made 411 1972 Aug. 0 ANTONIOS KOURRIS V. fHIi SUPREME COUNCIL OF •UD'OVrURF TriantaiylMdes. P. 1972 Aug. 8 ANTONIOS KOUKKIS V. THE SUPREME COUNCIL O F JUDICATORY Triantafyiiides, P. against a decision of the Advocates' Supreme Disciplinary Board («Άνώτατον Πειθαρχικόν Συμβούλιον Δικηγόρων»); the Board being composed of judicial officers and advocates. The Council of State took the view that no recourse would lie because the Board was an organ forming part of the judicial structure, and not of the administrative structure, of the State, even though its decisions were not decisions dealing with litigation ( « . . . ότι τό Ανώτατον Πειθαρχικόν Συμβούλιον Δικηγό­ ρων αποτελεί αρχήν έντεταγμένην εις τό πλαίσισν τής δικαστικής, και ουχί τής διοικητικής οργανώσεως τής Πο­ λιτείας καΐ ότι, ώς έκ τούτου, αϊ αποφάσεις τοϋ "Ανωτά­ του Πειθαρχικού Συμβουλίου δεν εΐναι μεν δικαιοδοτικαϊ δέν συνιστώοτν όμως πράξεις διοικητικής α ρ χ ή ς . . . » ) . As was stated earlier in this judgment the criterion adopted in Greece in relation to the exercise of the jurisdiction of the Council of State, which corresponds to the jurisdiction

our Article 146.1, is that of the nature of the organ of which the action is being challenged; whereas here in Cyprus the criterion adopted in relation to the exercise of the jurisdiction

Article 146

.1 is that of the essential nature of the action which is being challenged; and these different approaches are due to the differing effects of the respectively relevant enactments. But irrespective of the use of different criteria the true nature of the remedy by recourse for annulment, namely that it is a remedy in relation to matters within the province of the administration and not within the province of the judiciary, should not be lost sight of; and it is due, also, to such nature, which is defined by basic principles of Administrative Law applicable with equal force both in Greece and here, that I am of the already expressed in this judgment view that the remedy in question is not available in respect of the matters complained of by the applicant in the present recourse, because such matters are within the province of the judiciary, and not within the province of the administra­ tion; and, likewise, the respondent Supreme Council of Judicature is an organ within the judicial structure, and not within the administrative structure, of the State. In France the criterion of competence in relation to a recourse for annulment made to the Council of State is that of the nature of the organ taking the action complained 41?. of (see, inter alia, Les Grands Textes Administratifs, 1970, p. 528). The French Council of State in the case of Falco et Vidaillac, which was decided on the 17th April, 1953, (see Les Grands Arrets de la Jurisprudence Administrative, 1969, p. 392) held that it had competence, as an administrative Court, to deal with the validity of a decision, reached by a Board composed of judicial officers, regarding the election of a member of the Superior Council of Magistracy ("Conseil Superieur de la Magistrature"); thus the Council of State adopted apparently the distinction made on the 27th November, 1952, by the Tribunal of Conflicts ("Tribunal de Conflits") in the case of Prefet de la Guyane (see Les Grands Arrets, supra, at p. 379) between the functioning of the judicial service and the organization of such service; it was held by the Tribunal that an administrative Court was competent regarding matters related to the organization, but not also to the functioning, of the judicial service. The decision in the case of Prefet de la Guyane (supra) is commented upon in Les Grands Arrets (supra, at p. 380) as having introduced a distinction—between the functioning and the organization of the judicial service—the application of which creates very delicate problems, especially as (see Les Grands Arrets, supra, at. p. 386) the organization of a service is always a requisite for its functioning. Waline in "Droit Administratif" (9th ed., p. 80, paragraph 124) observes that the said distinction is in practice subtle and arbitrary; and in an article in the "Revue du Droit Public et de la Science Politique" (1953, p. 448 et seq.) he states, in relation to the decision in the case of Prefet de la Guyane (supra), that one can rightfully wonder if it is really a decision of principle or a decision of equity in view of the quite extraordinary circumstances of such case (namely, that there had been a cessation of the exercise of certain judicial jurisdictions due to failure to constitute the tribunals concerned). Also, Odent in "Contentieux Administratif (1970—1971, p. 486) observes that the distinction between organization and functioning is not always easy, especially as one passes imperceptibly from 413 1972 Aug. 8 ANTONIOS KOURRIS V. THE SUPREME COUNCIL OF JUDICATURE Triantafyiiides, P. 1972 Aug. 8 ANTONIOS KOURRIS IHfc SUPREME COUNCIL ΟιJUD1CA! ITRfc, fnantafyilides, P. the one to the other and as many decisions or activities participate at the same time in both. The decision in the case of Falco et Vidailiac (suprr) has been severely criticized by many very eminent jurists such as Waline. Vedel, Eisenmann. Liet-Venux and Mathiot (see Les Grands Arrets, supra, p. 396) nv.-'-i of whom have stressed; inter alia, that the matter complained of in that case was not within the province of the administration and. therefore, the Council of State should not have held that it had competence to ded with it. Also, Waline in his already referred to article in the "Revue du Droit Public et de la Science Politique"' criticizes as not correct the decision in the case of Falco et Vidailiac (supra) and refers to case-law o f the French Council o> State by means of which there had been established that the judicial control of the Council of State did not extend to any act the object of which was to ensure the proper functioning of the indicia! service. As the correctness of the decisions in Ike cases (if Prefet dc Guyane (supra) and Falco ct Vidailiac (<,upi\>) has been doubted very much indeed in France itself Τ do not think that ί could be influenced by them to the extent of deciding—contrary to the already referred to case-law here and in Greece, which established that a matter closely connected with the exercise of the i'ldici i! power is not within the jurisdiction of an administrative Court—that ibis Court possesses competence

Allele ί 46.1 to entertain the present recourse of i'ic applicant. Tt has been argued by counsel for the applicant that this Court should not deprive the applicant of a remedy by holding iiv.u it do^s not possess jurisdiction to entertain his recourse : In my opinion Article 146.1 cannot be construed in a manner inconsistent with it, nature even for the worth-while purpose of providing a judicial remedy in a ca^e in which There does η .4 : appear to exist any other remedy; such Arlicle has o be interpreted strictly (see Papaphilippou, supra, at ;;·. 64) and the ambit of the jurisdiction created thereby cannot be extended so as to avoid a legal vacuum 414 (see Kyriakides, supra, ai p. 73). Also, it would not be correct to enlarge the scope of the jurisdiction

Article 146

.1 merely because the respondent Supreme Council of Judicature has been established by a Law— (Law 33/64)—which is a measure resorted to in exceptional circumstances of necessity. Before concluding I would like to observe that even though an aggrieved judicial officer in the position of the present applicant does not possess a right of recourse

Article 146

.1, there exists, in a proper case, the possibility of having his complaint examined by the Supreme Council of Judicature, because the Council, like any other collective organ, has the right to review, if necessary, its own decisions. Though we do not yet have here, as elsewhere (for example, in Greece), statutory provisions regulating such a process of review—and, therefore, it is governed only by the relevant general principles of law—I do think that such process constitutes a mode of redress which is much more compatible with the dignity of judicial office than litigation concerning the merits of judicial officers. STAVRINIDES, J. : I have had the advantage of reading the judgment of the learned President and of discussing it with him. I concur and there is nothing that I wish to add. MALACHTOS, J. : I also agree with the judgment just delivered by the learned President of this Court. HADJIANASTASSIOU. J. : The Supreme Council of Judicature has been created for the first time in Cyprus as an independent collective organ, in accordance with the provisions of paragraph 1 of Article 157 of the Constitution of the Republic. Its competence, as well as its powers, have been determined

the aforesaid Article, as well as in accordance with ss. 8, 9

paragraph 3 relating to the retirement or dismissal of a judicial officer, such function is considered to be of a judicial nature, and the judge concerned shall be entitled to be heard and present his case before the Supreme Council of Judicature. Cp. paragraph 8 subparagraph 3 of Article 153 of the Constitution. Section 8 of Law 14/60 provides for the remuneration and other conditions of service of the judiciary; s. 9 deals with the oath to be taken by judges, both of the High Court and of the District Court before assuming the duties of their office, and s. 10 deals with the temporary appointments of judicial officers. It reads as follows :"If it appears to the Supreme Council of Judicature that it is expedient so to do owing to the incapacity or absence of a President of a District Court or of a District Judge, as the case may be, or in order to avoid delay in the administration of justice in a district, the Supreme Council of Judicature may appoint a person having the appropriate qualifications provided in section 6 to act as a President of a District Court or as a District Judge for that district for such time as may be specified in the instrument of appointment.

this section shall, whilst so acting, have all the powers and may perform all the duties of a President of a District Court or a District Judge, as the case may be.

this section may be allowed such remuneration not exceeding the 416 amount, or if on an incremental scale, the minimum point in the scale provided for that office." Aug. 8 ANTONIOS KOURRIS The facts which have given rise to this litigation are as follows:- V. The applicant joined the judicial service as a Magistrate THE SUPREME on November 1,

1. On September 6, 1971, the COUNCIL OF . η . . . . . · χ. «· · ι applicant, even before the publication in the official Gazette of the Republic dated October 1, 1971, addressed a joint letter (blue 6) to the President and members of both the Supreme Court and the Supreme Council of Judicature, complaining that four out of the five appoint­ ments made regarding temporary Presidents, were made in preference and instead of himself and should be considered as null and void. He further claimed that those appointments were made in contravention of s. 10 of the Courts of Justice Law,
2. In his long letter, after putting forward various reasons, and particularly his seniority and successful service in the judiciary, he concluded by requesting both organs of the state to review the matter and reach such appropriate decisions in the light of what he has stated in his letter. On September 7, in reply, (blue 8) Mr. Olympios, who signed as Chief Registrar, Secretary to the Supreme Council of Judicature, (hereinafter referred to as the Secretary) said, inter alia, (acting on instructions of the President of both organs) that his letter, in accordance with the established procedure of hierarchy ought to have been addressed through the President of the District Court. On September 9, the applicant in reply (blue 9) (through the President of the District Court of Nicosia), tried to point out his failure to follow the correct proce­ dure, adding that the reason being that there were no rules enabling a judicial officer to place before the Supreme Council of Judicature complaints or applications regarding the question of temporary appointments of judges in accordance with the provisions of s. 10 of the Courts of Justice Law,
3. On September 14, Mr. Olympios told the applicant (blue 10) that he was directed to inform him that the Supreme Court got to know of the contents of his letter 417 JUDICATURE _Hadjiana- stassiou. J . 1972 Aug. 8 ANTONIOS KOURRIS V. T H E SUPREME COUNCIL OF JUDICATURE Hadjianastassiou, J. dated September 9, 1971, adding that in view of the fact that the temporary appointments complained of were made by the Supreme Council of Judicature, the Supreme Court had no intention to deal with that subject unless it was referred to it by the Supreme Council of Judicature. On September 22, the Secretary wrote to the applicant (blue 11) in these terms :«Ένετάλην ύπό τοϋ Έντ. Προέδρου τοϋ Ανωτάτου Δικαστηρίου να αναφερθώ εις τό έγγραφον oac ημερ. 9 Σεπτεμβρίου, 1971, τό όποιον διεβιβάσθη μέσω τοϋ Προέδρου Επαρχιακών Δικαστηρίων Λευκωσίας—Κυρήνειας προς τό Ανώτατον Δικαστικόν Συμβούλιον, και νά παρακαλέσω όπως καθορίσητε μετά πάσης δυνατής σαφήνειας έκάστην των αποφάσεων τάς όποιας αΐτεϊσθε όπως τό Συμβούλιον λάβη κατά τυχόν έπανεζέτασιν τοϋ θέματος τό ό­ ποιον εγείρετε δια τοΰ εγγράφου σας. "Επίσης δέον νά εξειδικεύσατε έν σχέσει npoc έ­ κάστην αίτουμένην άπόφασιν τους λόγους διά τους οποίους αΐτεϊσθε τήν λήψιν της. Δέον νά προσθέσω ότι έκ τής μή περαιτέρω ανα­ φοράς εΐς τό περιεχόμενον τοϋ έγγραφου σας δέν εξυπακούεται (α) ή όρθότης τίνων των προβαλλο­ μένων έν αύτω ισχυρισμών, και (β) ότι ό τρόπος υποβολής τοϋ σχετικού παραπόνου σας είναι, κατά τά είωθότα τής δικαστικής υπηρεσίας, ό ενδε­ δειγμένος». And in English it reads as follows : ("I have been directed by His Honour the Presi­ dent of the Supreme Court to refer to your document. dated the 9th September 1971, which was forwarded through the President of the District Courts NicosiaKyrenia to the Supreme Council of Judicature and to request that you may specify with all possible clarity each one of the decisions which you apply that the Council may take in the event of re-exami­ nation of the matters raised in your document. You should also, in connection with every decision you apply to be taken, specify the grounds 418 upon which you request that such decision be taken. j I should add that by not referring further to the contents of your letter it is not implied (a) that certain of the allegations therein are correct and (b) that the manner your relevant complaint was submitted is the appropriate one in accordance with the etiquette (iothota) of the Judicial Service")· On September 27, the applicant in reply (blue 12 and 13) after dealing with the question raised

paragraphs (a), (b), (i) and (ii), concluded in paragraph 3 as follows :".... I respectfully apply that a meeting of the full members of the Supreme Council of Judicature would be convened for the purpose of dealing with my appli­ cation dated 6.9.71 and decide on the substance in accordance with the provisions of the Constitution and the relevant legislation." Then on October 9, the Secretary again wrote a long letter requesting certain particulars (blue 14 and 15), and it reads, inter alia, as follows :«Επειδή δέν είναι δυνατόν διά τ ό Ά ν ώ τ α τ ο ν Δικαστικόν Συμβούλιον νά έπιληφθή τού παραπόνου σας χωρίς νά γνώριμη επακριβώς τ ι αΐτεϊσθε καΐ διατί, παρακαλείσθε όπως προσπαθήσητε νά καταστήτ ε όοον τ ό δυνατόν σαφέστερος. Καλεϊσθε έν προκειμένω όπως, μεταξύ άλλων διασσφηνίσητε και τά ακόλουθα :Διατί ίσχυρίΖεσθε ότι τέσσαρες έκ των πέντε γε­ νομένων διορισμών Προσωρινών Προέδρων "Επαρχι­ ακών Δικαστηρίων 'φαίνεται ότι δέν καλύπτονται ύπό τών προνοιών τοϋ όρθρου 10 τοϋ περί Δικαστηρίων Νόμου τοϋ 1960" (έν περιπτώσει, βεβαίως, καθ' ήν ευσταθεί ή άποψις ότι οι τοιούτοι διορισμοί έ γ έ ν ο ν τ ο δυνάμε> τοϋ έν λόγω όρθρου)' και ποίοι ειδικώς εί­ ναι οι τέσσαρες έκ τών πέντε διορισθέντων Προέ­ δρων τών όποιων, κατά τόν ϊσχυρισμόν σας, 'δυνα­ τόν νά θεωρηθώσι άκυροι' οι διορισμοί ; Έκ τής παραγράφου 2 τοϋ ιδίου έγγραφου σας συνάγεται ότι παραπονεϊσθε και διά τους πέντε γενο­ μένους διορισμούς. Αΐτεϊσθε τήν άκύρωσιν όλων τούτων τών διορισμών ; 'Εάν ναί, παρακαλείσθε 419 1972 Aug. 8 ANTONIOS KOURRIS V. THE SUPREME COUNCIL OF JUDICATUPU Hadjianastassiou, J. 1972 Aug. 8 ANTONIOS KOURRIS V. T H E SUPREME COUNCIL OF JUDICATURE Hadjianastassiou, J. όπως ηαραθέσητε πλήρη στοιχεία διατί, δεδομένης οΰσης τής αρχαιότητος σας έν τη ύπηρεοίς, ΐαχυρίΖεσθε ότι έπρεπε νά διορισθήτε ύμεϊς βάσει επί­ σης άξιας, προσόντων κ.τ.λ. άντΐ ενός έκαστου έκ τών πέντε διορισθέντων. Διά νά δύναται νά μελετηθή τό πσράπονόν σας ύπό τοϋ Ανωτάτου Δικαστικού Συμβουλίου δέον νά ζητηθώσι πληροφορίαι περί τών όσων αναφέρετε εις τήν παράγραφον 3(γ) τοϋ έγγραφου οας. Διά τοϋτο παρακαλείσθε όπως μέ πληροφορήσητε ποίον ήτο τό έτερον μέλος τοϋ Πλήρους 'Επαρχιακού Δι­ καστηρίου Αμμοχώστου κατά " τά "ετη 1966—1968 δτε, ώς ίοχυρίέεσθε, ήτοιμάσατε άλας τάς αποφάσεις τοΰ έν λόγω Δικαστηρίου. Χρειάζεται δέ περαιτέρω όπως έχω δήλωσίν σας ότι εΐσθε σύμφωνος ότι τό περιεχόμενον τής έν λόγω παραγράφου θά άνακοινωθη ύπό τήν πλήρη εύθύνην σας, δι' οιασδήποτε τυχόν συνεπείας πάσης φύσεως, εις τό κατονομασθησόμενον ύφ' υμών μέ­ λος τοΰ Πλήρους Επαρχιακού Δικαστηρίου Αμμο­ χώστου ώς καΐ εις τόν κ. Χρ. Ίωαννίδην, τόν όποιον έχετε ήδη κατονομάσει εις τήν παράγραφον ταύτην έν σχέσει προς τήν σύνταΕιν τών αποφάσεων Πλή­ ρους 'Επαρχιακού Δικαστηρίου έν Λευκωσία διά μίαν διετίαν μετά τό 1968. Δέον νά σας κατατοπίσω σχετικώς ότι έχω έπί τοϋ παρόντος οδηγίας όπως μή θέσω ύπ' όψιν τοϋ κ. Ίωαννίδη τό περιεχόμενον τής ώς άνω παραγράφου 3(γ) πρίν ή ούτος ανάρρωση πλήρως έκ τής προσφά­ του ασθενείας του διά νά άποφευχθή, ώς έκ τής φύσεως τής ασθενείας, οιαδήποτε τυχόν δυσμενής διά τήν υγείαν του έπίπτωσις. "Αλλως, θά πρέπει νά Ζητηθή πρώτον ή συγκατάθεσις τών θεραπόντων ια­ τρών του και δέν κρίνεται έπιθυμητόν, ύπό τοϋ Έντ. Προέδρου τοϋ Ανωτάτου Δικαστικού Συμβουλίου όπως τά όσα αναφέρετε εις τήν έν λόγω παράγρα­ φον ηεριέλθωοιν εις γνώσιν προσώπων μή εχόντων σχέσιν προς τήν δικαστικήν ύπηρεσίαν' ιδίως δέ διότι πρόκειται περί μιας περικοπής τοΰ έγγραφου παρα­ πόνου σας ή οποία δυνατόν άργότερον νά θεωρηθή ύπό τοϋ Συμβουλίου ώς μή αποτελούσα κατά τά είω420 θότα τής δικαστικής υπηρεσίας ένδεδειγμένον τρό­ πον ενεργείας έκ μέρους σας. 1Θ72 Aug. 8 Ένετάλην περαιτέρω νά σας καλέσω όπως συμφώνως προς τήν καθιερωμένην τακτικήν άποοτέλλητε οιανδήποτε περαιτέρω 'έπιστολήν σας προς τό Άνώτατον Δικαστικόν Συμβούλιον μέσω τοϋ Προέ­ δρου τοϋ Έπαρχιακοϋ Δικαστηρίου όπου υπηρετείτε καΐ μέσω έμοΰ, ώς Γραμματέως τοϋ Συμβουλίου, καΐ όπως μή συνεχίσητε νά παραβαίνητε, ώς έπράτ· τατε μέχρι σήμερον, τήν τοιαύτην τακτικήν διά τής άπ' ευθείας διανομής αντιγράφων τών επιστολών σας προς μέλη τοϋ Συμβουλίου.» ANTONIOS KOURRIS ("As it is not possible for the Supreme Council of Judicature to consider your complaint without knowing exactly what you are applying for and why, you are requested to try to become as clear as possible. You are in this connection called upon to clarify, inter alia, and the following :Why are you alleging that four out of the five appointments of Acting Presidents District Courts 'appear not to be covered by the provisions of section 10 of the Courts of Justice Law I960* (in case, of course that the view that such appointments were made

the said section stands); and who in particular are the four out of the five appointed Presidents whose appointments according to your allegation may possibly be considered void? From para. 2 of your same document it is inferred that you are complaining against all the five appoint­ ments made. Are you applying for the annulment of all such appointments? If yes you are requested to set out full particulars as to why, accepting your seniority in the service, you are alleging that you should have been appointed on the basis also of merit, qualifications etc. instead of each one of the five ones appointed. In order that your complaint may be studied by the Supreme Council of Judicature information should be supplied regarding the contents of para. 3(c) of your document. You are thus requested to 421 V. THE SUPREML COUNCIL OF JUDICATURE Hadjianastassiou, J. 1972 Aug. 8 ANTONIOS KOURRIS V. T H E SUPREME COUNCIL OF JUDICATURE Hadjianastassiou, J. inform me who was the other member of the Full District Court of Famagusta during the years 1966— 1968, when according to your allegation, you have prepared all the judgments of the said Court. It is further required that I should have a statement from you to the effect that you are in agreement for the contents of the said paragraph to be communicated,

your full responsibility, in the event of consequences of any nature, to the member of the Full District Court of Famagusta to be named by you as well as to Mr. Chr. Ioannides whom you have alredy named in this paragraph in connection with the preparation of the Judgments of the Full District Court at Nicosia for a period of two years after the year 1968. I should let you know in this connection that I have at present instructions not to communicate the contents of the said paragraph 3(

1. c)to Mr. Ioannides before he recovers fully from his recent illness in order to avoid, in view of the nature of his illness, any unpleasant repercussions to his health. Otherwise, the consent of the doctors who are treating him should be sought and it is not considered desirable by the Hon. President of the Supreme Council of Judicature that what you have stated in the said paragraph should come to the knowledge of persons not connected with the Judicial Service; particularly because they refer to a passsage of your written complaint which later might possibly be considered by the Council as not constituting an appropriate mode of action by you in accordance with the etiquette (iothota) of the Judicial Service. I have further been directed to call upon you that in accordance with the established practice you should send any further letter of yours to the Supreme Council of Judicature through the President District Court where you are serving and through me as secretary of the Council and that you should discontinue acting contrary to such practice, as you have been doing till the present day by distributing copies of your letter directly to the members of the Council"). 422 On October 23, the legal adviser of the applicant, Mr. Josephides, wrote a long letter on behalf of his client, to the Supreme Council of Judicature (blue 16, 17and 18) and after dealing with both the question of the correct procedure and making a plea that the application of the applicant should be heard by the Supreme Council of Judicature, he concluded:"Judge Kourris has instructed meto express tothe Honourable President and Honourable members of the Supreme Council of Judicature his esteem and at the same time his regret that he had to raise such a subject. He had to do so because of the circumstances which have created for him a serious matter regarding his future judicial career, and after 12 years service during which not a single complaint was made to him by his superiors before those appointments." On November 6, the Secretary in reply to the said legal adviser had this to say:- (blue 19) "I have been instructed by the Hon. Chairman of the Supreme Council of Judicature to inform you— and through you your client His Honour District Judge A. Kourris, on whose instructions you have addressed to the Council and to me, respectively, two documents both dated the 23rd October, 1971— that, after careful consideration of the contents of the said documents, (
2. a)It is not intended for comment, in anyway, contents, and the time being to in relation to such (
3. b)it does not appear to be the appropriate course to convene a meeting of the Council before your client acts in response to the matters mentioned in my letters to him dated the 22nd September, 1971 and the 9th October, 1971. I am, however, to make it clear, regarding (
4. b)above, that any representations in support of the different view will be, of course, duly examined." There was further exchange of correspondence between 423 1972 Aug. 8 ANTONIOS KOURRIS V. THE SUPREME COUNCIL O f JUDICATURE Hadjianastassiou, J . 1972 Aug. 8 ANTONIOS KOURRIS V. THE SUPREME COUNCIL OF JUDlCATUPE Hadjianastassiou, J. the legal adviser of the applicant and the Secretary which went on until December 29, and the last letter (blue 28) reads, inter alia, as follows :«Δυστυχώς ό κ. Κούρρης δέν άπήντησεν ακόμη εις άλλα ερωτήματα περιεχόμενα εις τήν έπιστολήν μου ημερομηνίας 9ης Οκτωβρίου, 1971. Διά νά απάντηση εις αυτά, και καταστήση ούτω οαφές ποίας αποφάσεις ζητεϊ όπως ληφθώσιν ύπό τού Ανωτάτου Δικαστικού Συμβουλίου, δέν φαίνεται νά χρειάζεται γνώσις τών πρακτικών τών συνεδριών καΐ αποφάσεων τοϋ Άνω-· τάτου Δικαστικού Συμβουλίου έπϊ τοϋ θέματος τού­ του καΐ τών σχετικών επισήμων φακέλλων, ώς ίσχυρίΖεσθε εις τήν έπιστολήν σας- ημερομηνίας -23ηςΟκτωβρίου, 1971. Τουλάχιστον, έάν έχητε άντίθετον γνώμην, καθορίσατε έν σχέσει προς ποία έκ τών ερω­ τημάτων τούτων, και διατί, απαιτείται τοιαύτη γνώ­ σις, καΐ απαντήσατε εις Οσα δύνανται νά άπαντηθώσιν άνευ ταύτης (ώς π.χ. ποίον ήτο τό έτερον μέλος τοϋ Πλήρους Έπαρχιακοϋ Δικαστηρίου Αμμοχώστου περί τοϋ όποιου γίνεται λόγος εις τήν παράγραφον 3(γ) τοϋ εγγράφου ημερομηνίας 9ης Σεπτεμβρίου 1971). Ουδόλως υφίσταται ή ύφίστατο πρόθεσις όπως μή τεθη έν τέλει τό παράπονον τοΰ κ. Κούρρη ενώπιον τών μελών τοϋ Ανωτάτου Δικαστικού Συμβουλίου, προς τά όποϊα απεστάλησαν ήδη (ϊδετε και έπιστο­ λήν μου ημερομηνίας 14ης Δεκεμβρίου 1971) αντί­ γραφα ολοκλήρου τής σχετικής αλληλογραφίας'καΐ έκαοτον μέλος τοϋ Συμβουλίου δύναται νά έκφραση τάς απόψεις του. Άναφορικώς προς τήν τελευταίαν παράγραφον τής επιστολής σας ημερομηνίας 16ης Δεκεμβρίου, 1971 δέον νά τονισθή ότι έκ τοϋ γεγονότος τής μή κοινοποιήσεως αποφάσεως τοϋ 'Ανωτάτου Δικαστι­ κού Συμβουλίου πρό τής εκπνοής μονομερώς καθο­ ρισθείσης ύπό τοϋ αΐτητού προθεσμίας δέν δύναται νά έΕαχθη συμπέρασμα περί αρνήσεως τού Συμ­ βουλίου νά έπιληφθη αίτήσεως προς αυτό.» ("Unfortunately Mr. Kourris has not yet replied to other questions embodied in my letter of the 9th October 1971. In order to reply to such questions and thus make it clear which decisions he requests 424 to be taken by the Supreme Council of Judicature, it does not appear that he requires knowledge of the minutes of the meetings and decisions of the Supreme Council of Judicature on this subject as well as of the relevant official records as alleged in your letter of the 23rd October 1971.At least, if you hold a contrary view, specify in connection with which of such questions and why, such knowledge is required and reply to the ones that can be answered without such knowledge (as e.g. who was the other member of the Full District Court of Famagusta about whom reference is made in paragraph 3(c)of the document dated 9th September, 1971). There does not or did not exist an intention not to place the complaint of Mr. Kourris before the members of the Supreme Council of Judicature, to whom copies of the whole correspondence have already been circulated (see also my letter dated 14th December, 1971); and each member of the Council can express its views. Referring to the last paragraph of your letter dated 16th December 1971, it should be stressed that from the fact that no decision of the Supreme Council of Judicature was communicated prior to the expiration of a time limit set up by the applicant one sidedly no conclusion can be drawn that the Council has refused to deal with a petition before it".) From the contents of paragraph (
5. e)of the last letter it was made quite clear that the complaint of Judge Kourris would have been placed before the members of the Supreme Council of Judicature. However, it appears that nothing has been done about it, and on January 10, 1972, (noactual date appears in myownfile) the applicant, feeling aggrieved, filed the present recourse by his counsel, Mr. K. Talarides. In this recourse the applicant claimed (
6. a)that the decision of the Supreme Council of Judicature to appoint Messrs. Demetriades, Stavrinakis, Sawides, Loris and Stylianides as temporary Presidents of the District Courts, was null and void and of no effect whatsoever; and(
7. b)that the refusal or omission of the Supreme Council of Judicature to deal and decide speedily regarding the 425 1972 Aug. 8 ANTONIOS KOURRIS V. THE SUPREME COUNCIL OF JUDICATURE Hadjianastassiou, J 1972 Aug. 8 ANTONIOS KOURRIS V. THE SUPREME COUNCIL OF JUDICATURE Hadjianastassiou, J. written application and/or complaint of the applicant dated September 6, 1971, is null and void and of no effect whatsoever, and in the case of omission, declared that whatever has been omitted ought to have been made. On January, 11, however, the Chief Registrar of this Court wrote in Greek to counsel of the applicant in these terms :- (blue 29). «Περιήλθεν εις γνώσιν μου ότι χθες κατεχωρίσατε τήν προσφυγήν ύπ' άρ. 6/72 ενώπιον τοϋ 'Ανωτάτου Δικαστηρίου. 'Επειδή τήν 21ην Δεκεμβρίου, 1971, ότε εξεδόθη εις ύμας ετησία άδεια ασκήσεως τοϋ δι­ κηγορικού επαγγέλματος διά τό έτος 1972 δέν έγνώρι£ον ότι ή παραίτησίς σας έκ τής θέσεως τοϋ "Ανω­ τέρου Δικηγόρου τής Δημοκρατίας θά ίσχύση άπό τής 14ης Φεβρουαρίου, 1972, καΐ ότι θά εϊσθε έν τω μεταξύ έπ" αδεία, παρακαλώ όπως έχω εγγράφως τάς απόψεις σας έν προκειμένω.» ("It has come to my knowledge that yesterday you filed recourse No. 6/72 before the Supreme Court. Because on the 21st December 1971, when I issued to you the annual advocates licence to practise as an advocate for the year 1972, I did not know that your resignation from the post of Senior Counsel of the Republic would be effective from the 14th February, 1972, and that in the meantime you would be on leave, I would request you to let me have your views in writing in this connection".) On the same date the Registrar of the Court addressed to the same counsel a new letter (blue 30) which in Greek reads as follows :«Χθες, 10ην 'Ιανουαρίου, 1972, κατεχωρίσατε τήν προσφυγήν Ά ρ . 6/72, μεταξύ Α. Κούρρη και "Ανω­ τάτου Δικαστικού Συμβουλίου. Μετά τήν καταχώρισιν ταύτην, διεπίστωσα ότι έξακολουθήτε νά κατέχε­ τε (ευρισκόμενος έπ' άδεια) τήν θέσιν τοϋ 'Ανωτέ­ ρου Δικηγόρου τής Δημοκρατίας έκ τής όποιας θά άφυπηρετήσετε τήν 14ην Φεβρουαρίου, 1972. Προ­ κύπτει όθεν θέμα έάν, έ φ " όσον κέκτησθε τήν ώς άνω ιδιότητα, ήδύνασθο νά καταχωρίσετε εγκύρως τήν έν λόγω προσφυγήν. Πρό τής περαιτέρω εξετάσεως τοϋ τοιούτου θέ426 ματος, παρακαλώ όπως εχω εγγράφως καΐ τό ταχύτερον δυνατόν, τάς έν προκειμένω απόψεις σας. 1972 Aug. 8 Σημειώσατε ότι έν αναμονή τής απαντήσεως σας δέν δύναται νά ληφθή οιαδήποτε διαδικαστική ενέρ­ γεια (ώς π.χ. έπίδοσις κτλ.) έν σχέσει προς τήν είρημένην προσφυγήν.» ANTONIOS KOURRIS ("Yesterday the 10th January, 1972, you filed recourse No. 6/72 between A. Kourris and the Supreme Council of Judicature. After such filing I found out that you continue being the holder (by being on leave) of the post of Senior Counsel of the Republic from which you will be retiring on the 14th February, 1972. Therefore the question arisei whether, since you are holding such capacity, you could validly file the said recourse. Before examining further such matter, I would request you to let me have in writing the soonest possible your views in this connection. You are to note that awaiting your reply no procedural step can be taken (e.g. service etc.) in connection with the said recourse.") There was a further correspondence between counsel of the applicant and the Chief Registrar which went on until the 27th January, 1972. On the same date the Chief Registrar, after instructions from the Supreme Court, has written to the Attorney-General of the Republic asking for legal advice and requesting that the Bar Council of Cyprus should express its opinion regarding the filing of the present recourse by Mr. Talarides. On February 1, the Attorney-General in his reply to the Chief Registrar had this to say in Greek :«Τό διά τής επιστολής σας, ύπ' άρ. 67

take a case against the state of which he still continues to be an employee'.") On February 15, the Attorney-General addressed a new letter to the Chief Registrar, and in his reply had this to say in Greek :- (blue 42). «Εις περαιτέρω άπάντησιν τής ύπ' αριθμόν 67

take a case against the state of which he still continues to be an employee' the Supreme Court fixed the 25th April, 1972 at 10 a.m. to hear argument in this connection from you, the Attorney-General of the Republic, the Cyprus Bar Council and any other interested party who might wish to appear before theCourt represented by Counsel. Considering that in the course of such proceedings the Supreme Court will go into the validity of the filing of the recourse the Court, in the event of being called upon by any of the parties before it to consider also at this stage whether it is vested with jurisdiction

article 146of the constitution, in a recourse of this nature, might possibly hear argument on this matter as well, given that it had not resolved this issue in another case." It is to be observed that a copy of this letter was sent to the Supreme Council of Judicature, the Honourable Attorney-General of the Republic, the Bar Council of Cyprus, as well as to the five temporary Presidents. On April 25, 1972, as it appears from a document before me,Mr. L. Clerides, Chairman of the Bar Council, has been appointed to represent the Council in this recourse. The five temporary Presidents, decided, for 430 reasons appearing on this record, not to be represented by counsel because, as they put it in Greek :καθ' ότι τοιαύτη άντιπροσώπευσις θά έδημιούργει προβλήματα πιθανώς καθαπτόμενα τοϋ αμε­ ρόληπτου τής απονομής τής Δικαιοσύνης και θά κατέτεινε προς εμφανή εϋνοιαν μέλους ή μελών τίνων τοϋ Δικηγορικού Σώματος τά όπσϊα τυχόν ήθελον διορισθή ύφ' ημών, εις ύπόθεσιν φύσεως ώς ή παρού­ σα. Θά ήθέλαμεν δέ νά τονίσωμεν ότι άπαντες πιστεύομεν εις τήν ϊσότιμον μεταχείρισιν απάντων τών μελών τοϋ ευγενούς τούτου επαγγέλματος». (".... because such representation might create problems possibly offending against the impartial administration of justice and would have shown obvious favouratism to a member or members of the legal profession who would have been retained by us in a case of this nature. We would like to stress that we all believe in the equal treatment of all the members of this honourable profession.") Pausing here for a moment, I would like to share the observations made by the President of the Court in the course of the hearing regarding the statements of the five temporary Presidents. Their stand, to say the least, is not a realistic one, and it might give cause for misgivings, in a case where the right of every citizen to have a lawyer of his own choice, (which has been an accepted right for a long time), now seems to be challenged. I have felt that those observations were not only necessary, but justified in the circumstances, for a far more substantive reason, i.e. that those temporary appointments were made and will continue to be made by the new Supreme Council of Judicature (hereinafter referred to as the Council) which includes in its composition an advocate elected every 6 months amongst the advocates. It is therefore clear that an advocate will continue to play an important role for the appointment, promotion.... termi­ nation of appointment, dismissal and disciplinary matters of judicial officers, and no one so far thought fit ίο make any similar insinuation against any judge when the said advocate votes either for or against a judicial officer. I think, therefore, the less said the better it would have been for everyone who possibly might think 431 1972 Aug. 8 ANTONIOS KOURRIS V. THE SUPREME COUNCIL OF JUDICATURE Hadjianastassiou, J. 1972 Aug. 8 ANTONIOS KOURRIS V. THE SUPREME COUNCIL OF JUDICATURE Hadjianastassiou,

1. that such statements were directed or in any way affeclcd or intended to criticise his own right to choose his advocate to defend his case in a Court of law. I think I ought to reiterate from the very beginning that although two issues were originally raised in this recourse, firstly the validity of the decision of the Supreme Council of Judicature, and secondly an omission to review by the same organ its own decision, nevertheless, two more were added ex proprio motu, viz. the question whether counsel of the applicant was legally entitled to file this recourse; and whether this Court has jurisdiction to deal with this application.-- - - — The Court, after hearing full argument on a number of sittings on the two preliminary issues, reserved its decision on June 21,
2. Regarding the third issue, it is well-known that the profession of an advocate is regulated by law,and an advocate is required to have his name enrolled and to hold a practising certificate. It is already in evidence that although counsel for the applicant was on leave prior to his resignation, nevertheless, hehad been enrolled as an advocate and I take it that he was holding a practising certificate. As I said earlier, having heard counsel on this issue at length, I have agreed with the interim decision delivered on July 6, that the filing of this recourse was properly made by counsel on behalf of the applicant, for the reasons given in the judgment of the President. I find it constructive before I shall proceed to deal with the question of competence, to quote Article 146 of the Constitution. Paragraph 1 reads as follows :"The Supreme Constitutional Court shall have exclusive jurisdiction to adjudicate finally on a recourse made to it on a complaint that a decision, an act or omission of any organ, authority or person, exercising any executive or administrative authority is contrary to any of the provisions of this Constitution or of any law or is made in excess or in abuse of powers vested in such organ or authority or person." Pausing here for a moment, it should be observed, that though the said Article 146 can be invoked to 432 1972 review a decision, an act or omission in the domain only Aug. 8 of public and not of private law, nevertheless, legislative and judicial acts are not within the province of this Article ANTONIOS KOURRIS of the Constitution. I think I should have added that in Greece, the relevant provisions similar to those of our v. Article 146, are to be found in s. 47 of Law 3713/
3. THE SUPREME Since the enactment of the Administration of Justice (Miscellaneous Provisions) Law, 1964 (Law 33 of 1964), the powers and jurisdiction of both the Supreme Constitutional Court and the High Court of Justice have been conferred upon the Supreme Court, and as a result of such merger, no conflict of jurisdiction can arise in the future. I now turn to s. 10 of Law 33/64, which deals with the composition of the Supreme Council of Judicature, and subsections 1(a), (b), (c) and (d), read as follows :'The Supreme Council of Judicature for the exercise of the competence and the powers in respect of appointments, promotions, transfers, termination of appointments, dismissals and disciplinary matters of judicial officers shall be composed of :(a) the Attorney-General of the Republic; (b) the President and the two senior Judges of the Court; (c) the senior President of a District Court and the senior District Judge; and (d) a practising advocate of at least twelve years' practice elected at a general meeting, convened for the purpose, of the Cyprus Bar Association for a period of six months and not being eligible for re-election for the next five years." Then follow two provisos which are· in these terms :"Provided that in case of absence or temporary incapacity of the President or a Judge of the Court or of a President of the District Court, or the senior District Judge, the Judge or President of a District Court, or District Judge, as the case may be, next in seniority shall act as a member of the Council: Provided further that in case 433 of absence or COUNCIL OF JUDICATURE Hadjianastassiou, J. 1972 Aug. β ANTONIOS KOURRIS V. T H E SUPREME COUNCIL O F JUDICATURE Hadjianastassiou, J. temporary incapacity of the practising advocate provided by paragraph (d) of this subsection the practising advocate elected as an alternate member of the Council at the same meeting of the Bar Association shall act." Then subsection 2 provides as follows :"The Supreme Council of Judicature shall be deemed to be duly constituted during and notwith­ standing any vacancy in the office of any member thereof." Finally, subsection 4 provides :"The Supreme Council of Judicature may make rules regulating its own procedure.*' In some jurisdictions in other countries the Courts, in order to ascertain the intention of the instrument calling for interpretation, can look at the legislative history or the preparatory works. Both Mr. Talarides and Mr. Loucaides have invited the Court that in interpreting the relevant constitutional and legal provisions, it ought to be guided by the French and Greek decisions supported or criticized by eminent authors in both countries. Mr. Talarides, after pointing out the difference in the wording between theGreek legal relevant provision, i.e. of Law 3713, dealing with the competence and jurisdiction of the Greek Council of State, (i.e. administrative authority) and our own wording, both in Article 146 and s. 11 of Law 33/64, has forcibly and at length argued that the Supreme Court has jurisdiction to deal with this matter because in accordance with our own Article 146—contrary to what is in force both in France and in Greece regarding the competence of similar courts—the criterion as regards the nature of the act

attack by annulment is "ousiastikon" and not "typikon." Mr. Loucaides, on the contrary, after resisting the argument of Mr. Talarides, posed this question :- "If the formulation of Article 146 was specific and explicit regarding the adopted criterion by the constitutional drafter as to the nature of the acts complained of

annulment and not as to whether such criterion is 'typikon' or 'ousiastikon', then the acts of the Council would be amenable within the control of this Court and 434 there would be no need at all to examine or refer to what wasin force in France or in Greece". He went on to argue, however, that because Article 146 does not solve the problem specifically or explicitly, then in order to solve the question

consideration, (since the notion of the judicial control of the administrative acts is a creation of the European Jurisprudence and mainly of France) one should seek guidance from the French or Greek principles. 1 am indeed indebted to both counsel for such exhaustive and lengthy argument, though I feel that in the present case such argument prolonged the trial by extending the material of judicial scrutiny. For the moment, I have decided to approach the question of jurisdiction, being a question of construction, unaided by any such knowledge (i.e. knowledge of the constitutional provisions of both Greece and France) and to proceed to scrutinize the actual words of the legislation to be interpreted in the light of the established canons of interpretation. I believe it is the duty of this Court so to interpret a law of the House of Representatives as to give effect to its intention. The Court sometimes asks itself what the draftsman must have intended, and I admit that this is reasonable enough: the draftsman knows what is the intention of the legislative initiator. He knows what canons of construction the Courts will apply and will express himself in such a way as accordingly to give effect to the legislative intention. The House of Representatives, of course, in enacting legislation, assumes responsibility for the language of the draftsman. Accordingly, such canons of construction as that words in a non-technical statute will primarily be interpreted according to their ordinary meaning, or that a statute establishing a criminal offence will be expected to use plain and unequivocal language to delimit the ambit of the offence (i.e. that such a statute will be construed restrictive!y) are not only useful as part of that common code of juristic communication by which the draftsman signals legislative intention, but are also constitutionally salutary in helping to ensure that legislators are not left in doubt at to what they are taking responsibility for. In order to ascertain, therefore, the legislative intention, 435 1972 Aug. 8 ANTONIOS KOURRIS v. THE SUPREME COUNCIL OF JUDICATURE Hadjianastassiou, J. 1972 Aug. 8 ANTONIOS KOURRIS V. THE SUPREME COUNCTL OF JUDICATURE Hadjianastassiou, J. I have to examine most of the provisions of Law 33/64 in order to see what was the evil or defect which the legislator intended to remedy by enacting ss. 10 and 11 and also examine the other provisions of the law in question for the light which those provisions throw on the particular words which are the subject of interpretation. In this difficult task, I am indeed fortunate, because I can seek guidance from the three separate judicial pronouncements by this Court at to the intention of the legislature in enacting the law in question. It appears that because of the recent events in Cyprus, the legislature in enacting the said law, must have had in mind the principles of law of necessity as applied in other countries. I think the position is made very clear in the judgment of Triantafyiiides, J. (as he then was) in the AttorneyGeneral v. Mustafa Ibrahim and Others, 1964 C.L.R. 195 at pp. 236 and 237:"Law 33/64 is a legislative measure which without purporting to repeal any of the relevant provisions of the constitution, which have been rendered inoperative by supervening events, sets up the necessary judicial machinery for the continued administration of justice in cases where the machinery provided for

the constitution has either broken down indefinitely or is liable to break down from time to time; and it provides for the operation of such machinery through the same persons who had already been entrusted with the administration of justice by means of the machinery provided for in the constitution. Thus, the same Judges who were vested with the exercise of the jurisdictions of the two highest courts—and

Articles 153.9 and 133.9 the Judges of the Supreme Constitutional Court and of the High Court of Justice could act for each other in certain eventualities—were entrusted, as Judges of the Supreme Court, with the exercise of the jurisdictions of both such courts; the absence of neutral Presidents and the need for maximum efficiency in the difficult times in which they had to exercise their said jurisdictions made it all the more reasonable and necessary for them to be brought together in one Supreme Court. Likewise, by making it possible for District Judges, subject to 436 any direction of the Supreme Court, to try any case irrespective of the community of litigants, the administration of justice has been enabled to go on even if Turkish Judges from time to time are to absent themselves from the courts as in the past. Even if any of the provisions concerned ofLaw 33/64 were to be found to berepugnant to or inconsistent with anyprovision of theconstitution, I would again pronounce for their valid applicability, in view of the necessity which has arisen and the temporary nature of Law33/64, which hasbeen enacted to meet it, at a time when such necessity could nothave been met by operation of the relevant provisions of the constitution. In such a case necessity renders validly applicable what would otherwise be illegal and invalid." Later on Triantafyiiides, J. continued his judgment as follows at pp. 238 and239 :"In accordance with principles properly applicable to cases where the doctrine of necessity has been invoked it is for the judiciary to determine if the necessity in question actually exists and also if the measures taken were warranted thereby (vide inter alia,Decision of the Greek Council ofState 556/1945). It has already been found that a necessity existed and that Law 33/64 has been enacted to meet it. It has already been indicated that in my opinion the measures enacted, by means of the provisions concerned of such Law, were warranted by such necessity. The submission, therefore, to the contrary, made on behalf of respondents, cannot be upheld. It is useful in any case to bear in mind that the exercise of control in this sphere can only aim at ensuring that certain limits have not been exceeded and within such limits the Government has a discretion of its own as to the measures to be adopted, for the purpose of meeting an existing necessity. (Vide in this respect the 'Conclusions from the Jurisprudence of the Council of State' in Greece (1929—1959) at p.38)." I feel that onewould be inclined to pose this question: Doesn't this statement of law so lucidly presented 437 1972 Aug. 8 ANTONiOS KOURRIS V. THE SUPREME COUNCIL OF JUDICATURE Hadjianastassiou, J. 1972 Aug. 8 ANTONIOS KOURRIS V. ΓΗΕ SUPREME COUNCIL OF JUDICATURE Hadjianastassiou, J presuppose that the Supreme Court has jurisdiction at all times to determine whether the necessity in question actually exists in each case before it, and also whether the measures taken were warranted

the circum­ stances. I think that the answer should be in the affirma­ tive, because "the system of justice that has been set up

Law 33/64 apart from being necessary in the circumstances, is also more consonant with the notion of justice and its requirements than the one which has been provided for

the Constitution." Per Trianta­ fyiiides, J. in Ibrahim case (supra). Regarding the doctrine cf necessity, in exceptional circumstances, Josephides, J. had this to say at p. 265 :"The following prerequisites must be before this doctrine may become applicable : (

1. a)an imperative and inevitable exceptional circumstances; satisfied necessity or (
2. b)no other remedy to apply; (
3. c)the measure taken must the necessity; and be proportionate to (
4. d)it must be of a temporary character limited to the duration of the exceptional circumstances. A law thus enacted is subject to the control of this court to decide whether the aforesaid prerequisites are satisfied, i.e. whether there exists such a necessity and whether the measures taken were necessarv to meet it." Later on at p. 268 these terms :- he continued his judgment in "The question now arises : Did the legislature do what was absolutely necessary in the circumstances or did it exceed it? Considering the 'recent events' as stated in this judgment, and the provisions of sections 3

heading 'Constitution' (Articles 152 to 164) in this judgment). I would leave that question open as it is not necessary to decide it for the purposes of this case." Thus it appears that once the decision was taken by s. 10 of Law 33/64, this Court, I repeat, has jurisdiction to consider whether the enactment of s. 10 providing for a new composition of the Council was necessitated by the recent events even today, eight years afterwards, and whether the measure taken is still proportionate to the necessity, having regard to the provisions of Article 157 of the Constitution, which provides for the composition and competence of the Council, and particularly after the establishment of the present Supreme Court. But apart from these reasons, having gone carefully into all the provisions of Law 33/64, I have found neither clear words excluding or ousting the jurisdiction of this Court, nor the answer that a judicial officer has lost

the said law his inalienable rights to seek redress in the Supreme Court of the Republic, where the present Judges are entrusted with the competence and jurisdiction of the Supreme Constitutional Court and High Court. I further believe that it was the intention of the legislature, in enacting s. 10 (providing for a new composition of the Council) not to grant exclusive remedy to such collective organ when such organ was exercising administrative function within the meaning of s. 11 of the said lav*, and it does not bar a recourse. I think, therefore, that I can do no better than quote the words of Viscount Simonds 439 1972 Aug. 8 ANTONIOS KOURRIS V. THE SUPREME COUNCIL O F JUDICATURE Hadjianastassiou, J. 1972 Aug. 8 ANTONIOS KOURRIS V. THE SUPREME COUNCIL OF JUDICATURE Hadjianastassiou, J. which I would adopt and apply in this case. Viscount Simonds said in Pyx Granite Co. Ltd. v. Ministry of Housing and Local Government [I960] A.C. 260 at p. 286 :"It is a principle not by any means to be whittled down that the subject's recourse to Her Majesty's Courts for the determination of his rights is not to be excluded except by clear words. That is, as MCNAIR J., called it in Francis v. Yiewsley & West Drayton U.D.C. [1957] 1 All E.R. 825, a 'fundamental rule' from which I would not for my part sanction any departure. It must be asked then what is there in the Act of 1947 which bars such recourse. The answer is that there is nothing except the fact that the Act provides him with another remedy. Is it then an alternative or an exclusive remedy? There is nothing in the Act to suggest that, while a new remedy, perhaps cheap and expeditious, is given, the old and, as we like to call it, the inalienable remedy of Her Majesty's subjects to seek redress in her courts is taken away." Having shown clearly at the outset in this judgment that though the High Court shall be the Council, when the latter is exercising its exclusive competence (acting in a dual capacity) for the appointment etc., nevertheless, in the case of retirement or dismissal of a judicial officer, its function is of a judicial nature, (i.e. the Council is entrusted with judicial power)—as contrasted to the earlier function which remains administrative. Thus, in my view, the constitutional drafter in a clear and unequivocal language, expressed its intention that the act or decision of the Council in the case of dismissal or retirement of a judicial officer is clearly excluded from the jurisdiction of Article 146, because, I repeat, such decision would have been the result of the exercise of a judicial power. I think, I ought to add that, putin another way, judicial power is power limited by the obligation to act judicially. Administrative or executive power is not limited in that way. Judicial action or function requires asa minimum the observance of some rules of natural justice, and this is exactly why the constitutional drafter has distinguished 440 between promotions etc. and dismissal or retirement of a judicial officer. 1972 Aug. 8 This point is made even clearer, because regarding the appointment etc. of a judicial officer, as at present advised, (being as I said of an administrative nature) the Council in reaching its decision affords no opportunity to a judicial officer to present his views. ANTONIOS KOURRIS V. THE SUPREME COUNCIL OF JUDICATURE The next question which is posed is whether the Hadjianadecision of the Council if it was made

Article 157, stassiou, J in effecting promotions etc.

was amenable within the provisions of Article 146. Once I have found that its functions in effecting such promotions are of an administrative nature, I think the answer should definitely be in the affirmative. But for the following reasons, should be answered in the affirmative :(a) Because the Council was given

Article 157exclusive competence for appointment etc.

and by implication, therefore, any other remedy is excluded before another high judicial organ; and (b) Because the Supreme Constitutional Court is not • given competence to determine matters relating to the appointments promotions etc. of the judicial officer. Cp. Article 133.8(l)

the provisions of Article 90 of the Constitution regarding the composition of the Supreme Council of Judicature, a law should provide for such composition, nevertheless, such law cannot determine its composition in such a way as to alter the guarantees of independence of the Supreme Judicial Council. In fact, this was the position

the provisions of s. 23 of a compulsory Law 1055/1946,

which law a right was given to the Minister of Justice to appoint two out of the five members of the said Council. See also the well-known text-book of Prof. Sgouritsa

the title Constitutional Law,

the heading "Judicial Independence," at p. 436, et seq. In order to complete the picture in Greece, I must add that

the provisions of Article 90 paragraph 3 of the Constitution, the decisions of the Supreme Council of Judicature and of the full members of Arios Pagos, as well as the administrative acts of execution issued by them, cannot be challenged before the Council of State. This provision, according to Prof. Sgouritsas at p. 442of the same textbook, came to guarantee mainly the dignity of Arios Pagos. Because of the distinction between the position of a state attorney in Greece and an attorney in Cyprus, I should have added that in Greece, both an attorney and an assistant attorney are considered to be Judges. On the contrary, however, in this country, though an advocate is considered to be an officer of the Court, he cannot be considered as a Judge. Having shown what is the position in Greece and the differences existing there, I think I must show now what is the position in Cyprus with the new composition of the Council. One would therefore observe immediately (

1. a)that the High Court is no longer the Council, and in accordance with the provisions of s. 1Of0(
2. b)the President and the 44?. two senior judges of the Court are members of the said Council; (
3. b)in accordance with paragraph (
4. c)the Senior President of a District Court and the Senior District Judge, are two more members; (
5. c)one advocate, who though an officer of the Court cannot be considered as a judge; and (
6. d)that when this collective organ meets for the purpose of affecting appointments, promotions, etc. not only it does not afford a chance to a judicial officer to present his case, but on the contrary, as I am at present advised, their decision is not taken after a comprehensive reasoned opinion as provided in Greece. 1 leave aside, of course, for the moment the further reason, i.e. whether the substantive point prevailing in Greece whether the new composition of the Council, (not consisting only of Supreme Court Judges) provides sufficient guarantee of objective and unbiased opinion, particularly, since the provisions of s. 10 of Law 33/64 were intended to be of a temporary duration only. Regarding the further question as to which acts are considered in Greece to be administrative acts, in order to be challenged by the process of annulment before the Council of State, the position, with due respect, is admi­ rably explained in the well-known textbook of Stassinopoulos on the Law of Administrative Differences

section 9 shall, subject to sub­ sections

any law in force and any revisional jurisdiction, including jurisdiction on the adjudication of a recourse made against an act or omission of any organ, authority or person exercising executive or administrative authority as being contrary to the law in force or in excess or abuse of power, may be exercised subject to any Rules of Court, by such Judge or Judges as the Court shall determine." In comparing the wording of the Greek text of this section with the English translation, one would observe that the Greek wording is «οιουδήποτε οργάνου OOKOUVTOC έκτελεστικήν ή διοικητικήν λειτουργίαν» (and not exercising administrative authority) at the time of taking the specific act or decision etc. I would like to lay stress on those Greek words, because, as I said, there is a difference from the English text. This difference regarding the word "function" or not "authority" appears also in the Greek text when compared to the English in Article 146 of the Constitution. One would also observe that the wording of s. 11 is more or less identical with the said Article. Following, therefore, the canons of construction to which I have referred to earlier in this judgment, I am bound to construe the words οιουδήποτε οργάνου according to their ordinary meaning, that it means what it says in Greek, i.e. that the decision of every organ exercising executive or administrative function, and not authority. In the light of this construction, I am of the view that here the legislature intended to depart from the Greek position, and, therefore, once the decision of the Council comes within the provisions of s. 11—being of an administrative 444 function, without any qualification, such decision can be challenged by the applicant regarding its validity, and, is, therefore, amenable to the jurisdiction of this Court in its present composition. In my view, therefore, any other construction to the contrary, would clearly be contrary to the provisions of Article 157 and to the clear and unambiguous wording of s. 11 of the said law. I shall now proceed to deal with three cases, one from the Supreme Court of England and the other two from our own Supreme Court. In reS. (a barrister) [1969] 1 All E.R. 949, (a case dealing with the disciplinary powers exercised over barristers and with the visitorial jurisdiction of the Supreme Court Judges in England) it was decided that Judges of the Supreme Court have an inalienable overriding inherent jurisdiction to discipline members of the Bar; and that they possess the power to regulate the right» of audience of barristers. In my view, this decision stresses the all important factor of inherent jurisdiction of the Supreme Court Judges in the administration of justice

the common law system; and as it would appear, this very point, i.e. the inherent jurisdiction of our own Supreme Court, has been laid down in the two cases I shall now cite. In re CD. (an advocate)