clr/1977/1977_3_165.pdf

(1)that though a person who, expressly or impliedly, accepts an act or decision of the administration, is deprived, •because of such acceptance, of a legitimate interest entitling him to make an administrative recourse for the annulment of such act or decision in order that the acceptance of an admini­ strative act or decision should deprive someone of the right to challenge it by an administrative recourse for annulment such acceptance should take place unreservedly and freely and not because of fear of adverse consequences otherwise.

(2)That though the applicant was discharged and left for Athens on the strength of the sub fudice decisions and that neither when he first came to know of them, nor at any time later, even after he had left Cyprus did he, in any way, re­ serve his rights in respect of them and only filed this recourse on January 17, 1977, in the light of the facts of the case (see p. 1-69 post) and .the above principles of Law, this Court is in serious doubt whether or not the applicant has accepted the said decisions freely and without fear of adverse consequences for him in respect of his university studies in case he did not agree to leave the ranks of the NationalGuard on the strength of a temporary discharge and to travel to Athens by using a certificate of identity; and that, therefore, it cannot be held that, in the circumstances, he has behaved in such a way as ίο divest himself of a legitimate interest entitling himself to make this recourse, which has to proceed to be determined on its merits. Order accordingly. Cases referred to: Piperis v. Republic

(1967)3 CJLR. 295 at p. 298; 166 loannou and Others v. Republic

(1968)3 C.L.R. 146 at p. 153; Markou v. Republic

(1968)3C.L.R. 267 at p. 276; Pericleous v. Republic

(1971)3 C.L.R. 141 at pp. 145, 146; Republic v. Pericleous

(1972)3 C.L.R. 63; Case Nos. 1341/1966 and 2087/1970 of .the Greek Council of State. Recourse. Recourse against the decision of the respondents as a result of which appUcant was granted only a temporary discharge from the National Guard and wasissued witha "certificate of identity" for thepurpose of a single return journey to Greece, instead of being allowed to travel by using his passport. A. Anastassiades with A. Myrianthis,for the appUcant. A. Frangos, Senior Counsel of the RepubUc, for the respondents. Cur.adv. vult. The foUowing interim decision was deuvered by:TRIANTAFYLLIDES,P.:By thepresent recourse theappUcant complains, in effect, against decisions of the respondent Minister of Interior and Defence (respondent 2) as a result of which the appUcant wasgranted only atemporary discharge from the National Guard, on December 1, 1976 (see exhibitA) and wasissued with a "certificate of identity" on December 2, 1976 (see exhibitC),for the purpose of a single return journey to Greece, instead of being aUowed to travel by using his passport as citizens of Cyprus normaUy travel, being thus free to visit practically allcountriesof theworld. Furthermore, the appUcant complains against a decision of the respondent CouncU of Ministers (respondent 1), No. 15243, taken on September 16, 1976, by means of which there were caUed up for service as reservists in the National Guard, immediately after the completion of the normal period of their service envisaged by the relevant legislation, those—(including the appUcant)—who belong tothe 1974B'/E2E0.class ofconscripts. 167 1977: June 30 SPYROS A. -. MYRIANTHIS v. REPUBLIC (COUNCIL OF MINISTERS AND ANOTHER) 1977 June 30 SPYROS A. MYRIANTHIS v. * REPUBLIC (COUNCIL OF MINISTERS AND ANOTHER) At the beginning of the hearing of this recourse there arose the issue of whether the appUcant is entitled,in view of the provisions of Article 146.2 of the Constitution, to make this recourse, in respect, in particular, of the afore­ mentioned decisions of respondent 2, because, aUegedly, he has accepted the said decisions and acted on the strength of them. It is well estabUshed, by now, in the administrative law of Cyprus, on the basis of relevant principles which have been expounded in Greece in relation to a legislativepro­ vision there (section 48 of Law 3713/1928) which cor­ responds to our Article 146.2 above, that a person, who, expressly or impUedly, accepts an act or decision of the administration, is deprived, because of such acceptance, of a legitimate interest entitUng him to make an administrative recourse for the annulmentof such act or decision (see, inter alia, Πορίσματα Νομολογίας τοϋ Συμβουλίου της 'Επικρατείας, 1929-1959, pp. 260-261, Piperis v. The Re­ public,

(1967)3 C.L.R. 295, 298, loannou and others v. The Republic,

(1968)3 C.L.R. 146, 153, Markou v. The Republic,

(1968)3 C.L.R. 267, 276 and Pericleous v. The Republic,

(1971)3 C.L.R. 141, 145, 146). It is quite clear that in order that the acceptance of an administrative act or decision should deprive someone of the right to challenge it by an adrriiriistrative recourse for annulment such acceptanceshould take place unreservedly and freely and not because of fear of adverse consequen­ ces otherwise (see, Πορίσματα, supra, p. 261, Κυριακοπού­ λου ΈλληνικόνΔιοικητικόνΔίκαιον, 4th ed., vol. C,p. 124, and the Pericleous case, supra—and it may be pointed out, at this stage, that though the in the first instance de­ cision in the Pericleous case was reversed on appeal in The Republic v. Pericleous,

(1972)3 C.L.R. 63, there was not disapproved of, on appeal, that part of the first in­ stance decision which is relevant for the purposes of this Interim Decision). It is quite useful to refer, too, to two relevant decisions of the CouncU of State in Greece: In case 1341/1966 it was stressed that for the assent to an administrative act or decision to be such as to deprive the person concerned of the right to make a recourse against it, it must be express­ ed clearly and distincdy and by unambiguous conduct 168 10 15 20 25 from which it is to be necessarily inferred that it was in­ tended to assent to the administrative act or decision in question; and from the decision in case 2087/1970 it is to be derived that there must be cogent proof of such 5 assent. It has been strenuously contended on behalf of theap­ pUcant thathehas never accepted,expressly orimpUedly, the complained of decisions of respondent 2, and that, even assuming that he has done so at any stage, his ac10 ceptance was not given unreservedly and freely, but out of fear of adverse consequences for himincasehehadnot actedonthestrengthof thesaid two decisions. The above contention of the appUcant was refuted by counsel for the respondents; and, as there was consider15 able disagreement concerning relevant factual aspects of the matter, evidence was adduced both by way of affida­ vits andviva voce. It is useful, at this stage, to refer to the following saUent facts:20 While the appUcant was serving as a conscript in the National Guardhefiled, onNovember 5, 1976, arecourse (No. 265/76, see exhibit D), by means of which hechal­ lenged the refusal of the Council of Ministers and of the Minister of Interior and Defence to discharge him from 25 theranks of theNational Guard.I neednotrefer to aU the matters which were raised in those proceedings; but, it is relevant to point out that oneof themwas that the appli­ cant had already been enroUed as a student of Law at Athens University and that he was the victim of unequal 30 treatment because otherconscripts of his class had already been discharged for the purpose of proceeding abroad in connection with studies at various foreign universities, Thatrecourseof theappUcantwas being heardtogether with other recourses of a similar nature, by other appli35 cants; the record of the Court for theproceedings on No­ vember 17, 1976, reads as foUows:"Κος Α. Μυριάνθης διατοναΐτοΰντα. ΚοςΝ. ΧαραλάμπουςδιατήνΔημοκρατίαν. 169 1977 June 30 SPYROS Α. MYRIANTHIS v. REPUBLIC (COUNCIL OF MINISTERS AND ANOTHER) 1977 June 30 SPYROS A. MYRIANTHIS v. REPUBLIC (COUNCIL OF MINISTERS AND ANOTHER) Κος Χαραλάμπους: "Εχω έξουσιοδοτηθη υπό τοϋ "Γπουργοΰ Εσωτερικών και 'Αμύνης να δηλώσω δτι συμφώνως νεωτέρας αποφάσεως θα γίνουν αίαναγκαί­ οι διευθετήσεις και θα ληφθούν άπαντα τααπαιτούμενα προς τοΰτο μέτρα ώστε άπαντες οί εθνοφρουροί οΐτινες έγένοντο δεκτοί εις πανεπιστήμια ή εις ισοτίμους άνωτάτας σχολάς οιωνδήποτε χωρών προς παρακολούθησιν πανεπιστημιακών σπουδών άπολυθώσιν άνευ δρων κατά την 30ην Νοεμβρίου

1. Κος Μυριάνθης: Ή δήλωσις τον κ. Χαραλάμπους αποτελεί ούχι νέαν άπόφασινάλλα συνέχισιν της αυθαι­ ρεσίας και παρανομίας, αΐτινες θα τερματισθούν εις την περίπτωσιν τοϋ αιτούντος την 30ην Νοεμβρίου
2. Θά ήθελα να μού δοθή χρόνος νά συζητήσω με τόν 'Τπουργόν Εσωτερικών έάν δύνανται νά γίνουν είδικαί διευθετήσεις διατον πελάτην μου λόγω ειδικών περιστά­ σεων. 10 15 Κος Χαραλάμπους: 'Επιφυλάσσομαι νά απαντήσω άργότερον ε'ιςτην δήλωσιν τοϋκ.Μυριάνθη. Δικαστήριον: Ή προσφυγή αναβάλλεται διά μνείαν τήν 20ην Νοεμβρίου 1976 (9 π.μ.)". ("Mr. Α. Myrianthis for the appUcant. Mr. Ν. Charalambous for the Republic. Mr. Charalambous: I was authorized by the Mini­ ster of Interior and Defence to state that, according 25 to a new decision, all necessary arrangements will be made and all the required in this respect measures will be taken so that all conscripts, who have been admitted by universities or other equivalent highest schools of any countries for university studies, will be 30 discharged, without conditions, on November 30,
3. Mr. Myrianthis: The statement of Mr. Chara­ lambous does not constitute a new decision but a continuation of the arbitrariness and illegality which 35 will be terminated, in the case of the applicant, on November 30,
4. I would like to be given time to discuss with the 170 20 Minister of Interior whether special arrangements could be made for my client because of special circumstances. Mr. Charalambous: I reserve my right to reply laterontothestatementof Mr.Myrianthis. Court:The recourse is adjourned for mention to November 20, 1976 (9 a.m.)"). 10 15 Such recourse was withdrawn on November 20, 1976; therelevant Courtrecordreadsasfollows:"Mr.A.Myrianthisfor appUcant. Mr.N.Charalambous for respondents. Mr. Charalambous: I confirm that the appUcant is one of those to be discharged on November 30,
5. Mr. Myrianthis states that, in the circumstances, heseeksleavetowithdraw thiscase. Court: Case dismissed as withdrawn with appUcant being at liberty to have it reinstated in case he isnotdischarged asstatedabove". 20 Asaresultof theabovedevelopments the appUcantwas given a temporary discharge onDecember 1, 1976,in the form of exhibit A, and a few days later he traveUed to Greece on the strength of a certificate of identity,exhibit C. 25 The temporary discharge was given to the appUcantby theMinister of Interior and Defence in theexerciseof his powers under section 9

(1)of the National Guard Law, 1964(Law 20/64), as amended, interalia, by theNational Guard (Amendment) Law, 1965 (Law 26/65); such 30 powershavingbeendelegatedtotheMinisterbytheCouncil of Ministers. It is not in dispute that the appUcant wasin a hurry to be discharged from the ranks of the National Guard and to leave Cyprus in order to go to Athens wherehehad to 35 continue hisuniversity studies;and, actuaUy,hehad tosit for his next examinations in January 1977 (seehis affidavitdatedMay 17,1977). 171 1977 lune 30 SPYROS A. MYRIANTHIS v. REPUBLIC (COUNCIL OF MINISTERS AND ANOTHER) 1977 June 30 SPYROS A. MYRIANTHIS v. REPUBLIC (COUNCIL OF MINISTERS AND ANOTHER) In the temporary discharge (exhibitA) there were set out anumber of conditions, oneof which wasthat theapplicant, either at the conclusion of his studies or in case he comes to Cyprus during the summer holidays, has to servein the ranks of theNational Guard in order to com- 5 plete what is regarded, by respondent 2, as the remainder oftheperiod ofhismiUtaryservice. It is correct that the appUcant was discharged and left for Athens onthestrength ofexhibitsA andC,above,and that neither when he first came to be in possession of * 10 them, nor at any timelater, even after hehad left Cyprus, did he, in any way, reserve his rights in respect of them; nor did helodgeanyprotestin relation to them.He,only, filedthe present recourse on January 17, 1977, bymeans of which he seeks, among other things, the annulment of 15 exhibits A and C, because he contends that he was entitled to a final discharge and to the use of his passport forpurposes of travelling. In the Ught of aU the foregoing facts, and applying thereto the relevant principles of law to which I have al- 20 ready referred earUer in this Decision, I am in serious doubt, to say the least, whether or not the appUcant has assented to exhibitsA and C freely, and without fear of adverse consequences for him in respect of his university stuties in case he did not agree to leave the ranks of the 25 National Guard on the strength of a temporary discharge (exhibitA) and to travel to Athens by using a certificate of identity (exhibitC);therefore, I cannot hold that,inthe circumstances, hehas behaved in such a way as to divest himself of a legitimate interest entitling him to make the 30 present recourse, which, consequently, has now to proceed tobedetermined onitsmerits. Order accordingly. 172