clr/1977/1977_3_52.pdf

(3)(c) of the National Guard Law, 1964 (Law 20/64)—Reasoning therefor not clear—Said decisionnot duly reasoned and, therefore, not in compliance with the relevant principle of Administrative Law requiringdue reasoning—Moreover, way in which said reasoning hasbeenframedpartlyerroneous andpartly obscure leadsto conclusion that therehas beena wrongapplication of theLaw to thefactsof thiscase—Sub judice decision annulled duetovagueanddefectivereasoning. National Guard—Exemption from military service—Section4

(3)(c) of the NationalGuard Law, 1964—Whether a person already servingin the National Guard can be exemptedtherefrom in the exercise of powers undersection4

(4)of theLaw —In any event matter could be dealt with unders. 9A of the Law. National Guard Law, 1964 (Law 20/64)—Exemption from Military Service—On the ground that applicant a citizen of the Republic permanently residingoutside Cyprus—Section4

(3)(c)of the Law—How to resolveissuewhetherornot a person liableto militaryservice should be exempted under thissection. NationalGuard—Voluntary enlistment—Section 12 of the National Guard Law, 1964 (Law 20/64)—Enlistment in theNational Guard because of informationthat failureto do so woulden- 52 5 ' 10 15 20 25 30 35 tail consequences—Not a caseof voluntaryenlistment in the senseof thesaidsection 12. 1977 Febr. 26 Words and Phrases—"Permanently residing outside" Cyprus—In section4

(3)(c) of theNationalGuardLaw, 1964. ALKIS DIOMEDOU SOTERIADES v. REPUBLIC (MINISTER OF INTERIOR) The applicant in this recourse challenged the refusal of the respondent Minister to exempt him from service in the National Guard on the ground that he was a citizen of the Republic who was permanently residing outside Cyprus within the meaning of section 4

(3)(c)* of the National Guard Law, 1964 (Law 20/64). After the Turkish invasion the applicant left Cyprus with 'his family on October 10, 1974 and went to Greece where his mother, the sole supporter of the family found an employment. He came back to Cyprus on July 10, 1976 and when he was informed that he had to enlist in the National Guard because otherwise proceedings would be taken against him for having failed to do so, he enlisted on July 13, 1976. He then filed a recourse claiming that his enlistment should be set aside and whilst the recourse was pending his counsel wrote to the respondent Minister asking him to discharge the applicant from the National Guard. The Minister referred the matter to the Committee provided for under s. 9A of Law 20/64 which reported that in the present instance "there is no emigration abroad, either in view of the facts or because he has moved to Greece" and added that for these reasons the applicant was not residing permanently abroad, but even if he could be deemed to be so residing he was not entitled to be discharged becausehehasenlisted voluntarily. Held,

(1)that this is not a case of voluntary enlistment in the senseof section 12of Law 20/64 as it isquite clear, and not really disputed, that the applicant enlisted because he was informed that hehad todoso.

(2)On the contentionof counselfor the respondenttothe effect that since the applicant,at the time of the sub judice decision,was already servingin the NationalGuard he could not be exempted therefromin the exerciseof the powersundersubsection

(4)ofsection 4 ofLaw 20/64: » That the said subsection 4 does not have to be construed *Quoted at pp. 55-56 post. 53 1977 Febr.26 ALKIS DIOMEDOU SOTERIADES v, REPUBLIC (MINISTER OF INTERIOR) as restrictively as suggested by counsel for respondent and that its ambit is wide enough to cover a case such as that of the applicant; and that, in any event, the respondent Minister had amplepowers to deal with the case of the applicant, if he were satisfied that he was entitled to be discharged from the ranks of the National Guard, by virtue of the provisions of s. 9A*of Law 20/64. <3) On the questionwhetherthe Committeeproperly treated applicantas not being permanentlyresiding in GreecehecauseGreece does not acceptimmigrants for settlement there: That the application to the faots of every particular caseof the provisions of section 4

(3)(c) of Law 20/64 cannot depend on the policy or legislation of any particular country; that whether or not a person liable to military service should be exempted, under the said section 4

(3)(c), because he is permanently residing outside Cyprus, is a matter to be resolved here, in Cyprus, in the light of the particular circumstances of each individual case, and by giving to the expression "permanently residing outside Cyprus" its appropriate meamng in accordance with the law of Cyprus, which, in this respect, is more or less the same as the law in England; and •that, therefore, useful reference can be made to the case In re Gape,Deed.Vereyand anotherv. Gapeand others [1952] Ch. 743, 749, where it was pointed out that permanently residing in a country is another way of saying*-that one has in such a countryhis permanent home.

(4)That the rest of the reasoning contained in the report of the Committee is obscure and does leave any informed reader of it in real and substantial doubt, because it appears therefrom that the applicant was found not to have emigrated abroad in view of the "facts"—which are not specified in the report of the Committee:—or because he has gone to Greece, in particular, and not to any other country; that this is,indeed, a case where the principle regarding the need for clarity of reasoning, as expounded in Constantinidesv. The Republic

(1967)3 C.L.R. 7, applies, with the result that the subjudice decision should be found not to be duly reasoned and, therefore, not in compliance with the relevant principle of administrative law requiring due reasoning; that, moreover, the way in which the reasoning of the sub fudice decision has been *Quoted atp. 57 past. 54 5 framed in the present case, partly erroneous and partly obscure, leads to the conclusion that there has been a wrong application of the relevant legislative provisions to the particular facts of this case; and that, accordingly, the subjudice decision must be annulled. Subjudicedecision annulled. Cases referred to: Constantinides v. TheRepublic

(1967)3C.L.R. 7; 10 In re Gape, Deed. Verey and Another v. Gape and Others [1952] Ch.743 at p.749. Recourse. Recourse against the refusal of the respondent to exempt applicant from service in the National Guard on the ground that hewas a citizen of the Republic whowas 15 permanently residingoutsideCyprus. L. N. Clerides, for theapplicant. R. Gavrielides, Counsel of the Republic, for therespondent. Cur.adv. vult. 20 25 The following judgment wasdeliveredby:TRIANTAFYLLIDES, P.: By this recourse the applicant challenges the refusal of the respondent Minister of Interior to exempt himfrom servicein theNational Guard on theground that heis a citizen of the Republic who ispermanently residingoutsideCyprus. The sub judice decision was communicated to counsel for the applicant byletter dated September 24, 1976 (see exhibit 1); it was stated in such letter that the applicant wasnotpermanentlyresiding abroad. 30 The relevant legislative provision is section 4

(3)(c)of theNational Guard Law, 1964 (Law 20/64),which reads as follows:"

(3)There shall be exempted from the liability under subsection

(1)- 35 55 1977 Febr. 26 ALKIS DIOMEDOU SOTERIADES v. REPUBLIC (MINISTER OF INTERIOR) 1977 Febr. 26 ALKIS DIOMEDOU SOTERIADES v. REPUBLIC (MINISTER OF INTERIOR) (c) citizensof theRepublicpermanently residing outside Cyprus; Subsection

(1)of section 4 of Law 20/64 makes provision about theliability for serviceintheNational Guard, which, in the said Law, isdescribed as the "Force". 5 Subsection

(4)of section 4 of Law 20/64 was added by means of section 2 of the National Guard (Amendment) (No. 2) Law, 1966 (Law 14/66), and it reads as follows:- 10 "

(4)The Minister decides on every matter arising in connection with the exemption under subsection

(3)ofpersonsliabletoserve. For this purpose the Minister sets up an advisory committee consisting of members appointed by him, 15 under the chairmanship of a person with legal education, who is nominated by the Minister, in order to ascertain the truefacts of each caseand submit to him the outcome of the inquiry conducted by the committee". 20 The Minister referred to in subsection

(4)above, as well as everywhere else in Law 20/64, in relation to the application of such Law, is the respondent Minister of Interior. It is convenient, at this stage, to deal with the conten- 30 tion of counsel for the respondent to the effect that since the applicant, at the time of the sub judice decision, was already serving in the National Guard, he could not be exempted therefrom in the exercise of the powers under subsection

(4)of section 4 of Law 20/64. I am of the 35 view that the said subsection

(4)does not have to be construed as restrictively as suggested by counsel for respondent, and that its ambit is wide enough to cover a case such as that of the present applicant; in any event, however, the respondent Minister had ample powers to 40 deal with the case of the applicant, if he were satisfied that hewas entitled to bedischarged from theranks of the National Guard, becausesection 9Aof Law 20/64,which 56 was added by means of section 7 of the National Guard (Amendment) Law, 1965 (Law 26/65), reads asfollows:"9A. The Minister may, if satisfied that a serviceman has enlisted in the Force or serves therein contrary to the provisions of this Law or of the Regulations made thereunder or of decisions issued by the Council of Ministers, order his immediate release". The facts of the present case are set out in the Application and the Opposition and they have been verified by affidavits filed in the course of theproceedings by theapplicant and by his uncle, Procopis Philippou (sworn on November 30 and December 2, 1976, respectively); such facts are,briefly, asfollows: The applicant was born in Famagusta on April 10, 1958;his father died in 1972, and his mother became the sole supporter of the applicant and his elder brother who isnowstudying at AthensUniversity. After the Turkish invasion the family had to move, as refugees, from Famagusta to Nicosia, where the mother had found employment, but as she was in danger of loosing her employment she went to Athens on October 10, 1974, where she had found new employment, and she took with her both her sons, one of whom was the applicant; in relation to this trip the Ministry of Interior grantedthenecessaryexitpermits. The applicant became a pupil of secondary education in Athens and hegraduated from the Athens Ninth Gymnasium onJuly

1. The applicant had to come back to Cyprus in order to secure a certificate regarding the matter of his liability for service in the National Guard in Cyprus, as such certificate was, apparently, required by the Greek Immigration Authorities;he, also,had to cometo Cyprus in order to take part in the entrance examinations held in Cyprus for Cypriote who wanted to study shipbuilding in Greece. As a result, he cameback to Cyprus on July 10, 1976, and he was told by his aforementioned uncle, Philippou, that the Ministry of Interior had informed him that the applicant had to enlist in the National Guard, because 57 1977 Febr. 26 ALKIS DIOMEDOU SOTERIADES v. REPUBLIC (MINISTER OF INTERIOR) 1977 Febr. 26 ALKIS DIOMED0U SOTERIADES v. REPUBLIC (MINISTER OF INTERIOR) otherwise proceedings would be taken against him for having failed todoso;consequently,theapplicant enlisted on July 13,
2. The applicant then filed recourse No. 190/76, in this Court, claiming that his enlistment should be set aside as he is not bound to serve in the National Guard in view of the fact that he is permanently residing abroad. While such recourse was pending counsel for theappli­ cant wrote to the respondent Minister of Interior, on August 25, 1976 (see exhibit 4), explaining the position and asking him to discharge the applicant from the ranks of theNational Guard. Apparently, the respondent treated this case as one coming within his powers under section 9A of Law 20/64 and referred the matter to the Committee provided for 15 thereunder. The report made by the Committee to the Minister is dated August 27, 1976 (see exhibit 5);it is stated therein that in thepresent instancethereis no emigration abroad, either in view of the "facts" or because he has moved "to 20 Greece" ("είτε έπι τη βάσει των γεγονότων είτε λόγωτοϋ οτι ή μετακίνησιςείναι εις Ελλάδα"); it is added that for these reasons the applicant is not residing permanently abroad, but even if he could be deemed to be so residing he is not entitled to be discharged because hehas enlisted 25 voluntarily. There is a note on the report of the Committee,which appears to have been madeby theMinister, to the effect that he shares theview of theCommitteeand thattheap­ plicant should notbedischarged. It is reasonable and proper, therefore, to treat the said report of the Committee as providing the reasoning for the sub judice decision, which was communicated, as aforesaid, to applicant's counsel on September 24,
3. In the first place, I do not agree with the view of the 30 Committee thattheapplicanthas enlisted voluntarily; this is not a case of voluntary enlistment, in the sense of sec­ tion 12 of Law 20/64; and it is quiteclear, and not really 58 35 disputed, that the applicant enlisted because he was informed thathehadtodoso. Secondly, the rest of the reasoning contained in thereport of the Committee is obscure and does leave any informed reader of it in real and substantial doubt, because it appears therefrom that the applicant was found not to have emigrated abroad in view of the "facts"—which are not specified in the report of the Committee—or because hehas goneto Greece,in particular, and not to anyother country; this is,indeed, a casewheretheprinciple regarding the need for clarity of reasoning, as expounded in Constantinides v. The Republic,

(1967)3 C.L.R. 7, applies, with the result that the sub judice decision should be found not to be duly reasoned and, therefore, not in compliance with the relevant principle of administrative law requiring due reasoning. Moreover, the way in which the reasoning of the sub judicedecision has been framed in the present case, partly erroneous and partly obscure, leads to theconclusion that there has been a wrong application of the relevant legislative provisions to the particular facts of thiscase. It hasbeen stated, in the course of argument, by counsel for the respondent, that the Committee treated the applicant as not being permanently residing in Greece, because Greece does not accept immigrants for settlement there. In my view, the application to the facts of every particular caseof theprovisionsof section4

(3)(c)ofLaw 20/64 cannot depend on the policy or legislation of any particular country; whether or not a person liable to military service should be exempted, under the said section 4

(3)(c), because he is permanently residing outsideCyprus, is a matter to beresolved here,in Cyprus,in thelight of the particular circumstances of each individual case, and by giving to the expression "permanently residing outside Cyprus" its appropriate meaning in accordance with the law of Cyprus, which, in this respect, is more or less the same as the law in England; therefore, useful reference can be made to the caseIn reGape,Deed. Verey and anotherv. Gape and others, [1952] Ch. 743, 749, 40 where it was pointed out that permanently residing in a country is another way of saying that one has in such a country hispermanent home. For all theforegoing reasons, I find that the sub judice 59 1977 Fetor. 26 ALKIS DIOMEDOU SOTERIADES v. REPUBLIC (MINISTER OF INTERIOR) 1977 Febr. 26 ALKIS DI0MED0U SOTERIADES v. REPUBLIC (MINISTER OF INTERIOR) decision should be annulled due to vague and defective reasoning; it is now up to the respondent Minister to reconsider the matter and reach a new decision by applying correctly the relevant legislative provisions to the facts of the present case; and, of course, solong ashe does so,he isnot to consider himself bound, by anything contained in this judgment, to find that the applicant is permanently residing in Greece, because in this judgment all I had to do was to decide whether the reasoning, as given for the sub judice decision, was correct and sufficient, and I did not have to decide the issue of where the applicant was residing permanently at the time of his enlistment; that was something I was not entitled to do, because I cannot substitute my own evaluation of the facts in the place of that of the appropriate administrative authority. This recourse has succeeded, but, in my opinion, it is not a proper case, in view of its rather peculiar circumstances, in which I should award costs against therespondent. Sub judicedecision annulled. No orderastocosts. 60