← Κύπρος

clr/1978/1978_3_384.pdf

(1978) 1978 September 9 [TRIANTAFYLLIDES, P.] IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION COSTAS PLATIS, Applicant, v. THE REPUBLIC OF CYPRUS, THROUGH THE COUNCIL OF MINISTERS, Respondent. (Case

Article 146.6 5 of the

Constitution can onlybeclaimedafter annulmentof relevant decision and eventhoughthenotion oflegalremediesparalleltothat

Article 146

isexcluded by the contents of the said Article— Recourse abated—Doctrine of approbation and reprobation. The sole issue in this recourse was whether it has been abated 10 because of intervening developments. It was filed on March 17, 1973 and it was directed against the decision of the respondent Council of Ministers, taken on March 15, 1973, to terminate applicant's services as a member of the Cyprus Police Force. It was eventually adjourned sine die to await the outcome of 15 six other cases, which were heard by the Full Bench of the Supreme Court and judgment was reserved on March 1, 1974. Before the delivery of the reserved judgment in those cases there intervened the coup d' etat of July 15, 1974, which was followed on July 20, 1974, by the Turkish invasion of our Coun- 20 try. By a decision* taken on August 2, 1974, the then Council of * Quoted at p. 388post. 384 3 C.L.R. Platis v.Republic Ministers revoked both the decision challenged in this recourse and the decisions challenged in the said six recourses; and as a result the applicant was allowed to resume his duties. 5 10 15 20 25 30 OnApril4, 1975,Counselfor thepartiesinthosesixrecourses appeared before the Full Bench of this Court and submitted that because of the above decision of the Council of Ministers thoserecourses havebeen abated. Thereupon the Court struck out the said recourses as abated (see Andreou &Others v. The Republic

(1975)3 C.L.R. 108). On October 31, 1975there waspromulgated theCoupd' Etat (Special Provisions)Law,1975(Law57/75)by means of which it wasenacted*thatthecoupd' etat and the coup d* etat government had no lawful existence whatsoever and that any act of the coup d' etat government made in the purported exerciseof its powers or duties is unfounded and non existent. Following a direction** of the Court, made on April 13, 1976, that Counsel for the parties should give in writing full reasons"as regardswhythepresent recourseisnottobetreated, also, as abated, but should proceed to be determined", both counsel by their written and oral pleadings, that followed, agreed,eachonefor reasonsofhisown,that thisrecourseshould not be treated as having been abated***. Counsel for the respondent contended that the said decision of August 2, 1974,which wastaken by the Council of Ministers while it was presided over by the at the time President of the House of Representatives Mr. Glafkos Clerides, but while at the same time it was composed of the Ministers of the coup d' etat Government, has been invalidated by Law 57/75, and, therefore, the revocation, by virtue of such decision, of the termination of the servicesof theapplicant in this caseisdevoid of any effect whatsoever. Counsel for the applicant, on the other hand, contended that on August 2, 1974,there wasno longer in existence the Government which resulted from the coup d*etat of July 15,1974,in * See the relevant sections at pp. 392-93 post. · · See pp. 389-90 post. * · * Note: In spite of the aboveconsensus the Court proceeded to reach its own conclusions on the legal as well as the factual aspects of this case (see Dafnidesv. Republic, 1964 C.L.R. 180 at p. 185). 385 Platls v. Republic
(1978)the sense in which such Government is defined in Law 57/75, and, therefore, the revocation of the termination of the services of the applicant, that is the legal situation as it existed when the Andreou case was decided, has not been affected by the subsequent enactment of Law 57/75. 5 Held,
(1)that though it iscorrect that,normally, the applicant m order to become entitled to claim compensation

Article 146

.6, in respect of the termination of his services, he would have to secure first,

the said Article 146, the annulment of the relevant decision of the Council of Ministers dated March ' " 15, 1973 (see Kyriakides v. Republic, 1 R.S.C.C. 66 at p. 74); and that though the notion of legal remedies parallel to that

Articfe 146of the Constitution is excluded by the contents of the said Article as well as by other related provisions of the Constitution, so long as counsel for the applicant maintains 1* that the decision of the Council of Ministers revoking the termination of his services, which was taken on August 2, 1974. was validly reached and its effect and validity remain unaffected by the subsequent enactment of Law 57/75, it follows that he cannot contend, also, simultaneously that the present recourse 20 has not been abated because of the said decision as the applicant cannot be allowed to approbate and reprobate at one and the same time.

(2)That, thus, it is no longer possible, in this case, for the applicant to try to secure the annulment by this Court as an 25 administrative Court,

Article 146

of the Constitution, of the decision terminating his services, which decision, according to his own contention, ceased to be of any effect, ab initio, hi view of its alleged revocation on August 2, 1974; and that, accordingly, the only conclusion that can be reached, as a result 30 of the applicant's own contentions is that which was reached by the Full Bench of this Court in the Andreou case, namely that the present recourse has, also, been abated. Recourse abated. Cases referred t o : Andreou and Others v. The Republic,

(1975)3 C.L.R. 108; Dafnkles v. The Republic, 1964 C.L.R. 180 at p. 185; Liasi and Others v. The Attorney-General of the Republic and Another
(1975)3 C.L.R. 558 at p. 561; 386 35 3 C.L.R. Platis v.Republic Kyriakides v. The Republic, 1 R.S.C.C. 66 at p. 74; Ouzounian v. The Republic
(1966)3 C.L.R.
  1. Recourse. Recourse against the decision of the respondent to terminate 5 applicant's services as a member of the Cyprus Police Force. L. Papaphilippou, for the applicant. N. Charalambous, Counsel of the Republic, for the respondent. Cur. adv. vult. 10 TRIANTAFYLLIDES P. read the following judgment. The applicant in this recourse challenges the decision, taken on March 15, 1973, by the respondent Council of Ministers, to terminate his services as a member of the Cyprus Police Force. The issue which I have to deal with, at the present stage of 15 the proceedings, is whether this recourse has been abated because of intervening developments; and, in this respect, this case has been heard by me together with cases 431/71, 432/71, 80/73, 81/73, 299/73, 304/73, 305/73, 308/73-322/73, 324/73335/73, 337/73, 350/73, 389/73, 391/73-393/73, 395/73 and 20 396/73, which are all cases of the same nature and in relation to which there has arisen the same issue. The history of the proceedings in the present case is as follows: The recourse was filed on March 17, 1973, and after the 25 Opposition had been filed on June 14, 1973, the case was fixed for directions on September 12, 1973, when it was "adjourned sine die to await the outcome of cases 73/73, 74/73, 97/73 and 180/73." The said four cases were heard together with two other 30 similar cases (303/73 and 437/73) by the Full Bench of the Supreme Court and judgment was reserved on March 1,
  2. It is to be noted that counsel who appears for the applicant in the present case appeared for the applicants in cases 73/73 and 303/73, above, whereas counsel who appears now for the 35 respondent did not appear for the respondent in any one of the aforementioned six cases. 387 TriantafyOides P. Platis τ. Republic
(1978)Before the delivery of the reserved judgment in those six cases there intervened the horrid coup d' etat of July 15, 1974, which was followed, on July 20, 1974, by the Turkish invasion of our country; and, eventually, the reserved judgment in the six cases in question was not delivered, but they were struck out as abated (see Andreou and others v. The Republic,
(1975)3 C.L.R. 108). On that occasion the following were stated, on April 4, 1975, by the Full Bench of the Supreme Court:"In these six cases, which were heard together, judgment was reserved on the 1st March,
  1. Subsequently, on the 2nd August, 1974, there was published in the Fourth Supplement to the Official Ga2ette (Not. 66) a decision of the Council of Ministers revoking, inter alia, the deci­ sions challenged in these proceedings. The said decision of the Council reads as follows: 5 10 15 1 Άνάκλησις 'Αποφάσεων Υπουργικού Συμβουλίου 8Γ ών έτερματίσθησανσι υπηρεσίαι Δημοσίων Υπαλλήλων, Εκπαιδευτικών, 'Αστυνομικών καΐ Δεσμοφυλάκων. 'Απόφαση ΰπ' Άρ. 13.
  2. Το Συμβούλιον άπεφάσισεν όπως δλαι σί αποφάσεις αϊ 20 περιγραφόμενοι εϊςτόνΠίνακαάνακληθώσιάπότηςημε­ ρομηνίας καθ'ην αύται ελήφθησαν καιθεωρηθώσινάπό της έν λόγω ημερομηνίας ως άκυροι και ώς μήυφιστάμε­ νοι παντός όπερ έγένετο δυνάμει των ρηθεισών αποφά­ σεων θεωρουμένου ώς μή γενομένου και παντός όπερ 25 παρελείφθη νά γίνη ένεκεν των ρηθεισών αποφάσεων διαταττομένου όπως γίνη." ('Revocation of Decisions of the Council of Ministers by means of which there were terminated the services of Public Officers, Educationalists, Policemen and Prison-Warders. 30 Decision No. 13.
  3. The Council decided to revoke all the decisions described in the Schedule as from the date on which they were taken and they should be regarded as from 35 the said date as null and non-existent and everything done by virtue of the said decisions should be regarded as not having been done and it is ordered that there 388 3 C.L.R. Platis v. Republic TriaotafyUides P. should be done whatever was omitted to be done because of the said decisions'.) 5 10 Counsel on both sides have submitted that because of the above decision of the Council these recourses have been abated; they argued that this was the inevitable con­ clusion in view of the wording and effect of such decision; in this respect reference was made, inter alia, to Tsatsos on Recourse for Annulment to the Council of State (θ. Τσάτσου— Ή Αίτησις 'Ακυρώσεως 'Ενώπιον τού Συμβουλίου της Επικρατείας) 3rd ed., pp. 370-
  4. In the light of what counsel have submitted we agree that their common view as to the outcome of these cases is correct; so, the reserved judgment will not be-delivered and the cases are hereby struck out as abated." 15 Then, on February 9, 1976, the Chief Registrar requested counsel for the present applicant to inform him, within one month, of the course he intended to take in relation to this case, which stood adjourned sine die, and counsel for the appli­ cant applied, on February 17, 1976, that it should be fixed for 20 hearing. On April 13, 1976, I made the following order:" Whereas the present case was adjourned sine die pending the outcome of case 73/73, 25 and whereas the said case was treated as having been abated, and was struck out accordingly, in Andreou and Others v. The Republic,
(1975)3 C.L.R. 108, and whereas, nevertheless, counsel for the applicant in the present case has applied that it should be fixed for hearing, 30 35 it is hereby directed (a) that counsel for the applicant should file in writing (with copy to counsel for the respondent), within three weeks from today, full reasons as regards why the present recourse is not to be treated, also, as abated, but should proceed to be deter­ mined, 389 Triantafyllldea P. Platls τ. Republic
(1978)(b) that counsel for the respondent should reply in writing on the above issue within three weeks thereafter." After the above order had been complied with, I heard, also, oral arguments from counsel on January 15, 1977, and my decision as regards the fate of this case was reserved until today. 5 It is to be noted that, both by their written and oral pleadings, counsel for the applicant and the respondent agreed, each one for reasons of his own, that this recourse, as well as the other 10 aforementioned recourses which were heard by me together with it as regards the abatement issue, should not be treated as having been abated. I should stress, in this respect, that I am not bound by this consensus, because, sitting as a Judge of an administrative Court, I have—without, of course, overlooking 15 what has been stated by counsel for the parties—to reach my own conclusions on the legal, as well as the factual aspects, of a case such as the present one (see, inter alia, Dafnidesv.The Republic, 1964 C.L.R. 180, 185 and Liasi and Others v. The Attorney-General of the Republicand Another,
(1975)3 C.L.R. 20 558, 561). It is useful to refer, next, to certain relevant developments before and after the above quoted pronouncement of the Full Bench of this Court in the Andreou case, supra: The applicant was allowed to resume his duties in the Police 25 Force as a result of the decision of the Council of Ministers (No. 13.421) which was taken on August 2, 1974, and the text of which has already been quoted in the passage reproduced above from the judgment in the Andreou case. Then, on May 15, 1975, the Council of Ministers took the following decision (No. 13.996): 30 " Έν σχέσει με τάς υποβληθείσας απαιτήσειςέκ μέρους απο­ λυθέντων αξιωματικώνκαι μελών της 'Αστυνομικής Δυνάμεως Κύπρου και δημοσίων υπαλλήλων διά λόγους δημοσίουσυμ­ φέροντος διά τήν προς αυτούςπληρωμήντων μισθών, οΐτινες 35 καλύπτουν τήν περίοδον καθ' f\v οΰτοι δέν έχουν έργασθη, τό Συμβούλιον άπεφάσισεν ότι, έν όψει τοΰ γεγονότος ότι ή έπαναπρόσληψις τούτων έγένετο ώς πρσίις καλήςθελήσεως καΐ εντός τοΰ κλίματοςτης πολιτικήςένότητοςτοΰ Κυπριακού 390 3 C.L.R. 5 10 15 20 25 30 35 40 Platts v. Republic TriantafyUides P. λαού, δέν δύναται νά άποδεχθη τάς τοιαύταςαπαιτήσεις. Συναφώς διηυκρινίσθηδτι ή Κυβέρνησιςήκολούθησε τήν Ιδίαν τακτικήν καΐ είς τήν περίπτωσινάλλων μελών τής 'Αστυνομι­ κής Δυνάμεως,οίτινες έπαναπροσελήφθησαν πρό της 15.7.
  1. Τό γεγονός της έπαναπροσλήψεως τών διά λόγους δημοσίου συμφέροντος απολυθέντων αποτελείπρα£ιν έπιεικίαςκαι χαριστικήν ένέργειαν, καΐ ούδεμίαν ύποχρέωσιν δύναται νά επι­ βολή είς τήν Κυβέρνησαν διά τήν πληρωμήν τών ΰποβληθεισών απαιτήσεων. Περαιτέρωή Κυβέρνησις,λαμβάνουσα ύπ' όψινόλαςτάςσυνθήκαςέκαστηςπεριπτώσεως, δένδύναταινά άποδεχθη αίτησινδιά πληρωμήν μέρουςτών τοιούτων απαι­ τήσεων, έστω καΐ χαριστικώς, διότι ή σημερινή τραγωδία της Κύπρουκαΐ τά προκύψαντα οίκονομικάπροβλήματα καΐ αϊ άνάγκαι τών χιλιάδωνεκτοπισθέντωνδένεπιτρέπουν οίανδήποτε περαιτέρω χαριστικήν ένέργειαν προς αυτούς." ("As regards the claims for their emoluments, during the period when they were not carrying out their duties, which were submitted on the part of officers and members of the Cyprus Police Force and of public officers who had been dismissed on grounds of public interest, the Council decided that, in view of the fact that their re-employment was a gesture of goodwill made in a spirit of political unity of the people of Cyprus, it cannot accept those claims. It was clarified in this connection that Government had followed the same practice in, also, the cases of other members of the Police Force who were re-employed before 15.7.
  2. There-employment of those dismissed on grounds of public interest constitutes an act of leniency and an ex gratia course of action, and it cannot create any duty on the Part of the Government to meet the claims which were submitted. Furthermore the Government, taking into consideration all the circumstances of each case, ' cannot accept the request for part payment of such claims, even ex gratia, because the present tragedy of Cyprus and the financial problems which have ensued, and the needs of the thousands of displaced persons,'do not permit any further ex gratia action towards the claimants.") Later on, on October 31, 1975, there was promulgated the Coup d* Etat (Special Provisions) Law, 1975 (Law 57/75), which reads as follows:391 TriantafyUides P. Platis ?, Republic
(1978)" Αριθμός 57 τοΰ
  1. Η ΒΟΥΛΗ ΤΩΝ ΑΝΤΙΠΡΟΣΩΠΩΝ "Εχουσα υ π ' όψιν ότι το πραξικόπημα της 15ης Ιουλίου, 1974 καϊ ή έξ αύτοΰ προελθοΰσα πραξικοπηματική κυβέρνησις δέν είχε συνταγματικήυ καϊ νόμιμον τήν προέλευσιν καϊ επί ούδενός λαϊκού ερείσματος έατηρίζετο δι* δ καϊ κατέρρευσε. 5 ΨΗΦΙΖΕΙ ΩΣ ΑΚΟΛΟΥΘΩΣ
  2. Ό παρών Νόμος θα άναφέρηται ώς ό περί τοΰ Πρα­ ξικοπήματος (Είδικα'ι Διατάξεις) Νόμος τοΰ
  4. 'Εν TC5 παρόντι Νόμω, έκτος έάν έκ τοΰ κειμένου προκύπτη διάφορος έννοια - 10 'πραξικόπημα' σημαίνει το κατά τήν 15ην Ιου­ λίου, 1974, διαπραχθέν πραξικόπημα κατά τοΰ Προέδρου της Δημοκρατίας 'Αρχιεπισκόπου Μα­ καρίου καϊ της Κυβερνήσεως Αΰτοϋ και διά τοΰ 15 οποίου προσωρινώς ανετράπη ή συνταγματική τάξις' 'πραξικοπηματική κυβέρνησις' σημαίνει τόν κα­ τ ά τ ο πραξικόπημα άναλαβόντα άντισυνταγματικώς καϊ παρανόμως τό λειτούργημα τοΰ Προέ- 20 δρου της Δημοκρατίας ώς καϊ τους ύ π ' αΰτοϋ αντισυνταγματικούς καϊ παρανόμως διορισθέντος Υπουργούς και τόν Ύφυπουργάν καϊ περιλαμ­ βάνει πάν μέλος αύτης' 'πράΕις' περιλαμβάνει πάσαν νομοθετικής ή διοικητικής φύσεως πραξιν ή άπόφασιν,
  5. Τό πραξικόπημα καϊ ή πραξικοπηματική κυβέρνησις οΰδει.ιίαν νόμιμον ΰπόστασιν έκέκτηντο.
  6. Πράξις της πραξικοπηματικής κυβερνήσεως γενομένη ύ π ' αυτής κατ' έπίκλησιν εξουσιών ή καθηκόντων αυτής είναι ανυπόστατος και ανύπαρκτος." 25 30 ( " N o . 57 of
  7. T H E HOUSE O F REPRESENTATIVES Having in mind that the coup d' etat of July 15, 1974, and the coup d* etat government which resulted from it. 35 had no constitutional and legal oricin and were not based on any popular support and have consequently collapsed. 392 3 C.L.R. PlatLs τ. Repoblic Triantafyllidts P. VOTES AS FOLLOWS
  8. This Law may be cited as the Coup d* Etat (Special Provisions) Law,
  10. In this Law, unless the context otherwise requires - 5 'coup d' etat'means the coupd' etat carried out on July 15, 1974, against the President of the Republic Archbishop Makarios and His Government, by means of which the constitutional order was temporarily upset; 10 'coup d'etat government' means theperson who during the coup d' etat assumed unconstitutionally and illegally the office of the President of the Re­ public, as well as the Ministers and the

Secretary who were unconstitutionally and illegally appointed by him, and includes every member of it; 15 'act' includes every act or decision of a legisla­ tive or administrative nature. 20

  1. The coup d' etat and the coup d' etat government had no lawful existence whatsoever.
  2. Any act of the coup d' etat government made in the purported exercise of its powers or duties is unfounded and non-existent.") The effect of Law 57/75 has been examined in the Liasi case, supra, where it was held that such Law had invalidated the termination of the services of the applicants in that case as special constables, since it was effected by a Divisional Com­ mander of Police appointed by the Chief of Police who was appointed by the coup d' etat Government in the place of the 30 person lawfully holding such office. 25 35 My learned brother A. LoizouJ.,who delivered the judgment in the Liasi case, supra, did not have to deal in that case directly with the issue of whether the Council of Ministers composed till August 8, 1974, of those who had been appointed as Ministers of the coup d' etat Government, but presided over, as from July 23, 1974, by Mr. Glafkos Clerides, the at the time President of the House of Representatives, who had assumed the duties of President of the Republic in view of the absence 393 Triantafyllides P. Platis γ. Republic

(1978)from Cyprus of the late President of the Republic Archbishop Makarios, did come, because of the participation in it of the Ministers of the coup d' etat Government,within the definition of the coup d' etat Government in Law 57/
  1. In the present case counsel for the respondent has alleged 5 that the aforementioned decision of the Council of Ministers, No. 13.421, on August 2, 1974, which was taken by the Council of Ministers while it was presided over by Mr. Glafkos Clerides, but while at the same time it was composed of the Ministers of the coup d' etat Government,has been invalidated by Law 57/75, 10 and, therefore, the revocation, by virtue of such decision, of the termination of the services of the applicant in this case is devoid of any effect whatsoever; on the other hand, counsel for the applicant has argued that on August 2, 1974, there was no longer in existence the Government which resulted from the 15 coup d' etat of July 15,1974, in the sense in which suchGovern­ ment is defined in Law 57/75, and, therefore, the revocation of the termination of the services of the applicant, that is the legal situation as it existed when the Andreou case, supra, was decided, has not been affected by the subsequent enactment of 20 Law 57/
  2. It is correct that, normally, the applicant in order to become entitled to claim, by an action before a civil Court, compensa­ tion from the Republic,

paragraph 6 of Article 146 of the Constitution, in respect of the termination of his services, 25 he would have to secure first,

the said Article 146, the annulment of the relevant decision of the Council of Ministers dated March 15, 1973, as he could not have sued directly, in this connection,

Article 172of the Constitution (see, inter alia, Kyriakides v.

The Republic, 1 R.S.C.C. 66, 74). As 30 was already pointed out by this Court on earlier occasions, the notion of legal remedies parallel to that

Article 146

of the Constitution is excluded by the contents of the said Ar­ ticle, as well as by other related provisions of our Constitution (see, inter alia, the Kyriakides case, supra, 74 and Ouzounian 35 v. The Republic,

(1966)3 C.L.R. 553). So long, however, as counsel for the applicant maintains that the decision of the Council of Ministers revoking the ter­ mination of his services, which was taken on August 2, 1974, was validly reached and its effect and validity remain una- 40 fleeted by the subsequent enactment of Law 57/75, it follows 394 3 C.L.R. Platis v.Republic Triantafyllides P. that he cannot contend, also, simultaneously that the present recourse has not been abated because of the said decision; the applicant cannot be allowed to approbate and reprobate at one and the same time. 5 Thus, in my view, it is no longer possible, in the present case, for the applicant to try to secure the annulment by this Court as an administrative court,

Article 146

, of the decision terminating his services, which decision, according to his own contention, ceased to be of any effect, ab initio, in 10 view of its alleged revocation on August 2, 1974; relying, as he does, on his contention that the said decision of August 2, 1974, was, and is still, a valid one, he may sue directly in a civil court claiming compensation for the allegedly subsequently revoked ab initio termination of his services; and then, 15 in the relevant civil proceedings there would arise, most probably, the need to decide, for the purpose of such proceedings, the questions of the validity of the decision of the Council of Ministers dated August 2, 1974, and of the effect on its validity of the provisions of Law 57/75. 20 I should, also, stress that the subject matter of the present recourse is only the decision of the Council of Ministers of March 15, 1973, to terminate the servises of the applicant, and neither the aforesaid decision of the Council of Ministers of August 2, 1974, nor its later decision of May 15, 1975, can, 25 in any way, be treated as being sub judice in the present case; and, the latter decision is already the subject matter of other recourses pending before the Supreme Court (Nos. 129/75 to 136/75 and 143/75 to 146/75), in which judgment has by now been reserved by another Judge of the Court and nothing cont30 ained in thisjudgment of mine should be taken as, in any way, amounting, directly or indirectly, to a pronouncement as regards the validity of such decision. In the light of all the foregoing, I think that the only conclusion that I can reach, as a result of the applicant's own content35 ions in this case, isthat which was reached by the Full Bench of this Court in the Andreou case, supra, namely that the present recourse has, also, been abated. 40 I do not propose to make any order as to the costs of this case. Recourse abated. No order as to costs. 395

🔗 Στην επίσημη πηγή

AI explanation based on the official legal text. Indicative, not a substitute for legal advice.