(1979)1979 September 12 [MALACHTOS, J.] IN THEMATTER O FARTICLE 146 OFTHE CONSTITUTION CHARALAMBOS ASPRI, Applicant, v. THE REPUBLIC OF CYPRUS, THROUGH THE MINISTER O F INTERIOR, Respondent. (Case No. 54/79). Time—Within which to file a recourse—Artcle 146.3 of the Constitu tion—Knowledge of the act from publication or commu nication starts the time limit—Form of communication—When is knowledge complete—A person suffering damage from an act should apply for any clarification without delay and in 5 any case he has to file a recourse within the time limit provided by the above Article—Recourse against decision refusing exempption from military service—Withdrawal of recourse uponunder taking to re-examine the matter on production of new medical certificate concerning health of applicant's father—New certificate 10 issue:! and supplied to respondent—New decision refusing exemp tion andletter to applicant's counselinforming himof suchdecision : —Su .l new decision based on new inquiry as a result of the new medical certificate—Applicant not asking for any clarification and not filing a recourse, within the prescribed time limit, upon 15 receiving the said letter—Time limit within which applicant could file a recourse started to runfrom time of receipt of the said letter • because it sup tiled to himfull knowledge of the consequences of the decision o) the respondent Minister—Recourse out of time because it was /.^t filed within 75 daysfrom the receipt of this 20 letter. When the age οΓthe applicant was called up for conscription in theNational Gm rd inJanuary, 1977heapplied totherespon dent Authority under section 4 of the National Guard Laws for exemption from service alleging that he was thesupporter of his 490 25 .3 C.L.R. 5 10 15 20 25 30 Aspri τ. Republic .family which consisted of his sick father, his mother and his three unmarried sisters. The respondent turned down his application andas a result hefileda recourse which was later withdrawn onthe undertaking of the respondent to re-examine hisapplication after the production of a new medical certificate concerning the condition of his father's health. The fatherwas examined onthe24th January, 1978anda relevant certificate was issued tohim. This certificate was delivered by thefather to the District Officer.Larnaca who forwarded it,together with hisreport,tS theAdvisory Committee,setupunder section 4
(4)of the NationalGuardLaws, on the 25thJanuary, 1978. There followed anexamination of applicant's case by the Committee which reported* tothe respondent Minister that onthebasisof the facts before itthe applicant had not more than threedependants. The Minister then examined the case andfollowing the viewsoftheAdvisory Committee rejected applicant'sapplication for exemption. As a result a letter** dated 25th April, 1978 wasaddressed to applicant's counsel informing him of the rejection. On the4th November, 1978 applicant's counsel addressed a letter*** to to respondent andasked to be informed, inter alia, whether a re-examination of his client's case hastaken place onthe basis of the undertaking by counsel for therespondent in thewith drawn recourse and whether the matter has been put once again "before theAdvisory Committeein accordance with section4
(4)of the National Guard Laws. Respondent replied,byletter**** dated 28th November, 1978, that the case hasbeen re-examined on thebasisofthe undertaking and thatthematterwas putonce again before theAdvisory Committee. Hence this recourse. Counsel for therespondent raised theissue that the recourse wasfiledoutoftime, contrary toArticle 146.3*****oftheCons titution,andthispointwas heardfirstas a preliminary legal issue. * Thereport is quoted at pp.494-95 post. ** Theletter is quoted at p.495post. *** See the letter at pp. 495-96 post. **** Quoted at p. 496 post. ***** Article 146.3 provides as follows: " Such a recourse shall be made within seventy-five days of the date when thedecision oractwas published or,if not published and inthe case of an omission, when it came to the knowledge of the person making the recourse". 491 Aspri τ. Republic
(1979)In resolving this issue the question that arose was whetherthe letter dated 25th April, 1978, supplied to the applicant full knowledge oftheconsequences ofthedecision oftherespondent. Held,
(1)that individual administrative acts should be com' municated to theinterested persons, even in cases where the 5 communication is not imposed bylaw,since asfiom this com munication starts thetime limit of the recourse forannulment; that itis not required forthe communicationtobeeffected in a sensational form butin a simple administrative notice properly proved; and that this may begiven either to the applicant orto 10 his duly authorised advocate (seeConclusions from CaseLaw of the Greek Council of State 1929 to 1959 page 252).
(2)That knowledge from the publication orcommunication starts the time limit if and only forthat part that itiscomplete; that complete is the knowledge that allows the interested person 15 to find out for sure and with precision thefinancialor moral damage which he suffers by thepublication orcommunication of the act; that in order that the knowledge should becomplete it is not required—unless the law otherwise provides—the publication or communication of all theelements which result 20 to thekeeping of the prescribed forms andof alltheelements, which theadministration took into account in order to justify its decision; andthat it suffices only the mentionofthe keeping of the forms anda summary of the reasoning to be diligently drafted andsince one suffers damage should proceed in time in 25 order to obtain knowledge of the above elements (see Recourse for Annulment by Tsatsos, 3rd edition, page 74paragraph30)
(3)That in thelight of the above principles andtaking into consideration thesequence of events inthepresent case and in particular the fact that the new medical certificate of24.1.78was 30 supplied totheDistrict Officer of Larnaca by thefather of the applicant himself, leaves noroom for doubt that the decision of the respondent Minister contained inthe letter of 25.4.78, was a new decision ba. *don new enquiry asaresult ofthe new medical certificate; that i any clarification was required the applicant 35 should apply for tn-t without delay to the respondent authority and in anycase he"iadtofile hisrecourse within thetime limit of 75 days as prov ded by Article 146.3 of the Constitution; that from the time the letter of 25.4.78 was received by his advocate thetime limit within which the applicant should file 40 492 3 C.L.R. 5 Aspri v. Republic his recourse started to run as it supplied to him full knowledge of the consequences of the decision of the respondent Minister; that, therefore, this recourse is out of time because it was not filed within 75 days from the receipt of this letter; and that, accordingly, it must be dismissed. Application dismissed. Recourse. 10 Recourse against the decision of the respondent whereby applicant was not exempted from service in the National Guard. L.N. Clerides, for the applicant, CI.Antoniades, Counsel of the Republic, for the respondent. Cur. adv. vult. MALACHTOS J. read the following judgment. The applicant in this recourse prays for a declaration of the Court that the 15 decision of the respondent Minister not to exempt him from service in the National Guard communicated to the applicant on the 28th November, 1978, is null and void and of no legal effect whatsoever. The grounds of law on which the application is based, as 20 stated therein, are the following: 25 (a) the.decision of the respondent is contrary to section 4(f) of the National Guard Laws 1964 to 1978 in that applicant has more than three dependants and hence is entitled to exemption for service with the National Guard; and (b) respondent's decision was based on an erroneous and defective assessment of the factual situation of applicant and his family and hence taken in circumstances .amounting to a misconception of fact. 30 One of the grounds of law on which the opposition is based is that the recourse is out of time contrary to Article 146.3 of the Constitution which provides that such a recourse shall be made within seventy-five days of the date'when the decision or act was published or, if not published and in the case of an 35 omission, when it came to the knowledge of the person making the recourse. 493 Malachtos J. Aspri v. Republic
(1979)At the commencement of the hearing of this recourse on the application of counsel for the respondent and with the consent of counsel for applicant, this point washeard first as a preliminary legal issue. The facts of the case relevant to this preliminary legal issue are the following: 5 The applicant was born in 1959 and he works as a farmer assisting in the cultivation of the fields of his family at Xylophagou village. His father, who is also a farmer, is aged 54 and is suffering from tuberculosis. When the age of the 10 applicant was called up for conscription in the National Guard in January, 1977,he applied to the respondent authority under section4oftheNational Guard Lawsfor exemptionfrom service alleging that he is the supporter of his family which consists of his sick father, his mother and his three unmarried sisters aged 15 21, 13 and 10 respectively. On 5/7/77hegot a negative reply asa result ofwhich he filed Recourse No. 195/77,which was later withdrawn on the undertaking of the respondent to re-examinehisapplication after the production of a newmedicalcertificate concerning thecondition 20 of his father's health. The father of the applicant was examined at the Larnaca Hospital by Dr. Mavrides on24/1/78and therelevant certificate was issued to him to the effect that he should avoid excessive fatigue. This certificate was delivered by the father of the 25 applicant to the District Officer of Larnaca who on 25.1.78 despatched ittogetherwithhisreport totheAdvisoryCommittee which is set up under section 4
(4)of the National Guard Laws. The said Committee in its turn made thefollowing report to the respondent Minister: 30 " The Committee has examined today the present case and finds the facts as contained in the report of the District Officer of Larnaca dated 25/1/78 and that on the basis of these facts the following can be based. The Committee does not see any reason to change its 35 previous decision of 2/7/
- Dr. Mavrides by his recent certificate dated 24/1/78 certifies that the father of the conscript must avoid excessive fatigue. This means that 494 3 C.L.R. 5 Aspri v. Republic Malacbtos J. he canwork but notexcessively and, therefore, the members of his family are depending entirely on him (the father) and from the help of the conscript in the cultivation of their property and so the conscript has not more than three dependants". The Minister then examined the case and following the views of the Advisory Committee, rejected the application of the applicant. As a result a letter dated 25/4/78 was sent by the Director-General of the Ministry of Interior to applicant's 10 advocate. This letter which is a cyclostyled form for rejection of applications of this kind and is filled in by typewriting to suit the particular case, reads as follows: 15 20 " I have been instructed to refer to your letter dated by which you apply that your client Charalambos Aspri be exempted from his obligation to serve in the National Guard because of dependants and to inform you that according to the provisions of the National Guard Law your said son cannot be exempted from such obligation since from the examination of the facts of your case it transpired that he has not more than three dependant persons". On 4/11/78 counsel for applicant addressed the following letter to the Ministry of Interior and Defence: " Sir, 25 30 I have been instructed by my client Charalambos Aspri, of Xylophagou to refer to the undertaking dated 28.11.77 of the counsel for the Republic in recourse No. 195/77, thatthe applica tion of my aforementioned client would be re-examined in the light of a new medical certificate concerning his father's ability to work, as well as to your letter dated 25.4.1978 and make the following observations :(a) Your letter dated 25.4.78 makes no mention of re examination of the case as was the undertaking of counsel for the Republic dated 28.11.
- 35 Ν (b) In any case your reply dated 25.4,78 is not duly reasoned in accordance with the provisions of Article 29 of the Constitution. 495 Malachtos J. Aspri v. Republic
(1979)(c) It is not made clear in your letter whether my client's case was sent to the appropriate committee which has been established under theprovisions ofsection4
(4)of the National Guard Laws, in order to ascertain the facts of the case and send a new report to the Hon. 5 Minister of Interior. 2. in the light of the above you are invited to: (
- a)Enlighten me if and whether a re-examination of my client's case on the basis ofthe undertaking bycounsel for the Republic in Court dated 28.11.77, in recourse 10 No. 195/77,has taken place. (
- b)Ifthematterhasbeenputbefore theAdvisory Committee once again in accordance with section 4
(4)of the National Guard Laws. (
- c)In any casehowandwhyyou havereached theconclu- 15 sion that my client has not more than 3dependants." The Director-General of the Ministery of Interior replied by letter dated 28/11/78: " I havebeen instructed torefer toyour letter dated 4.11.78 with regard to your conscript client Charalambos Aspri, 20 of Xylophagou and to inform you the following: (
- a)your client's case hasbeen re-examined onthebasisof the undertaking in recourse No. 195/77. (
- b)the matter was put once again before the Advisory Committee in accordance with section 4
(4)of the 25 National Guard Laws. (c) The Minister has rejected your client's application for exemption on the ground of dependants having in mind the new report of the District Officer of Larnaca which was accompanied by a new medical certificate 30 concerning the health of the father as well as the new report of theAdvisory Committee on the subject." As a result the present recourse wasfiledon 26/1/
- Counsel for applicant argued that the letter of the DirectorGeneral of 25/4/78 does not constitute an administrative act as 35 496 - \ 3 C.L.R. 5 Aspri τ. Republic Malachtos J. it does not contain anything which could be the subject, of a recourse. This letter didnotmake-it clear whether thecase of the applicant was re-examined after thefather of the applicant was subjected to a newmedical examination. Furthermore, in that letter nodue reason was given as towhythe application of the applicant was rejected. On the other hand, counsel for the respondent submitted that the actual decision of the respondent Minister was containedin the letter of 25/4/78 and that the letter of 28/11/78,'which is 10 thesubject of this recourse, is only confirmatory or informatory of that decision and so the recourse is out of time as it was filed after thelapse of 75 days from 25/4/
- The question that arises in the present case is whether the letter of the Director-General dated 25/4/78 supplied tothe 15 applicant full knowledge of the·consequences of the decision of the respondent Minister. 20 25 It is well settled and accepted as a general principle that individual administrative acts should be communicated tothe interested persons, even in cases where the communication is not imposed by law, since asfrom this communication startsthe time limit of the recourse for annulment. It is not required for thecommunication to be effected ina sensational form but in a simple administrative notice properly proved. This may be given either to theapplicant or to his duly authorised advocate. (SeeConclusions from Case Law of the Greek Council of State 1929to 1959page 252). Knowledge from the publication or communication starts the time limit ifand only forthat part thatitiscomplete. Com plete is theknowledge that allows theinterested person to find 3Q outfor sure and with precision the financial or moral damage which he suffers by the publication or communication ofthe act. In order that theknowledge should be complete it isnot required—unless thelaw otherwise provides—the publication or communication of all theelements which result to the keeping 35 of the prescribed forms and of all the elements, which the administration took into account in order tojustify its decision. It suffices only themention of the keeping of the forms anda summary of the reasoning tobediligently drafted andsinceone suffers damage should proceed intime in order to obtain know497 Malachtos J. Aspri v. Republic
(1979)ledge of the above elements (see Recourse for Annulment by Tsatsos, 3rd edition, page 74paragraph 30). In the light of the above principles and taking into consideration the sequence of events in the present case and in particular the fact that the new medical certificate of 24/1/78 was 5 supplied to the District Officer of Larnaca by the father of the applicant himself, leaves no room for doubt that the decision of the respondent Minister contained in the letter of 25/4/78, was a new decision based on new enquiry as a result of the new medical certificate. If any clarification was required the appli- 10 cant should apply for that without delay to the respondent authority and in any case he had to file his recourse within the time limit of 75 days as provided by Article 146.3 of the Constitution. From the time the letter of 25/4/78 was received by his advocate the time limit within which the applicant should 15 file his recourse started to run as it supplied to him full knowledge of the consequences of the decision of the respondent Minister. For the reasons stated above this recourse fails and is dismissed as it was made out of time. 20 On the question of costs I make no order. Application dismissed. No order as to costs. 498