(1981)1981 July 25 [TRIANTAFYLLIDES, P.J IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION GEORGHIOS L. LOIZIDES, Applicant, v. THE REPUBLIC OF CYPRUS, THROUGH THE MINISTER OF INTERIOR, Respondent. (Case No. 242/81). Provisional Order—Rule 13 of the Supreme Constitutional Court Rules—Judgment of this Court annulling respondent's decision not to exempt applicant from service in the National Guard —Respondent not complying withjudgment and refusing to exempt applicant on the ground that thejudgment was erroneous—Thus 5 acting without any authority or competence at all as an appeal tribunalfrom thejudgment of a Judge of this Court—Provisional order directing discharge of applicant from the National Guard pending the determination of a recourse against such refusal. Constitutional Law—Judgment of the Supreme Court in a recourse 10 under Article 146
(1)of the Constitution—Compliance of the Administration with—Article 146
(4)and
(5)of the Constitution— Whether administration may refuse to comply withjudgment by treating it as erroneous. By means ofjudgment given in recourse No. 170/80 the Court 15 annulled the decision of the respondent Minister not to exempt the applicant from service in the National Guard on the ground that it had been wrongly found, because of a misconception, that the applicant did not possess more than three dependants, namely his wife, his two minor children and his mother. After 20 the delivery of thisjudgment Counsel for the applicant demanded compliance with it by means of a letter dated April 3, 1981 (see Article 146.5 of the Constitution). Respondent failed 610 3 C.L.R. 5 10 Lobbies r. Republic to comply with the above judgment and on June 22, 1981 a negative reply was given to applicant As a result applicant filed theaboverecoursetogether withan application for aprovisionalorderdirectinghisdischargefromtheranksoftheNational Guard pending the final determination of the recourse. Thesubjudicedecisioninthepresentproceedingswasreached, not only after a re-examination, by an Advisory Committee in theMinistry of Interior, of the case on the basis of a further socioeconomical report of the Welfare Office, but, also, because the said Committee took theviewthat the decision of theJudge of this Court who determined Case No. 170/80 was erroneous. Though an appeal could befiledagainst thisjudgment this has not been done. On the applicationfor a provisional order: 15 Held,that the Advisory Committee acted, thus, in effect, withoutanyauthority orcompetenceat all,as anappeal tribunal from the judgment of a Judge of this Court; that, therefore, and as there has been no appearance today on behalf of the respondent, this Court has decided that the proper course is 20 tograntaprovisional orderunderrule 13oftheSupremeConstitutional Court Rules of Court, directing that the applicant should be discharged from the ranks of the National Guard pending the determination of the present recourse. Application granted. 25 Cases referred to: Loizidesv. The Republic
(1981)3 C.L.R. 103. Application for a provisional order. Application for a provisional order directing applicant's discharge from the ranks of the National Guard pending the 30 final determination of a recourse against the refusal of the respondent to discharge him. A. Papacharalambouswith C.L. Clerides, for the applicant. No appearance for the respondent. Cur. adv. xult. 35 TRIANTAFYLLIDES P. read the following decision. By means of this recourse the applicant seeks the annulment of the refusal of the respondent—which was communicated to him by a letter dated June 22, 1981—to discharge him from the ranks of the 611 TriantofjHides P. Loizides v. Republic
(1981)National Guard on the ground that he has more than three dependants. The applicant has filed on July 20, 1981, together with his recourse, an application for a provisional order directing his discharge from the ranks of the National Guard pending the 5 final determination of the recourse. Copies of the ri>ourse and of the said application, as wellas ofanaffidavit swornbytheapplicant onJuly 14,1981,insupport of the application, were served on the respondent on July 22, 1981, but no appearance was entered today on behalf of the 10 respondent. The applicant filed previously another recourse regarding the same matter, No. 170/80, in which judgment was given by Malachtos J. on March 7, 1981 (see Loizides v. The Republic,
(1981)3 C.L.R. 103). 15 By means of that judgment the decision of the respondent Ministernottoexempttheapplicantfrom serviceintheNational Guard was annulled on the ground that it had been wrongly found, because of a misconception, that the applicant did not possess more than three dependants, namely his wife, his two 20 minor children and his mother. After the delivery of the said Judgment counsel for the applicant demanded compliance with it, by means of a letter dated April 3, 1981. It is pertinent to point out, at this stage, that, under Article 146.5 of the Constitution, such judgment was binding on all organs or authorities of the Republic and it should have been given effect to, and acted upon, by the Minister concerned, who is the same one as the respondent Minister in the present case. The period prescribed under Article 29 of the Constitution, namely thirty days, lapsed without an answer being given to the letter of April 3, 1981, and without compliance with the aforementioned judgment. Eventually, a negative reply was given on June 22, 1981, and as a result the present recourse 35 wasfiled. 612 25 30 3 C.L.R. Loizides v. Republic TriantafylUdes P. I have before me a copy of relevant minutes dated May 29, 1981, of an Advisory Committee in the Ministry of Interior— which were produced by counsel for the applicant—and it appears from these minutes that the subjudice in the present 5 proceedings, decision wasreached, not only after a re-examination ofthecaseonthebasisofa further socioeconomical report of the Welfare Office, but, also, because the said Advisory Committee took the view that the decision of the Judge of this Court who determined case No. 170/80 was erroneous; the 10 Committee acted, thus, in effect, without any authority or competence at all, as an appeal tribunal from the judgment of a Judge of this Court; and there should be observed that though an appeal could have beenfiledagainst such judgment this has not been done. 15 In the light of all the foregoing, and as there has been no appearance today on behalf of the respondent, I have decided that the proper course is to grant a provisional order under rule 13 of the Supreme Constitutional Court Rules of Court, directing that the applicant should be discharged from the 20 ranks of the National Guard pending the determination of the present recourse. The making of this provisional order docs not,inanyway,prejudge themodeoftheeventual determination of the recourse and the respondent may show, if he wishes, cause why the provisional order which has been made today 25 should not remain in force; and this case is, therefore,fixed, for this purpose, on August 25, 1981,at 9.30 a.m. Of course, inthemeantime,the respondent hasto comply with suchprovisional order. Application granted. 613