CASES DECIDED BY THE SUPREME COURT OF CYPRUS ON APPEAL AND IN ITS ORIGINAL JURISDICTION Cyprus Law Reports Volume 3 (Administrative) 1982 February 11 [MALACHTOS, J.] IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION MARIOS ARISTIDES, Applicant. THE REPUBLIC OF CYPRUS, THROUGH THE MINISTER OF INTERIOR, Respondent. (Case No. 59/82). 5 ]9 Provisional order—Rule 13 of the Supreme Constitutional Court Rules, 1962—Principles applicable—Discretion of the Court —Applicant must show that he is likely to succeed on the merits and that wn-making of the order will cause him irreparable damage—Flagrant illegality—Militates strongly to the mak'ng of a provisional order even though irreparable damage has not been proved—Particular caution should be exercised especia'ly where the granting of the order will virtually disposeof the c.se on its merits—Application for provisional order suspending effect of decisionprohibiting applicant's exit from Cyprus-—Noflagrant illegality—And no irreparable damage—Question whether act 1 Aristides v. Republic
(1982)complained of illegalcanonly be solvedafter afull hearingApplication dismissed. The applicant, a citizen of the Republic who was marritd with four minor children but was living apart from bis wife, was prohibited from departing from Cyprus by the inclusion 5 of his name in the so-called stop list*. After challenging the decision prohibiting his exit he filed, also, an application, under rule 13of the Supreme Constitutional Court Rules, 1962 for a provisional order suspendingtheeffect ofthe said decision and allowing him to travel freely abroad, pending the final 10 determination of the recourse. On the application for a provisional order: Held, that the making of a provisional order involves the exercise ofjudicial discretion on the basis of the circumstances of the particular case and in the light of the principles which 15 should guide an administrative court when dealing with such an application; that it is clear trom those principles than an applicant in order to succeed in an application lor a provisional order must show to ths court that his application is likely to prevail on the merits and that the non making oi the order will 20 cause him irreparable damage; that flagrant illegality of an administrative act militates strongly to the making of a provisional order even though irreparable damage has not been proved; that particular caution must be exercised, expecially where the granting of the order will virtually dispose of the 25 case onits merits;that itcannot besaidthat there exists flagrant illegality of the administrative act complained of, or that the claim of the applicant is so obviously unfounded as to 'tad the court to the conclusion that it is not proper in any case to grant the provisional order applied for; that the question as 30 to whether the act complained of is illegal or not can only be solved after full hearing of the recourse on its merits and it is possible that the application of the applicant may succeed; that this Court has not been satisfied, from the material before it at this stage of the proceedings, that the non making of the 35 The inclusion in the stop-list was made under section 63
(3)of the Children Law, Cap. 352 which is quoted at p. 5 post. 2 3 C.L.R. Arlstldes τ. Republic orderappliedfor willcausetheapplicantanyirreparable damage; accordingly the application must be dismissed. Application dismissed. 5 Cases referred to: Aspri v. Republic,4 R.S.C.C. 57; Prokopiou and Others v. Republic
(1979)3 C.L.R. 686; Sofocleousv. Republic
(1981)3 C.L.R. 360; Georghiadou-Dekatri v. Republic (reported in this Part at p. 8 post.) 10 Application for a provisional order. Application for a provisional order suspending the effect of the decision of the respondent by virtue of which applicant's exit from Cyprus was prohibited and his name was included in the stop-list pending the final determination of a recourse 15 against the validity of such decision. L.N. Clerides with A. Saveriades, for the applicant. A. Vlademirou, ior the respondent. Cur. adv. vult. 20 MALACHTOS J. read the following judgment. On the third day of February, 1982, the applicant filed the present recourse claiming, as stated therein, a declaration of the court that the act and/or decision of the respondent to prohibit his exit from Cyprus by the inclusion of his name in ths so called stop-list, be declared null and void and of no legal effect. 25 At the same time he filed an application under rule 13 of the Supreme Constitutional Court Rules, 1962, for a provisional ordei suspending the effect of the said decision and allowing the applicant to travel freely abroad, pending the final deter mination of the recourse. 3Q The grounds of law on which the tecourse is based are the following: 1. The act or decision complained of is contrary to the provisions of Article 13 of the Constitution. 2. The so called stop-list is illegal, and Editor's note. The recourse was withdrawn on February 24, 1982 following the taking out of applicant's name from the stop-list upon his making satisfactory arrangements under s.63
(3)of the Children Law, Cap. 352. 3 Malachtos J. Aristides v. Republic :
(1982)- Irrespective and without prejudice to the allegations of the applicant under paragraphs 1and 2 above, the act complained of amounts to abuse of power and/or violation of the Rules of proper administration, taking into account the facts in support of the recourse. 5 The relevant facts as regards the application for the issue of a provisional order, with which we are concerned, are the following: The applicant is a citizen of the RepublicofCyprusandis married and has four minor children, their ages varying from 10 5to 13 years. In 1978theapplicant desertedhiswife and ever since resides alone in Limassol. A claim of his wife for the maintenance and support of her andtheir children was settled bythe Welfare Office of Limassol through which theapplicant pays regularly theamount of £70.per month to them. 15 In March, 1981, the respondent on the application of the wife placed the name of the applicant on the stop-list. Inspite of the above prohibition the applicant on several occasions, upon providing the relevant safeguards, was given 20 leave by the respondent to travel abroad. The applicant through his advocate protested to the respondent and as a result his name on 27.11.1981,was taken off the stop-list. It is the allegation of the applicant, both in the statement 25 offactsinsupport oftherecourse,andin theaffidavitin support of the application for theissue ofa provisional order, that after his name was removed from the stop-list he decided to start industrial activities in Greece and he established there plant and machinery for manufacturing aluminium products and 30 solar heaters. He has already received orders for making aluminium products and he got down payments. He shipped his private car to Greece and on the 2nd February, 1982, proceeded to Larnaca Airport in order to travel to Athens. There and then he was not allowtd bythe authorities to do so 35 and he was informed that his name was again included in the stop-list at the end of January,
- 4 3 C.L.R. Aristides v. Republic Malacbtos J. Finally, the applicant alleges that he will suff;r irreparable damage if the provisional order applied for is not granted. Counsel for applicant in support of hiscasearguedthatthe inclusion of thename of the applicant in the stop-list isillegal 5 ascontraveningAiticle 13.2 ofthe Constitution which provides that everyperson has therighttoleavepermanently ortemporarily theterritoryoftheRepublicsubjecttoreasonablerestrictions imposedbylaw. Hesubmittedthatsection63
(3)oftheChildren Law, Cap. 352, on which counsel for the respondent authority 10 wasexpected torely,is unconstitutional. This section reads as follows: 15 20 "63
(3)It shall bethe duty of the Director if he is satisfied that a person legally liable for the care and maintenance of any child or children under the age of sixteen years intendstoleaveCypruswithouttakingsuchchildorchildren with him to object to the Administrative Secretary (now Minister of Interior) against the grant of passport facilities until the person concerned has satisfied the Director that the child or children are not likely before they reach the age of sixteen years to become a charge on public funds or to be exposed to moral danger or neglect by reason of lack of care and maintenance". Counsel for applicant further argued that from the documentary evidence and other material put before the Court 25 it was made clear that the case of the applicant is likely to prevail onthe merits andthat hewillsuffer irreparable damage if the provisional order is not granted. On the other hand, counsel for the respondent submitted that the act of the respondent complained of is not contrary 30 toArticle 13.2 ofthe Constitution asthenameof the applicant wasplacedagain onthestop-list ontheapplication oftheChief Welfare Officer on the basis of a social investigation report dated7th December, 1981byvirtue ofthe provisions of section 63
(3)of Cap. 352. He further submitted that the question of 35 constitutionality of this section cannot be dealt with by the court at this stage of the proceedings. Finally, he submitted that if the order applied for is issued thtn ihc recourse will remain without any object since thisis the only remedy sought by applicant in his recourse. 5 Malacbtos J. Aristides r. Republic
(1982)The principles on which a provisional order may be issued have been expounded and applied in a series of cases starting from thecase ofAspriv. TheRepublic, 4 R.S.C.C. 57uptothe case of Prokopiou andOthers v. TheRepublic,
(1979)3 C.L.R. 686 and the recent casus of Agni Sofocleous v. The Republic 5
(1981)3 C.L.R. 360 and Leda Georghiadou Dekatri v. The Republic (reported in this Part at p. 8 post) and are the following: The making of a provisional order under rule 13 of theSupremeConstitutional CourtRules 1962involvesthe exercise of judicial discretiononthebasis ofthe circumstances 10 of the particular case and in the light of the principles which should guide an administrative court when dealing with such application. Itisclearfrom thesaidprinciplesthat anapplicant in order to succeed in an application for a provisional order underrule13must show tothecourtthat hisapplicationislikely 15 to prevail onthe merits andthat thenon making of the order will cause him iireparable damage. It goes without sayingthat flagrant illegality of an administrative act militates strongly to the making of a provisional order even though irreparable damage has not been proved. It is, however, well established 20 that particular caution must be exercised, especially where the granting of the order will virtually dispose of the case on its merits. From the material placed before mein the present application, it can neither be saidthat there existsflagrantillegality 25 of the administrative act complained of, a factor militating strongly to the making of the order, nor that the claim of the applicant is so obviously unfounded as to lead thecourt to the conclusion that it is not proper in any case to grant the provisional order applied for. 30 The question as to whether the act complained of is illegal or not can only be solved after full hearing of the recouise on its merits and it is possible that the application of the applicant may succeed. Coming to the question of irreparable damage, I must say 35 that from the documentary and other evidence adduced, at this stage of the proceedings, I have not been satisfied that the non making of the order applied for will cause the applicant any irreparable damage. But even if I were to hold that the 6 3 C.L.R. Aristides v. Republic Malachtos J. nonmakingoftheprovisionalorderwouldcausetotheapplicant irreparable damage, yet, taking into consideration that the intention oftheapplicant,asitappearsfrom thefacts put bsfoie me in his application, as well as from the social investigation 5 report, heisto leavepermanently theterritory of theRepublic, I would not have exercised my discretion in his favour since this would amount to granting him the only relief claimed in his recourse. For the reasons stated above, the application for the issue 10 of a provisional order is hereby dismissed with no order as to costs. 15 In view of its urgency this recourse isfixedfor directions on the 13th February, 1982, at 9.30 a.m. Applicationdismissed. No order as to costs. 7