clr/1982/1982_3_1097.pdf

(3)(e)* of the National Guard Law, 1964 (Law 20/64 as amended) on the ground that he was the eldest son of the family and his father was in receipt of disablement pension by virtue of the provisions of Law 4/

1. The respondent Ministei rejected applicant's lequest by letter dated 7.1.
2. On 13.1.1982applicant's counsel sent a telegram** to the respondent Minister protesting against his private * Section 4{3)(e) is quoted at pp. 1107-1108 post. * * The telegram is quoted at p. 1105 post. 1097 Florides v. Republic

(1982)secretary foi hei alleged hindrance of counsel to speak to the Minister over the telephone; and on the same day counsel was informed by the Director-General of the Ministiy over the telephone that applicant's request could not be acceded to: Hence the present recourse for a declaration that the act and/or 5 decision of the respondent communicated to applicant's counsel orally by respondent on the 13.1.1982 not io grant applicant exemption or suspension from service in the National Guard should be declared null and void. Counsel for the respondent laised a preliminary objection that 10 the alleged subjudice decision wasnotjusticiable onthe ground that it was not an executory act or decision but merely a confirmatory one. Held (I), on the preliminary objection: That a confirmatory decision of the administration is not of an 15 executory nature and it cannot be made the subject of a recourse but when the administiation confiims a previous executory act after a new inquiry then the resulting new act or decision is itself executory too and therefore justiciable; that a new inquiry exists when the administration takes into con- 20 sideration new substantive legal or real mateiial; that since what is being impugned by means of the present recourse is the confirmation by the respondent oially overthetelephone on 13.1.1982 of his previous stand expressed in his decision contained in his letter dated 7.1.1982 such oral confirmation having 25 been given in reply to the telegram; and since by the said telegram counsel was not placing before the respondent new substantive legal or real material there was no question for the respondent to hold a new inquiry; accordingly the oial reply which is being challenged by means of the present recourse was 30 nothing more than a confirmatory decision not of an executory character and therefore not justiciable. Held, (II) on the merits of the recourse: That the person entitled to exemption from service in the National Guard pursuant to the provisions of s. 4

(3)(

1. e)of Law 35 20/64 must be the "only or eldest son" of the family and must have had a dead or missing "father" or "brother"; that these "father" or "brother" (
2. a)must have died as a result of events described in the Law (
3. b)their families are in receipt of pension 1098 3 C.L.R. 5 Florides v. Republic under the provisions of Law 4/62 of the Greek Communal Chamber; that though applicant is the eldest son of the family his father is not dead 01 missing; accordingly he is not entitled to exception from service under the above section. Recourse dismissed. Cases referred to: Florides v. The Republic

(1973)3 C.L.R. 37; 10 15 20 25 30 Kolokassides v. The Republic

(1965)3 C.L.R. 549; Papanicolaou (No. 1) v. The Republic

(1968)3 C.L.R. 225; Ktenas and Another (No. 1) v. The Republic

(1966)3 C.L.R. 64; and on Appeal

(1966)3 C.L.R. 820; Papaleontiou v. The Republic

(1966)3 C.L.R. 557; Varnava v. The Republic

(1968)3 C.L.R. 566; loannou v. 77i<? Grain Commission

(1968)3 C.L.R. 612; Megalemou v. The Republic

(1968)3 C.L.R. 581; Kelpis v. The Republic

(1970)3 C.L.R. 196; HjiKyriakos & Sons Ltd. v. The Republic

(1971)3 C.L.R. 286; The Police Association &Others v. theRepublic

(1972)3C.L.R.1; Liasidou v. 77ie Municipality of Famagusta

(1972)3 C.L.R. 278; Salamis Holdings Ltd. v. The Municipality of Famagusta

(1974)3 C.L.R. 344; Lordos Apartotels Ltd. v. The Republic

(1974)3 C.L.R. 471; loannou v. The Commander of Polioe

(1974)3 C.L.R. 504; Limassol Chemical Products Company Ltd. v. The Republic

(1978)3 C.L.R. 52; Dr. G.N. Marangos Ltd. v. The Municipality of Famagusta

(1979)3 C.L.R.

1. Recourse. Recourse against the decision of the respondent not to grant applicant exemption and/or suspension from service in the National Guard. L. Clerides, for the applicant. M. Florentzos, Counsel of the Republic, for Ihe respondent. Cur. adv. vult. 35 LORIS J. read the following judgment. The applicant in the present recourse was born at Kaimakli village on the 14th November,
2. 1099 Loris J. Florides v. Republic

(1982)Counsel acting on applicant's behalf addressed to the Minister of Interior a letter on 26.7.73 seeking thereby the 'confirmation' of the Minister to the effect that the applicant being the eldest son of a father who is in receipt of a disablement pension of £16.- monthly, granted to him under the provisions 5 of the Pensionsand Extraoidinary Gratuit'es tothe Dependants of the Fallen and the Victim.* of the Struggle and its Invalids Fund Law(LawNo.4of 1962 oftheGreekCommunal Chamber as amended), is exempted from enlistment in the National Guard pursuant to the provisions of s. 4

(3)(e) of the National 10 Guard Law (Law 20/64 as amended). Th^ aforesaid letter to the Minister was accompanied by a certificate issued by the Ministry of Finance dated 30.11.72 certifying to the effect that applicant's father wasin fact drawing from theabovementioned Fund an amount of £16.- monthly 'as disabled combatant of 15 E.O.K.A. Struggle* (certificate and letter referred to above are marked under ied 1 and red 2respectively inthe relevant file of theMinistryof Interior which wasproduced asanexhibit inthe present recourse). The Minister of Interior after seeking (red 4) and obtaining 20 (red 5) the legal opinion of the Attorney-General of the Republic addressed to counsel acting for applicant letter dated 17.9.73 (red 6) informing the applicant thai his case is not covered by the relevant section and therefore the applicant cannot be exempted from service in the National Guard. 25 Counsel for applicant addressed to the Minister a letter dated 5.10.73 (red 7) applying for'further particulars indicating the reasons why the case of his client does not fall within the ambit of the section in question. Bya letter dated 11.10.73(red 8)theDirector-General of the 30 Ministry of Interior informed applicant'scounselthat, "that the case of his client is not covered by the section in question is being deduced from the grammatical, logical and teleological interpretation of the aforesaid section". On 6.11.73 the applicant filed Recourse No. 494/73 attacking 35 the said dec'sion of the Minister of Interior contained in latters letters of 17.9.73 and 11.10.73. This iecourse was determined on 17.2.79; it was dismissed on the ground that the alleged decisions of therespondenl werenon-executory acts ordecisions 1100 3 C.L.R. Florides v. Republic Loris J. and therefore not justiciable. (Vide Florides v. The Republic

(1979)3 C.L.R. 37). 5 In the meantime there was a calling out for service in the National Guard of the class of 1974 (all males born between 1.1.56 - 31.12.56) i.e. the class of the applicant. Thus 10 (

1. a)on 30.11.73 the decision of the Council of Ministers (under No. 12833 of 15.11.73) was published in the Official Gazette of the Republic (Part IV in G.N. 1054 of 30.11.73) calling out for service the class of 1974 (vide exh. 4). 15 (
2. b)On 7.12.73 an order of the Minister of Interior dated 3.12.73 was published in the Official Gazette of the Republic prescribing the necessary arrangements for the enforcement of the said decision of the Council of Ministers (vide exh. 5). (
3. c)On 25.6.74 an order of the Minister of Interior was again published in the Official Gazette of the Republic in connection with the calling out of servicemen of the class of 1974 (vide exh. 6). 20 The applicant failed to enlist in the National Guard till the present day; it may be added here that the applicant did not ever challenge the aforesaid decision of the Council of Ministers calling out for service the class of .servicemen to which he belongs. 25 In the meantime the applicant got married and he has now a child as well. On 21.12.81 counsel for applicant addressed to the Minister of Interior a letler (attachedto the recourse, Appendix Έ*to the opposit;
4. on)explaim'ng the present position of the applicant and 30 praying for exemption from or suspension of service in the National Guard. 35 In reply thereto the Director-General of the Ministry of Interior addressed to applicant's counsel a letter on 7.1.82 (vide exh. 2) informing him that the applicant is not entitled according to th; National Guaid Law either to exemption from or suspension of service in the National Guard. The aforesaid letter went on to request counsel "to advise his client to present 1101 Loris J. Florides v. Republic

(1982)himself for enlistment in theforce on 13.1.82otherwise hisclient will be prosecuted". On 13.1.82 counsel for applicant sent a telegram (exh. 1) to the Minister on the same subject and later on on the same day he was informed, by the Director-General of the Ministry over the telephone that applicant's request could not be acceded to. Hence the present recourse by virtue of which the applicant prays for: 5 " 1 . A declaration of the Hon. Court that the act and/or decision of the respondent communicated to applicant's 10 counsel orally by respondent on the 13.1.1982 not to grant applicant exemption from service in the National Guard should be declared null and void and of nolegal effect whatsoevei.

1. A declaration of the Hon. Court that the act and/or 15 decision of the respondent communicated to applicant's counsel orally by respondent on the 13.1.1982 not to grant applicant suspension from service in the National Guard should rx declared null and void and of no effect whatsoever." The applicant bases his application on the following grounds of law. "
2. Respondent's decision is null and void as it is not rea­ soned at all contiary to Art. 29 of the Constitution.
3. Respondent's decision has been taken in circumstances 25 amounting to abuse of power taking into account the facts and circumstances in support of the recourse.
4. The respondent's decision was taken contrary to s.4

(3)(ε) of Law 20/64 in lhat applicant has a father who is living and who is in receipt of a monthly pension of 30 £16.- on the basis of Law 4/62 and 4/64 of the Greek Communal Chamber. 4. The respondent's decision was taken contrary to the provisions of s. 11 & 17 of Law 20/64." The respondeat in his opposition raised objection to the 35 jurisdiction of this Courtmaintainingthat thealleged sub judice 1102 20 3 C.L.R. Florides v. Republic Loris J. decision is not justiciable on the ground that it is not an executory act or decision but merely a confirmatory one. Subject to the above objection the respondent maintains that the sub judice decision was taken according to Law and the 5 Constitution, that it is duly reasoned and that all material facts and surrounding circumstances were duly considered by him. I intend to examine in the firrt place the objection of the respondent which goes to the jurisdiction of this Court. In the case of Kolokassides v. The Republic

(1965)3 C.L.R. 10 549 (decided on appeal) it was held that a recourse under Art. 146 of the Constitution lies only against executory acts. An executory act or decision was denned in the case of Papanicolaou (No. 1) v. The Republic,

(1968)3 C.L.R. 225, as "an act by means of which the 'will' of the Administration is made 15 known on a given matter, and which aims at producing a legal situation concerning the person affected. (See the Conclusions from the Jurisprudenceof the Councilof State in Greece,1929— 1959,pp. 236-237);and theexecutory nature of an act is closely linked to the requirement under paragraph 2 of Art. 146 of 20 the Constitution, that a person can make a recourse only if an existing legitimate interest of his has been adversely and directly affected by the act complained of". It is a well settled principle of Administrative Law that a confirmatory decision of the administration is not of an execu25 tory nature and therefoie it cannot be made the subject-matter of a recourse. According to Stassinopoulos on the Law of Administrative Disputes, 4th ed. at p. 175 a confirmatory act is one which repeats the contents of a previous executory act and signifies the adherence of the administration to a course 30 already adopted; but when the administration confirms a previous executory act after a new enquiry then the resulting new act or decision is itself executory too, and therefore justiciable. These principles have been adopted by our Supreme Court in a great.number of cases such as: 35 Ktenas and another (No. 1) v. The Republic

(1966)3 C.L.R. 64 and on Appeal

(1966)3 C.L.R. 820. Papaleontiou v. The Republic

(1966)3 C.L.R. 557.. 1103 Loris J. Florides v. Republic

(1982)Varnava v. The Republic

(1968)3 C.L.R. 566. loannou v. The Grain Commission

(1968)3 C.L.R. 612. Megalemou v. The Republic

(1968)3 C.L.R. 581. Kelpis v. The Republic

(1970)3 C.L.R. 196. HjKyriakos & Sons Ltd. v. The Republic

(1971)3 C.L.R. 286. 5 The PoliceAssociation &othersv. The Republic

(1972)3 C.L.R. 1. Liasidou v. The Municipality of Famagusta

(1972)3C.L.R. 278. Salamis Holdings Ltd. v. The Municipality of Famagusta

(1974)3 C.L.R. 344. 10 Lordos Apartotels Ltd. v. The Republic

(1974)3 C.L.R. 471. loannou v. The Commander of Police

(1974)3 C.L.R. 504. Limassol Chemical Products Company Ltd. v. The Republic

(1978)3 C.L.R. 52. Dr. G.N. Marangos Ltd. v. The Municipality of Famagusta 15

(1979)3 C.L.R. 73. As to the question when does a new enquiry exist Stassinopoulos (supra) states the following at p. 176: "When does a new inquiry exist, is a question of fact: In general, it is considered to be a new inquiry the taking 20 into consideration of new substantive legal or real material, and the new material is meticulously considered, for he who has been out of time in attacking an executory act, should not circumvent such a time limit by the creation of a new act, which it was issued nominally after a new 25 inquiry, but in substance on the basis of the same material. Especially there does exist a new inquiry where, before the issue of the subsequent act, there takes place consideiation of newly produced material or pre-existing but unknown, which are now taken into consideration in addition, but 30 for the first time Apart from confirmatory acts or decisions Ihetc are certain other acts of the administration which cannot be impugned by a recourse for annulment on the ground that they ate not executory. Amongst such other acts Kyriacopoulos on Greek Admi1104 35 3 C.L.R. Florides v. Republic Lorls J . nistrative Law 4th ed. Vol. Ill at p. 95 mentions "The acts in which simply the views or information of the Administration ate contained in respect of a certain subject". (Reference in support thereof is made to the following decisions of the 5 Greek Councilof State: Σ/Ε321, 708, 866/1931, 154, 430/1936, 133/1937, 952/1938, 935/1939, 1034/1940, 367/1941, 1830/1947, 1605/1948, 1191/1950, 80/1951, 1482/1952, 1708/1960). Reverting now to the facts of this case: I cannot lose sight of the fact that what is being impugned by means ot thepresent 10 recourse is the confirmation by the respondent orally, over the : telephone, on 13.1.1982 of his previous stand expressed in h s decision contained in his letter dated 7.1.1982 (exh.2)such oral confirmation having been given in reply to the telegram (exh. 1) sent earliei on the same day by counsel foi applicant to the 15 respondent; it is significant to note that by the said telegram counsel for applicant was not placing before the respondent new substantive legal or real material for consideration; in tact he was not placing before the respondent any material at all;hewas simply voicing hi,- protestagainst theprivate secretary 20 of therespondent Ministei foi hei alleged hindrance of counsel to speak to the Ministei over ihe phone. Telegram (exhibit 1) icads as follows: 25 30 35 "YPOURGON ESOTERIKON, ENTAFTHA PROSPATHO MATEOS APO TIS PARELTHOUSIS DEFTERAS NA ELTHO IS TILEFONIKIN EPIKINONIAN ΜΑΖΙ SAS EPI TOU THEMATOS KATATAXEOS TOU PELATOU MAS SERGIOU FLORIDES EK KAIMAKLIOU DISTIHOS OMOS ME DIAFOROUS TROPOUS I ID1ETERA SAS DEN ID1NITHI NA ME ENOSI ΜΑΖΙ SAS. DIAMARTIROME DIOTI ENAS POLITIS TIS DIMOKRATIAS EMPODIZETE NA EPIKINONISI ME TON ARMODION YPOURGON EPI THEMATOS TIS ARMODIOTITOS TOU KE DI THEMATOS KATATAXEOS STRATEFSIMOU Ι ΟΡΙΑ LIGI TIN 15 TREXONTOS. ZITO AMESON EPEMVASIN SAS D1A NA SAS OMILISO KE AN PARAST1ANANGI NASAS IDOSIMERON IAYRION LEFKOS CLERIDES DIKIGOROS" 1105 Loris J. Florides v. Republic

(1982)In view of the contents of the above telegram which is the only new material alleged by the applicant to have been placed before the respondent there was no question for the respondent to hold a new enquiry; in fact no new enquiry was held but simply the Dhector-General of the Ministry spoke to counsel 5 for applicant over the telephone on the same day and signified to him the adherence of the respondeat to a course already adopted by his decision which was communicated to the applicant by letter of tbe respondent dated 7.1.1982 (exh. 2) and I lay stress on the fact that such decision contained in exh. 10 2 was never challenged by applicant. So it is quite apparent that the oral reply of the respondent which is being challenged by means of the present recourse was nothing more than a confirmatory decision not of an executory character and therefore not justiciable. In view of argument by counsel for applicant, 1feel that 1 should even go further and say that 1entertain serious doubts as to whether exh. 2 itself contains a decision of executory character. The sequence of events in the present case points rather to the contrary and denotes that it is rather confirmatory of 20 a much earlier decision, notably the decision to call out the class of the applicant to enlist in the National Guard, a decision which was never challenged either; and the statement in the last paragraph of exh. 2 to the effect that the applicant will be prosecuted if he fails to present himself for enlistment in 25 the force would not have altered the aforesaid decision's character, as the contents of the last paragraph are purely informatory of the views of the respondent on the matter (vide Kyriacopoulos (supra) at p. 95). In spite of my finding that the sub judice decision is not 30 executory in character and therefore not justiciable, I intend to proceed further and deal very briefly with the main substative complaint of the applicant. The applicant maintains that he is entitled to be exempted from service in the National Guard; he bases his submission 35 on the provisions of S.4

(3)(E) of the National Guard Law 20/64 as amended; the relevant section of the law (as amended by Laws 26/65 and 27/65) reads as follows:1106 15 3 C.L.R. Loris J. Florides κ Republic "4.-0)

(3)Εξαιρούνταιτηςύπότούεδαφίου

(1)ΰποχρρώσεως(«) - - - (Ρ) (y) --- - _ -- _... _. „ (δ) (ε) Ό μόνος ή ό πρεσβύτερος utos 6 έχων πατέρα ή άδελφόν φονευθέντα ή έξαφανισθέντα η θανόντα έκ τραυμάτων ή κακουχιών κατά τήν διάρκειαν τηςυπηρεσίας αύτοΰ έντηΔυ­ νάμει ή υπηρεσίας αύτοΰ από της 21ηςΔε­ κεμβρίου, 1963, ώς είδικοΰ άστυφύλακος, ή λόγω τώυ άπό της ημερομηνίας ταύτηςδημιουργηθεισών περιστάσεων ή ή οίκογενεια τοΰ οποίου λαμβάνρι σύνταξιν δυνάμει τών περί Ταμείου Συντάξεων και Έκτακτων Επι­ δομάτων τώνέκτώνΠεσόντων και των θυμάμάτων τοΰ 'Αγώνος 'Εξαρτωμένων και τώΐ' 'Αναπήρων αύτοΰ Νόμων τοΰ 1962έως1975 10 15 20 ("4. -1)

(3)There shall be exempted from the liability undei sub-section

(1)— 25 (

1. a)„ . (
2. b)(
3. c)- .. (
4. d)30 35 (
5. e)iheonly ortheelder son, having hada father or biothei who was killed oi disappeared or died of wounds or privations during hi·» service in the Force or his service as from the twenty-first day of December, 1963, as a special constable or due to the circumstances created as from that date or whose 1107 I^orts J. Florides v. Republic (19S2) family receives a pension under theDepend­ ants of Persons who were kill3d in, and of the Victims of, the Struggle and the Persons Incapacitated therein Laws, 1962-1975"). The Law as I read it requires that a claimant for exemption 5 from service in theforce must have thefollowing qualifications: (
6. a)He must be ih; only, or the eldest son of the family and (
7. b)He must have had a "father' or "brother" (I) who was killed or who is missing or who 10 died either(
8. i)during his service in the force (
9. ii)auring his service as from 21.12. 1963 as special constable (iii) owing to events brought about as from thatdated(i.e.21.12.1963) 15 or (II) whose family is in receipt of pension under the provisions of Law 4/62 of the Greek Communal Chamber (as amended). More concisely the person entitled to exemption from service in the National Guard pursuant to the provisions of 5.4

(3)(ε) 20 mustbe the"only or theeldest son"of thefamily and must have had a dead or missing "father" of "brother". These "father" or "brother" (a)must have died as a result of events described in sub-paras (

1. i)(
2. ii)& (iii) above or (b)their families are in receipt of pension under the provisions of law 4/62 of the Greek Com- 25 munal Chamber (as amended). In short the last disjunctive phrase "whose family is in receipt..."(" Ήοίκογένειατοΰοποίουλαμβάνεισύνταξιν...") refers to the family of the dead or missing "fathei" or "brother". It is abundantly clear from the sub-section itself that when 30 referring to killed, missing or dead "father" or "brother"the legislature intended to cover not only the class of persons who lost their livesduring service in the National Guardbut also to otherclasses of persons whomettheirdeatheitherin thecourse of deliberating or defending their countiy considerable time 35 prior to the establishment of the National Guard in 1964; thus the legislatuie proceeded enumerating disjunctively various classes e.g. those who died during their service as special con1108 3 C.L.R. 5 Florides v. Republic Loris J. stables asfrom 21.12.63, those who died owing to events brought about as from that date etc; it seems that for the sake of brevity in the law on the one hand and in an effort of avoiding on the other, an oversight that might occur in the listing down of the innumerable classes of persons who suffered, the legisla­ ture resorted to the creation of a wider class -the class of those who are in receipt of pension according to Law 4/62 of the Greek Communal Chamber (as amended). How wide the latter class of persons is, is indicated by the 10 number of groups of persons benefited from the Funds thereof, something reflected even on the title of the law in question (Pensions and Extraordinary Gratuities to the Dependants of the Fallen and the Victims of the Struggle and its Invalids Fund Law.) 15 For all the above reasons I held the view that inspite of the fact that s.4

(3)(e) of the National Guard Law 1964 as amended is not very happily worded yet the last disjunctive phrase in same "whose family is in receipt..." ( Ή οίκογένεια τοΰοποίου λαμβάνει σύνταξιν...) refers to the family of the dead or 20 missing "father" or "brother" and this is the only interpretation that can be given to it grammatically, logically and ideologi­ cally. Accord'ng to the undisputed facts of this case the applicant is the eldest son of the family but his father is not dead or 25 missing; on the contrary his father is alive and is personally in receipt of disablement pension of £16.- monthly according to the certificate of the Ministry of Finance (red 1 in the file) "as disabled combatant of E.O.K.A. Struggle, by virtue cf the provisions of Law 4/62 of the Greek Communal Chamber 30 (as amended). 35 40 This disposes of the main complaint of the applicant. Having decided earlier on, that the oral reply of the respondent dated 13.1.82 which is being challenged by means of the present recourse has no executoiy character and is therefore not justiciable. I do not intend to proceed in examining other subsi­ diary complaints of the applicant. In the result the present recourse fails and it is accordingly dismissed; I shall not make any order as to costs. Applicationdismissed. Noorder as to costs. 1109