(1982)1981 April 10 [STYLIANIDES, J.] IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION THEODOSSIS IOANNOU, Applicant, v. THE REPUBLIC OF CYPRUS, THROUGH THE MINISTER OF FINANCE, Respondent. (Case No. 222/81). Administrative Law—Administrative decision based on opinions of experts—Judicial control—Only when there is a misconception of fact by the taking into consideration of non-existing facts or by the failure to take into consideration existing ones the Court can exercise Judicial control over such decision—Decision 5 of committee, set upunderGreek Communal ChamberLaw 4/1962, discontinuing payment of disabilitypensionbyrelying on report of Medical Board-Normally beyond competence of this Court to examine correctnessfrom ascientificaspectof thereportof Medical Board—Within exclusive competenceof theadministrativeorganto JQ decideonthe disability ofaperson anditsdecision isnotreviewable unless there is a reviewabledefect—Said Committee and Medical Boarddidnot take into considerationanything non-existent and did not fail to take into consideration anything existing—The Committee exercised duly its discretionand acted withinits competence \5 and as provided by Law. The applicant was on the 12th January, 1957 arrested by the security forces of the colonial regime and was conveyed to Platres Police Station where he was ill treated and as a result sustained personal injuries. After the establishment of the Republic of Cyprus in 1960 and a long time after the enactment of the Dependants of Persons who were killed in, and of victims of the Struggle and Persons Incapacitated therein (Pensions and Extraordinary Allowances Fund) Law, 1962, (Law 4/1962 of the Greek Communal Chamber) he was granted disability 380 20 25 3 C.L.R. 5 10 15 20 25 30 35 Ioannou v. Republic pension. The benefits for incapacity areawarded on the decision of a Committee established under the above law relying on the opinion of a Medical Board set up by law which examines the person concerned. The Committee, relying on the report of the Medical Board which was to the effect that applicant suffered from chrome bronchitis and symptoms of progressing osteoarthritis changes in the spine which could in no way be connected with his illtreatment during the EOKA struggle and that he was in no percentage incapacitated from pursuing his work due to the injuries received during the said struggle, decided to discontinue the grant of a disability pension to the applicant. Hence this recourse. Counsel for the applicant sought the annulment of the afore said decision mainly on the ground of misconception of fact, because it was based on an erroneous factual situation. Held, that it is only when there is a misconception of fact by the taking into consideration of non-existing facts or by the failure to take into consideration existing ones that the Court can exercise judicial control over decisions based on opinions of experts; that it is normally beyond the competence of this Court in a case of this nature to examine the correctness from a scientific aspect of the report of the Medical Board; that it is within the exclusive competence of the administrative organ to decide on the disability of a person (ικανότης ή άνικανότης) and its decision is not reviewable unless there is a reviewable defect; that in this case the Committee and the Medical Board, on the opinion of which the Committee acted, did not take into consideration anything non-existent and did not fail to take into consideration anything existing; that the inquiry was not defective; that this Court is not satisfied that the Medical Boatd did not carry out a proper examination; that the Committee exercised duly its discretion and acted within their competence and as provided by law; accordingly the recourse should be dismissed. Application dismissed. Cases referred to: Republic v. Georghiades
(1972)3 C.L.R. 594; Pitsillides v. Republic
(1978)3 C.L.R. 99; Diosmis v. Republic
(1975)3 C.L.R. 461 at p. 465; 40 Case Nos. 2051/70 and 828/49 of the Greek Council of State. 381 Ioannou v. Republic
(1982)Recourse. Recourse against thedecisionofthe respondent to discontinue the grant of disability pension to applicant. C. L. Clerides, for the applicant. G. Constantinou (Miss), Counsel of the Republic, for the 5 respondent. Cur. adv. vult. STYLIANIDES J. read thefollowing judgment. The applicant, a 60-year old person from Agros, was arrested by the security forces of the colonial regime on 12.1.1957 and was conveyed 10 to Platres Police Station where hewasilltreated and asa result thereof sustained personal injuries. After the establishment of the Republic and a long time after the enactment of the Dependants of Persons who were Killed in, and of Victims of the Struggle and Persons Incapacitated therein (Pensions and 15 Extraordinary Allowances Fund) Law of 1962,he was granted disability pension. The benefits for incapacity are awarded on the decision of a committee established under the relevant law relying on the opinion of a Medical Board set up by law which examines the 20 person concerned. On 26,10.1973 the committee, relying on a medical report of the Medical Board, decided to discontinue the grant of pension to the applicant ashe had no incapacity resulting from the injuries sustained in
- He was re-examined by the 25 Medical Board on 12.8.1975; on the same day the committee arrived at the same decision as in 1973not to grant any mere pension to the applicant. In 1976the applicant applied for reconsideration of his case. He was examined by the Medical Board on 7.10.1976 and the 30 committee took thesame decision asin 1975which wascommunicated to him on 13.12.
- The applicant was aggrieved and he filed Recourse No.36/77 seeking the annulment of that decision. That case was withdrawn on the undertaking of reexamination afresh of thematter on production bytheapplicant 35 of a new medical certificate to the committee. On 2.10.1978 the applicant's advocate submitted to the committee a medical report issued by Dr. Ioannou, an orthopaedic 382 3 C.L.R. Toanoou v. Republic Stylianides J. surgeon in private practice. This report is blue 145-146 in the file, exhibit No.
- The Medical Board re-examined the applicant and reached the opinion that he had no incapacity at all. The committee on 25.1.1979 decided that there was no 5 ground for changing their previous decision of discontinuance of the pension granted in the past to the applicant. This decision was challenged in Recourse No. 184/79 which, however, was ultimately withdrawn and the committee undertook again to re-examine the matter 10 The Medical Board established under the law re-examined the applicant on 16.4.
- The Board had before them the medical certificates issued by Dr. Ioannou and the medical report issued by Dr. Stehos Stylianou, a specialist pathologist in the government service Dr. Stylianou certified that the 15 applicant is suffering from chronic bronchitis. In his report Dr. Ioannou stated that the applicant is a slightly overweighted person and that the X-rays taken by him revealed spondylotic changesin most lumbar vertebrae and diminution of thevertebral spaces between 14-15 and L5-S1 In his opinion the findings 20 from the lumbar spine are degenerative and are post-traumatic in nature. The Medical Board, consisting of three doctors, re-examined the applicant bearing in mind all the reports in the file and found that the applicant suffers from chronic bronchitis and symptoms of progressing osteoarthntic changes in 25 the spine which, however, can in no way be connected with his illtreatment during the EOKA struggle and that ho is in no percentage incapacitated from pursuing his work due to the injuries received during the EOKA struggle. The committee on 14.5.1981, relying on the report of the 30 Medical Board, decided to "insist to its previous decision for discontinuance of his pension". The applicant by the present recourse seeks the annulment of the aforesaid decision on the following grounds:35 (a) Misconception of fact, as it was based on erroneous factual situation, (b) Defective inquiry—The Medical Board failed to consider the X-rays taken by Dr. Ioannou and they failed to take into consideration all the elements and facts pertaining to the case; and, 383 Stylianides J. Ioannou v. Republic
(1982)(c) Defective exercice of their discretion. The administrative law of this country in its evolution adopted many of the principles of the administrative law developed by the case law of the Greek Council of State. A decision of the administration is not reviewable of determination on the merits. In the Digest of Decisions of the Greek Council of State for the years 1961-1963, Volume A. (A-N) p. 77, we read:- 5 "22. The ground for annulment directed against the admi nistration's determination of thefacts is rejected as unaccep table. 80, 81, 362/61, 339, 930, 953, 1412, 1720-2, 1778/62, 10 7,165, 443, 1659, 1861/63". The question of misconception of fact is summed up as follows in the Conclusions of the Case Law of the Greek Council of State (1929-1959), p. 268:"Διά τήν ΰπαρξιν πλάνης περί τα πράγματα απαιτείται 15 αντικειμενικήανυπαρξίατωνέφ'ώνήπραξιςερείδεταιπραγμα τικώνπεριστατικών και προϋποθέσεων: 2134
(52),διαπιστου μένη άνευτοΰ στοιχείου τηςυποκειμενικής κρίσεως: 1089
(46). Δέν υφίσταται πλάνη περί τα πράγματα οσάκις ή Διοίκησις εκτιμά κατ' ούσίαν διάφορα, και αντιφατικά στοιχεία ών 20 ή στάθμισις δύναται κατ' αρχήν νά όδηγή και είς τό συμπέ ρασμα εις 6 ήχθη ή Διοίκησις. Τοιαύτη έκτίμησις δεν ελέγ χεται κατ'ούσίανεντη ακυρωτικήδίκη. (βλ. και 1474
(56))". ("For the existence of a misconception of fact there is required an objective non-existence of the actual circum- 25 stances and prerequisites upon which the act is based (2134/52) which is ascertained in the absence of the element of the subjective test: 1089/46). There does not exist a misconception of fact when the administration determines items which in substance are different and conflicting; 30 whose determination may in principle lead to the conclusion arrived at by the administration. The substance of such determination is not controlled in the annulment trial (see also 1474/56))". See Republic v. Lefcos Georghiades,
(1972)3 C.L.R. 594). 35 With the advancement of science the ordinary and general knowledge of a person are not sufficient to deal with matters which are considered technical or specialized. Special know384 3 C.L.R. Ioannou v. Republic Stylianides J. ledge or capacities acquired by scientific study, training and experience are required for the facing, examination and deter mination of such matters. The value of specialized knowledge is uncontestable, being the product, as it is, of intensive study, 5 research and experience beyond the range of the ordinary man. In general, neither the administrative organ nor this Court can pass a judgment on the opinions of a body of experts,. It is only when there is a misconception of fact by the taking into consideration of non-existing facts or by the failure to take 10 into consideration existing ones that the Court can exercise judicial control over decisions based on such opinions. The non-reviewable, subject to what was stated above, of theconclusions of theexperts andparticularly of medical experts, is well settled. (D. P. Economou—Judicial Control of Admi15 nistrative Power, 1966, p. 253). It is normally beyond the competence of this Court in a case of this nature to examine ~~~ the correctness from a scientific aspect of the report of the Medical Board. (See Decision No. 2051/70 of the Greek Council of State; Pitsillides v. Republic,
(1978)3 C.L.R. 99; 20 Kyriacos Diosmis v. Republic,
(1975)3 C.L.R. 461, 465). It is within the exclusive competence of the administrative organ to decide on the disability of a person (ίκανότης ή άνικανότης) and its decision is not reviewable unless there is a reviewable defect. (Case No. 828/49 of the Greek Council of State). 25 Having carefully considered all the facts and circumstances pertaining to the case and the arguments advanced in the ad dresses of counsel, I am of the opinion that the committee and the Medical Board, on the opinion of which the committee acted, did not take into consideration anything non-existent 30_ and did not fail to take into consideration anything existing; the inquiry was not defective; the members of the Medical Board addressed their mind to the medical certificate of Dr. Ioannou. Truly they did not ask from Dr. Ioannouthe X-rays he took; the applicant, however, did not submit such X-rays 35 to the Board; I am not satisfied that the Medical Board did not carry out a proper examination. The committee exercised duly its discretion. They acted within their competence and as provided by law. 385 Stylianides J. Ioannou v. Republic
(1982)For the aforesaid reasons this recourse fails, in the circumstances I make no order as to costs. Application dismissed. No order as to costs. 386