3 C.L.R. 1982 January IS (TRIANTAFYLLIDES, P., L. LOIZOU, HADJIANASTASSIOU, MALACHTOS A N D SAVVIDES, JJ.] PANOS RAZIS AND ANOTHER, Appellants, v. THE REPUBLIC OF CYPRUS, THROUGH THE MINISTRY OF INTERIOR, Respondents. (Revisional Jurisdiction Appeal No. 208). Practice—Recourse for annulment—Court can examine ex proprio motu the question whether sub judice decision is an executory one or not. 5 10 15 20 Act or decision in the sense of Article 146.1 of the Constitution— Which can be made the subject of a recourse—Legal opinion from the office of the Attorney-General—Cannot be considered as a decision in the sense of the above Article. On July 4, 1977 the appellants, through their Counsel, wrote to the respondent Ministry and asked that they might be declared as aliens. The respondent replied by letter dated July 15, 1977 and stated that appellants were citizens of the Republic of Cyprus. As against this reply the appellants filed on August 17, 1977 recourse No. 229/77 for a declaration that the decision of the respondent by virtue of which they were considered as citizens of the Republic and as such liable to conscription was null and void. This recourse was finally withdrawn and dismissed on April 22, 1978 upon a statement being made by both Counsel that they had seen the Attorney-General of the Republic and he had agreed to a re-examination of the case. By letter dated July 14, 1978 Counsel of" the Republic informed Counsel for the appellants that the Attorney-General of the Republic re-examined the legal aspect of the case and was of the opinion that the decision which formed the subject matter of the said 45 Razis & Another v. Republic
(1982)recourse was correctly taken because his clients fell within section 2 of Annex D to the Treaty of Establishment. After the receipt of this letter the appellants filed a recourse on August 12, 1978, the subject matter of these proceedings, for a declaration that the act and/or decision of the respondent 5 dated July 14, 1978 by virtue of which they were considered as citizens of the Republic was null and void. The trial Judge, after examining ex proprio motu the question whether the administrative act complained of was an executory one or not, held* that it was nothing more than a legal opinion from 10 theoffice oftheAttorney-General whichcould not beconsidered as a decision within themeaning of Article 146of the Constitution. Hence this appeal. Counsel for the appellants mainly contended: (
- a)That the trial Judge wrongly proceeded to examine 15 and resolve ex proprio motu the question whether the administrative act challenged by the recourse, was an executory one or not. (
- b)That even if thetrial Judge had theright and/or power to resolve ex proprio motu the said question, he erro- 20 neously came to the conclusion that the act was not an executory act, once the appellants had withdrawn a previous recourse upon a distinct undertaking by the Attorney-General of the Republic to re-examine the case, and the new decision was the result of such 25 re-examination. Held,
(1)that the trial Judge was competent to examine ex proprio motu the question whether the administrative act or decision complained of was of an executory nature or not (see Lumbrakis v. The Republic
(1972)3 C.L.R. 72 at pp. 73-74). 30
(2)That the decision chal'enged is nothing more than a legal opinionfrom theOffice oftheAttorney-General oftheRepublic; that a legal opinion cannot be considered as a decision in the sense of Article 146 of the Constitution; accordingly the appeal must be dismissed. 35 Appeal dismissed. * See
(1979)3 C.L.R. 127. 46 3 C.L.R. 5 10 Raxis & Another v. Republic Cases referred to: HolySeeofKitiumv. MunicipalCouncilofLimassoi, 1R.S.C.C. 15 at p. 21; Lambrakis v. The Republic
(1970)3 C.L.R. 72 at p. 73-74; Lambrou v. The Republic
(1969)3 C.L.R. 497; Christodoulou v. The Republic
(1967)3 C.L.R. 691; Vrahimi and Another v. The Republic,4 R.S.C.C. 121; Colocassides v. The Republic
(1965)3 C.L.R. 542; Pieri v. The Republic
(1978)3 C.L.R. 356; Florides v. 77ie Republic
(1979)3 C.L.R. 37. Appeal. Appeal against the judgment of a Judge of the Supreme Court of Cyprus (A. Loizou, J.) given on the 14th April, 1979 (Revisional Jurisdiction Case No. 345/78) whereby appellant.' 15 recourse against the decision of the respondent to consider them as citizens of the Republic and as such liable to military service was dismissed. L.N. Clerides, for the appellants. N. Charalambous, Senior Counsel of the Republic, for 20 the respondent. Cur. adv. vult. TBIANTAFYLLIDES P.: The judgment of the Court will be delivered by Mr. Justice Hadjianastassiou. HADJIANASTASSIOI' J.: This is an appeal by the two brothers 25 Panos A. Razis and Lambros A. Razis against thejudgment of a Judge of the Supreme Court, underthe proviso to section 11
(2)of the Administration of Justice (Miscellaneous Provisions) Law 1964, dismissing their application on the ground that they were both citizens of the Republic and as such were bound by law 30 to serve in the ranks of the National Guard.
- THE FACTS: The two appellants are twin brothers and weie born in Limassoi on the 19th February,
- Their father was bom at Argostolion of Greece on 30th November, 1924, and came 35 to Cyprus on the 2nd October, 1950 and started work at Evrychou Gymnasium as a physical training school maslei. He was the holder of a Greek passport issued in Athens on 47 Hadjianastassiou J. Razis & Another v. Republic
(1982)8th September 1950, which had expired on 23rd September,
- On 18th September, 1955,he got married to his present wife, a Cypriot born in Limassoi on 20th October,
- His wife was issued with a British Cypriot passport on 10th September, 1958,andbecameacitizen oftheRepublicofCyprus 5 automatically on 16th August, 1960, viz., the date of the establishment of the Republic of Cyprus by virtue of section 2 of Annex D to the Treaty of Establishment. The appellants' father remained in Cyprus and worked as a school master in varioussecondary schools between the years 10 1950and i960,onatemporaryresidencepermit,forthepurposes ofemployment, which wasgranted to him undertheAliensand Immigrations Laws and Regulations in force at the time. On 22nd January, 1960, the father applied for a certificate of naturalization under the British Nationality Act 1948 which was 15 issuedto him under No. 1220on 8thJune,
- Furtlurmoic, heapplied in 1969 under section 5
(1)of Annex Dto theTreaty of Establishment to be granted citizenship of the Republic of Cyprus. On 10th May, 1969, the Migration Officer informed the District Officer of Limassoi through whom the aforesaid 20 application had been submitted that before the further consideration the said applicant had to produce to the said Department a certificate of the Chairman of the Commi;tee of the Quarter as to whether he was a permanent resident of Cyprus at any time in the period of five years immediately before the 25 16th August, 1960, and such certificate was forwarded by tho District Officer of Limassoi. The application of the father wasapproved and on 12th September, 1969, hewasissuedwith a Cyprus passport. (See section 5
(1)of Annex DtotheTreaty of Establishment). 30 On4thJuly, 1977,the appellants thiough their lawyer,having explained the circumstances of their case to the appropriate authority viz., the Ministry of interior, inquired whether they might be declared as aliens. The matter was examined and the appropriate officer replied by a biter daled 15th July, 1977, 35 that after consideration of the whole matter, it was ascertained that the applicants were citizens of the Republic of Cyprus. The applicant! feeling aggrieved, filed recourse No. 229/77 on 17th August, 1977, and prayed for a declaration that the decision of the respondent by virtue of which they were consi- 40 48 3 C.L.R. 5 Razis &Another v. Republic Hadjianastassiou J. dered as citizens of the Republic and as such liable to conscription, was null and void and of no effect whatsoever. This recourse was finally withdrawn and dismissed on 22nd April, 1978, upon a statement being made by both counsel that they had seen the Attorney-General of the Republic and that he had agreed to a re-examination of the case. On 14th July, 1978,counsel of the Republic informed counsc for the appellants that the Attorney-General of the Republic re-examined the legal aspect of the case and was of the opinion 10 that the decision which formed the subject-matter of the said recourse was correctly taken because his clients fell within section 2 of Annex D to the Treaty of Establishment. On 12thAugust, 1978,theappellantsfiledtherecourse under appeal.
- PUBLIC LAW: 15 Time and again it was said that the Supieme Constitutional Court has been set up as a separate administrative Court with exclusive jurisdiction, modelled on similar courts in European countries. In the past, in the absence of such a Court, such administrative jurisdiction, very limited and inadequate by 20 modern standards as it was, wasshared by ordinary courts and some executive organs, accordingto the particular case. Under the provisions of Article 146 of the Constitution the power to adjudicate finally in matters concerning a decision, act or omission of any organ, authority or person exercising executive 25 or administrative authority, is now within the exclusive jurisdiction of this Court. See Holy See of Kitium and Municipal Council, Limassoi, 1 R.S.C.C. 15 at p.
- There is no doubt that in the opposition counsel of the Republic made it clear that the recourse filed does not attack 30 any administrative act. It is also true that this point has not been argued before the learned trial Judge; but it was examined by him ex proprio motu.
- APPEAL: On appeal,in a strong argument counsel complained (a) that 35 the learned Judge wrongly proceeded to examine and resolve ex proprio motu the question whether the administrative act challenged, in the present recourse, was an executory one or 49 Hadjianastassiou J . Razis & Another v. Republic (1982> not, though respondents' counsel did not raise or press that point in his addiess to the trial Judge; and (b) counsel further argued that even if the trial Judge had the right and/or power to resolve ex proprio motu the said question, the trial Judge erroneously came to the coaclusion that the act was not an 5 executory act, once the appellants had withdrawn a previous recourse upon a distinct undertaking by the Attorney-General of the Republic to re-examine the case, and the new decision was the result of such re-examination. That the learned Judge was competentto examine ex proprio motu the question whether 10 the administrative act or decision is of an executory nature or not has not been doubted in a number of cases. In Nicos Lambrakis v. The Republic of Cyprus, through The Educational Service Committee,
(1970)3 C.L.R. 72, Triantafyllides, J. (as he then was) said at pp. 73-74:15 "Let it be made clear, however, that what ''s primarily before this Court for examination as to its validity, is the decision which is the subject-matter of the recourse. Thu parties to the recourse are of a secondary importance,in the sense that they were only heard in support or against 20 the validity of its subject-matter. In examining such validity this Court, acting under Article 146 of the Constitution,can go into certain matters, ex officio... ..." Seealso Andreas Lambrou and TheRepublicof Cyprus,through 25 the Educational Service Committee,
(1969)3 C.L.R. 497; Annika Christodoulou and The Republic of Cyprus, through the Public Service Commission
(1967)3 C.L.R.
- THE CASE LAW: Having reached the conclusion that the learned Judge was 30 entitledtoexamine thematterex propriomotu,thenext question is whether Ihe act or decision complained of is an ixeculory administrative act. That in the present case the act or decision complained of is not an executory administrative act cannot be doubted in our view, because the certificate of the Migration 35 Officer regarding the citizenship of the appellants is not an executory act, and cannot be made the subject of a recourse under Article 146 of the Constitution finds support in a number of cases. See Vrahimi and Another ν The Republic,4 R.S.C.C. 50 3 C.L.R. Razis & Another v. Republic Hadjianastassiou J. 121, and Nicos Colocassidesv. The Republic,
(1965)3 C.L.R. 542. In a similar case, in Pieri v. Republic,
(1978)3 C.L.R. 356, the applicant applied to the Migration Officer for a certificate putting forward that he was not a citizen of the Republic 5 of Cyprus. On the contrary the Migration Officer issued to him a certificate in which, inter alia, it was stated that "According to our records he is a conscript". Upon receiving this certificate the applicant filed a recourse contending that the act or decision of the Migration Officer was illegal. On 10 the contrary, counsel for the respondent opposed the allegation of the applicant and put forward that the said certificate does not amount to an executory act and that it was wrongly attacked by a recourse. Mr. Justice Malachtos in dealing with the question, whether the said certificate is an act or decision in 15 the sense of Article 146 of the Constitution said at p. 364:- 20 "In the present case the letter of the Migration officer dated 11th July, 1977, cannot be considered as an administrative act or decision of an executory nature, as it amounts only to a legal opinion concerning the applicant and could not directly effeci him". In Floridesv. The Republic,
(1979)3 C.L.R. 37, the applica.U, a citizen ofthe Republic,was liable to enlistment in the National Guard in the ordinary course of events. He maintained that he was not so liable and he applied through his advocate to 25 the respondent Ministry by a letter for a confirmation that he was not in law bound to serve in the National Gua.d being so exempted on the basis of the aforesaid provisions. Respondent replied by letter that he did not agree with the above submission of applicant's counsel. Applicant applied 30 for a due reasoning of the refusal contained in the letter and respondent by his letter replied that applicant could not be exempted relying on the grammatical and logical interpolation of the section in question. Stavrinjdes, J. in dealing wiih the verysame question raisedintheprevious casesaid at pp. 39-40:35 40 "In my view the point is clearly a valid one: the respondent's letters of September 17 and October 11, 1973, (which, incidentally, were not, as they ought to have been, filed together with the application as exhibits thereto) were, in the circumstances of the case, merely 'opinions* (*gnomodotisis*)_". 51 Hidjianastassiou J. Razis &Another v. Republic
(1982)In the light of the authorities and in view of the fact that in the present case the decision challenged is nothing more than a legal opinion from the office of the Attorney-General, we affirm the decision of the trial Judge because in our view a legal opin'On cannot be considered as a decision in the sense 5 of Article 146 of the Constitution. We, therefore, dismiss the appeal. No order as to costs. Appeal dismissed. No order as to costs. 10