(1982)1982 July 15 [TRIANTAFYLLIDES, P.] DAVID CHRISTOU AND OTHERS, Appellants-Applicants, v. THE REPUBLIC OF CYPRUS, THROUGH THE MINISTER OF INTERIOR AND DEFENCE, Respondent. (Application in RevisionalJurisdiction Appeal No. 283). Provisional Order—Jurisdiction—Revisional Jurisdiction Appeal—• Whether the Court has jurisdiction to grant provisional order staying effect ofsubjudice actpending determination of anappeal against dismissal of a recourse challenging the act—Rule 13 of the Supreme Constitutional Court Rules of Court and section 5 11 of the Administration of Justice (Miscellaneous Provisions) Law, 1964 (Law 33/64). Provisional Order—Dismissal of recourse against rejection of application for exemption from military service—Appeal against dismissal oj' recourse—'Application for provisional order post- 10 poning the military service until determination of the appeal— No pressing need to secure appellants' service in the National Guard in view of a statement by the respondent, when same provisional orders were,sought before the trial Judge, that no action wit/ be taken against them for a period of six months— 15 Consequently no real harm to tliepublic interest will be caused if appellants were allowed not to enlist for military service for a further period of few months—Important constitutional issues arise in the appeal—Appellants Jehova's Witnesses and objecting tomilitary serviceonreligiousgrounds—And if made todomilitary 20 service, contrary to their religious beliefs, they will suffer harm which cannot be adequately estimated or compensated afterwards in terms of damages, if successful in their appeal—Provisional order granted pending the determination of the appeal. The appellants, who professed to be Jehova's Witnesses and 634 25 3 C.L.R. 5 10 15 20 25 3 35 40 Christou and Others v. Republic objected, mainly on religious grounds, to military service in the National Guard challenged, by means of recourses, the decisions of the respondent Minister to reject their applications for exemption from military service, as conscripts or reseivists. The trial Judge dismissed their recourses on June 3, 1982 and after appealing against such dismissal on July 6, 1982 they applied for provisional orders postponing, until the determination of the appeals, their military service as consciipts or reservists. The applications were based on rule 13 of the Supreme Constitutional Court Rules of Court and on lules 18 and 19ofOrder35of theCivilProcedureRules. Provisional orders, which were more or less the same as those applied for on this occasion, were sought before the commencement of the hearing of the recourses but they were not proceeded with and they were withdrawn because counsel appearing for the respondent, on January 9, 1982, informed the trial Judge, that "shehadinstructions tostatethatno actionwillbetakenagainst the appellants for a period of six months." Held, (I) onthequestion ofjurisdiction toentertain the applications: That this Court possesses jurisdiction to deal with both these two applications because any Judge of the Supreme Court may make a provisional order under rule 13, of the Supreme Constitutional Rules of Court when such rule is applied in conjunction with section 11 of the Administiation of Justice (Miscellaneous Provisions) Law, 1964 (Law 33/64) (see, inter alia, Georghiades (No. 1) v. TheRepublic
(1965)3 C.L.R. 392, 394);- that this Court is not.called upon to decide, on this occasion, whether an application for a provisional order can beentertained evenafterjudgment hasbeen given intherelevant proceedings under Article 146of the Constitution and an appeal has beenfiled against suchjudgment, because counsel appearing for the respondent has not advanced any arguments to the contrary; that this Court would be inclined to the view that there is nothing to prevent the filing of applications such as thosenowbeforeitbecause,inthelightoftherelevant provisions of section 11 of Law 33/64, a revisional jurisdiction appeal is to be regarded as a continuation before the Full Bench of the Supreme Court of the proceedings in the recourse concerned which took place, in the first instance, before a Judge of the 635 Chrfstou and Others v. Republic
(1982)Court; that what, in essence, continues to be in issue at the stage of the revisional jurisdiction appeal is still the validity of the subject matter of the particular recourse in which the appealed from judgment has been given (see, inter alia, The Republicv. Vassiliades
(1967)3 C.L.R. 82, 88, 101). 5 (II) On the merits of theapplication: That by the statement ofCounsel of the Republic, on January 9, 1982, that no action would be taken against the appellants for a period of six months there was, in effect, suspended for six months the obligation of theappellants to do military service 10 and this is a very strong indication that there exists no pressing need to secure their services in the National Guard with the consequence that no real harm, to the public interest will be caused if, for a further period of few months the appellants were allowed not to enlist for military service pending the deter- 15 mination of their appeal; that it isobvious that quite important constitutional issues arise for determination in the appeal; that it is abundantly clear that the appellants are seeking, at this stage, provisional orders for mainly the same reason for whichtheyfiledtheir recourses and sought then,too,provisional 20 orders, namely because, being Jehova's witnesses, they consider military service to be incompatible with their religious beliefs; that if the appellants aie made now to do military service contrary to their religious beliefs, and if, later on, they aTe successful in their appeal, they will have suffered harm which 25 cannot be adequately estimated or compensated afterwards in terms of damages; that, therefore, therewill begranted provisional orders suspending, pending the determination of the appeal or until further order of the Court, the effect of the decisions of the respondent which require the appellants to 30 serve as conscripts or reservists in the National Guard. Application granted. Cases referred to: Georghiades (No. I) v. The Republic
(1965)3 C.L.R. 392 at p. 394; Katsiaouni v. The Republic
(1982)3 C.L.R. 68 at p. 72; Republic v. Vassiliades
(1967)3 C.L.R. 82 at pp. 88, 101; Pikis v. The Republic
(1968)3 C.L.R. 303 at p. 305; Republic v. Pericleous
(1972)3 C.L.R. 63 at p. 68; 636 35 3 C.L.R. Christoti and Others v. Republic P.O.E.D. v. Registrarof Trade Unions
(1982)3 C.L.R. 177 at pp. 182, 183; Aristidesv. TheRepublic
(1982)3 C.L.R. 1at p. 6; Economides v. TheRepublic
(1982)3 C.L.R. 37at p.43 5 Applications for provisional orders. Applications for provisional orders postponing the military service ofthe applicants, until thedetermination of their appeal against thejudgment of a Judge ofthe Supreme Court of Cyprus (L.Loizou,J.)whereby their recoursesagainst thedecision ofthe 10 respondent rejecting their applications for exemption from military service were dismissed. L. Papaphilippouwith E. Vrahimi(Mrs.) for the applicants, Gl. HadjiPetrou with A. Vlad'tmirou,for the respondent. Cur. adv. vult. 15 TRIANTAFYLLIDES P. read the following decision. By means of two applications, which have been filed on July 6 and July 12, 1982, respectively, the applicants—who are the appellants in Revisional Jurisdiction Appeal No. 283—seek, in effect, provisional orders'postponing, until the determination of the 20 said appeal, the military service, as conscripts, of those of the appellants who were the applicants in recourses Nos. 414/8! and 468/81, and the military service, as reservists, of those of the appellants who were the applicants in recourse 459/
- The judgment* dismissing the said recourses was delivered 25 by a Judge of this Court on June 3,
- The sixty-three applicants in case 414/81, the forty-rive applicants in case 459/81 and the thirty applicants in case 468/81 challenged the decisions of the respondent Minister ofInterior andDefence toreject their applications for exemption 30 from military service. All the appellants, who profess to be Jehova's Witnesses, object, mainly on religious grounds, to military service in the National Guard. R.A. 283 was filed, by the appellants, on July 6, 1982,and 35 together with it there wasfiledthe first of thetwo applications ,whicharenow before this Court. Itisstated insuch application that it is based on rule 13of the Supreme Constitutional Court * Reported in
(1982)3C.L.R.
- 637 TriantafyUides P. Chrfstoa and Others τ. Republic (1982 Rules of Court. This application came up for hearing on July 10, 1982, and it was then adjourned to July 13, 1982, to enable counsel for the appellants to consider the position further. Then, on July 12, 1982, thesecond, out of the two applications now before this Court, was filed, seeking provisional orders 5 which are the same as those sought by means of the application of July 6,
- On this occasion it was stated that the appli cation was based not only on rule 13 of the Supreme Constitu tional Court Rules of Court but, also, on rules 18 and 19 of Order 35 of the Civil Procedure Rules. The reference to the 10 said rules 18 and 19 was, apparently, made because, by virtue of the Appeals (Revisional Jurisdiction) Rules of Court of the Supreme Court, 1964 (No.2, Second Supplement to the Official Gazette of November 19, 1964), the provisions of Order 35 of the Civil Procedure Rules, in relation to appeals, became 15 applicable, mutatis mutandis, to revisional jurisdiction appeals, such as R.A.
- It may be observed, at this stage, that the adoption and application of civil procedure provisions in relation to revisional jurisdiction appeals is in accord with the trend which has been 20 manifested long ago in other countries, such as, for example, France (see, in this respect, Kambitsis on "Administrative Pro cedure Rules of Court taken from the Civil Procedure and other Procedural Enactments"'—Καμπίτση "Κανόνες Διοικητικής Δι κονομίας λαμβανόμενοι έκ της Πολιτικής Δικονομίας και άλλων 25 Δικονομικών Νόμων"—1957, ρ. 28). The second application which was filed, as aforesaid, on July 12, 1982, even though it appears to be based, also, on rules 18 and 19 of Order 35 of the Civil Procedure Rules, is not, in effect, an application for stay of execution of the judgment 30 which is appealed from by means of R.A.
- Had it been, actually, an application for stay of execution it ought to have been placed, first, before the Judge of this Court, who delivered that judgment. As it is not, however, an application for stay of execution, but, in reality, only an application for provisional 35 ordeis under rule 13 of the Supreme Constitutional Court Rules of Court, just the same as the earlier application which was filed on July 6, 1982, I am of the opinion that I possess juris diction to deal with both these two applications because any 638 3 C.L.R. Christou and Others v. Republic Triantafyllides P. Judge of the Supreme Court may make a provisional order under the said rule 13,when such rule is applied in conjunction with section Π of the Administration of Justice (Miscellaneous Provisions) Law, 1964 (Law 33/64) (see Georghiades (No. 1) 5 v. The Republic,
(1965)3 C.L.R. 392, 394 and Katsiaouni v. The Republic,
(1982)3 C.L.R. 68, 72). 10 15 20 25 I am not called upon to decide, on this occasion, whether an application for a provisional order, such as those now before me, can be entertained even after judgment has been given in the relevant proceedings under Article 146 of the Constitution and an appeal has been filed against such judgment, because counsel appearing for the respondent has not advanced any arguments to the contrary. I would, indeed, be inclined to theviewthat thereis nothing to prevent thefilingof applications such as those now before me because, in the light of the relevant provisions of section 11 of Law 33/64, a revisional jurisdiction appeal is to be regarded as a continuation before the Full Bench of the Supreme Court of the proceedings in the recourse concerned which took place, in the first instance, before a Judge of the Court; and what, in essence, continues to be in issue at the stage of the revisional jurisdiction appeal is_slill the validity of the subject matter of the particular recourse in which the appealed from judgment has been given (see, in this respect, inter alia,· The Republic v. Vassiliades.
(1967)3 C.L.R. 82, 88, 101, Pikis v. The Republic,
(1968)3 C.L.R. 303, 305 and The Republic v. Pericleous,
(1972)3 C.L.R. 63, 68). It is to be noted that provisional orders, which were more or less the same as those applied for now, were sought before the commencement of the hearing of cases 414/81, 459/81 30 and 468/81 but they were not proceeded with and they were withdrawn because counsel appearing then for the respondent, on January 9, 1982, informed the trial Judge and counsel for the applicants that she had "instructions to state that no action will be taken against the applicants for a period of six months". 35 There was thus brought about the situation which would have been created had the provisional orders applied for then by the applicants—now the appellants—had been granted, that is the suspension of their obligation to do military service, as conscripts or reservists, in the National Guard; and it is useful 40 to observe, while on this point, that the said applications for 639 Triantafyllides P. Christou and Others v. Republic
(1982)provisional orders, which were made prior to the trial of the recourses of the appellants, were rightly withdrawn after the aforequoted statement of counsel for the respondent, because once such statement had been made those applications were deprived of their object (and sec, in this respect, in Greece, 5 "Review of Public Law and Administrative Law"—" Επι θεώρηση Δημοσίου Δικαίου καΐ Διοικητκοϋ Δικαίου"—1971, vol. 15, ρ. 81, paragraph 31). Cases 414/81, 459/81 and 468/81 were tried as expeditiously as possible and judgment was given on June 3,
- Then 10 on July 6, 1982, before the expiration of the aforementioned period of six months, the appellants filed their present appeal, R.A.
- By the statement made, as aforesaid, on January 9, 1982, on behalf of the respondent Minister of Interior and Defence, 15 that no action would be taken against theappellants for a period of six months there was, in effect, suspended for six months the obligation of the appellants to do military service; and this is a very strong indication that there exists no pressing need to secure their services, as conscripts or reservists, intheNational 20 Guard. Consequently, no real harm to the public interest will be caused if, for a further period which, normally, would not exceed a few months, the appellants were to be allowed not to enlist for military service pending the determination of their appeal, R.A.
- 25 I have duly taken into account the above factor, together with all other relevant considerations, in deciding, in the light of the relevant principles- of Administrative Law (see, in this respect, inter alia, P.O.E.D. v. Registrar of Trade Unions,
(1982)3 C.L.R. 177, 182, 183, Aristides v. The Republic,
(1982)3 30 C.L.R. 1, 6, Economides v. The Republic
(1982)3 C.L.R. 37, 43 and Katsiaouni,supra, 74) whether or not to grant the provi sional orders applied for now by the appellants. It is, indeed, obvious, from a perusal of the notice of appeal, that quite important constitutional issues arise for determination in R.A. 283. Also, it is abundantly clear that the appellants are seeking, at this stage, piovisional orders for mainly the same reason 640 35 3 C.L.R. Christou and Others v. Republic Triantafyllides P. for which they filed their recourses and sought then, too, provi sional orders, namely because, being Jehova's Witnesses, they consider military service to be incompatible with their religious beliefs. In my view if the appellants are made now to do mili5 tary service contrary to their religious beliefs, and if, later on, they are successful in their appeal, R.A. 283, they will have suffered harm which cannot be adequately estimated or compensated afterwards in terms of damages. In the light of all the foregoing ί have decided to grant provi10 sional orders suspending, pending the determination of R.A283 or untilfurther order of the Court,theeffect of the decisions of the respondent which require the appellants to eerve as conscripts or reservists in the National Guard. Applicationsgranted. 641