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clr/1983/1983_3_1332.pdf

(1983)1982 June 26 [TRIANTAFYLLIDES, P.] IN THE MATTER OF ARTICLE 146 OF THECONSTITUTION DEMOS ARISTIDOU, PERSONALLY AND AS ADMINISTRATOR OF THE ESTATE OF THE DECEASED SPIROS D. ARISTIDOU AND OTHERS, Applicants, v. THE REPUBLIC OF CYPRUS, THROUGH
  1. THE GRANTS COMMITTEE,
  2. THE MINISTER OF FINANCE, Respondents. (Case No. 192/76). Administrative Law—Inquiry—Due inquiry—Presumption that administrative decision reached after correct ascertainment of relevantfacts—Rebutted if thereexists at least a probability that a misconception has led to the taking of the decision complainedof—Subjudicedecision basedon information contained 5 in two conflicting reports—Annulled for absence of due inquiry and due to existence of a quite reasonable probabilitythat a misconception has led to its taking. The applicants in this recourse, who were the parents and brother and sister of the deceased Spyros Aristidou applied 10 to the respondent Committee for the payment to them of a dependants' allowance in respect of his death. The respondent Committee dismissed the application because it found that the deceased was not killed while being on lawful active service intheNational Guard but dueto his participation intheabortive |5 coup d'etat of 15th July,
  3. Hence this recourse. In arriving at the sub judice decision the respondent Com­ mittee took into account, regarding the circumstances in which the deceased was killed, reports of the National Guard and of the Central Information Service (ΚΥΡ), which were in conflict 1332 20 3 C.L.R. Aristidou τ. Republic on the vital issue of whether or no the deceased at the material time was participating in an attack against security forces loyal to the lawful Government of the Republic. 5 10 15 Held., that the respondent Committee could not have acted safely onthebasisof either oftheaforementionedtwo conflicting reports, of the National Guard and of ΚΥΡ. and that it failed to carry out adue inquiry in order toascertain theexact circum­ stances in which the deceased was shot; consequently, its sub judice decision has to be annulled, in any event, onthis ground. held, further, that the presumption that an administrative decision is reached after acorrect ascertainment of relevant facts can be rebutted if a litigant succeeds in establishing that there exists at least a probability that a misconception has led to the taking of the decision complained of; that in this case there exists a quite reasonable probability that a factual misconception has led to the taking of the sub judice decision and for this reason, too, it should be annulled. Subjudice decision annulled. 20 25 Cases referred to: Mallouros v. ElectricityAuthority of Cyprus
(1974)3 C.L.R. 220 at p. 224; Andreou v. Cyprus Broadcasting Corporation
(1976)3 C.L.R. 36 at p. 42. Recourse. Recourse against the decision of the respondents to dis.niss applicants' application for the grant to them of a dependents* allowance in respect of the death of Spiros Aristidou. A. Papadopoullos, for the applicants. CI. Michaelides, for the respondents. 30 35 Cur. adv. vuit. TRIANTAFYLLIDES P. read the following judgment. By means of the present recourse the applicants challenge, in effect, the decision of the respondent Grants Committee, which comes under the respondent Minister of Finance, by means of which it was decided to dismiss their application for the payment to them of a dependants' allowanoe in respect of the death of 1333 Iriantflfyllides P. Aristidou v. Republic
(1983)Spyros Aristidou, their son (applicants 1 and 2 are his father and mother, respectively) and brother (applicant 3 is his sister). The said Committee dismissed the application of the applicants, which was made.under section 19 of the National Guard Law, 1964 (Law 20/64), as amended by the National 5 Guard (Amendment) Law, 1975 (Law 24/75), and under the National Guard(Dependants of Persons Killed orIncapacitated) (Allowances) Regulations, because it found that the deceased was not killed while being on lawful active service in the National Guard but due to his participation in the abortive 10 coup d' etat of 15th July
  1. The deceased had enlisted in the National Guard on 21st July 1973 and he was serving in it as sergeant until the time of his death on 21st July
  2. On 15th July 1974, while he was at a military camp at Polemidhia, near Limassol, he, 15 together with other national guardsmen, proceeded, under the orders of an officer, to the premises of the Military Command in Limassol where he was shot at by someone; and having been seriously wounded he was taken to the Limassol Hospital where he died on 21st July
  3. 20 As it appears from the Opposition the respondent Grants Committee in arriving at its sub judice decision took into account, regarding the circumstances in which the deceased was killed, reports of the National Guard and of the Central Infoimation Service (ΚΥΡ). The latter report appears to be 25 in conflict with the former on the vital issue of whether or not the deceased at the material time was participating in an attack against security forces loyal to the lawful Government of the Republic. The report of ΚΥΡ, on which the respondent Committee seems to have based its decision, states that in fact 30 the deceased was participating in an attack as aforesaid, whereas the report of the National Guard states the contrary, namely that the deceased and the other national guardsmen had been sent to the premises of the Military Command in Limassol in order to clean up the litter that was lying about in such premises 35 due to fighting that had taken place there earlier. At thehearing of this case before mecounsel for the applicants called two witnesses who gave evidence on oath suppoiting 1334 3 C.L.R. Aristidou v. Republic Triantafyllides P. the version to be found in the report of the National Guard. The evidence of these two witnesses, one of whom was not even cross-examined, was not contradicted by any evidence called by the respondents. 5 Having inmind all theforegoing Ihave cometotheconclusion that the respondent Committee could not have acted safely on the basis of either of the aforementioned two conflicting reports, of the National Guard and of ΚΥΡ and that it failed to carry out a due inquiry in order to ascertain theexact circum10 stances in which the deceased was shot; consequently, its sub judice decision has to be annulled, in any event, on this ground. In thecase of Malhuros v. TheElectricityAuthority of Cyprus.
(1974)3 C.L.R. 220, there were stated the following (at p. 224): 15 20 25 "In this respect, 1 was referred to the case of HjiMichael v. The Republic
(1972)3 C.L.R. 246, at p. 252, where it is stated—'According to the principles of administrative law there exists a presumption that an administrative decision is reached after a correct ascertainment of relevant facts; but such presumption can be rebutted if a litigant succeeds in establishing that there exists at least a pro­ bability that a misconception has led to the taking of the decision complained of (see, inter alia, Stassinopoulos on The Law of Administrative Acts, p. 304, et seq.)' ". Useful reference may be made,also, inthis respect, toAndreou v. Cyprus Broadcasting Corporation,
(1976)3 C.L.R. 36, 42. In the circumstances of this case I am satisfied that, at any rate, there exists a quite reasonable probability that a factual misconception has led to the taking of the sub judice decision and for this reason, too, it should be annulled. 30 Inthe result, this recourse succeeds; but 1will make no order as to its costs. Sub judice decisionannulled. No order as to costs. 1335

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