clr/1983/1983_3_170.pdf

(1983)1982 December 9 [SAVVIDES, J.J IN T H E MATTER OF*ARTICLE 146 OF THE CONSTlTUTtON LEFKIOS I. IOANNIDES, Applicant. THE REPUBLIC OF CYPRUS, THROUGH THE MINISTER OF INTERIOR, Respondent. (Case No. 95/79). Administrative Law—Administrative acts ordecisions—Retrospectively—Rule against retrospectively—Decision No. 17341 of the Council of Ministers, taken by virtue of the proviso to section 5(\)(b) of the National Guard Laws, has no retrospective effect. National Guard—Release from—Due to special circumstances— 5 Fallsfor consideration by Advisory Committee contemplated by section 4

(4)of the National Guard Laws—Respondent Minister refusing applicationfor release, due to special circumstances, by relying on advice of the Commander of the National Guard who was not the appropriate organ to advise Minister on such issue— 10 Appropriate organ the said Advisory Committee—Respondent Minister acting· in a wrong way and not following the proper procedure—Sub judice decision annulled. The applicant, a citizen of the Republic, was in 1973 and on his application panted by the respondent Minister a certificate 15 of exemption from service in the National Guard under the provisions of section 4

(3)(c) of the National Guard Laws as a person residing outside Cyprus. He returned to Cyprus in 1978 and enlisted in the National Guard, the period of his military service being twelve months. Following a decision* 20 of the Council of Ministers, which was taken on the 19th Octo* This decision is quoted at p, 173 post. 170 3 C.L.R. 5 10 15 20 25 30 35 loannidesv.Republic ber, 1978, for the abridgement to six months of the period of military service of those conscripts who had settled abroad priortothe 14thJuly, 1974providedthattheyreturn to Cyprus and enlist until the enlistment of January, 1980, applicant applied* to be released from theNational Guardbyvirtueof this decision and by virtue of special circumstances. The respondent Minister, acting on a report** of the Commander of the National Guard rejected the application and hence this recourse: Held,

(1)that it is one of the accepted principles of administrative law that an administrative decision does not have retrospective effect; that the contents of the above decision are clear and leave no room for construction that they indicate an intentiontogiveretrospectiveeffect tothedecision; that,therefore, the Minister of Interior and Defence in refusing applicant's application for his release on the ground that the said decision of the Council of Ministers could not be given retrospective effect did not act contrary to the letter and spirit of such decision.

(2)That cases whereby release from the National Guard is claimed for special reasons fall for consideration within the functions of the Advisory Committee contemplated by section 4

(4)ofthe National Guard Laws(seesection2(d) of Law33/76 amendings.4

(4)ofthe National Guard Laws); that inthiscase therespondent Minister adoptedtheopinionoftheCommander of the National Guard that no special reasons existed in the present case for the release of the applicant; that the Commander of the National Guard was not the appropriate organ to advisethe Minister on suchissue andhis opinion should not have guided the Minister in taking his decision; that the case of theapplicant was a case properly falling within the ambit of the advisory committee and it was the duty of the Minister to have sent such case for consideration and inquiry as to the facts to the Advisory Committee, and wait for the conclusions of such Committee before taking his decision; that, in the result, the way the Ministei of Interior and Defence acted in taking the sub judice decision was wrong and that the proper procedure which ought to have beenfollowed wasnot followed * The application is quoted at pp. 174-175post. *·.The report is quoted at pp. 175-177 post. 171- loannides v. Republic

(1983)in the present case; and that, therefore, the recourse will succeed on this ground. Subjudicedecision annulled. Recourse. Recourse against the decision of the respondent not to release 5 the applicant from the National Guard. L.N. Clerides, for the applicant. Cl. Antoniades, Senior Counsel of the Republic, for the respondent. Cur. adv. vult. 10 SAVVIDES J. read the following judgment. The applicant is a Chartered Accountant, married, with one infant child, and he is a citizen of the Republic. He was born on 25.11.1941 at Kyperounta village and had lived in Cyprus continuously until 1961 when he left for abroad and since then he had been 15 residing and working abroad as follows: From 1961-1969 in the United Kingdom. From 1970-1971 in Ghana. From 1971-1972 in Nigeria. From 1972-1974 in Liberia. From 1974-1975 in Saudi Arabia. From 1976-1978 in the Arabian Emirates and finally returned to Cyprus on 2.4.1978 with the intention of staying here and carrying on his profession as Chartered Accountant. As a citizen of the Republic he was bound to enlist in the National Guard and serve his military service under the provisions of the National Guard Laws 1964-1979 (Laws 20/64 to 88/79). In 1973, on his application, he was granted by the Minister of Interior a certificate of exemption from 30 service in the National Guard under the provisions of section 4, sub-section 3(c) of the National Guard Laws as a person permanently residing outside Cyprus. There was a condition included in the said exemption that in casethe reason for which the exemption was granted ceased to exist, the applicant was 35 bound to call for enlistment in the National Guard. After his return to Cyprus in 1978 and in view of the fact that the reason for his exemption from service in the National 172 20 25 3 C.L.R. loannides v. Republic Savvides J. Guard ceased to exist, he enlisted in the National Guard on 11.7.1978 for his military service which, having regard to the date of his birth and the regulations in force at the time when his age-group was originally called, was a period of twelve 5 months. The Council of Ministers for the purpose of encouraging citizens of the Republic who were exempted from military service due to their residence abroad, to return and reside in Cyprus, if they so wished, decided on 19th October, 1978 10 by Decision No. 17341 published in part I of Supplement 4 of the Cyprus Gazette of 27.10.1978 to abridge to six months the period of National Service which such citizens were bound to serve, provided they complied with the conditions set out in such decision. The material part of such decision reads 15 as follows: "To Συμβούλιον, δυνάμει της επιφυλάξεως (β) του εδαφίου

(1)τοΰ άρθρου 5 των περί της 'Εθνικής Φρουράς Νόμων τοΰ 1964 §ως 1978, συντέμνει20 25 (α) την περίοδον θητείας είς εξ μήνας των στρατευσίμων της κλάσεως 1974 και πάσης προηγουμένης κληθείσης κλάσεως οΐτινες κατά την κρίσιν τοΰ Υπουργού Αμύνης είχον έγκατασταθη είς το έξωτερικόν προ της 14ης Ιουλίου, 1974, νοουμένου ότι επανέρχονται είς Κυπρον καΐ κατατάσσονταιείς την Δυναμιν μέχρι της κατατάξεως τοΰ Ιανουαρίου, 1980, συμπεριλαμβανομένης: ("The Council of Ministers by virtue of proviso (b) of sub-section

(1)of section 5 of the National Guard Laws, 1964-1978, abridges— 30 35 (a) the period of service to six months of the conscripts of the 1974 class and every previously called up class who at the discretion of the Minister of Defence had settled abroad before the 14th July, 1974, provided that they will return to Cyprus and enlist in the Force until the January, 1980 enlistment, inclusive"). The applicant on 27.12.1978whilst servinghis national service, submitted an application totheMinister of Interior and Defence, 173 Savvides J. Ioannides t. Republic

(1983)through theCommander oftheNationalGuard,for theabridgement of his national service to six months. The grounds on which he based his application were—(

1. a)the decision of the Council of Ministers No. 17341to which reference has already been made, and (
2. b)specialcircumstances under section 9, sub- 5 section

(1)of the National Guard Laws. The contents of such application which is Appendix 'B' to the Opposition) read as follows: "I should be grateful if you would release me from the National Guard on the grounds of l 10 (

1. a)Paragraph (
2. a)Council of Ministers decision number 17341 dated 29.10.1978 and/or, (
3. b)Special circumstances. The position is as follows: From October 1961toApril 1978I wasresident abroad. 15 During this time, I obtained the following professional qualifications:
4. i)Institute of Chartered Accountants
5. ii)Association of Certified Accountants iii) Institute of Taxation
6. iv)British Institute of Management andworkedinthe United Kingdom, WestAfrica, Lebanon, Saudi Arabia and the United Arab Emirates, with Coopers & Lybrand, Chartered Accountants, initially as an audit supervisor and later as a partner. I returned to Cyprus in April, 1978 and have joined the National Guard in July, 1978. I am married with one child and my wife is expecting a second child in April, 1979. We are living in rented accommodation andpayrentattherateof£720perannum. 30 Since 1974 I have been providing financial support for my brother who is studying at Manchester University. Such support amounted to £2,000 in the academic year 1977/78. My savings are exhausted and I am now living on a 35 174 20 25 3 C.L.R. loannides τ. Republic Savvides J. bank overdraft. My monthly expenses (including the support to my brother) amounts to £350 compared to a monthly income from the National Guard of £19.-. 5 My wife is a refugee from Morphou and has no financial means of her own. 10 With such financial commitments and family responsibi­ lities, I feel that there are special circumstances which warrant my immediate release from the National Guard and sincerely hope that you would kindly consider my application favourably. 15 I enclose photocopies of the certificate of exemption from the National Guard and extract from my passport confirming the date of my arrival in Cyprus. I shall be happy to supply you with further information or explanations you may require". 20 Such application was submitted by the Commander of the National Guard to the Minister of Interior and Defence on 27th January, 1979 with an accompanying letter whereby, after briefly referring to the facts, he went on to express the following opinion why the application should be dismissed. "Θέμα: 'Απολύσεις Στρατιωτικού Προσωπικού . 1. 2. 25 ™ „ Έπί τοΰ ώς άνω αίτήματος αϊ απόψεις τοΰ ΓΕΕΦέχουν ώς ακολούθως: (α) 'Υπαγωγή είς τάς διατάξεις της ύπ* αριθ. 17341/78 Αποφάσεως τοΰ 'Υπουργικού Συμβουλίου:

(1)Έκ τών διατάξεωντοΰ εδαφίου (α) τής ένλόγω 'Απο­ φάσεως προκύπτει δτι αύταιαφορούνείς όσους'επανέρ­ χονται είς Κύπρον* καί ουχί είς τους ήδη έπανελθόντες. 30 35

(2)*Η Άπόφασις αύτη έδημοσιευθη είς τήν Έττίσημον 'Εφημερίδα της Δημοκρατίας τήν 27,10.1978, αφ* ής καί άρχεται ή Ισχύς της. (β) Κατόπιντών ανωτέρω φρονοΰμεν δτι δένείναιδυνατή ή άπόλνσις τούτου διά συντμήσεως της θητείας του είς 6 μήνας συμφώνως προς τάς διατάξεις τού (β) σχετικού, καθ' όσον επανήλθεν είς Κύπρον πρό της 27.10.1978. 175 Sawides J. Ioannides v. Republic

(1983)(γ) Υπαγωγή είς τάς διατάξεις τού άρθρου 9

(1)τοΰ Νόμου περί ΕΦ, λόγω είδικών περιστάσεων:

(1)Ούτος τυγχάνει έγγαμος μετ' ανηλίκου τέκνου και έπϊ πλέον έχει άδελφόν φοιτητήν είς Άγγλίαν τού οποίου αϊ σπουδαΐ, ώς Ισχυρίζεται, επιβαρύνουν τον ίδιον. 5

(2)'Εκ της άπά26.1.1979συνημμένης υπευθύνου δηλώσεως του προκυπτπ ότι έχει 10 μελή πατρικήν οίκογένειαν της οποίας τά μέλη (πλην τριών) έργάζοιηαι μέ ίκανοποιητικάς ετησίας άποδοχάς, είς τρόπον ώστε να παρέ­ χουν οίκονομικήν βοήθειαν είς τήν σύζυγόν του καθ* όν 10 χρόνον ούτος υπηρετεί ώς Στρατιώτης εϊς τήν Εθνικήν Φρουράν καί νά αναλάβουντήν συντήρησιν τοΰ είς τήν Άγγλίαν σπουδάζοντος αδελφού του.

(3)Ούτος ώς πτυχιούχος ανωτάτης σχολής καί ανήκωνείς τήν κλάσιν 1959 υπέχει 12/μηνον θητείαν, τήν οποίαν ουμπληροϊ τήν 11.7.1979, καθ' ήν καί απολύεται. 15

(6)Κατόπιν τών ανωτέρω φρονούμεν δτι ή περίπτωοις του δέν είναι εξαιρετική οί δέ λόγοι τους οποίους επικαλείται δέν συνιστούν είδικάς περιστάσεις.

(3)Ούτος έχει ύπόλοιπον θητείας περίπου 5 μηνών. 20 Άντγος Ιωάννης Κομνηνός, 'Αρχηγός". ("Subject: Release of Military Personnel.

1. _. __.
2. - - On the above claim the view of ΓΕΕΦ are as follows: (a) Classification under the provisions of decision No. 17341/78 of the Council of Ministers: 25

(1)From the provisions of sub-section (a) of the said decision it appears that they refer to those 'who return to Cyprus' and not to those who have already returned.

(2)This decision was published in the Official Gazette of the Republic on the 27.10.1978, from which date it comes into force. (

1. b)In view of the above we are of theview that his release is not possible by the abridgement of his service to six 176 30 3 C.L.R. Ioannides v. Republic Sawides J. monthsinaccordancewith theprovisions of the(b)relevant » since he had returned to Cyprus prior to 27.10.1978. (
2. c)Classification under the provisionsof section 9

(1)of the National Guard Law, due to special circumstances: 5 10 15 20

(1)Heis married with a minor child and in addition hehas abrotherstudying inEnglandwhose studies,ashe alleges, burden him.

(2)From his attached responsible statementof the26.1.1979 it emerges thathisfather's family consistsof tenmembers, whose members (except three) are working with satis­ factory annual emoluments, in such a way as to render financialaid to his wife for so long as he serves as a soldier in the National Guard and to undertake the maintenance of his brother who is studying in England.

(3)He,as the holder of a diploma of a higher School and being of the 1959 Class is liable to 12 months' service, which he completes on 11.7.1979 and on which day he is released. (d) Inview of theabove we are of theview that his case is not exceptional and the reasons which he invokes do not constitute special circumstances. 3. He has about 5 months more service. Lieutenant-General Ioannis Komninos Commander"). 25 The Minister of Interior and Defence after considering the contents of the application and the recommendations of the Commander of the National Guard, decided to adopt such recommendations and as a result, he dismissed the application andherecordedhisdecisionbriefly ontheletterof theComman30 der of the National Guard with the word " Απορρίπτεται" (it is dismissed) followed by his signature. The decision of the Minister of Interior and Defence was communicated to the applicant by letter dated 7.2.1979 (exhibit 1) signed by the Director-General of the Ministry of Defence which reads as 35 follows: "I have been instructed to refer to your letter dated 27th February, 1978, whereby you apply for your release from 177 Sawides J. Ioannides v. Republic

(1983)the National Guard for the reasons you have stated in the aforesaid letter, and wish to inform you that your application has been examined carefully, but it has not become possible to grant same". As a result the applicantfiledthe present recourse, whereby 5 he prays for, "a declaration that the act and/or decision of the Respondent not to release the applicant from the National Guard which was communicated to the applicant by letter dated 7.2.1979, should be declared null and void and of no effect whatsoever". The application is based on the following grounds of Law: (

1. a)The applicant alleges that on the basis of the decision of the Council of Ministers No. 17341 of the 19th October, 1978,the respondent should haveordered theimmediate release oftheapplicantfrom theNationalGuard ashehad beenresiding 15 abroad prior to the 14th July, 1974and he returned to Cyprus and enlisted in the National Guard prior to January, 1980— that is, in July, 1978—and heserved for more than sixmonths. (
2. b)It iscontended that therespondent's decision is contrary to theletter and spirit of thedecisonof the Council ofMinisters 20 specified in paragraph (
3. a)above and that it should be declared null and void and of no effect whatsoever. (
4. c)As regards the part of applicant's application for release from the National Guard on the ground of special reasons, it is contended that the respondent's decision to reject it is 25 illegal, in that it was taken contrary to section 4

(4)of the National Guard Laws as the respondent did not send the applicant's case for examination to the Board set up under the said Law. (

1. d)In any case, the decision contravenes Article 29 of the 30 Constitution, in that it is not duly reasoned and, as such it should be set aside. Counsel for respondents in support of his opposition, advanced the following grounds of law: (
2. a)The subjudice decisionwascorrectly taken inthelawful 35 exercise of the respondents of their discretionary powers and on the basis of all material facts of the case. 178 10 3 C.L.R. Ioannides v. Republic Savvides J. (
3. b)The subjudice decision does not in any way contravene the provisions of Article 29 of the Constitution. By the time this recourse came up for hearing, the applicant had completed his National Service of twelve months, but 5 counsel on his behalf stated that the reason he was pursuing this recourse was that if the applicant succeeds, then it was a matter of claiming damages for the illegal act of the respondents innot releasinghimincompliancewith thedecision of the Council of Ministers. 10 In arguing legal grounds (
4. a)and (b), counsel for applicant submitted that the applicant was entitled to be released from the National Guard after six months of service in view of the decision of the Council of Ministers No. 17341 of the 19th October, 1978 and that the Minister of Interior and Defence 15 byrefusing applicant'sapplication for hisrelease,acted contrary totheletterandspiritofthedecisionoftheCouncilofMinisters. Theapplicant, counselargued, waspermanently residing abroad , before the 14th July, 1974. Therefore, had he came to Cyprus after such decision of the Council of Ministers was taken, he 20 would have been entitled to thebenefit of satisfying hismilitary obligation by serving only for six months. He contended that the decision should be given retrospective effect, because it iswordedinsuchawayastocoveranypersonwhowasresident abroad permanently and who enlisted in the National Guard 25 before January, 1980. The meaning of the words used in the decisionoftheCouncilofMinisters,shouldbetakenasallowing allthisperiod, whether before thedecision or after thedecision, in favour of suchpersons,provided they enlisted upto January, 1980. In his submission, there was a glaring mistake in the 30 interpretation of the decision because in his opinion it makes no difference whether one enlisted before the decision was taken or after such decision, provided he enlisted within the time fixed by the decision. In support of his third legal ground, counsel for applicant 35 submitted that theMinisterofInterior and Defence, byadopting the opinion of the Commander of the National Guard who had no locus standi in the case and deciding to dismiss applicant's application by acting on such opinion, the Minister actedultravirestheNationalGuard Laws. . Counsel contended 179 Savvides J. Ioannides v. Republic

(1983)that under section 4, sub-section

(4)of the National Guard Laws, in cases of applications for exemption from service in the National Guard for special reasons, the Minister has to send the case for consideration to a Standing Committee before a final decision is taken on the matter. Such course was not 5 followed in the present case and, therefore, the sub judice decision was wrong. Finally, counsel for applicant submitted that the reply of theMinister which isembodied inthelettersenttothe applicant, copy of which was attached to the application, is lacking of 10 any reasoning. Counsel for the respondent submitted that the decision of the Council of Ministers wastaken after applicant had returned to Cyprus and had enlisted in the National Guard and such decision could not have retrospective effect. He contended 15 that the Minister of Interior and Defence had to give effect to decisions of the Council of Ministers as from the day of their publication in the official Gazette and had to interpret it in accordance with its contents which, in the present case, extended only to persons who, as a result of such decision, 20 wouldhavedecidedtocometoCyprusand serveintheNational Guard. He submitted that under the accepted principles of administrative law, an administrative decision cannot have retrospective effect. In dealing with legal ground 3, counsel contended that the 25 provisions of section 4, sub-section

(4)do not come into play in the present case, as the case of the applicant does not fall within any of the exemptions enumerated under section 4. Finally, on the question of reasoning, he submitted that in the light of the material contained in thefileof the case which 30 was produced as exhibit 5, and the other material before the Court, thereissufficient reasoningofthedecisionoftheCouncil of Ministers. I shall deal first with contentions (

1. a)and (
2. b)of counsel for applicant. It is one of the accepted principles of administrative law that an administrative decision does not have retrospective 180 35 3 C.L.R. 5 10 15 20 25 Ioannides v. Republic Savvides J. effect Under the Greek Administrative Law and the decisions of the Greek Council of State, the rule against retrospectivity of administrative decisions is well settled. In Kyriacopoulos Greek Administrative Law, 4th Edition, Vol. Β at p. 400, we read: Κατ' αρχήν ή ατομική διοικητική πραξις δέν δύναται να Ισχύση αναδρομικώς. Καί τοΰτο άφ' ενός μέν διότι είναι άβέβαιον αν κατά τον χρόνον, είς 6ν άνέδραμεν ή πραξις, ϊσχυεν ή αυτή άρμοδιότης και ή αυτή διαδικασία- άφ' έτερου δέ διότι ή άρμοδιότης τών διοικητικών οργάνων δέον ν' άσκηται έν όψει της παρούσης εκάστοτε νομικής καίπραγμα­ τικής καταστάσεως. Κατά κανόνα, τα έννομα αποτελέσματα της πράξεως δέν δύνανται νά έκταθώσιν είς χρόνον προγενέστερον τής εκδόσεως αυτής". ("In the first place, the personal administrative act can have no retrospective effect. And this because on the one hand it is uncertain if at the time to which the act retrospects the same authority and the same procedure was in force; and on the other hand because the authority of administrative organs must be exercised in accordance with the existing at the time legal and factual situation. As a rule, the lawful results of the act cannot be applied to a time prior to its issue"). Certain exceptions to the rule are then set out but the present case does not fall within any of such exemptions. Also in Stassinopoulos "The Law on Administrative Acts" (Dikeon Diikitikon Praxeon) 1951 Edition at pp. 368, 369 it reads: 30 35 "Κατά κανόνα, ή διοικητική πραξις δέον νά θεωρήται ίσχύούσα διά τό μέλλον καί ουχί διά το παρελθόν. Ή αναδρο­ μική Ισχύς τής διοικητικής πράξεως αποτελεί έξαίρεσιν, ήτις δέν είναι παντοίε επιτετραμμένη. Καί ενταύθα κέκτηται σημασίαν ή διάκρισις τών κανονιστικών άπό τών ατομικών πράξεων. "Η άναδρομικότης επί τών κανονιστικών πράξεων— 'Αναδρομική ϊσχύς τών κανονιστικών πράξεων είναι κατ* •αρχήν ασυμβίβαστος προς τήν φύσιν οώτών, διότι, έάν 181 Savvides J. Ioannides v. Republic

(1983)ό διά της κανονιστικής πράξεως τιθέμενος κανώναπόκτηση άναδρομικήν ίσχύν, άναγκαίως θέλει συμπαρασύρει τάς ύπό το κράτος τοϋ προϊσχύοντος κανόνος παραχθείσας οχέσεις, τοιαύτηνδέ άνατροπήν δέν ήθέλησεν ό έφ*ού έστηρίχθη ή κανονιστική πραξις νόμος. Διότι ούτος, κατά τάς 5 γενικός αρχάς, στερείται, έν αμφιβολία, δυνάμεως αναδρο­ μικής, καί έάν είχε θελήσει τοιαύτην άναδρομήν, θα ώπλίζετο επίσης καί ό νόμος δι* αναδρομικής δυνάμεωςή θά διερρύθμιζε ρητώς προς τήν κατεύθυνσιν ταύτην τήν χορηγηΘεϊσαν έξουσιοδότησι. ΕΙς τάς σκέψεις ταύτας στηρίζεται 10 τό γαλλικόν αξίωμα, καθ' δ 'on ne reglemente pas pour le passo'". ("As a rule, the administrative act should be considered as valid for thefuture andnotfor thepast. Theretrospect­ ive force of the administrative act constitutes an exception, 15 which is not always allowed. And it is here that the differentiation between regulatory and individual acts have significance. The retrospectiveness of regulatory acts. Retrospective effect of regulatory acts is as a rule incompatible to their 20 nature, because if the rule placed by the regulatory act acquires retrospective effect, will necessarily influence the relationship created by the pre-existing rule, and such overthrow was not intended by the law on which the regulatory act was based. Because this, as a general rule, 25 lacks, in case of doubt, retrospective effect, and if it wished such retrospection, the law would have been armed with retrospective effect or would have regulated expressly to that direction the authorization granted. On these lines it is based the French axiom by which 'on ne 30 riglemente pas pour le passo'"). and at page 370 of the same book— " l H άναδρομικότης επί ιών ατομικών διοικητικών πράξεων— Καί έπ! τών ατομικώνδιοικητικώνπράξεωνΙσχύει επίσης ό κανών, δτι αύται δέν δύνανται νά έχωσανάναδρομικήν Ισχύν, 35 αν μή ό νόμος ϋχη πρόβλεψη καί έττιτρέψη ταύτην. Πράγ­ ματι, ή ατομική διοικητική πραξις δέν έχει κατά κανόνα τήν δύναμιν, ίνα παραγάγη έννομους συνεπείας είς χρόνον 182 3 C.L.R. 5 10 15 20 Ioannides v. Republic Savvides J. προγενέστερον τής τελειώσεως αυτής, πρώτον μέν διότι δέν είναι βέβαιον, δτι είς τόν χρόνον, είς δν θέλει άναδράμη ή Ισχύς αυτής, ίσχυεν ή αυτή άρμοδιότης καί ή αυτή δ χδικασία, δεύτερον δέ διότι ή ορθή καί σύμφωνος προς τήν έννοιαν τοΰ νόμου άσκησις της αρμοδιότητος απαιτεί κατ' αρχήν όπως ή Διοίκησις έφαρμάζη τόν νόμον έν δψει πάντοτε της παρούσης καταστάσεως καί ουχί της μελλούσης ή της παρελθούσης". ("The retrospective effect of private administrative acts.— And on the private administrative acts is valid also the rule that they cannot have retrospective effect, if the law has not foreseen and allowed same. In fact the private administrative act does not have as a rule the force to create legal results to a time previous to its execution, firstly because it is not certain that at the time to which its effect would go back, the same authority and the same procedure was in force and secondly because the correct and according to the law exercise of the authority demands as a rule that the administration enforces the law in view always of the present situation and the future or the past")· Finally, in Kyriacopoulos "Greek Administrative 4th Edition, Vol. B, p. 399, it is stated: 25 30 35 Law" "Κατά ταύτα, ή διοικητική πράξις άποκτα έννομον Ισχύν άπό τής κοινοποιήσεως αυτής, εΐιε επιβάλλεται εΐτε μή ή δημοσίευσις της πράξεως έν τη Έ.τ.Κ., ή της δημοσίας γνωστοποιήσεως. Άπό της ενάρξεως δέ της Ισχύος τής πράξεως άρχονται, κατά κανόνα, καί τά έννομα αυτής απο­ τελέσματα. *Αλλά δυνατόν είναι ταύτα νά μετατίθενται χρονικώς εϊτε προς τό μέλλον, οσάκις προσετέθη εϊς τήν πρδξιν αναβλητική αΐρεσις ή προθεσμία, είτε καί προς τό παρελθόν, οσάκις προσέλαβεν αύτη άναδρομικήν Ισχύν". ("Therefore the administrative act acquires legal effect from its communication whether the publication of the act in the Gazette or its public notification is obligatory or not. From the taking of effect of the act, commence, as a rule, and its legal results. But it is possible that they may be placed chronologically either to the future, when there was added to the act a postponing additional term 183 Savvides J. Ioannides v. Republic

(1983)or time limit, or to the past when it took retrospective effect"). The contents of the decision of the Council of Ministers in the case under consideration, are clear and leave no room for construction that they indicate an intention togiveretrospect5 ive effect to the decision. If such effect was intended, it could have been expressed clearly in the said decision. In the result, I find that the Minister of Interior and Defence in refusing applicant's application for his release on this ground did not act contrary to the letter and spirit of the decision of the Council 10 of Ministers. I come now to the next contention of counsel for applicant that the sub judice decision was wrong in that the proper proce­ dure contemplated by section 4

(4)of the National Guard Laws has not been complied with. 15 Section 4 of the Principal Law of 1964 establishing the National Guard (Law 20/64) provided as follows: "4.-(l) Τηρουμένων των διατάξεων τοΰ εδαφίου

(3)άπαντες οί πολϊτα' της Δημοκρατίας άπό τής 1ης Ιανουαρίου τοΰ έτους καθ* δ συνεπλήρωσαν τό δέκατον δγδοον έτος τής 20 ηλικίας των μέχρι της 1ης Ιανουαρίου τού έτους καθ' δ συνεπλήρωσαν τό πεντηκοστόν έτος της ηλικίας των υπό­ κεινται εϊς τάς διατάξεις τοΰ παρόντος Νόμου καί υπέχουν ύποχρέωσιν υπηρεσίας έν τη* Δυνάμει.

(2)Ή ύποχρέωσις υπηρεσίας έν τη Δυνάμει διακρίνεται 25 είς ύποχρέωσιν θητείας καί ύποχρέωσιν έφεδρου.

(3)Εξαιρούνται τής ύπά τοΰ εδαφίου

(1)υποχρεώσεως— (α) τηρουμένων των διατάξεων τοΰ παρόντος Νόμου ο! υπηρετούντες εις τόν οτρατον ή τάς δυνάμεις ασφαλείας της Δημοκρατίαςφ) ο! κληρικοί* (γ) οί μονίμως έκτος τής Κύπρου διαμένοντες πολΤται *rifc Δημοκρατίας(δ) ot κατόπιν Ιατρικής έξετάσεω? frni τη βάσει των διατάξεων τοΰ παρόντος Νόμουκριθένιες ώς ακατάλληλοι". 184 30 3 C.L.R. 5 Ioannides v. Republic Savvides J. ("4.-(l) Subject to the provisions of sub-section

(3), all citizens of the Republic shall, from the first day.of January of the year in which they complete the eighteenth year of their age and until the first day of January of the year in which they complete the fiftieth year of their age, be subject to the provisions of this Law and liable to serve in the Force.

(2)Theliability for service in the Forcecomprises liability for a term of service and liability in the reserve. 10

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

(1)— (

1. a)subject to the provisions of this Law, persons serving in the army or the security forces of the Republic; (
2. b)clergymen; ]5 (
3. c)citizens of the Republic permanently residing outside Cyprus; (
4. d)persons classified, upon a medical examination under the provisions of this Law, as unfit"). By subsequent amendments of section 4

(3)of the principal 20 law certain additional categories of persons exempted from service were added (see, for example, amongst them, Laws 27/65 s. 2, 56/75 s. 2, 33/76 s. 2). Section 4 of Law 20 of 1964 was amended by section 2 of Law 14 of 1966 by the addition of sub-section

(4)which reads 25 as follows: "2. Τό άρθρον 4 τοΰ βασικού Νόμου τροποποιείται διά της έν αύτφ προσθήκης του κάτωθι εδαφίου: 30 frri

(4)Ό Υπουργοί αποφασίζει έπ! παντός θέματος αναφυομένου έν σχέσει μέ τήν έξαίρεσιν στρατευσίμων τζ βάσει τοΰ εδαφίου

(3). Προς τόν σκοπόν τούτον ό 'Υπουργός συνιστφ συμβουλευτικήν έπιτροπήν έκ τών υπ",αυτού διοριζομένων μελών καί προεδρευομένην ύπό προσώπου έχοντος νομικήν κατάρτισιν υποδεικνυομένου ύπό τοΰ Υπουργού 185 Savvides J. Ioannides v. Republic

(1983)προς έξακρίβωσιντων πραγματικών γεγονότων έκαστης περιπτώσεως καί ύποβολήνπροςαυτόντού πορίσματος της ύπό της επιτροπής γενομένης έρεύνης". ("2. Section 4 of the principal law is amended by the addition thereto of the following sub-section: 5

(4)The Minister decides on every matter in respect of the exemption of conscripts by virtue of sub-section 3. For this purpose the Minister constitutes an advisory committee the members of which are appointed by him and presided over by a person having legal experience and indicated by the Minister for the verification of the actual facts of each case and the submission to him of the report of the investigation carried out by the committee"). 10 15 The duty of such Advisory Committee was as it appears from the context of the law to verify the facts in each case submitted to it by the Minister and advise the Minister accord­ ingly, but only in cases falling under the provisions of section 4

(3)of the National Guard Laws and not for any other cases 20 falling under other provisions of the respective laws. The applicant in the present case does not fall within any of the categories enumerated under sub-section

(3)of section 4 of Law 20/1964 or any of its subsequent amendments and no argument has been advanced to the contrary. Applicant, however, seeks to rely on section 9

(1)of the Law on the ground of special reasons. Such section was introduced by section 6 of Law 26 of 1965, whereby section 9 of the principal Law (20/64) was amended. Section 6 of Law 26 of 1965, reads as follows: "6. Τό άρθρον 9 τοϋ βασικού Νόμου τροποποιείται ώς ακολούθως: (α) διά της αντικαταστάσεως τού πλαγιοτίτλου διά τού ακολούθου "Απόλυσις στρατευσίμων*. (β) διά της προσθήκης τού κάτωθι εδαφίου, τού ύφιστα- 35 μένου μέρους τοΰ άρθρου άριθμουμένου ώς εδαφίου

(2): 186 25 30 3 C.L.R. 5 Ioannides v. Republic Savvides J.

(1)Τό Ύπουργικόν Συμβούλιον δι' αποφάσεως αυτού, δημοσιευμένης είς τήν έττίσημον εφημερίδατης δημοκρατίας, απολύει στρατευσίμους είτε κατά κλόσιν ή τμήμα αύτης εϊτε κατά περιφερείας ή κατηγορίας ή ?Ις έξαιρετικάς περιπτώσεις κατ' άτομα τη αΐτήσει τούτων καί λόγω είδικών περιστάσεων' ". ("6. Section 9 of the principal Law is hereby amended as follows:- 10 (a) by the substitution of following for the marginal title:discharge of servicemen'. (b) by the addition of the following sub-section, the existing part of the section being numbered as sub­ section

(2):- 15 '

(1)TheCouncil of Ministers may, by decision published in the official Gazette of the Republic, discharge servicemen either by age group or part thereof or by areas or categories or, in exceptional cases, by persons on their application and because of special circumstances'"). 20 It has been the contention of counsel for respondent that the provisions of section 4, sub-section

(4)do not come into play, as such provisions are only applicable to cases falling within the provisions of sub-section

(3)of section 4. Such contention might be correct in so far as the situation was till 25 the enactment of Law 33/76, whereby sub-section

(4)of section 4 of the principal Lawwas amended by extending the functions of the advisory committee to anymatter onwhich the Minister of Interior is empowered to decide notonly under sub-section

(3)of section"4 but under any provisions of the law. Such 30 amendment reads as follows (see section 2(d)of Law 33/76): "(δ) διά της έν τέλει τού εδαφίου

(4)αύτοΰ προοθήκης της ακολούθου επιφυλάξεως, της είς τό τέλος τού έν λόγω εδαφίου τελείας άντικαθισταμένης διά δύο στιγμών: 35 'Νοείται διι ττάσα ούτω συσταθείσα συμβουλευτική επιτροπή θά προβαίνη είς έξακρίβωσιν τώνπραγματικών γεγονότων έκαστης περιπτώσεως παραπεμπόμενης είς αυτήν ύπό τούΥπουργού καί είςύποβολήν προς αυτόντού πορί187 Savvides J. Ioannides v. Republic

(1983)σματος της ύ π ' αύτης γενομένης έρεύνης έν σχέσει προς πάν θέμα έπϊ τοΰ οποίου ό Υπουργός αποφασίζειδυνάμει οΙασδήποτε διατάξεως τού παρόντος Νόμου, ή οιασδήποτε αποφάσεως τού Υπουργικού Συμβουλίου εκδοθείσης ή εκδιδομένης,.ή οίωνδήποτε Κανονισμών εκδοθέντων ή έκδιδομένων έπϊ τη βάσει τοΰ παρόντος Νόμου.' " 5 ("d) by the addition at the end of sub-section

(4)of the following proviso, the full stop at the end of the said sub-section being substituted by a colon: Provided that every such constituted committee will 10 proceed to the verification of the actual facts of each case forwarded to it by the Minister and to the submission to him of the report of the investigation carried out by it in respect of every matter on which the Minister decides by virtue of any provision of this law, or any decision of 15 the Council of Ministers given or to be given, or any Regu­ lation issued or to be issued by virtue of this law"). The effect of such amendment was that cases not specifically falling within sub-section

(3)of section 4 but falling within the provisions of section 9

(1)whereby release from the National 20 Guard is claimed for special reasons, as it is the case of the applicant in the present case, fall for consideration within the functions of the advisory committee contemplated by sub-section

(4). It is apparent in the present case that the Minister of Interior 25 and Defence adopted the opinion of the Commander of the National Guard that no special reasons existed in the present case for the release of the applicant. The Commander of the National Guard, however, was not the appropriate organ to advise the Minister on such issue and his opinion should not 30 have guided the Minister in taking his decision. The case of the applicant was a case properly falling within the ambit of the advisory committee and it was the duty of the Minister to have sent such case for consideration and inquiry as to the facts to the Advisory Committee, and wait for the conclusions 35 of such Committee before taking his decision. In the result, I find that the way the Minister of Interior and Defence acted in taking the sub judice decision was wrong and that the proper 188 3 C.L.R. Ioannides v. Republic Savvides J. procedure which ought to have been followed was not followed in the present case. The recourse, therefore, succeeds on this ground. I find it unnecessary to deal with the lastcontention of counsel for applicant in that the sub judice decision was not fully reasoned as I have already concluded that the decision was wrongly taken. For all the above reasons, this recourse succeeds and the sub judice decision is hereby annulled. In the circumstances 1 make no order for costs. Sub judice decision annulled. No order as to costs. c 189