(1983)1983 March 7 [STYLIANIDES, J.] IN THE MATTER OF ARTICLE 146OF THE CONSTITUTION ANDRONICOS SPYROU, Applicant, v. THE REPUBLIC OF CYPRUS, THROUGH THE SERVICE FOR THE CARE AND REHABILITATION OF DISPLACED PERSONS, Respondents. (Case No. 217/79). Administrative Law—Administrative acts or decisions—Executory act—Confirmatory act—Lacks executory characterand cannot bemadethesubject ofarecourse under Article 146of the Constitution—It may be executory if it has been taken after anew inquiry—There is a new inquiry whennew substantive factual 5 elements aretakenintoconsideration inarriving at the subsequent decision—Thepreviousexecutory act thenceases to be operative andmerges into thesecondact—-New substantive material taken into consideration in reaching thesecond decision andno identity of reasoning betweenthe first and seconddecision—The second 10 decision not confirmatorybut a new executory administrative act in whichtheprevious act merged—Recourse notoutoftime. At its meeting of 23.8.1977 the respondents considered the application of the applicant for regranting to him a refugee identity card and rejected it having come to the conclusion IS that priortotheTurkishinvasionhehadbeenresidingatPighenia and not Morphou. The respondents examined anew at a meeting of 28.3.1979 an application by applicant for the same matter and rejected it again having come to the conclusion that prior to the Turkish invasion he had been residing at Kato 20 Pyrghos and not at Morphou. At the meeting this decision was taken the respondents had before them two certificates» one from the Chairman of the Village Committee of Pighenia 354 3 C.L.R. 5 10 15 20 25 30 Spyrou v. Republic and another from the Chairman of the Village Committee of Kato Pyrghos. These certificates were new and the information or the facts certified by the issuing authorities were not before the respondents when the 1977 decision was taken. Due to this, the reasoning in the two decisions was different. Upon a recourse by the applicant against the decision of 28.3.1979 the respondents raised the preliminary objections that the decision challenged by the recourse was confirmatory of a decision communicated to the applicant on 8.10.1977 and, therefore was not amenable to the jurisdiction of this Court under Article 146 of the Constitution and that the recourse was out of time. Held, it is well settled that a confirmatory act lacks executory nature and, therefore, it cannot be made the subject-matter of a recourse under Article 146 of the Constitution; that an act which contains a confirmation of an earlier one, may, however, be executory and, therefore, subject to a recourse for annulment if it has been made after a new inquiry into the matter; that when new substantive factual elements are taken into consideration in arriving at the subsequent decision there isa new inquiry and the previous executory act ceases to be operative and merges into the second act; that the decision of 28.3.1979, subjectmatter of this recourse, is not a confirmatory act but a new executory administrative act, in which the 1977 administrative act was merged; that the respondents had before them new substantive material—the two certificates—and furthermore there was no identity of reasoning between the first and second decision; and that, consequently, the recourse is not out of time and is maintainable, Order accordingly. Cases referred to: Moran v. Republic, I R.S.C.C. 10 at p. 13; Holy See of K'tium \ . Municipal Council of Limassol, I R.S.C.C. 15 at p. 18; 35 Protopapas v. Republic
(1967)3 C.L.R. 411; Mahdesian.v, Republic
(1966)3 C.L.R. 630; Kyprianides v. Republic
(1982)3 C.L.R. 611; Kolokassides v. Republic
(1965)3 C.L.R. 542; Varnava v. Republic
(1968)3 C.L.R. 566. 355 Spyrou v. Republic
(1983)Preliminary objection. Preliminary objection raised by the respondents that the applicant's recourse against the decision of the respondents rejecting applicant's application for regranting to him a refugee identity card is out of time. 5 C. AnastassiadeSy for E. Efstathiou, for the applicant. A. Vassiliades, for the respondents. Cur. adv. vult. STYLIANIDES J. read the following decision. The applicant by this recourse seeks a declaration that the decision of the 10 respondents communicated to him by letter of 29.3.1979, where by his application for regranting to him a refugee identity card was rejected, is null and void and of no legal effect. The respondents in the opposition raise the preliminary objections that the decision challenged by this recourse is con- 15 firmatory of a decision communicated to the applicant on 8.
- 1977 and, therefore, is not amenable to the jurisdiction of this Court under Article 146 of the Constitution and that this recourse is out of time. On the application of both counsel the Court directed that these objections be taken preliminary to the hearing. At the meeting of 23.8.1977 the respondents considered the application for regranting to the applicant a refugee identity card and rejected it. They communicated their said decision by letter dated 8.10.1977 (exhibit No. 1), which reads:- 20 25 " Ή Επιτροπή'Εξετάσεως ΠροσφυγικήςΙδιότητος Αΐτητών ΕΙδικών Περιτττώσεων έξήτασε κατά την συνεδρίου της, της 23ης Αυγούστου, 1977, την αίτησιυ σας δι* έτταναχορήγησιν της προσφυγικήςσας ταυτότητοςκαΐ εν τέλει άττέρριψεν ταύτηυ θεωρήσασα ώς συνήθη διαμονην σας πρό της 30 Τουρκικής Είσβολής τα Πηγαίνεια και ουχί τό Μόρφου." ("The Examining Committee for the Refugee status of applicants in special cases, at its meeting of the 23rd August, 1977, has examined your application for regranting to you of your refugee identity card and has finally turned down 35 same having considered as your usual residence before the Turkish invasion Pighenia and not Morphou"). 356 3 C.L.R. Spyrou v. Republic Stylianides J. The respondents examined anew again at a meeting of 28.3.1979 application by the applicant for the same matter. Their decision is contained in letter of 29.3,1979, the contents of which are as follows:5 10 15 " Ή 'Επιτροπή'ΕξετάσεωςΠροσφυγικήςΙδιότητοςΑίτητων Είδικων Περιπτώσεων τής οποίας προεδρεύω, έξήτασε κατά την συνεδρίαν τής 28ης Μαρτίου, 1979, τήν αίτησιν σαςδια έπαναχορήγησιυ της προσφυγικής ταυτότητος και έν τέλει άπέρριψεν ταύτην θεωρήσασα ώς συνήθη διαμονή σας προ τής ΤουρκικήςΕίσβολήςτόν Κ.Πύργονκαιουχί το Μόρφου". ("The Examining Committee for the Refugee status of applicants in special circumstances, which I preside, has examined at its meeting of the 28th March, 1979, your application for regranting to you of your refugee identity card and has finally turned down same having considered as your usual residence before the Turkish invasion K. Pyrghos and not Morphou"). This is the decision challenged by this recourse. At the meeting this decision was taken, two certificates were 20 before the respondents: one issued by the Chairman of the Village Committee of Pighenia dated 8.3.1979, stating that applicant, though born at Pighenia village, as from 1970 he moved to Kato Pyrghos where he resided, and a certificate from the Chairman of the Village Committee of Kato Pyrghos 25 of even date, certifying that before, upto and after the invasion the applicant was an inhabitant of Kato Pyrghos. These certi ficates were new and the information or the facts certified by the issuing authorities were not before the Committee when the 1977 decision was taken. Due to this, the reasoning in 30 the two decisions is different. 35 The Committee in 1977 declined to accept the application because the applicant had his usual residence at Pighenia and in 1979 because he had his usual residence before the Turkish invasion at Kato Pyrghos. The last decision was obviously based on the two certificates of 8.3.1979 which were not before and Committee in
- 357 SMianides J. Spjrou v. Republic
(1983)It is provided in paragraph 3 of Article 146 that a recourse under that Article shall be made within a period of 75 days of the date when the decision or act, which is the subject of the recourse, was published or, if not published and in the case of an omission, when it came to the knowledge of the person 5 making the recourse. This provision is mandatory and has to be given effect to in the public interest in all cases. Such view is in accordance with the interpretation of analogous provisions given by the administrative tribunals in a number of European countries and isalso the view of authoritative writings 10 on this subject—{John Moran and The Republic (The AttorneyGeneral and Another), 1 R.S.C.C. 10, at p. 13; The HolySee ofKitium and The Municipal Councilof Limassol, 1R.S.C.C. 15, at p. 18; Protopapas and The Republic,
(1967)3 C.L.R. 411; Mahdesian and The Republic,
(1966)3 C.L.R. 630; 15 Kyprianides v. The Republic,
(1982)3 C.L.R. 611). It is well settled that a confirmatory act lacks executory nature and, therefore, it cannot be made the subject-matter of a recourse under Article 146of the Constitution. A confirmatory act or decision is an act or decision of the administration which 20 repeats the contents of a previous executory act and signifies the adherence of the administration to a course already adopted; it is not in itself executory because it does not itself determine the legal position of an individual case, and this is the reason it cannot be the subject of a recourse. 25 An act which contains a confirmation of an earlier one, may, however, be executory and, therefore, subject to a recourse for annulment if it has been made after a new inquiry into the matter—(Kohkassides v. The Republic,
(1965)3 C.L.R. 542; Varnava v. The Republic,
(1968)3 C.L.R. 566; Kyprianides v. 30 The Republic, (supra) ). When does a new inquiry exist is a question of fact. In general, it is considered to be a new enquiry, the taking into consideration of new substantive legal or factual elements, and the used new material is strictly considered, because he 35 who has lost the time limit for the purpose of attacking an executory act, should not be allowed to circumvent such a time limit by thecreation of a newact,which hasbeen issued formally •358 3 C.L.R. Spyrou v. Republic StyUaitWe* J. after a new inquiry, but in substance on the basis of the same . elements. There is a new inquiry particularly when, before the issue of the subsequent act, an investigation takes place of newly emerged elements or, although preexisting, were 5 unknownatthetimeandaretakenintoconsideration inaddition toothersfor thefirsttime. Similarly, itconstitutes new inquiry the carrying out of a local inspection or the collection of additional information in the matter under consideration. When new substantive factual elements are taken into 10 consideration in arriving at a subsequent decision, the second decision is not a confirmatory act but a new executory act. The previous executory act ceases to be operative—executory —and merges into the second act. In Case No. 2032(A')/64 the second decision of the Admi15 nistration was issued after the Administration obtained a document from apensionfund asto theservice ofthedeceased. The second decision was considered by the Greek Council of State as a new executory administrative act and a recourse challenging its validity was maintainable by the Council. The 20 time limit for riling a recourse was reckoned as from the date of the second decision. In Case No. 2014/69 the Administration took a decision on the matter of the pension of the applicant communicated to him on 14.5.1968. On 2.9.1968 a second identical decision 25 wastaken which wasbrought to theknowledge ofthe applicant on 26.9.1968. Asat the time of the second decision the Administration had before it a new certificate from the Consulate in Alexandria and other information collected by a member of the administrative authority which took the decision, the 30 Greek Council of State held that a recourse against the second decision wasformally admissibleandmaintainableanddismissed theallegation that thedecisionof2.9.1968wassimplya confirmatory one. In the light of the aforesaid, I have no difficulty in finding 35 that the decision of 28.3.1979, subject-matter of this recourse, is not a confirmatory act but a new executory administrative act, in which the 1977 administrative act was merged. The respondents had before them new substantive material—the 359 Stylianides J. Spyrou τ. Republic
(1983)two certificates—and furthermore thereis noidentity of reason ing between the first and the second decision. Consequently, the recourse is not out of time and is maintainable. The Court will proceed to hear the substance of thecase. Orderaccordingly. 5 360