(1983) 1982 November 13 [TRIANTAKYLLIDES, P.] IN THE MATTER O F ARTICLE 146 OF THE CONSTITUTION MAR1NOS PIERI, Applicant, v. THE REPUBLIC OF CYPRUS, THROUGH THE MINISTER OF INTERIOR AND DEFENCE, Respo
Article146 of the Constitution. 30 35 Held, that only an executory act or decision can be made the subject matter of an administrative recourse
Article 146
; that a confirmatory or informative act is not executory; that the call-up of 19th October 1981 is, indeed, an act of executory nature in respect of which, however, the present recourse is out of time,
Article 146
.3 of the Constitution, because it was filed only on 8th July 1982; that the fact that, there was later granted a deferment of the enlistment of the applicant did not deprive the call-up of 19th October 1981 of its executory character, because such deferment merely 615 Pieri v. Republic
(1983)postponed the date on which the applicant had to comply with such call-up; that the letter to counsel for the applicant dated 21st June 1982 didnot convey a new executory decision, and so, it is only confirmatory and informative, reiterating the adherence of the administration to its already adopted 5 stand; that likewise, the call-up of 16th June 1982, is, also, of a confirmatory nature and the mere fact that failure to comply with such call-up may entail criminal responsibility on the part of the applicant does not render it, in the circumstances of this case, an executory act, because his criminal res- 10 ponsibility stems from the fact that he had refused to enlist as he had been required to do by the previous call-up of 19th October 1981; thus the present recourse could not be made,
Article 146
of the Constitution, in respect of either the contents of the aforesaid letter of 21st June 1982,or the call-up 15 of 16th June 1982. Held, further, that a final judgment of an administrative Court creates a resjudicata as regards the validity of the particular act challenged by the recourse; that the judgment in the earlier successful recourse of the applicant created a res 20 judicata only as regards the particular administrative act which was challenged in that case; that, however, after the legal basis of such judgment ceased to be operative in view of the judgment on appeal by a Full Bench of this Court in the Droushiotiscase it was open to the appropriate authorities to call 25 upon the applicant to enlist once again and such call-up was new administrative action justified by the effect of the relevant legislation as elucidated in the Droushiotiscase. Application dismissed. Cases referred to: 30 Pieri v. Republic
(1979)3 C.L.R. 91; Republic v. Droushiotis
(1981)3 C.L.R. 623; Pieri v. Republic
(1978)3 C.L.R. 356 at pp.363, 364; Dr. G. N. MarangosLtd. v. Municipalityof Famagusta
(1979)3 CX.R. 73 at pp. 76, 77; Poulias v. Republic
(1982)3 C.L.R. 165 at pp. 172, 173. . 616 35 3 C.L.R. Pieri v. Republic Recourse. Recourse against the decision of the respondent whereby the applicant was required to re-enlist in the National Guard for completion of the period of his military service. 5 L. N. Clerides, for the applicant. M. Florentzos,Counsel of the Republics for the respondent. Cur. adv. vttlt. TRIANTAFYLLIDES P. read the following judgment. By means of the amended, by consent, motion for relief in the present re10 course the applicant seeks, ineffect, the annulment of the call-up by means of which he was required to re-enlist in the National Guard for completion of the period of his military service. The salient facts of this case are as follows: The applicant was born on 3rd January 1961in what was then 15 East Pakistan and where his parents,were then living. The applicant is the holder of a British passport. His father, Andreas Pieris, was born in Cyprus on 28th April 1929 and at that time his parents were ordinarily residing in Cyprus. 20 Ever since 1971theapplicant and hisfamily havebeen residing in Cyprus. From a certificate of the Migration Officer, dated 11th July 1978, it appears that, in accordance with the provisions of the Republic of Cyprus Citizenship Law, 1967 (Law 43/67) and of 25 Annex D to the Treaty of Establishment of the Republic of Cyprus, the applicant is not considered to be a citizen of the Republic of Cyprus. The applicant was called up for enlistment in the National Guard in order to do his military service because by virtue of 30 section 2 of the National Guard (Amendment) Law, 1978 (Law 22/78) he was treated, for the purposes of the National Guard legislation, as a "citizen" of the Republic of Cyprus, inasmuch as he is a person of Cypriot origin descended in the male line from a person born in C^prus. 617 1riantafyllidesP. Pieri \. Republic (I983J In a first instancejudgment, determining on 21st March 1979 Λ recourse (No. 494/78) of the applicant against his call-up, a Judge of our Supreme Court (see Pieris v. The Republic,
(1979)3 C.L.R. 91), has held that the applicant was not bound to do military service in the National Guard because section 2 of Law 22/78, above, was unconstitutional. No appeal was filed by the Republic against such judgment and the applicant, who had in the meantimeserved for four months in theranks of theNational Guard, was demobilized. 5 Subsequently, on 2nd June 1981, a Full Bench of the Supreme 10 Court, in allowing appeals of the Republic against first instance judgments of another Judge of the Court in recourses of appli cants other than the applicant in the present recourse, held that section 2 of Law 22/78 was not unconstitutionally or otherwise •nvalidly enacted (see, The Republic of Cyprus v. Droushiotis, 15
(1981)3 C.L.R. 623). As a result of the judgment in the Droushiotis case, supra, instructions were given by the appropriate authorities for the re-enlistment, in order to complete the periods of their military service, of all those, including the applicant, who had been de- 20 mobilized as a result of the earlier judgment in the Pieris case, supra. After some correspondence between the respondent Minister and counsel for the applicant, to which 1 need not refer in detail, and, also, subsequent to a call-up for enlistment which was 25 sent to the applicant on 19th October 1981, his re-enlistment was deferred "for the last time" up to 30th June 1982 (see the letter of the Ministry of Defence dated 27th November 1981). Eventually, in spite of further representations which were made by counsel for the applicant, the respondent Minister 30 persisted in his view that the applicant was bound to re-enlist in the National Guard and applicant's counsel was informed ac cordingly by a letter dated 21st June 1982. Also, on 16th June 1982 the applicant was called up once again and was instructed to enlist on 14th July 1982; and 1 may observe, at this stage, 35 ι lat 1 find no merit in the contentionof counsel for the applicant that (assuming that they could be challenged by this recourse) the decision of the respondent Minister which was communicated by ji.cans of the letter dated 21st June 1982 and the call-up of 618 3 C.L.R. Pieri t. Republic Triantaf)Hides P. 16thJune 1982should beannulled on the ground that they suffer from lack ofdue reasoning; ample and adequate reasoning for bothofthem isto befound inthe relevant administrative records which have to be read together with them. 5 Counsel for the respondent has submitted that the only executory act in the present case isthe aforementioned call-up dated 19th October 1981 and that the subsequent letter to applicant's counsel dated 21st June 1982 and the further call-up of 16th June 1982 are acts of merely confirmatory or informative nature 10 and cannot be challenged by means of the present recourse
Article 146of the Constitution.
As regards the cardinal principle that only an executory act or decision can be made the subject-matter of an administrative recourse
Article 146useful reference may be made, inter 15 alia, to Pieri v. The Republic,
(1978)3.C.L.R. 356, 363, 364; also, in relation to the proposition that a confirmatory or informative act isnot executory it ispertinent to refer, respectively, to Dr. G.N. Marangos Ltd. r. The Municipality of Famagusta,
(1979)3 C.L.R. 73, 76, 77, and Poulias v. The Republic,
(1982)20 3 C.L.R. 165, 172, 173. In my opinion the call-up of 19th October 1981 is, indeed, an act of executory nature in respect of which, however, the present recourse isout of time,
Article 146.3 of the Constitution, because it was filed only on 8th July 1982.
25 The fact that, as already stated, there was later granted a deferment of the enlistment of the applicant up to 30th June 1982 did not deprive the call-up of 19th October 1981 of its executory character, because such deferment merely postponed the date on which the applicant had to comply with such call-up. 30 The letter to counsel of the applicant dated 21st June 1982, did not convey a new executory decision, and, so, it isonly confirmatory and informative, reiterating the adherence of the administration to its already adopted stand. Likewise, the call-up of 16th June 1982 is,also, of a confirma35 tory nature and the mere fact that failure to comply with such call-up may entail criminal responsibility on the part of the applicant does not render it, in thecircumstances of thiscase, an executory act, because his criminal responsibility stems from the 619 TriantalyHides P. Pieri v. Republic
(1983)fact that he had refused to enlist as he had been required to do by the previous call-up of 19th October 1981. Thus the present recourse could not be made,
Article 146
of the Constitution, in respect of either the contents of the aforesaid letter of 21st June 1982 or the call-up of 16th June 5 1982; nor could it be said that there exists an omission to exa mine the requests of the applicant for further suspension of the date on which he had to enlist, because it is abundantly clear that from the failure to reply to any such a request there was to be implied a refusal to accede to it for reasons already known to 10 the applicant. Consequently, this recourse has to be dismissed. In any event, even if it could, notwithstanding all the fore going, be found that this recourse could have been proceeded with, I should state that it cannot be held that because the Re public did not appeal against the aforesaid first instance judg- 15 ment in the earlier successful recourse of the applicant (see the Pieri case, supra), such judgment constitutes a res judicata en titling the applicant to avoid thecompletion of his military servi ce in accordance with the relevant legislative provisions the effect of which was finally expounded subsequently, on appeal, 20 in the Droushiotis case, supra. A final judgment of an administrative Court creates a res judicata as regards the validity of the particuar act challenged by a recourse (and see, in this connection, inter alia, Kyriacopoulos on Greek Administrative Law-Κυριακοπούλου 'Ελληνικόν ΔιοικητικόνΔίκαιον-4Λ ed., vol. C,pp. 60, 61, 156-159, and Dendias on Administrative Law - Δενδία, Διοικητικού Δί καιον-2nd ed., vol. C , pp. 364-367). Thejudgment in theearlier successful recourse of the applicant (see the Pieri case, supra) created a res judicata only as regards 30 the particular administrative act which was challenged in that case. However, after the legal basis of such judgment ceased to be operative in view of the judgment on appeal by a Full Bench of this Court in the Droushiotiscase, supra, it was open to the appropriate authorities tocall upon the applicant to enlist 35 once again and such call-up was new administrative action justi fied by the effect of the relevant legislation as elucidated in the Droushiotis case, supra, (see, in this respect, inter alia, Kyriacopoullos, supra, at p. 61, and Dendias, supra, at p. 365). 620 25 3 C.L.R. Pieri v. Republic Triantafyllides P. For all the above reasons the present recourse fails and has to bedismissed; but rather reluctantly, indeed, I have decided to make no order as to its costs against the applicant. Recourse dismissed with noorder asto costs. 621