clr/1984/1984_3_1187.pdf

(1984)that his father had told him that his hair was short enough and that respondent 1 could speak to him. A few days later the applicant was seen again by respondent 1and as he had not had a haircut in the meantimehewassentaway from theschool and was directed to have his hair cut before returning to it. 5 The applicant never returned to the school and he was very soon afterwards enrolled, by his father, as a pupil of another school, namely the English School in Nicosia. He thereafter filed a recourseagainst hisalleged permanent expulsion from the school. Held, that respondent 1never actually expelled permanently the applicant from the Pancyprian Gymnasium and that he only temporarily suspended him pending his compliance with the direction to have hishair cut; that the temporary suspension of the applicant was not a measure of disciplinary punishment 15 imposed on the applicant for persisting in not complying with the direction to cut his hair—(which might have been imposed on the applicant if he had come back to school still defying and refusing to obey the direction of his headmaster about having a haircut)—but it was only a temporary coercive sus- 20 pension intended to ensure compliance by the applicant with the aforesaid direction, and, in view of its essential nature, it was obviously an internal administrative measure which is not amenable within thejurisdiction of this Court under Article 146 of the Constitution (case 97/80 before the Greek Council 25 of State, the French case-law, and Roditis v.Karagcorghi

(1965)3 C.L.R. 230 distinguishable); accordingly the recourse should fail. Held, further, that, anyhow the applicant did not possess a legitimate interest entitling him, in the sense of Article 146.2 30 of the Constitution, to file the present recourse, because while he was only temporarily suspended, and before any final disciplinary measurehad been taken against him,heleft the school of his own volition and that of his father and guardian, and enrolled at the English School. 35 Application dismissed. Cases referred to: Makridesv. Republic

(1967)3 CL.R. 147'at p. 151; 1188 10 3 C.L.R, Vrahiros v. Prodroroou and Another Carayiannisv. Republic

(1980)3 C.L.R. 39 at p.42; Rot&tisv. Karageorghi

(1965)3 C.L.R. 230; Decision of the Greek Council of State No. 97/1980. 5 Recourse. Recourse against the decision of the respondents to expel applicant permanently from a secondary education school, namely the Pancyprian Gymnasium in Nicosia. £. Vrahimi (Mrs.), for the applicant. A.S. Angelides, for the respondents. 10 Cur. adv. vult. TRIANTAFYLUDES P. read the following judgment. By means of the present recourse the applicant—who at the material time was a minor and has instituted these proceedings through his father as his natural guardian—challenges, in effect, his, 15 alleged, permanent expulsion from a secondaryeducation school, namely the Pancyprian Gymnasium in Nicosia. The present case was initially heard by anothei Judge of this Court, who, after judgment had been reserved, and before it could be delivered, has retired from the judicial service. 20 Then, counsel for the parties agreed that the reserved judgment could be delivered by another Judge of this Court on the basis of the record of the case and subject to counsel being afforded an opportunity to address the Court further. I have, therefore, dealt with the present case accordingly; 25 and pursuant to the practice which was followed on other similar occasions (see, for example, Makrides v. The Republic,

(1967)3 C.L.R. 147, 151 and Carayiannis v. The Republic,

(1980)3C.L.R. 39,42) Iwillnow proceed to deliver my judgment. 30 The applicant was a pupil in the first form of the Pancyprian Gymnasium and, as it appears from facts which are not really in dispute, soon after the commencement of the school-year the applicant was seen in a corridor of the school by the headmaster—respondent 1—and was told that his hair was too 35 long and that he should have it cut. The applicant replied that his father had told him that his hair was short enough and that respondent Icould speak to him. A few dayslater theapplicant 1189 Triantafyllides P. Vrahlmfs τ. Prodromou and Another

(1984)was seen again by respondent 1 andas hehadnothad ahaircut in the meantime he was sent away from the school and was directed to have his hair cut before returning to it. The applicant never returned to the school and he was very soon afterwards enrolled, by his father, as a pupil of another school, namely the English School in Nicosia. 5 Counsel for the respondents has alleged that the applicant was never actually expelled permanently from the Pancyprian Gymnasium, as he complains, and that, even assuming that it could besaid that theapplicanthadbeentemporarily suspended, 10 this did not entitle him to file the present recourse as his sus­ pension was an internal administrative measure for ensuring discipline at the school in question. I was referred, in this respect, to Stassinopoulos on the Law of Administrative Acts, 1951, pp. 142-143, Kyriakopoulos on Greek Administrative Law, 4th ed., vol. A, p. 68, and to the Conclusions from the Case-Law of the Council of State in Greece, 1929-1959, pp.238, 167-169, as well as to the case of Roditis v. Karageorghi,

(1965)3 C.L.R. 230. 15 Priortothedelivery ofthisjudgment counsel for theapplicant 20 drew the attention of the Court, by a letter addressed to it through its Registry, tocommentsmadeby a writer,A.Tachos, on the decision in case 97/80by the Council of State inGreece (see the Review of Public and Administrative Law, 1980, vol. 24, p. 115 et seq.). In that case it was decided by majority 25 :hat theimposition of the disciplinary punishment of one day's expulsion from school on schoolgirls who had refused to abide oy regulations regarding their dress could not be challenged by means of a recourse for annulment as it constituted an internal administrative measure, which, because of its nature, 30 •vas notamenable within therelevantjurisdiction of theCouncil >f State; and, in effect, the Council of State in Greece found hat the said punishment was not of an executory natureand, ;onsequentIy, its validity could not be challenged by means >f a recourse. In his aforesaid comments Tachos refers to 35 French case-law from which it may be derived that certain idministiative measures which relate to school discipline are 1190 3 C.L.R. Vrahimis v. Prodromou and Another Triantafyllides J. deemedtobeexecutoryadministrativeactsandcanbechallenged by recourse for annulment in case they alter the legal status of acitizen,as byexpellinga pupilfrom aschool. In the light of all the material that was placed before the 5 Court inthepresentcaseIhaveformed theopinionthat respondent 1never actually expelled permanently the applicant from the Pancyprian Gymnasium and that he only temporarily suspended him pending his compliance with the direction to have his hair cut. 10 This is evident, also,from the fact that the applicant's father admitted before theCourt that after thesuspension oftheapplicant he had a telephone conversation with respondent 1 during which he was told that his son had not been permanently expelled and was asked if he had had his hair cut. 15 In my view, the temporary suspension of the applicant was not ameasureofdisciplinary punishment imposed on theapplicant for persisting in not complying with the direction to cut his hair—(which might have been imposed on the applicant if he had come back to school still defying and refusing to obey 20 the direction of his headmaster about having a haircut)—but it was only a temporary coercive suspension intended to ensure compliance by the applicant with the aforesaid direction, and, in view of its essential nature, it was obviously an internal administrative measure which isnot amenable within thejuris25 diction of this Court under Article 146 of the Constitution; and, thus, both case 97/80 before the Greek Council of State, and the French case-law, which were referred to earlier in this judgment, are distinguishable from the present case because they relate to disciplinary punishments. 30 I would, also,like to state that the present caseehould,likewise, bedistinguished from the case of Roditis, supra, in which it was held that a decision of the Director of Education confirming the expulsion of the applicant from her school, by her headmistress, for three days, would, in the particular circum35 stancesofthat case,beanexerciseofexecutiveor administrative authority in the sense of Article 146of the Constitution. Before concluding thisjudgment I should statethat, anyhow, 1191 Triantafyllides P. Vrahimfe v. Prodromou and Another

(1984)the applicant did not possess a legitimate interest entitling him, in the sense of Article 146.2 of the Constitution, to file the present recourse, because while he was only temporarily suspended, and before any final disciplinary measure had been taken against him, he left the school, of his own vohtion and 5 that of his father and guardian, and enrolled at the English School. For all the above reasons the present recourse fails and is hereby dismissed, but withno order asto itscosts. Recourse dismissed. No order 10 as tocosts. 1192