(1984)1984 June 13 [SAVVIDES, J.] IN THE MATTER OF ARTICLE J46 OF THE CONSTTTUTION ANDREAS IACOVOU, Applicant, v, THE REPUBLIC OF CYPRUS, THROUGH THE MINISTER OF FINANCE, Respondent. (Case No. 211/83). Time within which to file a recourse—Article 146.3 of the Constitution —Time begins to run from communication of relevant act— In order to set time running communication must be complete that is both in respect of the operative part of the decision as well as of the reasons that led to it—Courses open to an applicant 5 when the act is not reasoned. On the 1lth August, 1982the applicant applied to the respondent for relief from the import duty with regard to a vehicle for disabled persons. The respondent turned down his application by means of a letter dated the 4th February, 1983* in which it 10 was stated that the "Minister of Finance having considered the reports of the appropriate Services of the state decided" that applicant's claim cannot be given a favourable reply. On the 25th April, 1983 applicant addressed a letter to the respondent requesting to be furnished with the reasons that 15 led to the above negative reply. In his reply, dated the 4th May, 1983 the respondent informed the applicant that on the basis of the reports of the appropriate Services of the State, it was found that his degree of disablement did not justify the use of a disabled person's vehicle. Hence this recourse which 20 was filed on the 24th May, 1983. * The letter is quoted at pp. 1510-15]1 post. 1508 3 C.L.R. Iacovoa τ. Republic Onthepreliminary objection raised in theopposition that the recourse wasout of time because the letterof 4.5.1983 did not amountto a newdecision but wasconfirmation of the original decision: 5 10 15 20 25 Held, that individual administrative acts should be commu nicated to the person concerned andtime begins to run from such communication; that communication, however, in order to setthetimerunning must becomplete,thatisbothinrespect of the operative part of the decision as wellas of the reasons thatledtoit,and inthis respect, timebegins to run only when the person concerned has complete knowledge of the act or decision concerned; that applicant was informed and knew as early as4.3.1983ofthe operative part ofthe subjudice deci sion as well as a general reference to the reasons which led toit since reference was made inthesame letter tothereports of the appropriate services of the State; and that these were enough to set the time running; accordingly the recourse is out of time and should be dismissed. Held, further, thateven if itweretobeacceptedthattheletter of 4.2.1983 did not contain any reasoning at all, then again two courses were open totheapplicant. .Thefirstonewasto file a recourse against such decision seeking its annulmenton the ground of lack of due reasoning or to apply as soon as possible andwithout any delay totherespondent for any clarification which would enable him to pursue his claim more easily. A delay of about 80 days in seeking such information is unjustified inthe circumstances of the present case and could not affect the running of time against the applicant. Application dismissed. 30 Cases referred to: Moron v. Republic, 1 R.S.C.C. 10; Marcoullides v. Greek CommunalChamber, 4 R.S.C.C. 7; Cariolou v. Municipality of Kyrenia
(1971)3 C.L.R. 455; Zivlasv. Municipality of Paphos
(1975)3 C.L.R. 349; 35 Aspriv. Republic
(1979)3 C.L.R. 490 at pp.497, 498; Irrigation Division "Katzilos" v. Republic
(1983)3 CX.R. 1068; Decision of the GreekCouncil of State No.: 482/57. 1509 Iacovou v. Republic
(1984)Recourse. Recourse against the decision of the respondent whereby applicant's application for the grant of a vehicle to be used byhim as a disabled person free of import duty wasdismissed. A. Panayiotou, for the applicant. 5 S. Georghiades, Senior Counsel of the Republic, for the respondent. Cur.adv. vult. SAVVIDES J. read the following judgment. The applicant appliesfor adeclarationoftheCourtthattheactand/ordecision 10 of the Minister of Finance, communicated to the applicant by letter dated 4.5.1983, by which his application for the grant ofavehicletobeusedbyhim asadisabledpersonfreeofimport duty was dismissed, is null and void and of no legal effect. The applicant is a displaced person from Ayios Ermolaos 15 and resides at Peristerona. He works with a goldsmith in Nicosia as a travelling salesman, having to drive,for this purpose, his own car. Suffering from an atrophy and partial paralysis of his left arm he applied, on the 11th August, 1982, to the Ministry of Finance for reUef from the import 20 dutywithregardtoavehiclefordisabledpersons. TheMinistry of Finance sought the views of the Medical Board, which examined the applicant and submitted its report on 26.11.1982, withthefindingthat applicant wassuffering from an obstetrical paralysis of his upper left arm with a fall (complete bending) 25 of his lower left hand. Applicant wasthen referred to a drivingexaminer whotested him and found that he was able to drive a vehicle without any special adaption. His report was submitted on22.1.1983. The Minister then decided, on the basis of the above report, 30 not to grant the applicant's application, who was informed of the decision of the Minister by letter dated 4.2.1983, which reads as follows: "I have been instructed to refer to your application dated the 11th August, 1982 for the release from the payable 35 import duties of a vehicle for disabled persons and regret to inform you that the Minister of Finance having con1510 3 C.L.R. Iacovou v. Republic Satvides J. sidered the reportsof the appropriate Servicesof the State decided that your claim cannot be given a favourable reply". AppUcant then remained silent till the 25th April, 1983, 5 whenhe addressed a letterthrough hiscounsel, tothe Ministry of Finance, which reads as follows: 10 15 "We wish to refer to your letter No. Y.O. 602/70/493 dated4.2.1983toourclientAndreasIacovou,ofPeristerona -'Morphou, with regard to his application for a disabled person'svehicleandrequesttobefurnished withthereasons that led to your negative reply to the claim of our client. The furnishing of the reasons is indispensable for the existence of a specific administrative act so that our client wouldknowwhetherhewillchallengeitbeforetheSupreme Court*'. The Ministry of Finance replied to the above letter on the 4th May 1983, as follows: 20 25 30 "I have instructions to refer to your letter dated the 25th April, 1983 with reference to an application of our client AndreasIacovou,forthegrantofacarfor disabledpersons freeof import duty and to inform you that on the basis of the reports of the appropriate Services of the State, it was found that the degree of disablement of your client does not justify the use of a disabled person's vehicle". The applicant then filed on 24.5.1983, the present recourse, based on the following grounds of law: (a) The act and/or decision of the respondent was taken in excessof power and/or through a defective exercise ofdiscretiononthebasisofthefactsandcircumstances of the case. (b) The act and/or decision was reached under a misconception of facts regarding the disablement of the applicant and/orhisneedfor useofadisabled person's vehicle. 35 (c) The act and/or decision lacks lawful reasoning and/or is based on a misconceived reasoning. 1511 Savrides J. IacoToa v. Republic
(1984)Counsel for the respondent based his opposition on two grounds:
- That the recourse is out of time because the letter of 4.5.1983 does not amount to a new decision but is a confirmation of the original decision. 5
- Without prejudice to the above ground, the subjudice decision was taken lawfully in the light of all relevant material. I consider that the first point raised in the opposition, being a preliminary objection, should be considered first. 10 Inthis respect counsel for applicant has argued that thetime should start running from the 4th May, 1983,the date of the last letter, when the applicant was informed of the reasons for the refusal of his application and the communication of the decision to him was then complete, and further that the letter 15 of 4.2.1983, purporting to communicate the decision of the Minister did not contain thenecessary elements of the communication of a decision and thus could not set the time running. Counsel for the respondent conceded to the principle that time begins to run from the date when the applicant acquires 20 knowledge not only of the operative part of the decision but also of the reasons that led to it. He maintained, however, that the letter of 4.2.1983, contained the reasoning lequired to set the time running since it referred to the reports of the appropriateorgansonthebasisofwhichthesubjudicedecision 25 was reached and, furthermore, bearing in mind the accepted principle of administrative law and practice that reasoning of a decision may be supplemented from the material in the relevant file of the administration, as in the present case, the communicationof thedecision aseffected on 4.2.1983isenough 30 to set the time running. It is a well settled principle of administrative law that individualadministrativeactsshouldbecommunicated totheperson concerned and time begins to run from such communication. Communication,however,inorderto setthetimerunningmust 35 be complete,that isboth in respectof theoperativepart of the decision, as well as of the reasons that led to it, and in this respect,time begins to run only when the person concerned 1512 3 C.L.R. Iacovou τ. Republic Savvides J· has complete knowledge of the act or decision concerned. (see, in this respect, Conclusions from the Case Law of the Greek Council of State (1929-1959), pp. 252, 253; Dendhias on Administrative Law, Vol. C 1965, pp. 290, 291; Recourse 5 for Annulment by Tsatsos 1971, pp. 74; 75; Spiliotopoulos —Textbook on Administrative Law, 1977, p. 367; Decision No. 482/57 of the Greek Council of State). This principle has been accepted and applied by our Courts in a number of cases (see Moron v. Republic, 1 R.S.C.C. 10; 10 Marcoullidesv. The Greek Communcal Chamber, 4 R.S.C.C. 7; Cariolouv. Municipality of Kyrenia
(1971)3 C.L.R.455; Zivlas v. Municipality of Paphos
(1975)3 C.L.R. 349; Aspri v. Republic
(1979)3C.L.R. 490 andIrrigation Division"Katzilos" v.Republic
(1983)3 C.L.R. 1068 at pp. 1075-1077 where reference is made 15 to the position in Greece and Cyprus. Thus, in the case of Aspri v. Republic (supra) at pp. 497, 498 it was said by Malachtos, J. that— 20 25 30 35 "It is well settled and accepted as a general principle that individual administrative acts should be communicated to the interested persons, even in cases where thecommuni cation is not imposed by law, since as from this communi cationstarts the time limit of the recourse for annulment. It is not required for the communicationto be effected in a sensational form but in a simple administrative notice properly proved. This may be given either to the applicant or to his duly authorised advocate. (See Conclusions from Case Law of the Greek Council of State 1929 to 1959 page 252). Knowledge from the publication or communication starts the time limit if and only for that part that it is com plete. Complete is the knowledge that allows the inter ested person to find out for sure and with precision the financial or moral damage which he suffers by the public ation or communication of the act. In order that the knowledge should be complete it is not required-unless the law otherwise provides—the publication or communi cation of all the elements which result to the keeping of the prescribed forms and of all the elements, which the administration took into accountin ordertojustify its deci1513 Sawides J. Iacovou v. Republic
(1984)sion. It suffices only the mention.of the keeping of the forms and a summary of the reasoning to be diligently drafted and since one suffers damage should proceed in time in order to obtain knowledge of the above elements (see Recourse for Annulment by Tsatsos, 3rd edition, page 74 paragraph 30). 5 In the light of the above principles and taking into consideration the sequence of events in the present case and in particular the fact that the new medical certificate of 24.1.1978 was supplied to the District Officer of Larnaca 10 by the father of the applicant himself, leaves no room for doubt that the decision of the respondent Minister contained in the letter of 25.4.1978, was a new decision based on newenquiry asa result of thenew medical certificate. If any clarification was required the applicant 15 should apply for that without delay to the respondent authority and inanycasehehad tofilehisrecourse within the time limit of 75 days as provided by Article 146.3 ofthe Constitution. From the time the letter of25.4.1978 was received by his advocate the time limit within which 20 the applicant shouldfilehis recourse started to run as it supplied to him full knowledge of the consequences of the decision of the respondent Minister". Revertingback tothe facts of thepresent case, applicant was informed and knew as early as 4.2.1983 of the operative part 25 of the subjudice decision as well as a general reference to the reasons which led to it since reference was made in the same letter to "the reports of the appropriate services of the State". In myview,thereis noroomfor doubt abouttheoperativepart of the decision. As to the reasoning, applicant knew that the 30 decision was based on the reports of the appropriate departments. And that was enough, in my view, to set the time running. Butevenif Iweretoacceptthattheletterof4.2.1983 did not contain any reasoning at all, then again two courses wereopentotheapplicant. Thefirstonewastofilea recourse 35 against such decision seeking its annulment on the ground of lackofduereasoningortoapplyassoonaspossibleand without any delay to the respondent for any clarification which would enable him to pursuehis claim more easily. Adelay of about 80daysinseekingsuchinformation isunjustified, inthecircum- 40 1514 3 C.L.R. Iacovou v. Republic Sawides J. stances of the present case and could not affect the running of time against the applicant. The letter of the 4th May, 1983, does not embody a new decision but it is merely explanaiory of the previous decision communicated to the applicant on 5 the4th February, 1983,and assuchcannot betreated asenabling the applicant to file a recourse against a decision in respect of which the time had expired. In consequence, I find that the above recourse is out of time and should, therefore, be dismissed. 10 In view of the above finding I consider it unnecessary to deal with the other grounds raised by the applicant in this recourse. In the result, this recourse fails and is, therefore, dismissed, but in the circumstances of the case I make no order for costs. Recoursedismissed. No orderas to costs. 15 1515