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(1984)1983 July 4 [HADJIANASTASSIOU, J.) IN THE MATTER OF ARTICLE 146OF THE CONSTITUTION ANDREAS ANASTASSIADES AND OTHERS, Applicants, v. THE REPUBLIC OF CYPRUS. THROUGH THE COUNCIL OF MINISTERS, Respondent. iCases Nos. 129/7'5-136/75 and 143/75-147/75). Damages under Article 146.6of the Constitution—Annulment of administrative act a prerequisite for a claim thereunder—Recourse against dismissalfrom the Police Force—Dismissalrevoked by the Administration and recourse struck out as abated—Respondents refusing to pay damages to applicants—Such refusal not an exe- 5 cutory act in the domain of public law and cannot be made the subject of a recourse underArticle 146.1 of the Constitution—The remedy of the applicants lies before a Civil Court. The applicants, members of the Police Force, were dismissed from the Force by a decision of the Council of Ministers taken !0 on 30.7.73 and they challenged the validity of this decision by means of recourse No. 97/73the hearing of which was concluded on the 1.3.74 and judgment was reserved. Following the coup d'etat of July 15, 1974 a government under N. Sampson was set up and assumed power in defiance to the Constitution and legal 15 order. On 23.7.74 Glafkos Cierides, the President of the House Representatives assumed office as President. Soon afterwards, the Council of Ministers, appointed by Nicos Sampson sitting under the chairmanship of GI. Cierides, decided to revoke the decision for the dismissal of the applicant and his colleagues. 20 This decision was published in the Gazette on 2.8.
  1. Thejudgment ofthe Full Bench remained reserved until4.4.
  2. On that day, counsel for the applicant and Mr. Loucaides on 312 3 C.L.R. Anastassiades and Others v. Republic behalf of the Attorney-General, representing the Republic, appeared and declared that in view of the aforesaid decision published on 2.8.74, the recourse had been abated. 5 10 15 20 25 Counsel for the two sides agreed that the decision of 30.7,73 should be treated as having been revoked; and thereupon the Supreme Court struck out the recourse as having been abated. The respondents refused to pay to the applicants the emoluments to which they were entitled and were deprived of by the decision of 30.7.73; and hence these recourses. Held, that the annulment of an administrative act is a prerequisite for a claim of damages under Article 146.6 of the Constitution; that since the decision to dismiss the applicants, which was taken on 30.7.73 was nullified by the decision of the SupremeCourt their remedy lay exclusively before a civil Court; that the refusal of the administration to pay them damages was not an executory act in the domain of public law in that it left unaffected their right of damages, that crystallized after the decision of the Supreme Court; that, consequently, the recourses are directed towards an act not litigable under Article 146.1 and must be dismissed. Applications dismissed. Cases referred to: Attorney-General of the Republic v. Markoullides and Another
(1966)I C.L.R. 242; Frangoulides v. Republic
(1982)1 C.L.R.
  1. Recourses. 30 Recourses against the refusal of the respondent to pay applicants their salaries in view of the fact that the previous decision of the respondents to dismiss applicants from the police force had been revoked. A. Markides with /. Typographos for N. Anastassiades, for applicants in cases 129/75-136/
  2. 35 /. Typographos with Ph. Valiandis, for applicants in case 143/
  3. M. Pierides with C. Adamides, for applicant in case 144/
  4. M. Pierides for Fr. Saveriades and C. Adamides, for applicants in cases 145/75 and 146/
  5. 313 AnastassladesandOthersv.Republic
(1984)G. Mtchaelideswith M. Pieridesfor C.Adamides,for applicants in case 147/
  1. N. Charalambous,Senior Counsel of the Republic, for the respondents. Cur. adv. vttlt. 5 HADJIANASTASSIOU J. read the following judgment. The applicant was one of the member of the police force, the.e was a number of them, who were dismissed from the service bya decision of the Council of Ministers of 30.7.1973,(Decision No. 12456). The decision wastaken in exercise of the powers vested 10 in the Council of Ministers by virtue of the provisions of the Pensions Law, Cap. 311 to dismiss persons inthe employment of the Republic, if considered necessary in the public interest. The applicant challenged the validity of the decision by >ecourse 97/
  2. Others prejudicially affected by the aforesaid decision lodged recourses asking as the applicant for the annulment of the decision. 15 Because of the impoitance of the issues raised, the recourses we/etaken bythe Full Bench of the Supreme Court. The hearing of the recouises was concluded on the 1.3.1974 wheieupon 20 judgment was reserved. h\the meantime, graveevents afflicted the country, the coup d' etat of 15.7.1974 and the Turkish invasion thatfollowed soon afterwards, onthe20.7.
  3. Following the coup d' Etat a government under N. Sampson was set up and assumed power in defiance to the Constitution and legal 25 order. They were clearly usurpers of powers of the State. On 23.7.1974 Glafkos Cierides, the President of the House of Representatives assumed office as President. The lawfully elected President of the Republic Archbishop Makarios was at the time outside the country for reasons beyond his will. 30 Soon afterwards, the Council of Ministers appointed by Nicos Sampson sitting under the chairmanship of Gl. Cierides decided to revoke the decision for the dismissal of the applicant and his colleagues. (Decision 13421). The decision was published in the Gazette on 2.8.
  4. The judgment of the Full Bench remained reseived until 4.4.
  5. On that day, counsel for the applicant and Mr. Loucaides on behalf of the Attorney-General, representing 314 35 3 C.L.R. Anastassiades andOthersv. Republic Hadjlanastassiou J. the Republic,appeared and declared that inviewofthe aforesaid decision published on 2.8.1974, the recourse had been abated. Counsel for the two sides agreed that the decision of 30.
  6. 1973 should be treated as having been revoked—adopting a 5 passage from Tsatsos—Application for Annulment, 3rd ed. pp. 370-
  7. The Full Bench of the Supreme Court agreed with the submission of counsel and struck out the recourses on the ground thattheyhad been abated (seethedecision ofthe Supreme Court 10 of 4.4.1975, on cases 73/73, 74/73, 97/73 etc. unreported). The aforesaid decision by necessary implication treated the decision of 30.7.1973 as revoked and extinguished, as nonexistent and in consequence declared the recourses as deprived of their subject matter i.e. abated. The extinction of the sub15 ject matter caused the Court to dismiss the recourses. 20 25 30 35 Notwithstanding the stand taken by the Republic voiced through Mr. Loucaides appearing on behalf of the AttorneyGeneral that the decision of 30.7.1973wasrevoked inits entirety and thedecision ofthe Full Benchto thesameeffect, the authorities refused to pay to the applicants the emoluments, to which theywe;eentitled and weredeprived ofbytheaforesaid decision. fn consequence the present recourse was instituted, challenging thevalidity of therefusal topaythem. Mr. ChaTalambous, who supported the decision before the Court, argued inter alia, that the decision published on 2.8.1974, was illegal because the Council of Ministers was illegally constituted. This submission evidently conflicts with the stand taken by the Office of the Attorney-General in recourse 97/73 when Mr. Loucaides submitted that the decision of 2.8.1974 revoked the previous one. Piessed to disclose the opinion of the Attorney-General himself on the matter Mr. Charalambous refused at first to do so for the reason that it was "most secret". When informed that it was published in the "Nomikon Vima", a legal periodical, he realized it would be idle to insist on withholding it. He, therefore, made it available for consideration. I reproduce the opinion of the Attorney-General on the subject of the legality of the Council of Ministers appointed by 315 Hadjianastassiou J. Aoastassiades and Others v. Republic
(1984)Nicos Sampson after his replacement and their continuance in office under Glafkos Cierides: " Ή άπάντησιςείς TO ερώτημα έάν ή Βουλή των 'Αντιπρο­ σώπων δύναται να άποδεχθη κατάθεσιν νομοσχεδίων απο­ στελλομένων προς αυτήν Οπό των σήμερον κατεχόντων το υπουργικό αξίωμα προσώπων εΐναι καταφατική. 5 01 υπουργοί ούτοι διορισθέντες ώς φαίνεται έκ της ύπ' αριθμόν γνωστοποιήσεως 1257 είς τήν έπίσημον εφημερίδα της Δημοκρατίας της 18 Ιουλίου 1974 έκρατήθησαν είς τάς Θέσεις των ύπό τοΰ Προέδρουτης Βουλής ασκούντος σήμερον 10 τό λειτούργημα τοΰ Προέδρου της Δημοκρατίας (αριθμ. γνωστοποιήσεως 1278 είς τήν έπίσημον εφημερίδατης Δημο­ κρατίας της 25 Ιουλίου 1974) καΐ ασκούν τα υπουργικά καθήκοντα. Συνεπώς συμφώνως προς τάς παραδεδεγμένος αρχάς ιού δημοσίου δικαίου εξακολουθούν να είναι υπουργοί μέχρι τερματισμού της ασκήσεως των λειτουργιών τοΰ αξιώματος αυτών (πρβλ.)" 15 And in English it reads :"The answer to the question whether the House of 20 Representatives can accept the lodgment of Bills submitted to the House by persons presently holding the office of a Minister, is in the affirmative. (Ministers appointed by N. Sampson continuing in office after the assumption of office by Glafkos Cierides). 25 The aforementioned Ministers appointed as Ministers under notification 1275 in the official Gazette of 15.7.1974, were retained in their position by the President of the House of Representatives presently exercising the function of President of the Republic (notification 1278, Official 30 Gazette of 25.7.1974) and carry on Ministerial duties. Consequently, according to accepted piinciples of public law they continue being Ministers until the termination of their services. (SeePlaytay: Traiteprotique de la fonction publique 1 Paris 1971 p. 46 seq.)" In the submission of Mr. Charalambous the claim of the applicants in the present recourse is in any event a monetary 316 35 3 C.L.R. Anaslassiades andOthers v. Republic Hadjianastassiou J. one and as such not a proper subject for fhe jurisdiction of Supreme Court under Article !46. In suppo.t he cited the following autho itic^ and publications. Stassinopoulos: Civil Liability of the State 1950 p. 232-233. Conclusions fiom Juris5 prudence of the G/cek Council of State—1929—59 p. 236. In the submission of Mr. Chaialambous by its ve.y natwe the claim is refe.ablc to the jurisdiction of a civil Court being in essence a moneta<y dispute. Mr. Maikidos subm;tted that the Court has competence under 10 Article 146 to determine the issues and invited the Couit to hold that the decision published on 2.8.1974 was valid and had the effect of nullifying the p.cvious decision of dismissal. He washighly critical of the contradictory stand taken by the office of the Attorney-Gene,al on the effect of the decision of 2.8.1974 15 leading to confuiioa and uncertainty. A £ieat pait of this argument was devoted to matters lelevanl to the legitimacy of the government undei Mr. Glafkos Cierides. Unlike Gicece, whe.c under certain circumstances there is 20 room for parallel iecourse to ijt administiative and a civil Cou.t, in Cyp.us it iz settled by authority that the annulment of an administrative act is a prerequisite for a claim of damages under/ Article 146.6. The Attorney-General of the Republic v. Andreas Markoullides and Another
(1966)1 C.L.R. p. 242, Frangoulidesv. Republic (1982; 1 C.L.R. p. 462). 25 In my opinion counsel complicated unnecessarily with respect, the issues raised for adjudication. The dismissal of the applicants was nullified by the decision of the Full Bench of the Sup.eme Court on 4.4.1975, in recourse 97/73 etc. Thus it is 30 unnecessaiy to go into any ofthe issuesargued inthese proceedings. The reasons for the nullification appear in the unanimous judgment of the Full Bench delivered by TriantafyHides, P. Thereupon the applicant became entitled to damages under 35 Atide 146.6. Their remedy layexclusively before a civil Court. The refusal of the administration to pay them damage:",was not an executoiy act in the domain of public law in that it left unaffected their right of damages, that crystallized after the decision of 4.4.1975. 317 Hadjianastassiou J. AnastassiadesandOthersv.Republic
(1984)Consequently the recourses are directed towards an act not litigable under Article 146.1. Their rights must be sought before a civil Court. What damages they are entitled to is a matter of a civil Court. I would repeat that having regard to the issues raised for 5 consideration and the agreement of all interested parties, this judgment is equally binding in all these lecourses. Recourses dismissed. No order as to costs. Recourses dismissed. No order as to costs. 318 10

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