← Κύπρος

clr/1984/1984_3_666.pdf

(1984)1984 June 11 [LORIS, J.] IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION LEONIDAS CHRYSANTHOU AND OTHERS, Applicants, v. THE REPUBLIC OF CYPRUS, THROUGH THE MINISTER OF INTERIOR AND/OR THE COMMANDER OF POLICE AND/OR THE MINISTRY OF INTERIOR, Respondents. (Case No. 148/82). Administrative Law—Administrative acts or decisions—Executory act—Confirmatory act—Meaning—Acting Sergeants in the Police Force—Dismissal—Subsequent decision reinstating them in the Police Force but not giving them acting appointments as Police Sergeants—No recourse against such decision—Request for reinstatement a?Acting Sergeantsmade8years later andrefused— Such refusal a confirmatory decision of the previous executory decision and assuchisnotjusticiable 5 Legitimate interest—Article 146.2 of the Constitution—Recourse against refusalto reinstate topost of Acting Sergeantin the Police 10 Force—Applicant resigningfrom the Police Forcebefore the filing of the recourse—No legitimate interest to file a recourse. All applicants were on the 15th July, 1974 acting sergeants in the Cyprus Police Force. On the 1st August, 1974 a person who was, appointed as "Chief Constable*' by "the person who, 15 during the coup d' etat unconstitutionally and illegally assumed the office of the President of the Republic" terminated the acting appointments of all applicants as from 23.7.1974; furthermore the said person on 1.9.1974 dismissed the applicants altogether from the Police Force. On 23.9.1974 Mr. Sawas Antoniou 20 the person lawfully holding the office of Chief Constable issued an order whereby the applicants were reinstated in the Police 666; :3fC.L'.R. .5 ! I0 Chrysanthou and Olhers'v. Republic ^orce'withretiospective effect'but they'were not given acting appointmentsas'Police Sergeants. Norecourse-wasfiledagainst •this-decision. ίΟη'4.!12.Ί981'Counsel foraIl.applicants*applied itoithe^inister-of-Interiorifor-theireinstatcment'Ofallapplicants tinUhe temporaryjposts<of.acting PolicefSergeants.'i.e. "the'posts 'they^were"?holdingup;to:the;23.7:1984. The Ministerof-Interior 'turned-down 'the application-on'the-4*231982 and.'hence tHis trecourse'-which'-wasifiledon 24;3.:1982. -In<the1 meantime.appli­ cant :No. --3.resigned 'from thetPolice;Force*on J16.-2.11982. «On the .preliminary objections raised -in-the-opposition-to ithe«'effect-that
(1)"'The.executory act was the.decision of the Chief'Constable of .23:9.1974. Ί5 20 ."•25 30 35
(2)Theidecision-dfHhe'Minister.df-'4:2:1982NwaS'Orily-of-a -confirmatory ;nature ;and, .therefore, :non ^justiciable.
(3)All applicants ;uponUheirίreinstatement -in Uhe '.Cyprus ^Police"Force have .'accepted -to-be emplaced-as Police ."Constables-and'therefore 'they ihave been ;deprived «of 'their "existing'legitimate 'interest"-envisaged'by.-Article 146.2 «of-the Constitution, ΐΐη ^particular applicant -3, has no,presentexisting!legitimate"iriterest("having resigned from the Police "Force on theΊ6.2Μ982. 'Held,after-dealing'-with the'meaningfofiexecutory'and con­ firmatory act—videpp.1674-675.post;thatthe"decisionofthe Chief ^Gonstable«dated:23.9."1974 1 'was'a'decision'of:an'executory cha;racter,*that ; is a-decision'expressing.the^will'df the administrative ^organ'in*question, aiming aUproducrag^legal^situation which ' w a s ' i n ;fact "produced; 'that -thessubjjudice-decision-bf '4.2:1982 ;is-merely ^ c o n f i r m a t o r y ^decision 1 of <thetearlierexe<mtory*one, -'signifyingithcadherenccof'the-administration^to atcourse'ala , , fready adopted;'and that,'therefore,'the ;present5recourse'is" non r .'justiciable ;on this;ground;and5is,.'therefore,".'doomedHo'failure. iHeld,^further,tthat;thoughwoluntary'-and tun reservediacceptanccofan-admiriistrativedscision'deprives.theperson concerned ! tofthe-legitimate interest'entitling him"to:file.a recourse df-annul1 : i| •"ment^df-that-decision"under Article' ]46.2''c fithe Gonstitution ias'regardsiall'app'licantsHn-theipresentirecourse^with'the^excepttion^'of.'applicant:.Νο.-ν·3,-thereTis moisufficientimatenaliin'dicating <667 Chrysanthoa and Others v. Republic
(1984)that theyhavevoluntarily andunreservedly acceptedthedecision of 23.9.1974; but that as applicant No. 3has resigned from the Cyprus Police Force o>i 16.2.1982, that is mors than a morth prior to thefilingof the present recourse, which was only filed onthe24.3.1982,hehadno"existing legitimateinterestadversely 5 and directly affected" asenvisaged by Article 146.2of the Constitution, either at the time of thefilingor at the hearing of the present recourse,and hisrecourse must also bedismissed onthis ground as well. Application dismissed. 10 Cases referred to: LiasiandOthers v.Attorney-GcmndoftheRepidylie endAnotlur
(1975)3 C.L.R. 558; Tseriotis Ltd. v. Republic
(1984)3C.L.R. 693; Papasavvas v. Republic
(1967)3 CL.R. Ill; 15 Christofides v. CY.T.A.
(1979)3 C.L.R. 99; Paschaliv. Republic
(1966)3 C.L.R. 593; HjiComtantinou ami Others v. Republic
(1980)3 C.L.R. 184; Neocleous and Otlxers v. Republic
(1980)3 C.L.R.
  1. Recourse. Recourse against the refusal of the respondents to reappoint and/or re-emplace and/or reinstate the applicants as from 23.
  2. 1974 in the rank and/or the posts they were holding prior to the coup d' etat of July,
  3. N. D. Stylianidou(Miss) for E.Efstathiou,for theapplicants. 25 A. Vladimirou, for the respondents. Car. adv. vult. LORIS J. read the following judgment. All 14 applicants impugn by means of the present recourse the decision of the respondents dated 4.2.1982 (which is attached to the recourse 30 marked "A") whereby the respondents allegedly "lefused to reappoint and/or re-emplace and/or icinstate the applicants, as from 23.7.1974 in the rank and/or the posts they were holding" prior to the coup d' etat of July
  4. The bare facts stripped of the extreme eloquence with which 35 they are being presented in "the statement of facts" of the present recourse are as follows: 668 20 3 C.L.R. Chrysanthou and Others v. Republic Loris J. Allapplicantswereon 15.7.1974actingsergeantsserving with the Cyprus Police Force. Byan order issued on 1.8.1974by a person appointed bythe coup d' etat regime as "Chief Constable" the acting appoint5 ments of the applicantsasaforesaid, wereterminated with effect as from 23.7.
  5. The applicants on 4.12.1981 applied to the respondents for their reinstatement in their aforesaid acting rank and the respondents refused to accede to their request by virtue of the 10 sub judice decision dated 4.2.
  6. The oversimplification of the facts bytheapplicantscoupled by their omission in mentioning all other undisputed relevant facts may lead to confusion on the issues; that is why I made specific reference to the facts set out by the applicants and I 15 shall now proceed to list all substantive uncontested facts as they emerge not only from the statement of facts set out by applicants but also as stated by the respondents and as they appear in the relevant documents before me to which specific reference will be made in due course in the present judgment. 20 25 30 35 Thus all the undisputed substantive facts of the present case are as follows:
  7. All 14 applicants enlisted in the Cyprus Police Force (Tactical Reserve Unit) on several dates during the years 1972and 1973;theirenlistmentwaseffected inaccordance with regulation 7 of the Police (General) Regulations, 1958, (as amended).
  8. Owing to existing vacancies at the time in the Tactical Reserve Unit and the consequential needs thereof, all applicants were posted as acting sergeants in the aforesaidunit;thesaidactingappointmentinrespectofseveral applicants waseffected in 1973, whilsttheremainingwere soappointed during thefirstsixmonths of 1974; allthe acting appointments in question were made pursuant toregulation 11 ofthe Police(General)Regulations1958, (as amended). (For dates of initial appointments of applicants as well as for dates of acting appointments vide appendix "A" attached to the opposition; in this respect it must be noted that the picture in appendix "A" lefers to 13 applicants only as applicant No. 3 669 Loris J. Cbrysanthou and Others v. Republic
(1984)in the present case, namely Pavlos Mala, has resigned from thePohce Force on 16.2.1982i.e.morethan a month before the filing of the present case on 24.3.1982).
  1. A person who was appointed as'"Chief Constable" by "the person who during the coup.d' etat unconstitution- 5 ally and illegally assumed the office of'the President of the Republic" "by a purported order dated 1.8.1974, published in the Cyprus Police Gazette, terminated the acting appointments of all applicants as from 23.7.1974; furthermore the said.person on "1.9.1974 dismissed the 10 applicants altogether from the Police Force (vide appendix "A" attached to the opposition).
  2. On 23.9.1974 Mr. Sawas Antoniou, the person lawfully 'holding the office iof Chief Constable issued an order whichvwas.published.in the Police-Gazette under No. 38 15 Volume XV page 253 (vide Appendix T* attached to the opposition) whereby the applicants were reinstated in the Pohce force \with retrospective effect; with the nature .and ieffect .of this .order/decision of the lawful %Chief<Constable,J.shall-be.dealingilater on inthepresent 20 judgment; sufficing .to say at.thisistage that by means of the said order.dated-23:9.1974 and/or as a result of same all .applicants were reinstated with retrospective effect in the Police Force where they are still serving (with the exception of applicant No. 3 who has resigned from '25 •the Force on 1612.1982) in posts*assigned to-them accordling to the exigencies of the service%(vide appendix "A" attached >toithe opposition). -
  3. -Due to the fact that, inspite of'their reinstatement in the Police Force with retrospective effect, the applicants 30 were-not given acting appointments as Police Sergeants k(in view of several factors to which I shall revert later ..on hrthe-present judgment, the'paramount of-which was •obviously'the abolition of Tactical Reserve Unit) some of.them apphed to the Chief Constable.praying for acting 35 appointment in -the rank of 'Police Sergeant. In.particular applicant No. Tin thetpresent case submitted '."for this purpose written applications,on.25.7.1979 and •22.4.1980;von .14:5.1980a refusal·,of.the.Chief*Constable <670 3 C.L.R. Chrysanthou and Others v. Republic Loris J. was communicated to him (vide Appendix " Δ " attached to the opposition) explaining the reasons for such refusal. A similar refusal dated 21.4.1975 was addressed to applicant No. 9 in the present case in reply to his appli­ cation dated 3.4'.
  4. 5
  5. 10 Counsel for all applicants addressed on their behalf on 4.12.1981 a letter to the Minister of Interior (marked 'B' attachedto the recourse) praying for thereinstatement of all applicants in the temporary posts of acting Police Sergeants i.e. the posts they were holding up to the 23.
  7. A reply was communicatedto learned counsel of appli­ cants on 4.2.1982 (marked *A* attached to the recourse) turning down theaforesaid request for thegroundsthere­ in stated; and the applicantsfiled1on 24.3.1982 the present recourse praying for the annulment of the aforesaid decision of 4.2-1982 (exh. A). Before proceeding further I feel that I should recapitu­ late the decisions in respect of the applicants. 20 25 30 Firstly we have two decisions taken by a person who was appointed as 'chief constable1 by the Coup d' etat regime. The first of these purported orders and/or decisions dated 1.8.1984 published in the Cyprus Police Gazette, terminated the acting appointments of all applicants as from 23.7.1984; furthermore, the same person on Γ.9.1974 dismissed the applicants altogether from the Police Force. Both these decisions are legally non existent as they were made by a person who was unlawfully appointed by the Coup d' etat regime (vide Coup d' etat Regime (Special Provisions) Law, 1975 (Law No. 57/75). 1 Section 3 and 4 of the said law provide as follows: " 3 . The Coup d' etat and.the Coup d* etat Government have no legal basis whatsoever. 35 l 4 . Theactmadeby theCoupd' etatgovernment by invoking its powers or duties is legally non-existent". According,tojthe definition section of this law "Coup d' etat 671 Lorls J. Chrysantbou and Others v. Republic
(1984)government means the person who during the coup d' etat unconstitutionally and illegally assumed the office of the Presi­ dent of the Republic and the Ministers unconstitutionally and illegally appointed by him and the Under-Secretary and it in­ cludes every member thereof". 5 "Act", according to the definition, "includes every act or decision of legislative or administrative nature". It is clear therefore, that the said decisions of 23.7.1974 and 1.9.1974 werenotlegallyexistentasmadebyausurper ofpower(Aristides Liasi and othersv. The Attorney-General of the Republic and 10 another
(1975)3 C.L.R. 558). The thirddecision dated 23rd September, 1974 which appears in appendix T' attachedto the opposition is thedecision of the lawful chiefconstableoftheRepublic. Byvirtueofthisdecision all applicants were reinstated in the Cyprus Police Force. It 15 is true that on being so reinstated they were not given their acting appointmentsas Pohce Sergeants. The reason for such decision which appears notonlyinAppendix T'butinothersub­ sequent documents such as appendix 'Δ' appears to be thieefold: A. The fact that the original enlistment of the applicants in the Police Force was effected pursuant to regulation 7 of the Police (General) Regulations, 1958. The relevant part of this regulation reads as follows: *'7.-(l) Notwithstanding anything in regulation 5 of these 25 Regulations contained and subject to the provisions here­ inafter contained,theChiefConstablemay,athisdiscretion, enlist a person as a constable for an initial period not ex­ ceeding three years but, at the expiration of that period, the person enlisted may,if hehas given satisfactory service 30 and if his services are further required by the Chief Con­ stable, upongivingthreemonths*previous noticein writing to the Chief Constable, opt for re-engagement for another like period: Provided thattheChief Constablemay,at anytime,upon 35 giving the person enlisted thirty days* notice in writing, determine the engagement of such person.
(2)
(3)
(4)672
(5)" 20 3 C.L.R. Chrysanthou and Others v. Republic Lorls J. B. Their posting in the acting appointment of Police Sergeants was effected by virtue of regulation 11 of the Police General Regulations, 1958(as amended) the material part of which reads as follows: 5 10 "ll.-(
  1. l)Amember ofthe Forcewhoisrequired to perform the duties of a higher rank due to the temporary absence of the holder of that rank, may beappointed to act in the rank by the Divisional or Unit Commander: Provided that— (
  2. a)All such appointments are made with the approval of the Chief Constable; (
  3. b)notification is sent to Force Headquarters for the purposes of pay and maintaining records.
(2)Any service in the acting rank shall not— 15 (
  1. a)be deemed as approved service in the higher rank; (
  2. b)be subject to allowance applicable to the higher rank.
(3)
(4)
(5)C. The fact that the Tactical Reserve Unit was abolished in consequence of the Coup d' etat. Inshortthelawful chief constableoftheCyprusPolice Force 20 on 23.9.1974 reinstated all applicants in the Cyprus Police Force and taking into consideration that the original enlistment of the applicants in the Police Force was made pursuant toregulation 7ofthePolice(General) Regulations,andthat the exigenciesoftheCyprus PoliceForcedid not requiretemporary 25 appointments in the rank of police sergeants, the Tactical Reserve Unit having been abolished, exercised his discretion in not emplacing the applicants anymore in the acting rank of Police Sergeants. This to my comprehension is the decision of the Chief Con30 stabledated 23.9.1974. Ineed not comment onit any further. I shall confine myself in observing the following: (a) That this decision was taken by the Chief Constable shortly after the chaotic situation which was brought about by the coup d* etat. 673 " Loris J. Chrysantbou and Outers v. Republic
(1984)(
  1. b)The aforesaid decision of the Chief Constable might not be happily worded but it must always be borne in mind that same was given as early as 23.9.1974, whilst Law 57/75wasonlypromulgated on31.10.1975. (
  2. c)Such a decision has never been impugned by anyone of the applicants. 5 Applicants failed for more than 8 years to claim redress of their grievance with the exception of applicants No. 1 and 9 who confined themselves in addressing relevant letters to the Chief Constable as stated in the statement of facts above; and 10 thentherecametheapplication ofcounselon behalf ofallapplicants in December, 1981raising the matter before the Minister of Interior; the relevant replyisthe subjudicedecision of 10.2. 1982. Learned Counsel for respondents raises three preliminary 15 objections in opposition alleging that
(1)theexecutory act wasthedecisionof the Chief Constable of 23.9.1974.
(2)That the decision of 10.2.1982 contained in exh. A attached to the recourse isonly of a confirmatory nature 20 and therefore non justiciable.
(3)Thatallapplicantsupontheirreinstatement intheCyprus Pohce Force have accepted to be emplaced as Police Constables and therefore they have been deprived of their "existing legitimate interest" envisaged by Article 25 146.2 of the Constitution. In particular applicant 3, namely Pavlos Mala, has allegedly no present existing legitimate interest, having resigned from the Police Force on the 16.2.1982. As these objections go to the Jurisdiction of this Court I 30 intend to examine them first. "Executoryactsarethoseactsbywhichthewilloftheadministrative organ is declared, intending the creation of legal consequence towards the subjects involving its direct execution by administrative means". (Vide Conclusions of the Council of State 1929-1959 at 674 35 3 CI^R. Chrysanthou and Others v. Republic Loris.J.. p: 237). A confirmatory, act is-one.which repeats the contents. of"a previous executory act and signifies,the adherence of. the administration- to a course already, adopted. (Stassinopoulos on the Law of Administrative Disputes, 4th ed. at p. 174). 5 I need· not cite here cases»decided by our Supreme Court: on this^topicas alfthese cases-have been referred to ; in-myrecent decision.in.the case;of:TseriotisLtd., v.\ The Republic,CaseNo.. 400/82: decided, on 29.5.1984 (still unreported).* From* the facts of the present case it is abundantly clear 10 that the-decision of the Chief Constable dated 23.9:1974 was a decision of anexecutory character,that is a decisionexpressing · the- will' of* the administrative organ in question, aiming atproducing a legal'situation which was in fact produced:. The1sub judice dccisiomofr4.2.l982;is merely a confirmatory decisions 15 of the-earlier executory one, signifying the adherence of'the administration to a- course already adopted'. Therefore,, the present recourse is nonjusticiableon this ground andis therefore doomed to failure: 20 25 30 35 As already, stated'the-present recourse is being impugned on another ground, notably lack of "existing legitimate- interest adversely and directly, affected" as envisaged· by Article 146.2of the Constitution.. In this connection the requirements of'Article 146.2 of the Constitution mustbe satisfied" at thetimeof thefilingand hearing of the recourse (Papasavvas v. The Republic
(1967)3 C.L.R. I l l , Christofides. V..CY7A.
(1979)3 C.L.R.. 99).. It has also been repeatedly held·by our Supreme Court-that voluntary and unreserved acceptance of administrative decision deprives.the person concerned ofthelegitimate interest entitling himtofile a recourse of annulment of thatdecision under Article 146.2 of the Constitution. (Vide Paschali v. The Republic
(1966)3 C.L.R..593, HjiConstantinouand othersv. TheRepublic
(1980)3 C.L.R. 184, Neocleous andothersv. TheRepublic
(1980)3 C.L.R. 49η. As regards all applicants in the present recourse, with the exception of applicant No. 3; there is no sufficient material * Now reported'in
(1984)3 C.L.R. 693. 675 Loris J. Chrysaothoa and Others v. Republic
(1984)beforemeindicatingthattheyhavevoluntarily and unreservedly accepted the decision of 23.9.1974; anyhow the position with regardtoapplicant No.3 isdifferent: Hehasresignedfrom the Cyprus Police Force on 16.2.1982, that is more than a month prior to thefilingof the present recourse, which wasonly filed 5 on the 24.3.1982; therefore, he had no "existing legitimate interest adversely and directly affected" asenvisaged by Article 146.2 of the Constitution, either at the time of thefilingor at the hearing of the present recourse, and his recourse must also be dismissed on this ground as well. 10 In the result, the present recourse fails and is accordingly dismissed;inthecircumstancesofthepresentcaseIhavedecided to make no order as to the costs thereof. Recoursedismissed with no order as to costs. 15 676

🔗 Στην επίσημη πηγή

AI explanation based on the official legal text. Indicative, not a substitute for legal advice.