(1986)1986 November 15 FKOURRIS. J] IN THE MATTER OF ARTICLE 146 O F THE .CONSTITUTION CHRISTAKIS ROTSIDES, Applicant, THE REPUBLIC OF CYPRUS, THROUGH THE MINISTER OF INTERIOR, Respondent. (Case No. 976185). Firearms—Cancellation of registration of, on grounds of public interest—The Firearms Law 38/74, v. 11
(3)—Shotgun found to be a repeater—Cancellation justified. Recourse for annulment—Hierarchical recourse—The Firearms Law 38/74, section 33—The hierarchical recourse thereunder is not by way of completion or confirmation of the decision in question, but by way of review by higher authority—Therefore its existence is no bar to a recourse for annulment. 5 Time within which, to file a recourse—Letter expressing inten- 10 tion to cancel registration of shotgun, unless adjustments of its mechanism are carried out—Second letter informing applicant of decision to cancel the registration—Not' confirmatory of first letter—Time did not begin to run as from communication of the first letter. 15 Recourse for annulment—Parties—Recourse directed against wrong person, that is the Minister of Interior, whereas the power to take- the sub' [ttdice decision was vested and exercised by the Chief of Police—Ground for dismissing the recourse. On 26.6.84 the applicant submitted an application for the registration of a single barrel• shotgnn '^Marlin 2386. 20 3 C.LR. $ Rotsides v. Republic Goose". The officer in charge ascertained that it was a "repeater*' and advised the applicant to' make certain adjustments to its mechanism and bring it back to check such adjustments. The applicant agreed, whereupon a certificate of registration was issued to him. As the applicant did not bring it back for checking; the police expert on firearms examined the shotgun and found that it was a "repeater",gun, whose import and possession was prohibited by s. ,3(0
(3)of the Firearms Law, 38/74. 16 15 10 25 30 35- As a result the Chief of Police by'letter dated 26.6.85 informed the applicant of the findings of the expert and called, upon him to make the necessary adjustments, otherwise, he would cancel the certificate of registration. "As the applicant did not comply, the Chief of Police cancelled the registration of the said shotgun for reasons of public interest'in virtue 6f s. 11
(3)of the Firearms Law 38/74. Hence the present recourse. Counsel for the respondents raised the following preliminary objections, namely that the Court has no jurisdiction, to try·.,this case on account of. applicant's failure to challenge the decision by a hierarchical recourse >as provided- in section 33 of Law 38/74, that the recourse is out of time as time began to run from the communication of the decision contained in the letter of 26.6.85, the sub judice decision being confirmatory of the decision of· 26:6.85, and that the recourse was brought against the wrong person, namely the Minister of Interior. It must,, also* be noted' that in the course of the hearing a police expert on firearms gave evidence to the effect that the shotgun in question' is. a ^repeater", whereas the applicant did not call any expert evidence, but relied on the decision in Christodoulou v. The Republic, 1 R.S'. C.'C. 1 in which a "repeating" gun is described. Held, dismissing the recourse: (l·) The hierarchical recourse provided by s. 33 of Law 38/74 is not by way of confirmation or completion of the decision in question; but by way of review by higher au'hority. It follows that it'is no1·bar to a recourse before this - Court. 2387
(1986)Rotsides v. Republic
(2)The letter of the 26.6.85 merely expresses the intention of the Chief of Police to cancel the registration of the shotgun in question. The decision to cancel such registration was taken on 12.9.85. It follows that the objection lhat this recourse is out of time fails. 5
(3)This recourse fails because it is directed against the wrong person, as by virtue of s. 11
(3)of Law 38/74 the power to cancel a certificate of registration in respect of a gun is vested in the Chief of Police.
(4)The evidence of the Police expert stands uncontradieted. The gun described in Christodoulou, supra is one of the repeating guns in existence and it does not follow that only guns which are similar to the one described in that case are repeaters. In the circumstances the Chief of Police, acting for reasons of public interest, could cancel the registration in virtue of s. 11
(3)of the Firearms Law 38/74. 10 15
(5)The argument that the Chief of Police should have revoked the act of registration is untenable as the Law speaks of cancellation. 20 Recourse dismissed. Costs against applicant. Cages referred to: Christodoulou v. The Republic, 1 R.S.C.C. 1; Pelides v. The Republic and Another, 3 R.S.C.C. 13; 25 Petrolina Ltd. v. The Municipal Committee of Famagttsta
(1971)3 C.L.R.
- Recourse. Recourse against the decision of the Chief of Poi'ce to cancel the certificate of registration of applicant's shotgun under No. L L
- 30 C. Clerides, for the applicant. CI. Theodoulou (Mrs.), Senior Counsel of the Republic, for the respondent. Cur. adv. vult. 2388 35 3 C.L.R. Rotsides v. Republic KOURRIS J. read the following judgment. This is a re course which challenges the validity of the Chief of Police to cancel the certificate of registration of the shotgun of the applicant under No. LL
- 5 Ό 15 20 25 30 35 The applicant on 26th June, 1984, submitted an appli cation for the import of a single barrel shotgun "Marlin Goose" make and an import licence was granted to him. On the same day he presented the shotgun to the Limassol Police Station for registration and the officer in charge for the registrations of shotguns having examined the gun he ascertained that it was a "repeater" and he advised the applicant to make certain adjustments to its mechanism so as to come within the class of shotguns elig;ble for regis tration and bring it back to check if the adjournments have been effected. The applicant agreed, whereupon the police officer had issued a certificate of registration under No. LL
- As the applicant did not present the shotgun to the said police officer for checking purposes the police on 7th May, 1985, found out that the applicant did not effect the re quired alterations whereupon the police took the shotgun to the police expert of firearms who, having examined it on 29th May, 1985, ascertained that it was a "repeater" gun whose import and possession was prohibited by s. 3 (l)(e) of the Firearms Law 38 of
- The Chief of Police addressed a letter to the applicant dated 26th June, 1985, informing him of the findings of the firearms expert and calling upon him to make the necessary adjust ments to his gun otherwise he would cancel the certificate of registration in respect of the shotgun (Appendix Γ). As the applicant failed to comply with the directions con tained in the letter of 26th June, 1985 the Chief of Police cancelled the certificate of registration in respect of the said gun by virtue of s. 11
(3)of the Firearms Law No. 38 of 1974 for reasons of public interest and communicated his decision to the applicant by letter of same date (Appendix Δ). In respect of this decision the applicant filed the present recourse maintaining that the decision is contrary to the pro2389 Kourris J. Rotsides v. Republic (198β) visions of section 3
(1)(e) of Law 38/74, that no matter of public interest arises and that since the gun was law fully imported and lawfully registered the respondents had no right to cancel the certificate of registration but to re voke the administrative act with regard to the said gun. Further, counsel for the applicant in his reply to the written address to the respondents disputed that the shotgun is a "repeater". 5 Counsel for the respondents raised certain preliminary objections which 1 propose to deal with before entering 10 into the merits of the case. The first point is that the Court has no jurisdiction to try the case because the applicant failed to make a .hierar chical recourse as provided under s. 33 of Law 38/74. I do not agree with counsel for the applicant because, in the present case, the hierarchical recourse is not by way of confirmation or completion of the act or decision in qu estion, in which case no recourse is possible to this Court until such confirmation or completion has taken place. It is by way of review by higher authority in which case a prov;sion for such review is not a bar to a recourse before the Court. See Pelides v. The Republic and Another, 3 R.S.C.C, p. 13 which was followed in the case of RetroUna Ltd. v. The Municipal Committee of Famagusta.
(1971)3 C.L.R.
- Another point is that the applicant has no legitimate in terest because he failed to file his application within the 75 days period. Counsel alleged that the decision of the Ch'ef of Police was communicated to the applicant by his letter of 26th June, 1985 (Appendix Γ) and that in the letter of 30 12th September, 1985 (Appendix Δ) the Chief of Police was merely confirming his decision contained in the letter of 26th June,
- Again, I do not agree with this subnrssion. A mere perusal of the said letters reveals that the Chief of Police in his letter of 26th June, 1985, warned « the applicant that he would cancel the certificate of re gistration of his shotgun unless the applicant made certain adjustments to the shotgun. He merely expressed his inten tion to cancel the certificate if the applicant did not make the alterations on his shotgun. In the letter, however, of *& 2390 20 3C.L.R. Rotsides v. Republic Kourris J. 12th September, 1985, the Chief of Police decided to can cel the certificate of registration because the applicant failed to make the necessary adjustments to his shotgun. The relevant part reads as follows:5 10 15 . «Σας πληροφορώ ότι ούμφωνα με τις εΕουοίες που μου παρέχει το άρθρο 11
(3)του Περί Πυροβόλων 'Ο πλων Νόμου αρ.38 του 1974 με την παρούσα ακυρώνω για Aoyouc δημοσίου συμφέροντος, το πιστοποιητικό εγγραφής του κυνηγετικού όπλου με αρ. εγγραφής ΛΛ. 15828, που είναι εγγεγραμένο οτο όνομα σας» (I beg to inform you that according to the powers vested in me by s. 11
(3)of the Firearms Law 38/74 I hereby cancel, for reasons of public interest, the certificate of registration of the shotgun under registration No. LL. 15828, which is registered in your name). Therefore, this point also fails. 20 25 30 35 . The third objection raised is that the recourse was brought against the wrong person. I agree with counsel for the applicant on this point because by virtue of s.ll
(3)it is the Chief of Police who has power to cancel a certificate of registration in respect of a gun. It follows, that the Minister of the Interior could not be made a party as he has not and could not have exercised any competence under the section. Therefore, the recourse fails but, I propose to examine the merits of the case if it were held that the recourse was brought against the proper party. The only oral evidence given in this case was the evi dence of Police Inspector Sakkadas who is attached to the Crime Laboratory, Nicosia and he is a Firearms and Am munition Identification Expert and this, in view of the fact that counsel for the applicant in his reply to the written ad dress of counsel for the respondents disputed that the shot gun in, question was a repeater. He testified that the gun is a single-barrel and it is a repeating, but not automatic shotgun. Two cartridges are loaded in the shotgun one in the chamber and the other in the magazine. When one presses the trigger, a cartridge is fired and then one has to move the bold action system by hand to empty the cham2391 Kourris J. Rotsides v. Republic (198Θ) ber and then press the bold action again in order to bring the cartridge which is in the magazine in the chamber of the gun andbe ready to be fired. He also said that the mechanism of thesaid gun is not the same or substantially thesame with other ordinary single or double barrel shotguns. 5 Counsel for the applicant disputed that thegun is a repeater notby calling expert evidence but relying onthe case of Christodoulou v. Republic, 1 R.S.C.C. 1,in whicha repeating gun is described which is different from the shot- 10 gun in question. With due respect to counsel for the applicant his conteniion is untenable because there are various types of re peating gun^and the gun described in the Christodoulou case is oneof the repeating guns in existence. It does not 15 follow that only guns which are similar as the gun des cribed in theChristodoulou case are repeaters. Whether a gun is repeater or not it depends on the expert evidence and the only expert evidence before the Court is that of Police Inspector Sakkadas which stands uncontradicted and 20 I accept it andI am satisfied that the gun in question isa repeating shotgun. It appears from the narration of the facts hereinabove that the applicant failed to comply with theletter of the Chief of Police dated 26th June, 1985,and he kept in his 25 possession a shotgun whose import and registration was prohibited by law. In these circumstances, the Chief of Police, acting for reasons of public interest could cancelthe certificate of registration of thesaid gun.I amof theview that the Chief of Police acted in accordance with the law 30 and not unlawfully as alleged by the applicants and, there fore, the decision is not unlawful and contrary to the pro visions of s. 11
(3)of Law 38/74. The relevant legal provision empowering the Commander of Police to cancel the registration of a firearm is section 35 11
(3)of the Firearms Law, 1974 (Law 38/74) which reads as follows: «
(3)Ο Αρχηγός της Αστυνομίας, δύναται καθ' οιον δήποτε χοόνον δια λόγους δημοσίου συμφέροντος να 2392 3 C.L.R. 5 10 15 20 Rotsides v. Republic Kourris J. ακύρωση οιονδήποτε πιστοποιητικόν εγγραφής δι' εγ γράφου ειδοποιήσεως εις τον κάτοχον αυτού, επί τη τοιαύτη δε ακυρώσει ο κάτοχος του πιστοποιητικούο φείλει να επιοτρέψη τούτο πάραυτα εις τον Αρχηγόν της Αστυνομίας και εάν παράλειψη να πράξη τούτο είναι ένοχος αδικήματος και, επί τη καταδίκη του, υ πόκειται εις χρηματικήν ποινήν μη υπερβαίνουσαντας εκατόν λίρας.» ("
(3)The Commander of Police may at any time for reasons of public interest cancel any certificate of registration by written notice to the possessor thereof, and upon such cancellation the possessor of the cer tificate must return it immediately to the Commander of Police and if he fails to do so he is guilty of an offence and, upon his conviction, he is subject to a fine not exceeding one hundred pounds.") I do not think that the argument of counsel for the applicant that the respondents should have revoked the administrative act can stand because the law speaks of cancellation of the certificate of registration. In view of the above premises the recourse is dismissed with costs against the applicant. Costs to be assessed by the Registrar. 25 Recourse dismissed with costv against applicant. 2393