SC.L.R. 1987February3 ISAW1DES JI IN THEMATTER OFARTICLE 146OFTHECONSTITUTION DEMETRISSTEKKOS, Applicant, υ THEREPUBLICOFCYPRUS, THROUGH THEREGISTRATIONSERVICE, Respondents (CaseNo. 890/85) Executory act—Confirmatory act—New decision reached after examination of materia! not before the respondents when an earlier executory actwas taken—New decision cannot beconfirmatory of the earlier act 5 10 15 20 Administrabve Law—Examination of matenal before the administration and conclusions drawn therefrom—Judicial control By letter dated 2 11 84, butdispatched tothe applicant on 15 1184,the appropnate authority informed the applicant that his application dated 20 8 84forthe reissue tohim ofarefugee cardwas refused On6 1184 the applicant submitted asecond application tothe same effect Annexed tothe second application were various documents supporting applicant's contention that hisusual place of abode before theTurkish invasion wasat Famagusta An inquiry was then earned out by the respondents, who on 23 1184received informationthat theapplicant haddeclaredhis addressfor the purposesofsocial insurance contributionsasbeing inParalimni On the 5 3 85 applicant's brother-in-law addressed to the Minister of Health a fnendly letter requestinghis intervention inthe case To thisletterthere were attachedvariousdocumentsin supportofapplicant'ssaidcontentionastohis usualplace ofabode TheMinister sent the matenal forwardedto him asafo resaidtorespondent2,who byletterdated68 85 informedtheapplicant that «no new matenal has emanated justifying any modification of my previous decisionwhich was communicatedtoyou bymyletterdated2 1184 » Counsel for the respondents raisedthe preliminary objectionthat the sub judice decision isconfirmatoryofthe decision of2 1184 25 Held,dismissingboththepreliminary objectionandtherecourse
(1)Asthe matenal submitted by theapplicant wasnotbefore therespondents when 127 Stekltos v. Republic
(1987)they took the decision of2 11 84, the subjudiceact cannot be confirmatory of the earlier act of 2 1184, but a new executory act reached after new examination of new matenal
(2)The respondents had at the time of taking the subjudice decision, the findings of their own investigations on the one hand and the documents submitted by the applicant on the other They had to consider such matenal and draw their own conclusions and make a finding as to the real place of applicant's residence before the Turkish invasion On the basis of such matenal thesubjudice decision wasreasonably open to them 5 Recourse dismissed. 10 No orderastocosts Recourse. Recourse against the refusal of the respondents to re-issue to applicant hisrefugee card. CI.Cleanthous withA.Mappoundes, for the applicant 15 A. Vassiliadesfor the respondents. Cur.adv. vult. SAWIDESJ. read thefollowingjudgment. Bythisrecourse the applicant prays for a declaration of the Court that the decision of the respondents communicated to him by letter dated the 6th 20 August, 1985whereby hisapplication forthe re-issuetohimofhis refugee card was dismissed, and/or their omission to determine Famagusta ashisusualplaceofabodebefore theTurkishinvasion, arenulland void, illegal and of no effect whatsoever. The legal grounds on which the recourse is based are briefly that:-Thesubjudicedecisionwastaken underamisconceptionof fact; itisnot dulyreasoned; itwastaken inexcessand/or abuseof power; itisillegal, as being contrary toDecision No.13503 of the Council of Ministers dated the 19th September, 1974 and it violatesArticle28 of the Constitution. " Counsel for the respondents, by his opposition, raised the preliminary objection that the sub judice decision is confirmatory of a previous decision taken on 2.11.1984 and communicated to applicant on 15.11.
- Subject to the above, itiscontended that the subjudice decision was lawfully taken after a due inquiry into 35 material facts of the case and in the proper exercise of the 128 30 3C.L.R. Stekltos v. Republic SawidesJ. discretion of therespondents and isduly reasoned. Thedecision complained ofiscontained inaletterdated the6th August, 1985 from the Ministry of Interior, Registration Service, addressedtotheapplicantbytheRegistration Officer, whichreads 5 asfollows: 10 «I refer to your letter dated 5.3.1985 to the Honourable Minister of Health, in connection with your status of refugee and Iregret to inform you that from the material which you have submitted, no newmatenal hasemanated justifying any modification of my previous decision which was communicated to you by my letter dated 2/11/84, Ref File 43/83/111copy of which isattached herewith» The contents of the letter of 2/11/84, reference to which is made intheabove letter, read as follows- 15 «Your application for the replacement of your refugee card which was submitted to our office has been examined carefully and it has been decided that same should be rejected. Asa result, your refugee card under No 9135 has been cancelled 20
- The above decision was based on the fact that your usual residence before theTurkish invasion wasinthe free and not inthe occupied areas.» The facts of the case are bnefly as follows- The applicant was bom at Paralimni village on 12 1044 His 25 vvifewas also bom at Paralimni on 30 3 43.They got married on 15.10.67and outoftheirmarriagethey gotthree children After the Turkish invasion the applicant, on hisapplication that hewasadisplacedpersonwasissuedwitharefugee cardonwhich itwasmentioned that hewasa«strickenperson» Inthe meantime 30 the applicant had moved to Athens with his family where he has been livingand working for the last ten years. On 20.8.84 the applicant submitted an application to the appropriate authority for the re-issue to him of a refugee card. which was refused and the refusal was communicated to the 35 applicant by letter dated 2 1184,reference to which has already been made. 129 SawidesJ. Stekltos v. Republic
(1987)The decision of 2.11.84 was dispatched to the applicant on 15.11.84 (red 1(c) in the file of the administration). In the neantime the applicant made another application which was eceived bythe respondentson 6.11.
- Annexed to such application were a declaration from the 5 :haimnan of thevillage Commission of Paralimniand a certificate romthechairman andtwomembersoftheVillageCommissionof Paralimnito the effect thatbefore and tilltheTurkish invasion the applicant had his usual place of abode at Kentavrou Street 320 vhere he was living with his father-in-law, with the exception of 10 :ertain occasionswhen hewasspendingthenightsatParalimniat lishousethere.Healsoattached copiesof birthcertificates ofhis hree children who were bom in Famagusta and evidence of >wnershipof property inFamagusta. An inquiry was then carried out by the respondents which 15 evealed that the applicant had declared his address, in the MinistryofLabour andSocialInsurance,forthepurposesofsocial nsurance contributions, as being in Paralimni. This information jvasreceived.on 23.11.84 (reds24-24C inthe file). On the 26th November, 1984, the respondent addressed a 20 letter to the applicant requesting him tosend hisrefugee card so thatfurther examination of hisapplication might be possible (red 25). Onthe7thDecember, 1984,anotherletterwasaddressedtothe applicant by the respondent revoking the aforementioned one, 25 because his refugee card was found attached to his previous application (presumably thatof20.8.84).Paragraph 2oftheletter of7.12.84, reads as follows: «I attach herewith the decision which was taken regarding your casewhich wassent tothe addressindicated inyourfirst 30 application.» (Obviously referring tothe decision of 2.11.84). On the5th March, 1985thebrother-in-law oftheapplicant sent a friendly letter to the Minister of Health describing himself as a relativeoftheMinister,bringingtohisknowledgethestepsthatthe 35 applicant had taken for the re-issue to him of a refugee card and requesting the Minister to exercise hisinfluence and intervene in the case and put an end tothe «hardship» that his brother-in-law 130 3 C.L.R. Stekkos v.Republic Sawides J. suffered as a result of the refusal. To this new application there were alsoattached acertificate from akindergarten in Famagusta totheeffect thattheelderdaughteroftheapplicantattended same duringtheyears 1972/1973and 1973/1974, acertificate from the 5 chairman oftheVillageCommission ofKatoVaroshiatothe effect that the applicant was livingtill 1974, at Famagusta. and another certificate from the chairman of the village commission of Chlorakas,totheeffect thattheapplicantwenttoliveatthatvillage asa refugee, after the invasion. 10 The Minister sent all the material submitted to him to respondent 2 foranynecessary action on the matter.Asa result,respondent 2addressed totheapplicanttheletterofthe 6th August. 1985tothecontents of which reference has already been made The question which poses for consideration is whether the 15 contents of the letter of the 6th August, 1985 amount to a new executory administrative act or whether they are merely confirmatory of a previous decision taken bythe respondent and communicated tothe applicant on the2nd November,
- After careful consideration of the contents of the file of the 20 applicant Ihave come tothe following conclusions:
(1)No documents were attached to the first application, of the 20th August, 1984.
(2)The material submitted by the applicant was received by respondent 2after thedate of the decision of2.11 84. 25
(3)Although there is evidence of a form of inquiry by respondent 2 there is nothing in the file showing that a new decision was reached by the respondents after consideration of the material received bythem on 6.11.84.
(4)The decision communicated tothe applicant by letter dated 30 7.12.84 is the one of 2.11.84, which was taken before the submission of thesaid material.
(5)Part of the material submitted by the applicant by his letter dated5.3.85wasalreadybefore the respondentssince 6.11.1984 and part ofitwasnew materialsubmitted for the first time. 35 It is clear from the above that the material placed before the respondents by the applicant was not before them at the time when they tooktheir decision of2.11.84.Thesubjudice decision 131 . SawidesJ. Stekkosv.Republic
(1987)therefore, which wastaken after the submission of that material, cannotbeconfirmatory oftheoneof2.11.84,butanewexecutory one,having been reachedafter anewexamination onthebasisof new material. Iwillnow proceed toconsiderthe meritsofthe case. 5 Counsel for the respondents stated in his opposition that the reasonswhytheapplicationwasrefused werethat,afteraninquiry carried outbythe Registration Service,itemanated that: (
- a)Immediately after the Turkish invasion a refugee card was issuedtotheapplicantmentioningParalimnivillageastheplaceof 10 hisdisplacement and classifying him asa «stricken person». (
- b)Inthe electoral listsof 1973both the applicant and hiswife were registered as electorsatParalimni. (c)Inan application submitted by applicant on 4.10.73 for the issue of a passport, he declared his place of residence as being 15 Paralimnivillage. (
- d)In his social insurance cards for the years 1972-1973 and 1973-1974 he declared hisresidence asbeingParalimni village. Theobservation ofrespondent 2after aninquiryintothematter asappearingattheback ofthefirstapplicationoftheapplicant is 20 that both the applicant and hiswife were registered as electorsat Paralimni. This observation appears also on the second application whichwasreceived on6.11.84. Itisalsostatedon the first application thatafter aninterviewwiththefather-in-law ofthe applicant itwas established that the applicant used as residence, 25 both the house of hisfather-in-law at Famagusta and hishouse at Paralimni. It had also been established that the applicant was using for socialinsurance purposes hisaddress at Paralimni. The respondents had, at the time of taking the sub judice 30 decision,the findings of theirown investigations onthe one hand and the documents submitted by the applicant on the other (reference towhichhasalreadybeenmade).Therespondentshad to consider that material and draw their own conclusions, and make a finding as to the real place of residence of the applicant. 35 Onthematerialbefore me,whichwasalsobeforethe respondents Ifind that itwas reasonably open tothem to reach the sub judice 132 3 C.L.R. Stekkos v.Republic Sawides. decision, bearing also in mind that the certificate issued by th chairmanoftheVillageCommissionofParalimniwas tothe effec thattheapplicantwas livinginFamagustabutwas also usinghi houseatParalimniasresidence,whichinfactconfirmstheversio 5 oftheapplicant's father-in-law. Intheresultthisrecourse failsand ishereby dismissed withη rderforcosts. Recoursedismisses Noorderastocost 133