3 C.L.R. 1987 ΑρπΙ 27 [DEMETRIADES J J INTHE MATTER OFARTICLE 146 OFTHE CONSTITUTION GEORGHIOS NICOLAOU, Applicant, ν THE REPUBLIC OF CYPRUS, THROUGH 1 THE MINISTER OF INTERIOR AND DEFENCE, 2 THE CHIEF OF POLICE, Respondents (Case No 496/83) Executoryact— Confirmatoryact 5 10 15 By letter dated 26 7 83 the Chief of Police informed theapplicantthathe waspreparedtoaccepthisresignation from thePoliceForceonconditionthat theapplicantpaidthesumof £536 825 mils,beingreasonable compensation in respect of the expenses sustained by the Government in the form of salanes, meals, uniform and trainingatthePoliceSchool Byletterdated 1 8 83the applicantrequested theChief ofPolicetoreduce the said amount, but as the latter by letter dated 17 8 83 turned down the aforesaid request, theapplicant, on the 19 8 83, signed a declaration tothe effect that he accepts to pay the said sum and did pay it without protest or reservation of hislegalnghts By letter dated 15 9 83 counsel for the applicant demanded the returnof the money paid by the applicant on the ground that his client was forced illegally to accept the condition as to payment and was not given the opportunityof making thesame without prejudice Byletterdated24 9 83theChiefofPolicedeniedtheallegationsofcounsel andinformed thelatterthatthemoney was paid by theapplicantonhisown freewill 20 Hence the present recourse, whereby the applicant impugns the decision toreject hisclaim for thereturnof themoney paid as aforesaid by him Held, dismissingthe recourse
(1)The decision toimpose thepaymentof the sum of £536 825 mils as aconditionfor hisconsentfor theresignation of the applicant from the Police Force was taken and communicated to the applicant by theletterof theChief of Policedated26 7 83 439 Nlcolaou v. Republic
(1987)'
(2)The said decision was confirmed not only by theletterdated 24.9.83, butalso by theletterdated 17 8.83 Itfollowsthaithedecision attackedbythis recourse is of a confirmatory andnotof anexecutory nature.
(3)Inviewof theabove findings this recourse isoutof time 5 Recourse dismissed. No orderas tocosts Casesreferredto loannou v. TheRepublic
(1983)3 C L.R 150. Recourse. Recourse against the decision of the respondents to reject applicant's claim for thereturntohimof thesum of £536.825 mils paid by himon his resignation from the Police Force. 10 AS. Angelides, for theapplicant. A. Vladimirou, for the respondents Cur. adv. vult. 15 DEMETRIADESJ. read thefollowingjudgment.Theapplicant, who atall material times was amember of thePolice Forceof the Republic, joined the Force as a constable on the 28th April, 1981, after signing a declaration by which he accepted the conditions of service contained in a notice given to him by virtue 20 of regulation 5(h)of thePolice(General)Regulations 1958.Under regulation 7 of the relevant Regulations his enlistment was for an initial period of three years. A termcontainedinthesaid noticewas thattheapplicantcould not resign without the written consent of the Chief of Police who 25 had the discretion of rejecting the application for resignation or accept it, in which case he could demand that before his resignation theapplicanthad topay reasonable compensation for expenses sustained by the Government during the period of his training. On the 18th July, 1983, the applicant, by letter, photocopy of which is Appendix Β to the Opposition, informed the Chief of Police that because of his qualifications - he possessed the · Intermediate Certificate of the Cityand Guiltsof LondonInstitute he was selected for appointment by the Cyprus 35 440 30 3 C.L.R. Nlcolaou v. Republic Demetrlade· J. TelecommunicationsAuthority andthatheintendedtoacceptthe offer. By his said letter the applicant requested from the Chief of Policetoconsent tohis resignation from theForce. By hisletterdated the26th July, 1983, which isAppendix C'to 5 theOpposition,theChief of Policeinformed theapplicantthathe was prepared to accept his resignation on condition that the applicant paid the sum of £536.825 mils being reasonable compensation on account of the expenses sustained by the Governmentintheform of salaries, meals, uniform andtrainingat 10 thePoliceSchool. The applicant,by his letterdatedthe 1st August, 1983, which is Appendix D to the Opposition requested the Chief of Police to reducetheamountof compensationwhich hehadtopay, inview, as he said, of theservices he rendered during his enlistment. 15 By his letter dated the 17th August, 1983, which is Appendix Ε to the Opposition, the Chief of Police informed the applicant thathe couldnotaccede tohisrequest andthathisapplication for resignation couldbeapproved onlyifhepaidthesum of £536.825 mils and signed thedeclaration attachedtohis letter. 20 On 19thAugust, 1983, theapplicantsigned thesaiddeclaration (seeAppendix F totheOpposition)andpaidthesumof £536.825 mils for which he was given receipt (exhibit No. 1before me). The declaration (Appendix F) reads: «ΔΗΛΠΣΗ 25 30 «Μετ ο παρό δηλώνω ότι αποδέχομαι να καταβάλω προς την Κυβέρνηση τ ο ποσό των £536.825 μιλς σαν λογική αποζημίωση έναντι των εξόδων που υπέστη η Δημοκρατία της Κύπρου υπό μορφή μισθών, σίτισης, στολής και εξάρτησης κατά τ η διάρκεια της φοίτησης μουστην Αστυνομική Σχολή μεταξύ 5.7.82-6.11.82.» («DECLARATION 35 «Ihereby declarethatIaccepttopay totheGovernmentthe amount of £536.825 mils as reasonable compensation towards the expenses which the Government of Cyprus sustained in the form of salaries, meals, uniform and equipment during my training at the Police School between 5.7.82-6.11.82.»). 441 Demetriade· J. Nicolaou v. Republic
(1987)Thereceiptissued totheapplicantforthepaymentbyhimofthe sum of £536 825 milsstatesthat thisamount waspaid «inrespect of charges for his training since he has not completed the three years inservice» Itisto be noted that the applicant paid the above sum without protest or reservation of hislegal nghts. ifhewasentitled toany 5 On the 15th September, 1983, counsel for the applicant addressed a letter to the Chief of Police, by which he was demanding the return of themoney paid bythe applicant, on the ground that his client was forced illegally to accept the term 10 imposed byhimand that hewasnotgiventheopportunity to pay thesum without prejudice By his letter dated the 24th September, 1983, the Chief of Police denied theallegationsofcounsel andinformed himthatthe money waspaid bythe applicant on hisown free will 15 Byhispresent recourse theapplicant praysfor adeclaration of theCourt that thedecision and/or actof therespondents to reject the claim of the applicant for the return of the sum of £536 825 milswhen he resigned from the Force, isnulland void and of no effect and for a declaration that the refusal and/or failure of the 20 respondents to return to the applicant the sum of £536 825 mils which the applicant was forced to pay against hiswill isnull and void and of no effect. Counsel for the respondents raised two preliminary objections (a)that the decision challenged bythe applicant isaconfirmatory 25 one and (b)that the applicant has nolegitimate interest Counsel for the applicant submitted that hts case is within the fourcornersofloannouv TheRepubltc,
(1983)3C LR 150 The facts of the present case, however, are distinguishable from the facts of the loannou case, supra In that case the applicants paid 30 the compensation imposed bythe Chief of Police as a condition for their resignation with reservation of their rights Here, the applicant paid the money without making any reservation Beforeproceedingwiththegroundsoflawonwhichthepresent recourse has been based, it ispertinent to examine, at thisstage, 35 the preliminary objections raised by counsel for the respondents It has been submitted in this respect by him that the sub judice decision is not of an executory nature as it simply confirms a 442 3 C.L.R. Nlcolaou v. Republic Demetriades J. previous decision in the same matterand, therefore, itcannot be made the subject of a recourse under Article 146 of the Constitution. Reference has been made, in this respect, to the Conclusions from the Case-law of the Council of State inGreece, 5 1929 -1959, where the following are stated (atp. 240):- 10 15 20 25 30 35 «Πράξεις βεβαιωτικοί.Απαραδέκτωςπροσβάλλονται δΓ αιτήσεως ακυρώσεως, ως στερούμενοι εκτελεστού χαρακτήρος, αϊ βεβαιωτικοίπράξεις, ήτοι αιπράξειςαι έχουσαι το αυτό περιεχόμενον π ρ ο ς τιροεκδοθείσαν εκτελεστήν, επιβεβαιούσαι ταύτην, ανεξαρτήτως τ ο υ αν εκδίδωνται αυτεπαγγέλτως ή τη αιτήσει του ενδιαφερομένου. Ούτω είναι βεβαιωτική η πράξις η συνιστώσα απλήν επανάληψιν προγενεστέρας, η στηριζομένη επί της αυτής πραγματικής και νομικής βάσεως. Πράξις δηλούσα απλήν εμμονήν της Διοικήσεως εις προηγουμένην πράξιν, έστω και μη επαναλαμβάνουσα το περιεχόμενον ταύτης, αποτελεί επίσης βεβαιωτικήν πράξιν, ως λ.χ. η εμμονή εις προγενεστέραν άρνησιν.Ο ύ τ ω εκρίθησανβεβαιωτικοί πράξεις ή άρνησις της Διοικήσεως ό π ω ς ανακαλέση προηγουμένην εκτελεστήν πράξιν, η απόρριψιςαπλής ιεραρχικής π ρ ο σ φ υ γ ή ς ήαιτήσεως θεραπείας.» («Confirmatory acts. Unacceptably they are attacked by recourse for annulment, as lacking executory character, confirmatory acts,i.e. actswhich have thesame contentswith a pre-issued executory one, confirming same, irrespective of whether theyareissuedonthemotionof theadministrationor on the application of the interested party. Thus confirmatory isanactwhich consists of amere repetitionof aprevious one, based on the same factual and legal basis. An act stating a mere persistence of theadministration toa previous act, even though it does not repeat its contents, also constitutes a confirmatory act, as for instance thepersistence toa previous refusal. Thus the refusal of the Administration to revoke a previous executory act, the dismissal of a simple hierarchical recourse or an application for relief were considered as confirmatory acts»), Itis abundantly clear thatthe decision of the Chief of Police to impose thepayment ofthesumof £536.825 milsasacondition for 40 giving his consent for the resignation of the applicant from the 443 Demetriade» J. Nlcolaou v. Republic
(1987)Force was taken and communicated tothe applicant byhisletter datedthe26thJuly, 1983andthatthisdecision wasconfirmed not only by his letter to Counsel for the applicant dated the 24th September, 1983; but, also, by his letter dated the 17th August, 1983, when he rejected the application of the applicant for reduction of thissum. 5 Considering this, I find that the decision attacked by this recourse isa confirmatory one and not of an executory nature. Inview of my above finding I am of the view that the recourse wasfiled outoftime,thatisafter thelapseoftheseventy-five days 10 envisaged byArticle 146 of the Constitution. Intheresult, the recourse isdismissed and Imake noorderasto costs. Recoursedismissed. No order astocosts. 444 15