(1*87) 1987February 13 [SAW1DES.J.I INTHEMATTEROFARTICLE 146OFTHE CONSTITUTION CHRISTAKISROTS1DES, Applicant, v. THECOMMITTEEFORTHERELIEFOFVICTIMS, Respondent. ANDBYORDER OFTHE COURTDATED 18.11.1986, CHRISTAKISROTSIDES, Applicant, v. THEREPUBLIC OFCYPRUS,THROUGH, THEMINISTRYOFFINANCEAS REPRESENTING THECOMMITTEEFORTHERELIEFOFVICTIMS, Respondent. (CasesNo, 300/84). Recourseforannulment—Subsidiaryirregularities, suchasthedescriptionofthe respondent—Donotdefeatthesubstance. Executoryact—Confirmatoryact—Newinquiry— Whensuchinquiryleadstoa newexecutorydecision —Ithastobeconductedonthebasisofnewfacts placedbeforetheorgan whichtooktheoriginaldecision. Theapplicant,who,accordingtohisallegationwasinjuredin1958,during theEOKAstruggle,byfallingfromhisbicycle,whilsttryingtoavoidarrestby the English troops, submitted an application for pension under the DependentsofPersonsWhoWereKilledIn,AndOfVictimsof, theStruggle and Persons Incapacitated Therein (Pensionsand ExtraordinaryAllowance Fund)Law,
- The Medical Board, which examined the applicant found that he had 572 3 CUR. Rouldes v. Republic •deformation of(hespine withscoliosisand cranicdisclesion»,butstatedthat hiscondition could notobjectively be attributed tothe fall from thebicycle. 5 10 15 As a result the applicant's said application was turned down and the applicant filed a recourse to thisCourt.The recourse wasdismissed, but the applicant appealed. The appeal was withdrawn upon undertaking by the Attorney-General without prejudice to the respondent's nghts toadvise the respondent tore-examine appellant's case inthe lightofthe facts appearing in the record of his caseand any other facts, which would be placed before himbycounselfor theappellant. Consequently, counsel for the applicant addressed a letter to the respondent throughtheAttorney-General drawingrespondent'sattention to certain pointsinthe medicalreportsand on pointsoflaw. Although the material submitted by counsel could not be considered as new, the respondent referred the applicant to the Medical Board for examinationandbyletterdated24.6.83informedtheapplicantaccordingly. TheMedicalBoard,afterre-examination oftheapplicantand consideration of the history of his case and the opinion of Dr Spanos expressed on 12.12.83, decided that the condition of applicant's spine could not be attributed tothe fallfrom thebicycle. 20 Asa result the respondent re-affirmed itsprevious decision and informed the applicant accordingly by letter dated 29.
- Hence the present recourse. 25 Counselfortherespondent raisedtwopreliminary points,namely thatthe recourseisdirectedagainstanon-administrativeorganandthatthesubjudice decisionisconfirmatory ofapreviousdecision. 30 Held, dismissing the recourse.
(1)This Court does not allow subsidiary formalities suchasthedescnption ofthe respondent todefeat the substance Moreover, in this case the title of the recourse has already been amended upon application by applicant and, therefore, there remains nosubstancein m e ,irst preliminary objection. 35
(2)Fortheresultofaninquirytoamounttoanewdecision,suchinquiryhas tobeconducted onthebasisof newfactsplacedbefore theorganwhichtook theonginaldecision Inthelightofthispnnciple and thecircumstancesofthis case, the contents of the letterof 29 3.84 donot amount toanew executory decision resultingfrom a new inquiry camed outon thebasisof new facts.
(3)Assuming that the sub judice decision isof an executory nature, this Court reached the conclusion that in the circumstances it was reasonably open tothe respondent todecide asitdid. Recoursedismissed. No orderastocosts. 4Q 573 Rotsides v. Republic
(1987)Casesreferred to Chnstodouioii i' TheRepublic 1R S C C 1 HadjiPapasymeou ν TheRepublic
(1984)3 C LR 1182, Hyatt International ν The Republic
(1985)3 C LR 337, Demefnoui/ D;srncf Officer ofhmassol
(1986)3 CLR 2086, 5 Asaadv TheRepublic
(1984)3 C LR 1529, Odysseosv TheRepublici\9M) 3 C LR 463 Recourse. Recourse against the decision of the respondent not to grant applicantapension andorotherbenefits undertheDependantsof 10 Persons who were Killed, and of Victims of, the Struggle and Persons Incapacitated therein (Pensionsand Extraordinary Fund) Law,1962 L Clendes, for the applicant CI. Theodoulou (Mrs.), Senior Counsel of the Republic, for 15 the respondent Cur. adv. vult. SAWIDES J. read the following judgment. The applicant challenges the validity of the decision of the respondent, communicated to him by letter dated the 29th March, 1984, 20 whereby his application for the grant of a pension and/orother benefits, under the Dependants of Persons who were Killed in, and of Victims of, the Struggle and Persons Incapacitatedtherein (Pensions and Extraordinary Allowances Fund) Law, 1962, was rejected. The applicant, according to his allegation was injured in 1958, during EOKA struggle, by falling from his bicycle, whilst trying to avoid arrestby theEnglish troops.When he was firstexamined by a Medical Board in 1961, itwas found thathe was suffering from vancocele andwas referred by therespondenttoaspecialist foran 30 operation. He also received from the respondents, on six occasions, small amountsof money,ranging from £5.-to£30.- by way of medical assistance. As a result of an application for pension submitted by him in 1969, the applicant was examined by the Medical Board which 35 after referring him to Dr.Spanos, a neurosurgeon specialist and considering his opinion, recommended his admission to the 574 25 3 C.L.R. Rotsldes v. Republic SawidesJ. General Hospital for further examination, and the respondent advised him accordingly. The applicant did not follow the above recommendation and left Cyprus. Upon hisreturn, in 1973,theapplicantwasagain examinedby the Medical Board which found that he had «deformation of the spine with scoliosis and cranic disc lesion» but stated that his condition could not objectively be attributed to the fall from his bicycle. The respondent, after considering the medical report, found that the applicant could not be considered as an 10 incapacitated person for the purposes of the Law and dismissed his claim. The applicant was informed of the above decision by letter oftherespondent dated the 26thJuly, 1973,whereupon he' filed recourse No. 428/73. Whilst his recourse was pending the applicant was re-examined by the Medical Board, but the latter 15 found noreason todepart from itsprevious decision. 5 On the 8th May, 1982 the Court dismissed the applicant's recourse having reached the conclusion that the Committee properlyrejected hisapplication for pension. The applicantappealed againsttheabovejudgment,butonthe 20 date of the hearing, he withdrew his appeal after certain statementsweremadebycounselonbothsides.Therecordofthe appellate court,inthisrespect, readsas follows: 25 30 «Mr. Clerides:WehaveseentheAttorney-Generalwithmy learned friend Mrs. Theodoulou today and the AttomeyGeneral has, without prejudice to the respondent's rights, undertaken to advise the respondent to re-examine the applicant'scaseinthelightofthefactsappearingintherecord of hiscase and of any other facts whichwillbe placed before it by me, through counsel for the respondent, within two weeksfrom today. Afrs. Theodoulou states-thisisso. Mr.Clerides:Inthe circumstances Iseek leavetowithdraw thisappeal. 35 Court: Appeal dismissed as withdrawn in the above circumstances,withnoorderastoitscosts.» Consequently, counsel for applicant addressed a letter to the respondent, through theoffice oftheAttorney-General enclosing copy of the minutesof the Revisional Appeal, requesting the re575 Sawides J. Rotsidee v. Republic
(1987)examination of the case, bearing in mind the statements made before the appellate court and drawing the attention of the respondent tocertain pointsappearinginthemedical reportsand also on questions of law On the 24th June, 1983, the respondent addressed a letter to 5 the applicant, stating that although the material submitted by his counsel could not be considered as new, the Committee was prepared toreferhimagaintotheMedicalBoardfor examination. The applicant was re-examined by the Medical Board on 9.2.1984, which, after considering the historyof his case and the 10 opinion of doctor Spanos, expressed on the 12th December, 1983, came to the conclusion that his complaints in connection with hisspine could not beattributed tohisinjury asa resultofhis fall from the bicycle and they had no relation with such fall. The Board further assessed hisincapacityinrelationtohisfallfromthe 15 bicycle atzero per cent. Therespondent metonthe 17thMarch.1984inconnectionwith the applicant's claim but inthe lightof the contents ofthe medical report ofthe 9th February, 1984,decided toinsist onitsprevious decision for the dismissal of his application for pension. Such 20 decision was communicated to the applicant by tetter dated the 29th March, 1984,the contents of which read as follows: «Iwish to refer to yourapplication for the grant toyou ofa disabilitypension whichhasbeen rejected andwishto inform you as follows: The Medical Board which re-examined you on 9.2.84, having considered also the opinion of the specialist neurosurgeon doctor N.Spanos,cametotheconclusion that the history of your complaint both in 1961 as well as on subsequent examinations, leaves no room for doubt that the 30 problems with your spine appeared much later than your injury and they are of an advancing and developing nature and have no relation whatsoever with your fall from the bicycle.According tothesame opinion oftheMedical Board thepercentage ofyour incapacity inrelation toyourfallfrom 35 the bicycle is 0%. 2. On the basis of the above opinion of the Medical Board you understand that the Committee cannot review its previous decision whereby your application for the grant of 576 25 3 C.L.R. Rotsldes v. Republic SawidesJ. disability pension wasdismissed.» Asaresult,the applicant filed the presentrecourse, challenging the above decision asbeing nulland void and of no legal effect. The legal grounds advanced by his counsel in support of this 5 recourse, are that the sub judice decision was taken without due and/or sufficient inquiry,itwastheresultofmisconception of fact, it was taken in violation of the relevant laws and that the respondent exercised itsdiscretion inadefective manner. Counsel for the respondent raised the following preliminary 10, objections:
(1)The recourse is directed against the decision of a nonadministrative organ and
(2)thesubjudicedecision isconfirmatory ofapreviousdecision and therefore, the recourse isout of time. 15 Subject to the above, she contended that the sub judice decision wasproperly taken inaccordance with the provisionsof the relevant laws. I shall deal briefly with the first preliminary objection of the respondent. 20 inexpounding onthesaidquestion,counsel forthe respondent submitted that the Committee for the Relief of Victims is not an administrative organ within the ambit of Art. 146 of the Constitution. The recourse should, counsel added, have been directed against the Republic through the Pensions and 25 Extraordinary Allowances Fund established under section 3
(1)of Laws4/62 -4/64 ofthe Greek Communal Chamber and Laws 6/ 66 -23/84. It is well established by a series of decided cases both of the Supreme Constitutional Court and of this court that when this 30 courtisdealingwitharecoursebefore it,itlooksintothesubstance of the case and the act that is challenged and does not allow subsidiary formalities such asthe description of the respondent to defeat the substance. (Christodoulou and The Republic. 1 R.S.C.C. 1; HadjiPapasymeou v. The Republic
(1984)3 C.L.R. 35 1182; Hyatt International v. Republic
(1985)3 C.L.R. 337; Demetrios G.Demetriou v. The DistrictOfficerofLimassol, Case No. 401/84 in which judgment was delivered on the 22nd 577 SawidesJ . Rotsides v. Republic
(1987)December, 1986 not yet reported* and inwhich our case law on thematter isreviewed). However, in the present case counsel for applicant made an application for amendment of the title so that the name of the respondent be described as «TheRepublic of Cyprus through the Ministryof FinanceasrepresentingtheCommitteefortheReliefof Victims».Counsel fortherespondent, veryrightly,didnot oppose such application and the titlewasamended accordingly. 5 In the result there remains no substance in this preliminary objection. I will come next to consider the second preliminary objection raised by counsel for respondent, inthat thesubjudice decisionis not an executory administrative act but ismerely confirmatory of a previous decision inrespect ofwhichthepresent recourse isout of time. From the material before me the contention of the 15 respondent inthisrespect is substantiated. For the result of an inquiry to amount to a new decision, such inquiry has to be conducted on the basis of new facts placed before the organ which took the original decision. (Asaad v. Republic
(1984)3 C.L.R. 1529; Odysseos v. Republic
(1984)3 20 C.L.R. 463). Inthepresentcase,accordingtotherecordbefore the appellate court, the Attorney-General without prejudice to any right of the respondent undertook torequest re-examination ofthe case.The letter of the applicant addressed to the respondent through the 25 Attorney-General for re-examination, does not contain any new facts other than certain legal contentions of counsel for the applicant. All other facts mentioned therein were before the respondent Ccmmittee when it took itsprevious decision which was the subject matter ofprevious unsuccessful proceedings.The 30 respondent, very rightly, by its letter dated the 24th June, 1983, pointed out that no newfacts emanated from the letterof counsel for applicant necessitating a re-examination of the case. Nevertheless, the respondent concessionally and in view of the statements made in court, consented to send the applicant for 35 examination bya MedicalBoard.The result of such examination, according to the medical report of the said Board, did not reveal * Reported in
(1986)3 C.L.R. 2086. 578 JQ 3 C.L.R. Rotsides v. Republic SawidesJ. anythingnewjustifying departure from itspreviousopinion which itrepeated andendorsed.Whentherespondent meton 17.3.84tc examine whether there was any material on the basis of whichicouldmodify itspreviousdecision,itrightlycametotheconlusion 5 in the light of trie medical report which did not disclose any new facts infavour of the applicant and on the basis of allthe materia'. which wasbefore itwhen ittook itsprevious decision, to reaffirm ir^previous decision, and dismissapplicant's application. In the circumstances of the present case 1 have come to the 10 conclusion that the contents ofthe respondent's letter of the 29th March, 1984,donotamounttoanewexecutoryactresulting frotr a new inquiry carried out on the basis of new facts but is merek. confirmatory of a previous decision taken by the applicant and which was the subject matter of recourse No. 428/73 which had 15 already been dismissed bythe court. Notwithstanding my above finding and assuming that the decision complained of isof an executory nature by itself, I shall proceed toexamine whether such decision was reasonably open tothe respondent. 20 The respondent in this case acted all along on the basis of medical reports submitted by medical boards and specialists who examined theapplicant onseveraloccasions.Mostofthismaterial wasbefore thetrialcourt inCase No.428/73 and the court found that on the basis of such material it was reasonably open to the 25 respondent to reach its decision to reject the applicant's application. The appeal against such decision was withdrawn subject to the statements made therein, which, however, did not touch the substance of such decision. The respondent. nevertheless after the determination of the appeal, asked the 30 applicant to submit to a medical examination by a new medical board which again came to the conclusion that his complaint concerninghisspinecouldnotbeattributedtohisallegedfall from his bicycle during the EOKAstruggle.The finding of the medical board was based on the examination of the applicant and on all 35 material before it and also on the medical report of Dr. Spanos whohad examined theapplicant earlierandinwhose opinion the cause of his complaint could not be attributed to the alleged accident.Theapplicant didnotadduce anyevidence oranyother material to contradict the opinion of the Medical Board or of Dr. 40 •Spanos. 579 S a w i d e s J. Rotsldes v. Republic
(1987)Bearing all the facts of the case in mind, I find that it was reasonablyopen totherespondenttodecideasitdid,andthatits decisionwastheresultofadueinquiryandisdulyreasoned.The applicant failed tosubstantiate hisallegations inthisrespect and alsoinsupport ofhiscontention thattherespondentactedunder 5 any misconception of law or fact. The respondent in the circumstances of the case exercised itsdiscretion properly andI findnoreason tointerfere withtheexerciseofsuchdiscretion. Intheresultthisrecourse fails andisherebydismissedanditis with great reluctance that Ihave decided to make no order for 10 costsagainsttheapplicant. Recoursedismissed. Noorderastocosts. 580