(1988)1988 February3 [LORIS.J.] INTHE MATTER OFARTICLE 146OFTHE CONSTITUTION PANAYIOTAARISTOTELOUS, Applicant, v. THE REPUBLIC OFCYPRUS,THROUGH THE MINISTRY OFFINANCE AND/OR THECUSTOMS AUTHORITIES AND/OR THEDIRECTOR OFCUSTOMS, Respondents. (Case No. 4/86). CustomsandExcise Duties—Confiscationofgoodsfor breachof conditionin alicencetoimport amotor vehicledutyfree undersub-heading 19of item 01of theFourth Schedule of theCustomsand ExciseDuties Law,1978— Herodotou v.Republic
(1987)3 C.L.R.874 adopted. Executory act—An act expressing the "will"as opposed to the "intention" of 5 the administration—Anactexpressing the "intention"oftheadministration isnot executory. On May 23rd 1983,applicantwasupon herrepatriation granted apermit to import a car free of import duty in virtue of the provisions of SubHeading 19of item Ol of theFourth Schedule to the Customs and Excise *Q DutiesLaw,
- Oneof theconditions in thepermit readsasfollows: "Thevehicle shall only be used by you and your dependents and shall not be lent, hired, exchanged, given away or otherwise disposed of in theRepublic without the prior written authority of the Director of Custons, upon your application". Some time after its importation therespondent discovered that the car waspossessed and systematically usedby the47 yearoldelderly sonof the applicant namely Kyriakos; upon this the respondent initiated an investigation, and, finally, when such investigation was completed confiscated thecar. Applicant objected against theconfiscation. Byletterdated 16.11.85the respondent turned down the objection and went on to state that he was 224 15 «~ 3 C.L.R. Aristotelous v. Republic preparedtocompoundtheoffences committedandreturnthecarinquestion totheapplicant ifshe(orthey )pay theimportduty fraudulently avoided, amountingto£14,567.10plusacompoundingamountingto£3,
- Hencethisrecourse. 5 Held,dismissingtherecourse:
(1)InthelightofHerodotouv.Republic
(1987)3 C.L.R. 874 where thelaw relating to confiscation was extensively statedbyA.Loizou,J.,this Courtreached theconclusionthat thedecision toconfiscate thecar inquestion wasreasonably open to the respondent. 10
(2)A mere expression of the intention ("πρόθεσις") ofthe administration-as contradistinguished from an expression of its will ("βούλησις")- doesnotamounttoanexecutory act. 15 In this case, the letter of 16.11.85 didnot contain, as far as the questions ofimportdutyandofcompoundingareconcerned, thewill, but themereintentionoftheadministration. Recoursedismissed. Noorderastocosts. Casesreferredto: Herodotou v.Republic
(1987)3C.L.R. 874; Republic v.Demetriou andothers
(1972)3 C.L.R. 219. Recourse. 25 Recourse against thedecision oftherespondent to confiscate applicant's motor carwhich had been imported byherfreeof importduty uponherrepatriation duetothebreachofaprovision oftheimportpermit. E. Efstathiou, fortheapplicant. S. Georghiades,Senior Counsel of the Republic, for the respondents. Cur. adv. vult. 225 Aristotelous v.Republic
(1988)LORIS J. read the following judgment. On May 23rd 1983, applicant was upon herrepatriation granted a permit to importa carfree of import duty invirtueof theprovisionsof Sub-Heading 19of item Ol of theFourth Schedule totheCustoms and Excise Duties Law, 1978. 5 The permit aforesaid was granted under certain conditions (vide Mue14dated 23.5.83in theadministrative file) oneof them notabiy "d"reading as follows: "(
- d)The vehicle shall only be used by you and your dependents and shall not be lent, hired, exchanged, given JQ away or otherwise disposed of in the Republic without the prior written authority of the Director of Customs,upon your application." Sometime after theimportation and theregistration of thecar under Regn No. PP 897, the respondent discovered that same waspossessed and systematically used bythe47 yearold elderly son of the applicant namely Kyriacos; upon this the respondent initiated an investigation. 15 Inpursuance of theinvestigation inquestion Customs Officials visited the applicant and obtained a statement from her on 20 11.10.1985 (videAppendix 2attached totheopposition). In the aforesaid statement the applicant stated inter alia the following: (
- a)Following her repatriation she was admitted as a nun at AyiosMinasMonastery in November 1983. 25 (
- b)Her elder son Kyriacos had been repatriated a few years before her; after her repatriation applicant promised to her said son that hadsheremained anun shewould leavethecartohim. (c)Ever since she took delivery of the said car inJune 1983, same is being possessed and driven by her son Kyriacos; 226 30 3 C.L.R. Aristotelous v.Republic Loris J. applicant staysattheMonastery butwhen shevisitson occasions her sonatLarnaca with theAbbessof theMonastery her said son drivesthem around thetown for Monastery business. 5 10 15 2o 25 (d)Applicant admitted alsothat sheherself drovethe said car throughout the said period (June 1983-11.10.85) on twoor three occasions and even then,only inthevicinity of thehouseof her said sonbut never within thetown. On 13.10.85 Customs Officials visited on the instructions of theRespondent the house of applicant's said son Kyriacos andin thepresenceof theapplicant, hersonKyriacos andtheAbbessof Ayios Minas Monastery confiscated the aforesaid car, a 'Mercedes 300'Diesel under Registration No. PP 897 issuing to the applicant the relevant receipt of confiscation C. 71A under No. 27255. Applicant's counsel addressed totherespondent aletter dated 5.11.85 (vide Exh. "B" attached to the recourse), whereby applicant submitted herobjection for theconfiscation inquestion tothe respondent. It may as well be stated here that in the letter aforesaid several allegationsweremadeonbehalf of theapplicant inconnection withthefactual aspectofthiscase;theseallegations asfar as material facts are concerned are in direct contradiction with thefacts stated by the applicant herself andincluded in her statement totheCustoms Officials on 11.10.1985. In reply to the letter of 5.11.85 the respondent by his letter dated 16.11.85 (vide Exhibit "A", attached to the recourse) informed applicant's counsel that the said car was being confiscated as conditions imposed by the respondent, upon the Registration inthenameoftheapplicantof thesaidcar duty-free, andaccepted by theapplicant, were beingviolated in defiance of Section 158 of the Customs and Excise Law 1967, and further that the said carwaspossessed unlawfully and theapplicant thus fraudulently avoided to pay import duty under s. 191 of the CustomsandExciseLaw.Inparagraph twoof hisaforesaid letter dated 16.11.85 the respondent further informed applicant's 227 Loris J. Aristotelous v. Republic
(1988)counsel that he (the Respondent) was intending to institute criminal proceedings against the applicant and her son namely Kyriacos Aristotelous butthathe wasprepared tocompound the offences inquestion andreturnthecarinquestion totheapplicant if she (or they) pay the import duty fraudulently avoided, amounting to £14,567.10 plus a compounding amounting to ** £3,200. Th; applicant did not reply to the aforesaid letter of the respondent butinsteadfiledthepresentrecoursepraying for: (A)ADeclaratoryjudgment totheeffect that theconfiscation in question was null and devoid of any legal effect. 10 (a) A Declaration to the effect that the decision of the respondent setout in his letterof 16.11.85toimpose import duty of £14,567.10 isnullanddevoid ofany legal effect. (C) A declaration to the effect that the decision of the respondent set out in his letter of 16.11.85, to impose on the applicant a compounding of £3,200 is null and devoid of any legal effect. 15 Theissueof "confiscation" wasrecentlydecided inthecaseof Eleni Herodotou of Engomi v. The Republic
(1987)3 C.L.R. -„ 874.Thefacts in thatcasearesubstantially identical with the facts of the present case and the Law applicable has been so extensively and lucidly statedbymy brotherJudgeA.Loizou that it would be futile for me to attempt repeating his elaborate judgment. I shall therefore confine myself in saying that I fully 25 adopt the legal aspect on confiscation expounded therein for the purposes of thepresentjudgment. And havinginmind the factual aspectof thiscaseandinparticularthatpartofthestatement tothe Customs Officials by the applicant on 11.10.85 (as reproduced in thepresentjudgment) Ihold theview thatin the circumstances the respondent was fully entitled in law to proceed with the ^0 confiscation as he did; and his decision on confiscation was reasonably open tohimon thebasisof thematerial before him. The decision onconfiscation isdulyreasoned andthe material 228 3 C.L.R. Aristotelous v. Republic Loris J. in the administrative file coupled with relevant extracts of same attached totherecourse andtheopposition, fully support thesubjudice decision on theissueof confiscation. 5 10 15 20 25 Prayers under (B) and (C) of the recourse are attacking the alleged "decisions" of the respondent (set out in his letter of 16.11.85 addressed to counsel for applicant) to impose on the applicantimportduty of £14,567.10 andcompounding consisting of £3,200.-respectively. I have carefully gone throughthesaidletterof theRespondent, which was written in answer to objections submitted by counsel for applicant and Ihold theview that apart from confiscation, it does not contain an executory decision of the respondent in respect of the import duty and the compounding mentioned therein; in this connection it simply states the intention of the administration supplyingatthe same time information as towhat amounts he would be claiming if the course adopted by him is accepted by theapplicant;thisis clearly indicated by its wording. Delivering thejudgment of the Full Bench in the case of the Republic v.Demetriou & Others
(1972)3 C.L.R. 219 thelearned President of this Coun stated thefollowing on this matter(atpp. 223 - 224). "As stated in the conclusions from the case-Law of the Council of State in Greece (" Πορίσματα Νομολογίας του Συμβουλίου της Επικρατείας ") 1929-1959, at p.237, executory administrative acts are acts by means of which there is expressed thewill of theadministration inorderto produce legal consequences regarding those governed, andwhich entail immediate administrative enforcement; themainelementof the notion of an administrative act is the production of a legal result through the creation, modification or termination of a legal situation" (" at εκτελεσταί πράξεις, τουτέστιν εκείναι δι ων δηλούται βοΰλησις διοικητικού οργάνου,αποσκοπούσα εις 229 Loris J. Aristotelous v. Republic
(1988)την παραγωγήν εννόμου αποτελέσματος έναντιτων διοι κούμενων και συνεπαγόμενη την άμεσον εκτέλεσιναυτής δια τηςδιοικητικής οδού. Τοκύριονστοιχείοντηςεννοίας της εκτελεστής πράξεως είναι η άμεσος παραγωγή εννό μου αποτελέσματος,συνισταμένου εις την δημιουργίαν, τροποποίησιν ήκατάλυσα νομικήςκαταστάσεως "). See,also, in this respect,thedecisions of theCouncilof State in Greeceincases 487/36,950/54 and 1866/67. 5 A mere expression of the intention ("πρόθεσις") of the administration-ascontradistinguished from anexpression of its will ("βούλησις") -does notamounttoanexecutory act (see theConclusionsfrom theCase-Law of the Councilof Statein Greece, 1929 - 1959, at p.239, as well as thedecision of such Council incase 296/32; also,therearenotexecutory thoseacts of the administration which are only of an informative nature (seetheConclusions,supra,at p. 238,as well as thedecisions of the Council of State in Greece in cases 1713/68 and 2446/ 68)." As already statedIholdtheview thattheaforesaid letterof the respondent dated 16.11.85 was merely a statement of intention and of aninformative characteras far as theImportDutyandthe Compounding is concerned; it does not express the will of the administration.Inthisconnection itdoes notconvey anexecutory decision and cannottherefore be the subject-matter of a recourse underArticle 146 of the Constitution. 10 20 For this reason prayers (B) and (C) of the recourse cannot proceed. Having already held that the executory decision impugned under para.(A) of the motion for relief, was reasonably open totheRespondentthepresentrecoursefails inits entirety. And itis accordingly dismissed. 30 Let therebe noorderas tocosts. Recoursedismissed. No order as to costs. 230