(1989)19S9January21 [STYLIANIDES.J.] INTHE MATTER OFARTICLE 146OFTHE CONSTITUTION SPYROS PLOUSIOU, Applicant. v. THE CENTRAL BANK OFCYPRUS. Respondents. (CaseNo.457/84) Recourse for annulment — Abatement — Death of applicant — Civil Procedure Rules not applicable— The question is whether a present legitimate interest of applicant's personal representatives or heirs is directlyandadverselyaffectedby thesubjudiceact. 5 By means of the sub judice act the respondents refused to recognise as pensionable the period that the applicant has served with the Government. Upon applicant's death the question of the abatement of the recourses arose. In thelight ofthefact that, ifthe subjudicedecision isannulled,thepension payabletoapplicant's widow andorphans willbe 10 affected, the Court held that theRecourse had not been abated. Orderaccordingly. Casesreferredto: 15 Chrysostomides v. Greek Communal Chamberthrough theDisciplinary Councilof theElementary School-Teachers
(1964)C.L.R. 397. Contoyiannis v. Greek Communal Chamber and/or Another
(1966)3 20 CLR.
- 72 3 C.L.R. Plousiou v. Central Bank of Cyprus Preliminary Point. Preliminarypoint astowhethertherecoursehasbeen abated asa result of the death of the applicant. 5 L Crerides. for the Applicant. A. Evangelou. Senior Counsel of the Republic, for the Respondent. 10 Cur. adv. wit. STYLIANIDES, J. read the following judgment. The applicant was a civil servant as from 1st July, 1956.After the 15 establishment of the Republic he continued to serve in the Ministry of Commerce and Industry until 30th November, 1963, when he joined the staff of the respondent bank. He applied to the Respondents to recognize as pan of his pensionable service with them the years of service with the 20 Government of Cyprus from 1stJuly, 1956,to 30th November.
- Hissuch request wasnot accededto bythe Respondents andhefiled thisrecourse. The applicant passed away last August. 25 The Court invited addresses from counsel on the effect of applicant's death on this recourse. Counsel for the applicant submitted that letters of 30 Administration weregrantedtothewifeof theapplicant andhis brother-in-law and that this recourse may be continued by the administrators,asthepensionrightsofthewife andthe orphans willbe affected bythe determination of the recourse. 35 The question that falls for decision is whether the recourse was abated bythe death of the applicant or can proceed. The consequences of death of an applicant for the fate of a pending recourse, under Article 146 of the Constitution, were 40 judicially considered in Kyriakos Chrysostomides and The Greek Communal Chamber through the Disciplinary Council of the Elementary School-Teachers
(1964)C.L.R. 73 Stylianides.J. Plousiou v.CentralBankofCyprus
(1989)- and in Michael Contoyiannis and
- The Greek Communal Chamber and/or
- TheRepublic through the Attorney-General as Successor to The Greek Communal Chamber(m6) 3C.L.R.
- 5 OurConstitution issilent onthematter. Rule 18 oftheSupreme Constitutional CourtRulesprovides thattheCivilProcedureRules:10 "...shall apply, mutatis mutandis,to all proceedings before the Court so far as circumstances permit or unless other provisionhasbeenmadebytheseRulesorunlesstheCourt oranvJudgeotherwisedirects." 15 In this case, the relevant provisions of the Civil Procedure Rules are not applicable, in view of the difference between a recourseunderArticle 146oftheConstitutionandacivilaction. Arecourse isadmissible byanAdministrative Court onlyif 20 the applicant possesses a direct present concrete legitimate interest. Paragraph 2ofArticle 146reads:"
- Such a recourse may be made by a person whose any existinglegitimateinterest,whichhehaseitherasapersonorby 25 virtue of being a member of a Community, is adversely and directlyaffected bysuchdecisionoractoromission." ThejurisdictionoftheAdministrativeCourtistoinquireinto thelegalityoftheadministrativeactordecisionchallenged. 30 Therecoursemaybecontinuedbytheheirsorthepersonal representative of the deceased representing the estate andthe heirs where,in relation to the subject matter of suchrecourse, an existing legitimate interest is vested in the heirs of an 35 applicant as their own, which has been directly and adversely affected. Triantafyllides, J., as he then was, pronounced this principlein Chrysostomides (supra)atp.403asfollows:"On the death of an applicant a pending recourse is 40 continued byhisheirs,solongastheypossessaninterestof theirownincontinuingtherecourse;if,however,thesubject74 3C.L.R. 5 Plousiou v.Central Bank of Cyprus Stylianides. J. matter of the recourse ispersonal to the deceased applicant only i.e.jus personalissimum.sothat thesuccessful outcome of theproceeding would lead the administration to a course of action concerning a right personally attached to the applicant, without any legitimate interest of his heirs being involved, or wherethere doesnot come forward any person seekingto continue therecourse,then it is abated." In the Greek Case No. 574/36 (Decisions of the Council of 10 State, 1936,Volume A,Pan II,p.463)the applicant, the head of a family, was dismissed from the service of the Municipality ofAthensandhechallengedhissuchdismissal. He diedpending therecourse. TheGreek Council of Statesaidatp.464that the Council of State in its revisional jurisdiction decides on the 15 legality of the dismissal andits annulment. The decision is not connected with the person of the deceased as presumably the heirshadan interest of their own inthevalidity of hisdismissal in view of the pension being otherwise payable to them under the Greek Law. 20 Inviewoftheabove,dotheheirsoftheapplicantinthiscase have a legitimate interest of their own which has been directly and adversely affected bythe challenged decision? 25 The annulment of the sub judice decision will affect the period of the pensionable service of the applicant. This pensionable service of the applicant will directly affect the pension which is transferable to the widow and the orphans of thedeceased.They,intheirownright aswidow andorphans,are 30 entitledto pension from the service ofthe applicant. Therefore, they have a legitimate interest of their own, which is directly affected bythechallenged administrative act. The recourse has not been abated by the death of the 35 applicant. It will proceed, but the title thereof has to be amended. Orderaccordingly. 75