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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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(1983) 3 CLR 170
1982 December 9
[SAVVIDES, J.]
IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION
LEFKIOS I. IOANNIDES,
Applicant.
v.
THE REPUBLIC OF CYPRUS, THROUGH
THE MINISTER OF INTERIOR,
Respondent.
(Case No 95/79).
Administrative Law—Administrative acts or decisions—Retrospectivity—Rule against retrospectively—Decision No. 1734 of the Council of Ministers taken by Virtue of the proviso to section 5(1)(b); of the National Guard Laws, has no retrospective effect.
National Guard—Release from—Due to special circumstances—Falls for consideration by Advisory Committee contemplated by section 4(4) of the National Guard Laws—Respondent Minister refusing application for release, due to special circumstances, by relying on advice of the Commander of the National Guard who was not the appropriate organ to advise Minister on such issue—Appropriate organ the said Advisory Committee—Respondent Minister acting in a wrong way and not following the proper procedure—Subjudice decision annulled.
The applicant, a citizen of the Republic; was in 1973 and on his application granted by the respondent Minister a certificate of exemption from service in then National Guard under the provisions of section 4(3)(c) of the National Guard Laws as a person residing outside Cyprus. He returned to Cyprus in 1978 and enlisted in the National Guard the period of his military service being twelve months. Following a decision of the Council of Ministers, which was taken on the 19th October, 1978, for the abridgement to six months of the period of military service of those conscripts who had settled abroad prior to the 14th July, 1974 provided that they return to Cyprus and enlist until the enlistment of January, 1980, applicant applied to be released from the National Guard by virtue of this decision and by virtue of special circumstances. The respondent Minister,acting on a report of the Commander of the National Guard rejected the application and hence this recourse:
Held, (1) that it is one of the accepted principles of administrative law that an administrative decision does not have retrospective effect; that the contents of the above decision are clear and leave no room for construction that they indicate an intention to give retrospective effect to the decision; that, therefore, the Minister of Interior and Defence in refusing applicant's application for his release on the ground that the said decision of the Council of Ministers could not be given retrospective effect did not act contrary to the letter and spirit of such decision.
(2) That cases whereby release from the National Guard is claimed for special reasons fall for consideration within the functions of the Advisory Committee contemplated by section 4(4) of the National Guard Laws (see section 2(d) of Law 33/76 amending s.4(4) of the National Guard Laws); that in this case the respondent Minister adopted the opinion of the Commander of the National Guard that no special reasons existed in the present case for the release of the applicant; that the Commander of the National Guard was not the appropriate organ to advise the Minister on such issue and his opinion should not have guided the Minister in taking his decision; that the case of the applicant was a case properly falling within the ambit of the advisory committee and it was the duty of the Minister to have sent such case for consideration and inquiry as to the facts to the Advisory Committee, and wait for the conclusions of such Committee before taking his decision; that, in the result, the way the Minister of Interior and Defence acted in taking the sub judice decision was wrong and that the proper procedure which ought to have been followed was not followed in the present case; and that, therefore, the recourse will succeed on this ground.
Sub judice decision annulled.
Recourse.
Recourse against the decision.of the respondent not to release the applicant from the National Guard.
L.N. Clerides, for the applicant.
CI. Antoniades, Senior Counsel of the Republic, for the respondents
Cur.adv. vult.
SAVVIDES J. read the following judgment. The applicant is a Chartered Accountant, married, one infant child, and he is a citizen of the Republic. He was born on 25.11.1941 at Kyperounta village and had lived in Cyprus continuously until 1961when he left for abroad and since then he had been residing and working abroad as follows:
From 1961-1969 in the United Kingdom.
From 1970-1971 in Ghana.
From 1971-1972 Nigeria.
From 1972-1974 in Liberia.
From 1974-1975 in Saudi Arabia.
From 1976-1978 in, the Arabian Emirates.
and finally returned to Cyprus on 2.4.1978 with the intention of staying here and carrying on his profession as Chartered Accountant.
As a citizen of the Republic he was bound to enlist in the National Guard and serve his military service under the provisions of the National Guard Laws1964-1979 (Laws 20/64 to 88/79). In 1973, on his application, he was granted by the Minister of Interior a certificate of exemption from service in the National Guard under the provisions of section 4, sub-section 3(c) of the National Guard Laws as a person permanently residing outside Cyprus: There was a condition included in the said exemption that in case the reason for which the exemption was granted ceased to exist, the applicant was bound to call for enlistment in the National Guard.
After his return to Cyprus in 1978 and in view of the fact that the reason for his exemption from service in the National Guard ceased to exist, he enlisted in the National Guard on 11.7.1978 for his military service which, having regard to the date of his birth and the regulations in force at the time when his age group was originally called, was a period of twelve months.
The Council of Ministers for the purpose of encouraging citizens of the Republic who were exempted from military service due to their residence abroad, to return and reside in Cyprus, if they so wished, decided on 19th October, 1978 by Decision No. 17341 published in part I of Supplement 4 of the Cyprus Gazette of 27.10.1978 to abridge to six months the period of National Service which such citizens were bound to serve, provided they complied with the conditions set out in such decision. The material part of such decision reads as follows:
"Το Συμβούλιoν, δυνάμει της επιφυλάξεως (β) του εδαφίου (1) του άρθρου 5 των περί της Εθνικής Φρουράς Νόμων του 1964 έως 1978, συντέμνει-
(α) την περίοδον θητείας εις εξ μήνας των στρατευσίμων της κλάσεως 1974 και πάσης προηγουμένης κληθείσης κλάσεως οίτινες κατά την κρίσιν του Υπουργού Αμύνης είχον εγκατασταθή εις το εξωτερικόν προ της 14ης Ιουλίου, 1974, νοουμένου ότι επανέρχονται εις Κύπρον και κατατάσσονται εις την Δύναμιν μέχρι της κατατάξεως του Ιανουαρίου, 1980, συμπεριλαμβανομένης:
..............................."
("The Council of Ministers by virtue of proviso (b) of sub-section (1) of section 5 of the National Guard Laws, 1964-1978, abridges—
(a) the period of service to six months of the conscripts of the 1974 class and every previously called up class who at the discretion of the Minister of Defence had settled abroad before the 14th July, 1974, provided that they will return to Cyprus and enlist in the Force until the January, 1980 enlistment, inclusive").
................................".
The applicant on 27.12.1978 whilst serving his national service, submitted an application to the Minister of Interior and Defence, through the Commander of the National Guard, for the abridgement of his national service to six months. The grounds on which he based his application were—(a) the decision of the Council of Ministers No. 17341 to which reference has already been made, and (b) special circumstances under section 9, sub-section(1) of the National Guard Laws. The contents of such application which is Appendix 'B' to the Opposition) read as follows:
"I should be grateful if you would release me from the National Guard on the grounds of
(a) Paragraph (a) Council of Ministers decision number17341 dated 29.10.1978 and/or,
(b). Special circumstances.
The position is as follows:
From October 1961 to April 1978 I was resident abroad. During this time, I obtained the following professional qualifications:-
i)Institute of Chartered Accountants
ii)Association of Certified Accountants
iii)Institute of Taxation
iv)British Institute of Management
and worked in the United Kingdom, West Africa, Lebanon, Saudi Arabia and the United Arab Emirates, with Coopers & Lybrand, Chartered Accountants, initially as an audit supervisor and later as a partner.
I returned to Cyprus in April, 1978 and have joined the National Guard in July, 1978.
I am married with one child and my wife is expecting a second child in April, 1979. We are living in rented accommodation and pay rent at the rate of £720 per annum.
Since 1974 I have been providing financial support for my brother who is studying at Manchester University. Such support amounted to £2,000 in the academic year 1977/78.
My savings are exhausted and now living on a bank overdraft. My monthly expenses(including the support to my brother) amounts to £350 A compared to a monthly income from the National Guard of £19.‑.
My wife is a refugee from Morphou and has no financial means of her own.
With such financial commitments and family responsibilities, I feel that there are special circumstances, which warrant my immediate release from the National Guard and sincerely hope that you would kindly consider my application favourably.
I enclose photocopies of the certificate of exemption from the National Guard and extract from my passport confirming the date of my arrival in Cyprus. I shall be happy to supply you with further information or explanations you may require".
Such application was submitted by the Commander of the National Guard to the Minister of Interior and Defence on 27th January, 1979 with an accompanying letter whereby, after briefly referring to the facts, he went on to express the following opinion why the application should be dismissed.
"Θέμα: Απολύσεις Στρατιωτικού Προσωπικού
1. .....................................
2. Eπί του ώς άνω αιτήματος αϊ απόψεις τού ΓΕΕΦ έχουν
ως ακολούθως:
(α) Υπαγωγή εις τας διατάξεις της υπ' αριθ. 17341/78
Αποφάσεως τού Υπουργικού Συμβουλίου: « .
(1) Εκ των διατάξεων του εδαφίου (α) της εν λόγω Αποφάσεως προκύπτει ότι αύται αφορούν εις όσους επανέρχονται εις Κύπρον και ουχί εις τους ήδη επανελθόντες.
(2) Η Απόφασις αυτή εδημοσιεύθη εις την Επίσημον Εφημερίδα της Δημοκρατίας την 27.10.1978, αφ' ης και άρχεται η ισχύς της.
(β) Κατόπιν των ανωτέρων φρονούμεν οτι δεν είναι δυνατή η απόλυσις τούτου δια συντμήσεως της θητείας του εις 6 μήνας συμφώνως προς τας διατάξεις του (β) σχετικού, καθ' όσον επανήλθεν εις Κύπρον προ της 27.10.1978.
(γ) Υπαγωγή εις τας διατάξει τού άρθρου 9(1) του Νόμου περί ΕΦ, λόγω ειδικών περιστάσεων:
(1) Ούτος τυγχάνει έγγαμος μετ' άνηλίκου τέκνου και επί πλέον έχει αδελφόν φοιτητήν εις Αγγλίαν του οποίου αι σπουδαι, ως ισχυρίζεται επιβαρύνουν τον ίδιον.
(2) Εκ της από 26.1.1979 συνημμένης υπευθύνου δηλώσεως του προκύπτει ότι εχει 10 μελή πατρικήν οικογένειαν της οποίας τα μέλη (πλήν τριών) εργάζονται με ικανοποιητικάς ετησίας αποδοχάς, εις τρόπον ώστε να παρέχουν οικονομικήν βοήθειαν εις την σύζυγον του καθ' όν χρόνον ούτος υπηρετεί ως Στρατιώτης εις την Εθνικήν Φρουράν και να άναλάβουν την συντήρησιν του εις την Αγγλίαν σπουδάζοντος αδελφού του.
(3) Ούτος ας πτυχιούχος ανωτάτης σχολής και ανήκων εις την κλάσιν 1959 υπέχει 12/μηνον θητείαν, την οποίαν συμπληροι την 11.7.1979, καθ' ήν και απολύεται.
(δ) Κατόπιν των ανωτέρω φρονούμεν ότι ή περίπτωσις του δεν είναι εξαιρετική οι δε λόγοι τους οποίους επικαλείται δεν συνιστούν ειδικάς περιστάσεις.
(3) Ούτος εχει υπόλοιπον θητείας περίπου 5 μηνών.
"Αντγος 'Ιωάννης Κομνηνός,
Αρχηγός".
("Subject: Release of Military Personnel.
1..................................
2.On the above claim the view of ΓΕΕΦ are as follows:
(a) Classification under the provisions of decision No.17341/78 of the Council of Ministers:
(1)From the provisions of sub-section (a) of the said decision it appears that they refer to those 'who return to Cyprus' and not to those who have already returned
(2)This decision was published in the Official Gazette of the Republic on the 27.10.19784 from which date it comes into force.
(b) In view of the above we are of the view that his release is not possible by the abridgement of his service to six months in accordance with the provisions of the (b) relevant since he had returned to Cyprus prior to 27.10.1978.
(c) Classification under the provisions of section 9(1) of the National Guard Law, due to special circumstances:
(1)He; is married with a minor child and in addition he has a brother studying in England whose studies, as he alleges, burden him.
(2) From his attached responsible statement of the 26.1.1979 it emerges that his father's family consists of ten members, whose members (except three) are working with satisfactory annual emoluments, in such a way as to render financial aid to his wife for so long as he serves as a soldier in the National Guard and to undertake the maintenance of his brother who is studying in England.
(3) He, as the holder of a diploma of a higher School and being of the 1959 Class is liable to 12 months' service, which he completes on 11.7.1979 and on which day he is released.
(d) In view of the above we are of the view that his case is not exceptional and the reasons which he invokes do not constitute special circumstances.
3 He has about 5 months more service.
Lieutenant-General IoannisKomninosCommander").
The Minister of Interior and Defence after considering the contents of the application and the recommendations of the Commander of the National Guard, decided to adopt such recommendations and as a result, he dismissed the application and he recorded his decision briefly on the letter of the Commander of the National Guard with the word " "'Απορρίπτεται"(it is dismissed) followed by his signature. The decision of the Minister of Interior and Defence was communicated to the applicant by letter dated 7.2.1979 (exhibit 1) signed by the Director-General of the Ministry of Defence which reads as follows:
"I have been instructed to refer to your letter dated 27th February, 1978, whereby you apply for your release from the National Guard for the reasons you have stated in the aforesaid letter, and wish to inform you that your application has been examined carefully, but it has not become possible to grant same".
As a result the applicant filed the present recourse, whereby he prays for, "a declaration that the act and/or decision of the Respondent not to release the applicant from the National Guard which was communicated to the applicant by letter dated 7.2.1979, should be declared null and void and of no effect whatsoever".
The application is based on the following grounds of Law:
(a)The applicant alleges that on the basis of the decision of the Council of Ministers No. 17341 of the 19th October, 1978, the respondent should have ordered the immediate release of the applicant from the National Guard as he had been residing abroad prior to the 14th July, 1974 and he returned to Cyprus and enlisted in the National Guard prior to January, 1980—that is, in July, 1978—and he served for more than six months.
(b)It is contended that the respondent's decision is contrary to the letter and spirit of the decision of the Council of Ministers specified in paragraph (a) above and that it should be declared null and void and of no effect whatsoever.
(c)As regards the part of applicant's application for release from the National Guard on the ground of special reasons, it is contended that the respondent's decision to reject it is illegal, in that it was taken contrary to section 4(4) of the National Guard Laws as the respondent did not send the applicant's case for examination to the Board set up under the said Law.
(d)In any case, the decision contravenes Article 29 of the Constitution, in that it is not duly reasoned and, as such it should be set aside.
Counsel for respondents in support of his opposition, advanced, the following grounds of law:
(a) The sub judice decision was correctly taken in the lawful exercise of the respondents of their discretionary powers and on the basis of all material facts of the case.
(b)The sub judice decision does not in any way contravene the provisions of Article 29 of the Constitution.
By the time this recourse came up for hearing, the applicant had completed his National Service of twelve months, but counsel on his behalf stated that the reason he was pursuing this recourse was that if the applicant succeeds, then it was matter of claiming damages for the illegal act of the respondents in not releasing him in compliance with the decision of the Council of Ministers.
In arguing legal grounds (a) and (b), counsel for applicant submitted that the applicant was entitled to be released from the National Guard after six months of service in View of the decision of the Council of Ministers No. 17341 of the 19th October, 1978 and that the Minister of Interior and Defence by refusing applicant's application for his release, acted contrary to the letter and spirit of the decision of the Council of Ministers. The applicant, counsel argued, was permanently residing abroad before the 14th July, 1974. Therefore, had he came to Cyprus after such decision of the Council of Ministers was taken, he would have been entitled to the benefit of satisfying his military obligation by serving only for six months. He contended that the decision should be given retrospective effect because it is worded in such a way as to cover any person who was resident abroad permanently and who enlisted in the National Guard before January, 1980. The meaning of the words used in the decision of the Council of Ministers, should be taken as allowing all this period, whether before the decision or after the decision, in favor of such persons provided they enlisted up to January, 1980. In his submission, there was a glaring mistake in the interpretation of the decision because in his opinion it makes no difference whether one enlisted before the decision was taken or after such decision, provided he enlisted within the time fixed by the decision.
In support of his third legal ground, counsel for applicant submitted that the Minister of Interior and Defence, by adopting the opinion of the Commander of the National Guard who had no locus standi in the case and deciding to dismiss applicant's application by acting on such opinion, the Minister acted ultra vires the National Guard Laws, Counsel contended that under. section 4, sub-section (4) of the National Guard Laws, in cases of applications, for exemption from service bin the National Guard for special reasons, the Minister has to send the case for consideration to a Standing Committee before a final decision is taken on the matter. Such course was not followed in the present case and, therefore, the sub judice decision was wrong.
Finally, counsel for applicant submitted that the reply of the Minister which is embodied in the letter sent to the applicant, copy of which was attached to the application, is lacking of any reasoning.
Counsel for the respondent submitted that the decision of the Council of Ministers was taken after applicant had returned to Cyprus and had enlisted in the National Guard and such decision could not have retrospective effect, He, contended that the Minister of Interior and Defence had to give effect to decisions of the Council of Ministers as from the day of their publication in the official Gazette and had to interpret it in accordance with its contents which, in the, present case, extended only to persons who, as a result of such decision, would have decided to come to Cyprus and serve in the National Guard. He submitted that under the accepted principles of administrative law, an administrative decision cannot have retrospective effect.
In dealing with legal ground 3, counsel contended that the provisions of section 4, sub-section (4) do not come into play in the present case, as the case of the applicant does not fall within any of the exemptions enumerated under section 4.
Finally, on the question of reasoning, he submitted that in the light of the material contained in the file of the case which was produced as exhibit 5, and the other material before the Court, there is sufficient reasoning of the decision of the Council of Ministers.
I shall deal first with contentions (a) and (b) of counsel for applicant
It is one of the accepted principles of administrative law that an administrative decision does not have retrospective effect. Under the Greek Administrative Law and the decisions of the Greek Council of State, the rule against retrospectivity of administrative decisions is well settled. In Kyriacopoulos Greek Administrative Law, 4th Edition, Vol. B at p. 400, we read:
Κατ' αρχήν η ατομική διοικητική πράξις δεν δύναται να ισχύση αναδρομικώς. Και τούτο αφ' ενός μεν διότι είναι αβέβαιον αν κατά τον χρόνον, εις ον άνέδραμεν ή πραξις, Ίσχυεν ή αυτή αρμοδιότης και η αυτή διαδικασία· άφ' ετέρου δε διότι η αρμοδιότης των διοικητικών οργάνων δέον ν' ασκήται εν όψει της παρούσης εκάστοτε νομικής και πραγματικής καταστάσεως. Κατά κανόνα, τα έννομα αποτελέσματα της πράξεως δεν δύνανται να εκταθώσιν εις χρόνον προγενέστερον της εκδόσεως αυτής".
("In the first place, the personal administrative act can have no retrospective effect. And this because on the one hand it is uncertain if at the time to which the act retrospects the same authority and the same procedure was in force; and on the other hand because the authority of administrative organs must be exercised in accordance with the existing at the time legal and factual situation. As a rule, the lawful results of the act cannot be applied to a time prior to its issue").
Certain expectations to the rule are then set out but the present case does not fall, within any of such exemptions.
Also in Stassinopoulos "The Law on Administrative Acts" (DikeonDiikitikonPraxeon) 1951 Edition at pp. 368, 369 it reads:
"Κατά κανόνα, η διοικητική πράξις δέον να θεωρήται ισχύουσα δια το μέλλον και ουχί δια το παρελθόν. Η αναδρομική ισχύς της διοικητικής πράξεως αποτελεί εξαίρεσιν, ήτις δεν είναι πάντοτε επιτετραμμένη. Και ενταύθα κέκτηται σημασίαν ή διάκρισις των κανονιστικών από των ατομικών πράξεων.
Η αναδρομικότης επί των κανονιστικών πράξεων— Αναδρομική Ισχύς των κανονιστικών πράξεων είναι κατ' ·Αρχήν Ασυμβίβαστος προς την φύσιν αυτών, διότι, εάν ο διά της κανονιστικής πράξεως τιθέμενος κανών απόκτηση αναδρομικήν ισχύν, αναγκαίως θέλει συμπαρασύρει τας υπό το κράτος του προϊσχύοντος κανόνος παραχθείσας σχέσεις, τοιαύτην δε ανατροπών δεν ηθέλησεν ο εφ' ου εστηρίχθη η κανονιστική πράξις νόμος. Διότι ούτος, κατά τας γενικάς αρχάς, στερείται, εν αμφιβολία, δυνάμεως αναδρομικής, και εάν είχε θελήσει τοιαύτην αναδρομήν, θα ωπλίζετο επίσης και ο νόμος δι' αναδρομικής δυνάμεως ή θα διερρύθμιζε ρητώς προς την κατεύθυνσιν ταύτην την χορηγηθείσαν εξουσιοδότησι. Εις τας σκέψεις ταύτας στηρίζεται το γαλλικόν αξίωμα, καθ' ο 'on ne reglemente pas pour le passe'"
("As a rule, the administrative act should be considered as valid for the future and not for the past. The retrospective force of the administrative act constitutes an exception, which is not always, allowed. And it is here that the differentiation between regulatory and individual. Acts have significance.
The retrospectiveness of regulatory acts Retrospective effect of regulatory acts is as a rule incompatible to their nature, because if the rule placed by the regulatory act acquires retrospective effect, will necessarily influence the relationship created by the pre-existing rule, and such overthrow was not intended by the law on which the regulatory act was based. Because this, as a general rule, lacks, in case of doubt, retrospective effect and if it wished such retrospection, the law would have been armed, with retrospective effect or would have regulated expressly to that direction the authorization granted. On these lines it is based the French axiom by which 'on nereglemente pas pour le passe' ").
and at page 370of the same book-
"Η αναδρομικότης επί των ατομικών διοικητικών πράξεων— Και επί των ατομικών διοικητικών πράξεων ισχύει επίσης ο κανών, οτι αύται δεν δύνανται να έχωσιν αναδρομικήν ισχύν, αν μη ο νόμος έχη προβλέψη και επιτρέψη ταύτην. Πράγματι, η ατομική διοικητική πράξις δεν έχει κατά κανόνα την δύναμιν, ίνα παραγάγη εννόμους συνεπείας εις χρόνον προγενέστερον της τελειώσεως αυτής, πρώτον μεν διότι δεν είναι βέβαιον, ότι εις τον χρόνον, εις όν θέλει αναδράμη η ισχύς αυτής, ίσχυεν η αυτή αρμοδιότης και η αυτή διαδικασία, δεύτερον δε διότι η ορθή και σύμφωνος προς την έννοιαν του νόμου άσκησις της αρμοδιότητος απαιτεί κατ' αρχήν όπως η Διοίκησις εφαρμόζη τον νόμον εν όψει πάντοτε της παρούσης καταστάσεως και ουχί της μελλούσης ή της παρελθούσης".
("The retrospective effect of private administrative acts—And on the private administrative acts is valid also the rule that they cannot have retrospective effect, if the law has not foreseen and allowed same. In fact the private administrative act does not have as a rule the force to create legal results to a time previous to its execution, firstly because it is not certain that at the time to which its effect would go back, the same authority and the same procedure was in force and secondly because the correct and according to the law exercise of the authority demands as a rule that the administration enforces the law in view always of the present situation and the future or thepast").
Finally, in Kyriacopoulos "Greek Administrative Law" Edition, Vol. B, p. 399, it is stated:
"Κατά ταύτα, η διοικητική πράξις αποκτά έννομον ισχύν από της κοινοποιήσεως αυτής, είτε επιβάλλεται είτε μη ή δημοσίευσις της πράξεως εν τη Ε.τ.Κ., ή της δημοσίας γνωστοποιήσεως. Από της ενάρξεως δε της ισχύος της πράξεως άρχονται, κατά κανόνα, και τα έννομα αυτής αποτελέσματα. Αλλά δυνατόν είναι ταύτα να μετατίθενται χρονικώς είτε προς το μέλλον, οσάκις προσετέθη εις την πράξιν αναβλητική αίρεσις ή προθεσμία, είτε και προς το παρελθόν, οσάκις προσέλαβεν αύτη αναδρομικήν ίσχύν".
("Therefore the administrative act acquires legal effect from its communication whether the publication of the act in the Gazette or its public notification is obligatory or not. From the taking of effect of the act, commence, as a rule, and its legal results. But it is possible that they may be placed chronologically either to the future, when there was added to the act a postponing additional term or time limit, of to the past when it took retrospective effect")
The contents of the decision of the Council of Ministers in the case under consideration are clear and leave no room for construction that they indicate an intention to give retrospective effect to the decision. If such effect was intended, it could have been expressed clearly in the said decision. In the result, I find that the Minister of Interior and Defence in refusing applicant's application for his release on this ground did not act contrary to the letter and spirit of the, decision of the Council of Ministers.
I come now to the next contention of counsel for applicant that the sub judice decision was wrong in that the proper procedure contemplated by section 4(4) of the National Guard Laws has not been complied with.
Section 4 of the Principal Law of V 1964 establishing the National Guard (Law 20/64) provided as follows:
"4.-(1) Τηρουμένων των διατάξεων του εδαφίου (3) άπαντες οι πολίται της Δημοκρατίας από της 1ης Ιανουαρίου του έτους καθ' ο συνεπλήρωσαν το δέκατον όγδοον έτος της ηλικίας των μέχρι της 1ης Ιανουαρίου του έτους καθ' ο συνεπλήρωσαν το πεντηκοστόν έτος της ηλικίας των υπόκεινται εις τας διατάξεις του παρόντος Νόμου και υπέχουν υποχρέωσιν υπηρεσίας εν τη Δυνάμει.
(2) Η υποχρέωσις υπηρεσίας εν τη Δυνάμει διακρίνεται εις υποχρέωσιν θητείας και υποχρέωσιν εφέδρου.
(3) Εξαιρούνται της υπό του εδαφίου (1) υποχρεώσεως—
(α) τηρουμένων των διατάξεων του παρόντος Νόμου οι υπηρετούντες εις τον στρατόν ή τας δυνάμεις ασφαλείας της Δημοκρατίας
(β) οι κληρικοί
(γ) oι μονίμως εκτός της Κύπρου διαμένοντες πολίται της Δημοκρατίας·
(δ) οι κατόπιν ιατρικής εξετάσεως επί τη βάσει των διατάξεων του παρόντος Νόμου κριθέντες ως ακατάλληλοι".
("4.-(1) Subject to the provisions of sub-section (3), all citizens of the Republic shall, from the first day of January of the year in which they complete the eighteenth year of their age and until the first day of January of the year in which they complete the fiftieth year of their age, be subject to the provisions of this Law and liable to serve in the Force.
(2) The liability for service in the Force comprises liability for a term of service and liability in the reserve.
(3) There shall be exempted (from the liability under sub-section (1)-
(a) subject to the provisions of this Law, persons serving in the army or the security forces of the Republic;
(b) clergymen;
(c) citizens of the Republic permanently residing outside Cyprus
(d) persons classified, upon a medical examination underthe provisions of this Law, as unfit").
By subsequent amendments of section 4(3) of the principal law certain additional categories of persons exempted from service were added (see, for example, amongst them, Laws 27/65 s. 2, 56/75 s. 2, 33/76 s. 2).
Section 4 of Law 20 of 1964 was amended by section 2 of Law 14 of 1966 by the addition of sub-section (4) which reads as follows:
"2. Το άρθρον 4 του βασικού Νόμου τροποποιείται δια της εν αυτώ προσθήκης του κάτωθι εδαφίου:
(4) Ο Υπουργός αποφασίζει επί παντός θέματος αναφυομένου εν σχέσει με την εξαίρεσιν στροπευσίμων επί τη βάσει του εδαφίου (3).
Προς τον σκοπόν τούτον ο Υπουργός συνιστά συμβουλευτικήν επιτροπήν εκ των υπ' αυτού διοριζομένων μελών και προεδρευομένην υπό προσώπου έχοντος νομικήν κατάρτισιν υποδεικνυομένου υπό του Υπουργού πρός εξακρίβωσιν των πραγματικών γεγονότων εκάστης περιπτώσεως και υποβολήν προς αυτόν του πορίσματος της υπό της επιτροπής γενομένης ερεύνης".
("2. Section of the principal law is amended by the addition thereto of the following sub-section:
(4) The Minister decides on every matter in respect of the exemption of conscripts by virtue of sub-section 3.
For this purpose the Minister constitutes an advisory committee the members of which are appointed by him and presided over by a person having legal experience and indicated by the Minister for the verification of the actual facts of each case and the submission to him of the report of the investigation carried out by the committee").
The duty of such Advisory Committee was as it appears from the context of the law to verify the facts in each case submitted to it by the Minister and advise the Minister accordingly, but only in cases falling under the provisions of section 4(3) of the National Guard Laws and not for any other cases falling under other provisions of the respective laws.
The applicant in the present case does not fall within any of the categories enumerated, under sub-section (3) of section 4 of Law 20/1964 or any of its subsequent amendments and no argument has been advanced to the contrary. Applicant, however, seeks to rely on section 9(1) of the Law on the ground of special reasons. Such section was introduced section 6 of Law 26 of 1965, whereby section 9 of the principal Law (20/64) was amended. Section 6 of Law 26 of 1965, reads as follows:
"6. Το άρθρον 9 του βασικού Νόμου τροποποιείται ως ακολούθως:
(α) διά της αντικατάστασεως του πλαγιοτίτλου διά του ακολούθου "Απόλυσις στρατευσίμων.
(β) διά της προσθήκης του κάτωθι εδαφίου, του υφισταμένου μέρους του άρθρου αριθμουμένου ως εδαφίου (2) :
(1) Το Υπουργικόν Συμβούλιον δι' αποφάσεως αυτού, δημοσιευμένης εις την επίσημον εφημερίδα της δημοκρατίας, απολύει στρατευσίμους είτε κατά κλάσιν ή τμήμα αυτής είτε κατά περιφερείας ή κατηγορίας η εις έξαιρετικάς περιπτώσεις κατ' άτομα τη αίτησει τούτων και λόγω ειδικών περιστάσεων' ".
("6. Section 9 of the principal Law is hereby amended as follows:-
(a) by the substitution of following for the marginal title:-
'Discharge of servicemen'.
(b) by the addition of the following sub-section, the existing. part of the section being numbered as sub-section (2):-
'(1) The Council of Ministers may, by decision published in the official Gazette of the Republic, discharge servicemen either by age group or part thereof or by areas or categories or, in exceptional cases, by persons on their application and because of special circumstances' ").
It has been the contention of counsel for respondent that the provisions of section 4, sub-section (4) do not come into play, as such provisions are only applicable to cases falling within the provisions of sub-section (3) of section 4. Such contention might be correct in so far as the situation was till the enactment of Law 33/76, whereby sub-section (4) of section 4 of the principal Law was amended by extending the functions of the advisory committee to any matter on which the Minister of Interior is empowered to decide not only under sub-section (3) of section 4 but under any provisions of the law. Such amendment reads as follows (see section 2(d) of Law 33/76):
"(δ) διά της εν τέλει του εδαφίου (4) αυτού προσθήκης της ακολούθου επιφυλάξεως, της εις το τέλος του έν λόγω εδαφίου τελείας αντικαθισταμένης διά δύο στιγμών:
Νοείται ότι πάσα ούτω συσταθείσα συμβουλευτική επιτροπή θα προβαίνη εις εξακρίβωσιν των πραγματικών γεγονότων εκάστης περιπτώσεως παραπεμπομένης εις αυτήν υπό του Υπουργού και εις υποβολήν προς αυτόν του πορίσματος της υπ' αυτής γενομένης ερεύνης έν σχέσει προς παν θέμα επί του οποίου ο Υπουργός αποφασίζει δυνάμει οιασδήποτε διατάξεως του παρόντος Νόμου, ή οιασδήποτε αποφάσεως του Υπουργικού Συμβουλίου εκδοθείσης ή εκδιδομένης, ή οιωνδήποτε Κανονισμών εκδοθέντων ή έκδι- δομένων επί τη βάσει του παρόντος Νόμου.' "
("d) by the addition at the end of sub-section (4) of the following proviso, the full stop at the end of the said sub-section being substituted by a colon:
Provided that every such constituted committee will proceed to the verification of the actual facts of each case forwarded to it by the Minister and to the submission to him of the report of the investigation carried out by it in respect of every matter on which the Minister decides by virtue of any provision of this law, or any, decision of the Council of Ministers given or to be given, of any Regulation issued or to be issued by virtue of this law").
The effect of such amendment was that cases not specifically falling within sub-section (3) of section 4 but falling within the provisions of section 9(1) whereby release from the National Guard is claimed for special reasons, as it is the case of the applicant in the present case, fall for consideration within the functions of the advisory committee contemplated by sub section(4).
It is apparent in the present case that the Minister of lnterior and Defence adopted the opinion of the Commander of the National Guard that no special reasons existed in the present case for the release of the applicant. The Commander of the National Guard, however, was not the appropriate organ to advise the Minister on such issue and his opinion should not have guided the Minister in taking his decision. The A case of the applicant was a case properly falling within the ambit of the advisory committee and it was the duty of the Minister to have sent such case for consideration and inquiry as to the facts to the Advisory Committee, and wait for the conclusions of such Committee before taking his decision; In the result, I find that the way the Minister of Interior and Defence acted in taking the sub judice decision was wrong and that the proper procedure which ought to have been followed was not followed in the present-case. The recourse, therefore, succeeds on this ground.
I find it unnecessary to deal with the last contention of counsel for applicant in that the sub judice decision was not fully reasoned as I have already concluded that the decision was wrongly taken
For all the above reasons, this recourse succeeds and the sub judice decision is hereby annulled. In the circumstances
I make no order for costs.
Sub judice decision annulled.
No order as to costs.