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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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Κυπριακή νομολογία στην οποία κάνει αναφορά η απόφαση αυτή:
MILTIADOUS ν. REPUBLIC (1983) 3 CLR 590
KALLI ν. REPUBLIC (1984) 3 CLR 443
Μεταγενέστερη νομολογία η οποία κάνει αναφορά στην απόφαση αυτή:
Δεν έχει εντοπιστεί απόφαση η οποία να κάνει αναφορά στην απόφαση αυτή
(1989) 3A CLR 30
1989 January 12
[DEMETRIADES, J.]
IN THE MATFER OF ARTICLE 146 OF THE CONSTITUTION
COSTAS PAPAKYRIAKOU MARKIDES.
Applicant,
v.
THE REPUBLIC OF CYPRUS, THROUGH THE MINISTER OF FINANCE,
Respondent.
(Case No. 179/86)
Customs and excise duties - Motor Vehicles - Disabled persons - Relief from import duty - The Customs and Excise Duly Law 1978. section 11(1)(2) and Order 229/79 of the council of Ministers - Once determined that applicant is a "disabled" person, the extent of the relief will be decided by the Minister of Finance - Taking into consideration the value of applicant's immovable property, which, if sold, would enable applicant to buy a car and pay all the duty - Misdirection - Annulment of Sub judice refusal - Observations by court as regards general income criteria set down by Minister as a guidance to the exercise of his discretion.
Though the applicant was found to satisfy the definition of "disabled person" in the context of the aforesaid legal provisions, his application for relief from import duty, in respect of importation of a motor vehicle, was refused, because of his financial position. The facts pointed towards the conclusion that the Minister, in refusing relief, was influenced by the fact that applicant was the owner of immovable property, which, if sold, would have enabled him to pay the full import duty.
Sub judice decision annulled with costs against respondents.
Cases referred to:
Cases referred to:
Markides v. Republic(l985) 3 :L.R 1393,
Miltiadousv. Republic (1983) 3 C.L.R. 590,
Kalli v. Republic (1984) 3 C.L.R. 443,
Ioannou v. Republic (1985) 3 C.L.R. 31.
Recourse.
Recourse against the decision of the respondents whereby applicant's application for relief from payment of import duty in respect of a motor car adapted for use by disabled persons.
Chr. Triantafyllides, for the Applicant.
S. Georghiades, Senior Counsel of the Republic, for the Respondent.
DEMETRIADES, J. read the following judgment. On the 14th March, 1983, the applicant applied for full relief from the payment of import duty in respect of a motor car specially adapted for use by disabled persons, because of his inability to drive an ordinary car. He based his application on the provisions of Class 01/09 of the Fourth Schedule to the Customs and Excise Duties Law 1978 (Law 18/78).
The applicant was certified by a Medical Board that on account of poliomyelitis, which he suffered in his childhood presented atrophy, weakness of the right lower limp with equinus deformity of the right foot and, after he was examined by the Senior Technical Examiner of the Office of Examiners for drivers, was found that he could only drive a vehicle on the following conditions, namely-
(a)the car had to be automatic.
(b)the break and fuel foot-petal had to be operated with theleft foot.
(c) the applicant, whilst driving, had to use safety belts, and
(d)the car, if run on petrol, ought not to exceed 2000 cubic c.m. capacity and if it used diesel 2,300 cubic c.m.
The respondent rejected the applicant's request who, as a result, applied to this Court for the annulment of the administrative decision taken.
A. Loizou J., as he then was, who tried the recourse of the applicant (see Markides v. The Republic (1985) 3 C.L.R. 1393), annulled the decision taken by the respondent on the ground that it lacked due reasoning.
As a result of the above judgment of the Court the request of the applicant was re-examined by the respondent and by letter dated the 3rd January, 1986, he was informed that, although on the basis of the report of the Medical Board and the views of the senior Examiner of Drivers, he (the applicant) was indeed a disabled person for the purposes of paragraph 09 of Class 01 of the Fourth Schedule to the Customs and Excise Duties Law, the Minister had, after taking into consideration that the applicant -
(1)was earning a monthly gross income of £544.-;
(2)possessed immovable property the value of which was £15.000.-:
(3)had about £600.- savings; and
(4)had no substantial family responsibilities,
decided that the financial position of the applicant was such that did not justify any relief from import duty for the purchase of a motor car for disabled persons.
The applicant then filed the present recourse by which he prays for the annulment of the decision taken by the respondent.
Counsel for the applicant argued that the respondent'sauthority, under the Law, was to decide the extent of the relief the applicant was entitled to, but not to deny him relief completely. He, in the alternative, argued that the financial position of the applicant was not such as not to justify any relief at all and that it is not known what were the criteria applied by the Minister in reaching his decision, thus making it impossible for the Court to exercise any control over the sub judice decision.
Counsel for the respondent on the other hand, argued that the sub judice decision was reasonably open to the respondent, bearing in mind the financial condition of the applicant and that the respondent, in reaching his decision, acted upon approved criteria.
It is to be noted here that these criteria were set by the respondent and are based on the income of a disabled person. However, there is no indication whether the respondent relies on the gross or net income.
Before I proceed to make any finding as to whether the decision reached by the respondent was reasonably open to him, I feel that the relevant legal provisions must be quoted here.
These are:
(A) Section 11 of the Customs and Excise Duties Law, 1978 (Law 18178) which reads:
"11.-(1) Ανεξαρτήτως οιασδήποτε νομοθετικής διατάξεως εμπορεύματα του εν τω Τετάρτω Πινάκι καθοριζομένου είδους απαλλάττονται, υπό τας εν τω ειρημένω Πινάκι οριζομένας περιστάσεις και όρους εκτός εάν άλλως προνοήται εν τη τετάρτη στήλη του ιδίου Πίνακος, του εισαγωγικού δασμού ή φόρου καταναλώσεως όστις άλλως θα επεβάλλετο δυνάμει του παρόντος Νόμου
(2) Το Υπουργικόν Συμβούλιον δύναται, διά Διατάγματος αυτού εκδιδομένου δυνάμει Κανονισμών εγκρινομένων υπό της Βουλής των Αντιπροσώπων, να προσθετή, διαγραφή, μεταβάλλη ή άλλως τροποποιή τας κλάσεις ή οιασδήποτε τούτων, ως αύται εκτίθενται εν τω Τετάρτω Πίνακι. Οι Κανονισμοί αυτοί δύνανται να προνοούν περί τοιούτων όρων, περιορισμών, προϋποθέσεων και κριτηρίων τα οποία ήθελον καθορισθή εν αυτοίς διά τους σκοπούς ασκήσεως της εκχωρούμενης εις το Υπουργικόν Συμβούλιον εξουσίας. Παν τοιούτο Διάταγμα εκδιδόμενον δυνάμει του παρόντος εδαφίου δημοσιεύεται εν τη επισήμω εφημερίδι της Δημοκρατίας."
("11.- (1) Notwithstanding any legal provision.. goods of the class specified in the Fourth Schedule are exempted, in the circumstances and conditions specified in the said Schedule unless otherwise provided in the fourth column of the same Schedule, from the import or excise duty which would have been imposed on the basis of this Law...
(2) The Council of Ministers may, by Order issued on the basis of Regulations approved by the House of Representatives, add, delete, alter or otherwise amend the classes or an of them, as they are set out in the Fourth Schedule. These Regulations may provide about such conditions, limitations, prerequisites and criteria as may be specified therein for the purposes of the exercise of the power vested in the Council of Ministers. Every such Order issued on the basis of this section is published in the Official Gazette of the Republic.")
And
(B) Order 221/79, published in Supplement No. III Part I of the Official Gazette of the Republic, dated the 14th September, 1979, and issued in pursuance to section 11(2) of the Law, as amended, which provides as follows:
"Περιγραφή Απαλλαγής
Βενζινοκίνητα και πετρελαιοκίνητα οδικά οχήματα, ιπποδυνάμεως μη υπερβαινούσης τα 2000 κυβ. εκατοστά και 2300 κυβ. εκατοστά, αντιστοίχως, κατάλληλα προς χρήσιν υπό προσώπων πασχόντων εκ σωματικής αναπηρίας εισαγόμενα υπό αναπήρων προσώπων των οποίων η αναπηρία πιστοποιείται δεόντως υπό επί τούτω συγκροτουμένου Κυβερνητικού Ιατρικού Συμβουλίου:
Νοείται ότι η απαλλαγή αύτη δεν τυγχάνει εφαρμογής επί αναπήρων προσώπων άτινα:
(α) Είναι ιδιοκτήται ή κάτοχοι ετέρου ούτως ατελώς εισαχθέντος οχήματος
(β) δεν κέκτηνται άδειαν οδηγού, νοουμένου ότι οσάκις ανάπηροι κέκτηνται άδειαν μαθητευομένου οδηγού ο Διευθυντής δύναται να παραχώρηση απαλλαγήν υπό τον όρον ότι θα εξασφαλισθή άδεια οδηγού εντός ενός έτους από του τελωνισμού του οχήματος ή εντός τοιαύτης ετέρας περιόδου ως ούτος ήθελε κρίνει εύλογον.
Έκτασις Απαλλαγής
Ως ήθελεν αποφασίσει ο Υπουργός Οικονομικών βάσει της οικονομικής καταστάσεως του αιτητού."
("Description of relief
Petrol and diesel motor vehicles of a horse power not exceeding 2000 c.c. and 2300 c.c. respectively, suitable for use by persons suffering from body disablement imported by disabled persons whose disability is duly certified by aGovernment Medical Board constituted for the purpose:
Provided that this exemption is not applicable to disabled persons who:
(a)Are the owners or possessors of another thus duty free imported vehicle;
(b)are not the holders of a driving licence, provided that when disabled persons are the holders of a learner's driving licence the Director may grant such exemption on condition that a driving licence will be obtained within one year from payment of customs duty for the vehicle or within such other period which he might consider reasonable.
Extent of ReliefAs the Minister of Finance may decide on the basis of the financial position of the applicant.")
As it emanates from our case law, the purpose of the Law is to grant relief to those disabled persons whose disablement does not permit them to drive an ordinary car and are in need of a specially adapted one. (See the cases of Miltiadous v. The Republic (1983) 3 C.L.R. 590; KaIliv.The Republic (1984) 3 C.L.R. 443; Ioannou v.The Republic (1985) 3 C.L.R. 31). Before 1979, when Order 221/79 was issued, the relief in such cases was complete, irrespective of the financial position of the applicant. Since, however, Order 221/79 came into existence, the extent of the relief from import duty is to be decided by the Minister of Finance, on the basis of the financial position of the applicant.
Having in mind the provisions of the law, I find that the person who is authorised under it to decide whether a person is entitled to relief from payment of import duty is the Director of Customs and Excise and that the Minister of Finance is theperson who decides the extent of the relief to be granted to a disabled person, bearing in mind the financial condition of the person applying for it.
In the present case, the Minister, respondent, obviously in rejecting the request of the applicant, based his decision, although he did not clearly say so, on the value of the immovable property the applicant owns and which, in my mind, he expects that if the applicant sells, will bring him sufficient funds to buy the vehicle that he needs. This interpretation, however, of the provisions of the legislation that I have hereinabove set out, is not, in my mind, correct, as the law does not expect and to my mind never intended a disabled person to sell his property in order to acquire the means for his needs to move around.
In the present case, it is not disputed that the applicant is a disabled person and that he needs a specially adapted car. He is, thus, a person entitled to relief under the provisions of item 09 in Class 01 of the Fourth Schedule to the Law. Although it was found that the applicant was indeed a person entitled to relief,the Minister, in considering his application, decided that his financial position did not justify any relief. In the circumstances,the respondent in reaching his decision acted in excess of his powers and the sub judice decision has to be annulled.
Before concluding, however, I wish to make certain observations on the document entitled "income criteria" approved by the Minister on the 28th August, 1982. The "criteria" mentioned are certain scales of income andpercentages of the duty to be paid opposite to each scale. It is not known, however, whether any, and if so, what factors were taken into consideration by the Minister in setting up those criteria. In the circumstances, the said criteria seem to be arbitrary. Moreover, it is not mentioned in the document embodying the said criteria that if a person who is entitled to relief on the basis of his income, as the applicant was, will cease to be so entitled if he also owns immovable property. It should not, however, in my view, be expected that a disabled person, who has a certain property, has to sell it in order to buy a car forhis needs. In view, however, of the fact that I have annulled the sub judice decision on another point, I do not intend to make a finding on this issue. What I have to say, in conclusion, is that a discretionary power, when granted, has to be exercised reasonably and for the purpose for which it has been granted.
In the result, this recourse succeeds and the sub judice decision is annulled with costs against the respondent.
Sub judice decision annulled with
costs against respondents.