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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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Κυπριακή νομολογία στην οποία κάνει αναφορά η απόφαση αυτή:
REPUBLIC (MINISTRY OF FINANCE) ν. NISHAN ARAKIAN AND OTHERS (1972) 3 CLR 294
SKYFROST CO. LTD. ν. REPUBLIC (1979) 3 CLR 1
MILTIADOUS ν. REPUBLIC (1983) 3 CLR 590
Μεταγενέστερη νομολογία η οποία κάνει αναφορά στην απόφαση αυτή:
Δεν έχει εντοπιστεί απόφαση η οποία να κάνει αναφορά στην απόφαση αυτή
(1989) 3A CLR 185
1989 February 4
[DEMETRIADES, J.]
IN THE MATFER OF ARTICLE 146 OF THE CONSTITUTION
STAVROS STAVROU,
Applicant,
v.
THE REPUBLIC OF CYPRUS, THROUGH THE MINISTER
OF FINANCE AND OTHERS.
Respondents.
(Case No. 39/86)
Constitutional Law -Equality -Constitution, Art. 28 -Customs and Excise -Motor Vehicles -Disabled persons -Relief from import duty -The Customs and Excise Duties Law (Law.18/78), section 11 and item 09 of class 01 of the Fourth Schedule -Ambit of power of Council of Ministers under section 11(2) of the said Law -Whether principle of equality contravened-Question determined in the negative-Art. 28 of the Constitution does not preclude reasonable differentiations.
Customs and Excise -Motor Vehicles -Disabled persons -Relief from import duty -The Customs and Excise Duties Lac 1978 (Law 18/78), section 11(2) -Ambit of power of Council of Ministers thereunder -Order 221/1979 of the Council of Ministers -Order 221 limits the right to relief from import duty to petrol and diesel motor vehicles of a horse power not exceeding 2.000 cc and 2.3000 cc respectively" -Submission that the order was ultra vires the power of the Council of Ministers under section 11(2) -The Interpretation Law, Cap. 1, section 11 -Application and ambit of.
The applicant, a paraplegic, who did not and could not possess a driving licence, applied for the Duty Free importation of an ordinary motor vehicle. In the light of paragraph (b) of the proviso to item 09 of class 01 of the aforesaid Fourth Schedule which appears at page 189 of theJudgment, the application was rejected.
The Court found that the differentiation in the treatment between invalid persons, who hold or can hold a valid driving licence, and invalid persons, who cannot hold a valid driving licence, is reasonable. Therefore, the Court rejected the submission as to the constitutionality of the said provision.
The issue of Order 221,79 did not affect the substratum of the sub judice decision. In the light of section 11 of the Interpretation Law, Cap. 1 and of the fact that the provisions of paragraph (b) of item 09 of class 1 of the Fourth Schedule remained unaffected, the Court did not accept the submission as regards the invalidity of Order 22 1/79.
Recourse dismissed. No order as to costs.
Cases referred to:
Miltiadous v. Republic (1983) 3 C.L.R. 590,
Kalli v. Republic (1984) 3 C.L.R. 443,
Mikrommatis v. Republic, 2 R S.C.C. 125,
Republic v. Arakian (1972) .3 C.L.R. 291,
Skyfrost Co. Ltd. v. Republic (1979) 3 C.L.R. 1,
Aristides v. Republic (1983) 3 C.L.R. 1507.
Recourse.
Recourse against the refusal of the respondents to allow applicant to import a motor vehicle free of duty.
C. Clerides, for the Applicant.
D. Papadopoulou (Mrs). Counsel of the Republic B, for the Respondent.
Cur.adv. vult.
DEMETRIADES, J. read the following judgment. In the present case the applicant is complaining against the decision of the director of the Department of Customs (the second respondent), dated the 11th December, 1985, by means of which his application for the importation of a vehicle free of duty was rejected.
At the material time the applicant was thirty-one years old. In 1973 he was involved in a motor car accident, as a result of which he suffered very serious injuries and because of them he is a paraplegic.
The applicant is a refugee from the district of Kyrenia and a freelance contributor in daily newspapers. In any event, he is a person, like any other, that is entitled to circulate and move about at his will.
On the 5th November, 1985, the applicant applied to the second respondent for a permit to import into the Republic a motor vehicle free of import duty but his application was on the 11th December, 1985, rejected by the second respondent, who is the appropriate organ to deal with applications of this nature, on the grounds that because of his serious disability (a) he did not and could not possess a driving licence and (b) he could not, in the opinion of a Senior Technical Examiner, drive any type of vehicle.
It is not in dispute that the applicant does not possess a driving licence and that because of his serious disability he cannot obtain a licence to drive a motor vehicle. It is further not in dispute that he did not apply for the importation of a motor vehicle suitable for use for his disability. In fact what he applied for is for the importation of an ordinary car which is to be available for his own. use but which will be driven by somebody else.
The statutory provisions on which counsel based their respective arguments in this recourse were section 11 of the Customs and Excise Duties Law (Law 18/78) and item 09 of class 01 of the Fourth Schedule to it.
Section 11, as originally enacted, reads:-
"11.- (1) Ανεξαρτήτως οιασδήποτε νομοθετικής διατάξεως δυνάμει της οποίας είναι δυνατή η ατελής εισαγωγή ειδικώς καθοριζομένων εμπορευμάτων προς χρήσιν αυτών υπό (ορισμένων προνομιούχων προσώπων, οργανισμών, αρχών και οργανώσεων, και υφ' ους όρους ο Διευθυντής ήθελεν επιβάλει προς διασφάλισιν των δημοσίων προσόδων, εμπορεύματα του εν τω Τετάρτω Πίνακι καθοριζομένου είδους απαλλάττονται, υπό τας εν τω ειρημένω Πίνακι 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, νοουμένου ότι η αίτησις απαλλαγής υποβάλλεται υπό ή διά τον εισαγωγέα πριν ή τα εμπορεύματα απομακρυνθώσι του τελωνειακού ελέγχου, εκτός ως άλλως ρητώς προνοείται εν τω παρόντι Νόμω.
(2) Διά Διατάγματος αυτού δημοσιευθησομένου εν τη επισήμω εφημερίδι της Δημοκρατίας, το Υπουργικόν Συμβούλιον δύναται να προσθετή, διαγραφή, μεταβάλλη ή άλλως τροποποιή τας κλάσεις ή οιασδήποτε τούτων, ως αύται εκτίθενται εν τω Τετάρτω Πίνακι,"
("11.-(1) Notwithstanding any other legislative provision permitting the duty free importation of specified goods for the use by certain privileged person, organizations, authorities and associations, and subject to any terms which the Director may impose for safeguarding public revenue, goods of the class specified in the Fourth Schedule are exempted under the conditions and circumstances set out therein unless otherwise provided in the fourth column of the same Schedule from the payment of import or excise duty which otherwise would have been imposed under this law, provided that the application for exemption is submitted by or for the importer before the clearance of the goods,except as otherwise expressly provided by this law.
(2) The Council of Ministers may by Order published in the Official Gazette add, delete, alter or otherwise amend the classes or any of them as the same are set out in the Fourth Schedule.")
Item 09 of class 01 of the Fourth Schedule then read:
"Μηχανοκίνητα οδικά οχήματα 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· ή
(β) Δεν κέκτηνται άδειαν οδηγού, νοουμένου ότι οσάκις ανάπηροι κέκτηνται άδειαν μαθητευομένου οδηγού ο Διευθυντής δύναται να παραχωρήσει 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."
("Motor vehicles suitable for use by person suffering from body disablement imported by disabled persons whose disability is duly certified by a Government Medical Board constituted for this purpose:
Provided that this exemption is not applicable to disable persons who:
(a) Are the owners or possessors of another thus duty free imported vehicle; or
(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 exemption on condition that a driving licence will be obtained within one year from a vehicle's clearance from customs or within such other period as he may consider reasonable.")
By virtue of an Order of the Council of Ministers published in the Official Gazette of the Republic on the 14th September, 1979, under Notification 221, the type of motor vehiclesdisabled persons were entitled to import free of duty were limited to "petrol and diesel motor vehicles of a horse power not exceeding 2000 cc and 2300 cc respectively". All other provisions of item 09 of class 01 of the Fourth Schedule still read as they originally appear in the said Schedule.
The issue originally raised by counsel for the applicant was the unconstitutionality of paragraph (b) of item 09 of class 01 in the Fourth Schedule to the Law. With regard to this issue counsel for the applicant submitted that the provisions of paragraph (b) aforesaid offend Article 28 of the Constitution of the Republic which safeguards equality before the law and the administration in that it makes a differentiation between classes of disabled persons and wholly excludes relief from being granted to a particular class of disabled person, like the applicant, whose condition is much more serious than others and which makes him unable to drive a vehicle.
Counsel for the applicant contended that the spirit of the exemption provided by the law is to give a financial benefit to all incapacitated persons in order to assist them in their transportation by enabling them to purchase their own vehicle at a price much lower than that paid by healthy persons.
The relevant provisions of the law were the subject of judicial pronouncement and reference in this respect may be made to the case of Miltiadous v. The Republic (1983) 3 C.L.R. 590, where at p. 592 the following are stated by Pikis, J.:
"The plain provisions of the law confine relief from import duty to the importation of vehicles specially adapted to the condition of incapacitated persons, in other words, vehicles suitable for invalids. Nor is it difficult to discern the purpose of the law, to facilitate by means of vehicular transport the movement of disabled persons not otherwise possible. Evidently, it was not the intention of the law to afford relief from import duty to disabled persons, at the discretion of the Minister for the importation of any car. In other words, the law did not purport to grant relief from import duty to disabled persons; only to those who imported vehicles specially adjusted to the needs of incapacitated persons."
In the case of Kalli v. The Republic (1984) 3 C.L.R. 443, Pikis, J., at p. 445, said that-
"The object of the law is not, as pointed out, to bestow a privilege upon handicapped persons merely by reference to their disability, but to improve their amenity to move by the use of vehicles adjusted to their needs whenever reasonably necessary, on account of their condition."
Regarding this aspect of the case, that is the unconstitutionality of paragraph (b) to the proviso of item 09 of class 01 of the Fourth Schedule to the Law, it has been repeatedly stated by this Court that Article 28 of the Constitution safeguards only against arbitrary differentiations, but it permits reasonable distinctions which have to be made because of the intrinsic nature of things (see, inter alia, Mikrommatis v. The Republic, 2 R.S.C.C. 125, 131: Republic v. Arakian (1972) 3 C.L.R. 294,298,299: Skyfrost Co. Ltd. v. The Republic (1979) 3 C.L.R. 1, 7, 8; and Aristides v.The Republic (1983) 3 C.L.R. 1507, 1522).
Following the approach adopted in the cases of Miltiadous and Kalli (supra) I am also of the view that as the law stands, exemption form import duty under its provisions could only be granted to disabled persons who possess a driving licence and could drive a motor vehicle suitable to their disability.
From the facts of the present case, I find that a reasonable differentiation between the applicant and the other classes of incapacitated persons who, because of their condition, may satisfy the aforesaid requirements, is created and, therefore, the sub judice proviso, I find, is not unconstitutional.
The matter, however, does not stop here as when early in February 1987 counsel were informed that judgment was to be delivered, counsel for the applicant filed, on the 13th February, 1987 an application by summons, praying the re-opening of the case on a new ground of law, which was not originally raised by him, namely that proviso (b) of item 09 of class 01 of the Fourth Schedule to the Law, on which the sub judice decision was based, was imposed by the Council of Ministers ultra vires the provisions of the Law.
As a result of the application of counsel for the applicant and with the consent of counsel for the respondents, the case was reopened. Supplementary written addresses on the new issue raised by the applicant were filled and after counsel were heard in clarification of their written submission, judgment was again reserved.
Counsel for the applicant argued, in this respect, that under section 11(2) of the Law the Council of Ministers was empowered to add, delete, alter or otherwise amend the relevant class set out in the Fourth scheduled, namely the class referring to motor vehicles imported by incapacitated persons, but could not impose by Order the sub judice condition as it has done in the present case, namely the limitation of the horse power of the vehicles incapacitated persons can import.
On the other hand, counsel for the respondents submitted that the Council of Ministers had simply specified, by means of paragraph 2 of the relevant Order, which types of vehicles are exempted and that, as the remaining part of item 09 of class 01 of the fourth Schedule had remained unaffected and is identical to its original wording, it cannot be said that the restrictions contained in proviso (b) of section 2 of the Order were imposed by the Council of Ministers in excess of powers.
Having considered the arguments advanced by counsel, I am of the opinion that under the provisions of section 11(2) above, which are very clear and unambiguous, the Council of Ministers was empowered to add, delete, alter or otherwise amend the classes set out in the Fourth Schedule to the Law, and in the present case, could amend the description of the type of motor vehicles imported by incapacitated persons, by limiting the horse power of the vehicles intended to be imported.
Assuming, however, that the Council of Ministers acted ultra vires in amending by its said order item 09 of class 01 of the fourth Schedule to Law 18/78, it is my view that the provisions of section 11 of the Interpretation Law Cap. 1 apply in the present case and the original provisions of this item continue to be good and valid.
Section 11 of the Interpretation Law, Cap. 1 reads:
"Whenever any Law has already been or shall hereafter be repealed and other provisions are substituted by the repealing Law all public instruments, forms and appointments made or issued under the repealed Law, and in force at the time of such repeal, shall, until revoked or replaced, continue good and valid in so far, as they are not inconsistent with the substituted provisions."
In other words, the provisions of paragraph (b) of the proviso, that is that the disabled person must be the holder etc. of a driving licence, continue to be good and valid as they are not inconsistent with the amendment made by the Order under Notification 221 of the 14th September, 1979.
Whilst I was studying the supplementary addresses (written and oral) to the second issue which was raised by counsel for the applicant, I found that sub-section 2 of section 11 of Law 18/78 had, by section 2 of Law 50/85, which came into force on the 1st May, 1985, that is prior to the application of the applicant for the importation of the car, been amended and it now reads:-
"(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."
("(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 any 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 Orderissued on the basis of this section is published in the Official Gazette of the Republic.")
Counsel were then invited to address me on the effect of the above amendment to the present case.
Having heard the arguments of counsel on this issued and having in mind that as yet the Council of Ministers have issued no Order as provided by the provisions of the new sub-section 2 of section 11 of the Law, I find that the original provision in the Fourth Schedule to the Law, as amended by the Order published under Notification 221 of the 14th September, 1979, in view of section 11 of the Interpretation Law Cap. 1, to which I have earlier referred, is still in force and valid.
Before I dismiss this recourse, I have to say that it does not escape my mind the definition of what is a "disabled person" that was given by the United Nations General Assembly on the 9th December, 1975 (No. 3447 (XXX)) and which is:
"The term 'disable person' means any person unable to ensure by himself or herself wholly or partly the necessities of a normal individual and/or social life, as a result of a deficiency, either congenital or not, in his or her physical or mental capabilities."
Having in mind the aforesaid definition of the term "disabled person", I feel that it is my duty to suggest that the Executive and/or the Legislature should, as early as possible, enact legislative provisions by which disabled persons suffering from the same disability as that of the applicant must be afforded the same benefits as other disabled persons suffering from less incapacitation than that of the applicant.
In the result, this recourse is dismissed but, in the circumstances. I make no order as to costs.
Recourse dismissed. No order as to costs.