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SUBSECTION OF ADMINISTRATIVE RECOURSES AT THE ADMINISTRATIVE COURT
Article 146 of the Constitution guarantees the right of a recourse against administrative acts. If the administrative decision is deemed to be contravening the provisions of the Constitution or the law which it was based on, the Court may annul the administrative decision or, under certain conditions, amend it altogether, or declare an omission from the administrative authority, thus holding the decision, in whole or in part, invalid.
The Administrative Court was enabled, through the Eighth Amendment of the Constitution, to not only annul but also amend, in specified cases, administrative acts. Nevertheless, the Administrative Court continues to exercise its competence primarily through annulments. However, in some cases and under certain conditions the Administrative Court can also exercise substantive jurisdiction and review recourses.
Article 146 of the Constitution initially assigned competence to try administrative recourses to the Supreme Constitutional Court, then to the Supreme Court, which was established under the Law on the Administration of Justice (Various Provisions) of 1964 (Law no. 33 of 1964, as amended), and finally, the Administrative Court, which was established by the Law on the Establishment and Functioning of an Administrative Court of 2015 (Law no. 131 (I) of 2015), and following the amendment of the Constitution by virtue of the Law of the Eighth Amendment of the Constitution of 2015 (Law No. 130 (I) of 2015), with the ultimate goal of reforming administrative justice in Cypriot legal order.
According to article 3 of Law 131(I)/2015, "The Administrative Court is established with exclusive jurisdiction to decide in first instance recourses submitted pursuant to Article 146 of the Constitution ...".
According to Article 146(1) of the Constitution, the Supreme Court decides "on any appeal against a decision of an Administrative Court which has exclusive jurisdiction to decide in the first instance" (Law 130(I)/2015). According to the Constitution, recourses concerning "an act or omission of any organ, authority or person, exercising any executive or administrative authority is contrary to any of the provisions of this Constitution or of any law or is made in excess or in abuse of powers vested in such organ or authority or person.”
As per Article 146(2) of the Constitution, the right of recourse concerns persons (legal or physical) who are affected by administrative acts or omissions produced by an administrative authority or body, during its exercise of an executive or administrative function, operating in the field of Administrative Law, and which adversely affect, directly and personally, the legitimate interests of the applicant.
According to Article 146 of the Constitution, the defining characteristic of any administrative act or omission, is that it is derived from any body, authority or person exercising executive or administrative function.
The subject-matter of the recourse is an enforceable administrative act [or omission], by which an administrative authority unilaterally determines the outcome of a particular circumstance. In order for an act of an administrative body to be challenged before the Administrative Court, it must be both administrative and enforceable. That is, it must be derived from an authority that exercises administrative function and produces legal consequences which are capable of creating, modifying or abolishing the legal rights and/or obligations of an individual in respects to an administrative function, under Administrative Law.
The decisive criterion for ascertaining the legal nature of an act or omission is not confined necessarily the terminology used to describe it or who issued the administrative act or decision, but most importantly it is based on the inherent and substantive nature and character of the act or decision itself.
Acts that do not produce any legal consequences, because they do not bring about any change in the existing legal status of the persons are, inter alia, internal administrative measures which are limited to the regulation of issues related to the internal operation and function of the administration, preparatory acts issued in the process of issuing an administrative act, acts containing opinions and information, acts of enforcement that take place after the issuance of an enforceable administrative act, confirmatory/affirmative acts confirming a pre-existing acts which have lost their enforceability, either due to revocation or due to integration with another administrative act, or due to an objection or internal administrative recourse against it.
Moreover, neither acts of government, nor the acts related to electoral procedures can be challenged through a recourse under Article 146 of the Constitution. The relevant jurisprudence on acts of government, outline that such acts concern matters relating to the drafting and direction of the general policy of the State or the functioning of the Government, and therefore are not subject to the jurisdiction of administrative review.
A basic condition in order for a person to challenge an act by bringing an action before the Court, is to have a vested, direct and personal interest. The right of recourse is not recognized in the general who are interested in merely challenging the legality of the action of the Administration, as there is no right to public action (actio popularis) in the Cypriot legal order.
Vested interest is recognized as an interest which is not contrary to a specific situation or provision that the law recognises as legal. Vested interest, in other words, needs to originate from the legal rights of the applicant. It may include both material and moral interest.
Continuous interest is the interest that exists when the appeal is exercised and it exists at all stages of the adjudication process. It must exist during the issuance of the act, during the exercise of the appeal, during its hearing and its final trial.
Direct interest is the interest which is directly related to the applicant.
Personal interest is the interest that relates to the applicant himself.
Pursuant to Article 146 (3) of the Constitution, a strict/non-extendable deadline of 75 days is set from the day of publication of the act or decision, when such publication is required by law or, in case of unpublished an act or omission, from the day which comes to the knowledge of the applicant concerned. If the omission is continuous, the deadline does not commence at all, as it is perceived that a new omission occurs for each passing day.
The Administration is obliged to actively comply with the decisions of the Court issued in the exercise of its jurisdiction, as allotted by Article 146 of the Constitution, and after an annulment decision, the Administration must restore things to the position they were before the issuance of the act. During the review, the real and legal status that was in force at the time of the decision is taken into account.
According to Article 113 of the Constitution, "the Attorney General of the Republic, assisted by the Assistant Attorney General of the Republic, is the legal advisor of the Republic, the President of the Republic, the Vice President of the Republic, the Council of Ministers and the Ministers, and exercises all other power and performs any other service or duty determined or assigned to him by the Constitution or by law ".
Consequently, all recourses filed "against decision, act or omission of any body, authority or person shall have an executive or administrative function on the ground that it is contrary to the provisions of the Constitution or the law or has been made in excess or abuse power of attorney entrusted to that body or authority or person "are represented before the Court by the Office of the Attorney General of the Republic, who represents the Republic as Respondent in the Court.
For the most part, legal officers working in the Section of Administrative Law, handle and represent the Republic before the Administrative Court and, subsequently, if an appeal is lodged, before the Supreme Court.
Usually, appeals are directed against decisions/acts/omissions of the Administration, when it acts in the sphere of public law. Indicatively, the following include some recourses against the administrative authorities:
(i) Recourses against the Public Service Commission which usually concern decisions of that Committee on appointments, promotions, transfers of staff, as well as decisions on disciplinary cases and the availability of staff.
(ii) The Education Service Commission, the Ministry of Education and KYSATS which usually concern decisions on appointments, promotions, drafting of lists, and the recognition of diplomas.
(iii) Recourses against the Commissioner for Tax, the Tax Authorities, the Director of Customs, etc. They are usually directed against decisions of the tax authorities of the Republic, arising from the imposition or affirmation of taxes, customs duties, fees and levies and penalties for tax violations. With the establishment of the new Administrative Court, this may examine, in addition to legality, the substance of the tax dispute.
(iv) Recourses concerning the impact on the salaries and retirement benefits of civil servants as well as government officials, in accordance with the applicable legal framework.
(v) Recourses concerning Urban Planning. They usually concern decisions on urban planning permits, building permits, as well as decisions on Local Plans and Urban Zones and Policy Statements.
(vi) Recourses concerning the Land Registry. They usually concern decisions on land segmentation and division, boarder delineation, transfers and other fees or charges.
(vii) Recourses against Expropriation and Enforcement Orders, as well as other decisions of the Administration that are generally related to Article 23 of the Constitution.
(viii) Recourses against the Police and the Armed Forces. These Recourses are mainly directed against decisions on appointments, promotions, retirements, but also on taking disciplinary measures among the ranks of these Bodies. They also concern demobilization decisions.
(ix) Recourses concerning Aliens. These Recourses are directed against acts of the Director of Immigration and concern issues arising from the Law on Foreigners and Immigration (Chapter 105). Mainly, they are directed against detention and deportation orders, naturalization issues and foreigner residence permits, decisions for sham marriages, but also failure to respond to foreigners’ requests.
(x) Recourses against decisions of competent authorities for the provision of various allowances and benefits provided for by the relevant legislation, such as the minimum guaranteed income allowance, child allowance, invalidity allowance, unemployment benefit, etc., housing assistance, or hospitalization allowance, etc., in accordance with the relevant legislation.
The law of administrative procedure is regulated by the Law on Administrative Procedure is based on Article 146 of the Constitution, Articles 135 and 163 of the Constitution, on the Administration of Justice Act (Various Provisions) Law of 1964, as amended, the relevant procedural regulations that were issued by the Supreme Court, as well as the relevant case law.
Article 135 of the Constitution as well as Article 163 of the Constitution, give the Supreme Constitutional Court as well as the Supreme Court the power to issue Procedural Regulations, regarding, inter alia, the appropriate procedures to be used before them.
According to the Administration of Justice Act (Various Provisions) of 1964 (L. 33/64 as amended), these powers were transferred to the Supreme Court, which was established by this Law and based on the principle of the ‘law of necessity’, taking effect after the departure of the Turkish-Cypriots from the organs of the State. For the purpose of continuity, the newly established Supreme Court was vested with the combined power of the Supreme Constitutional Court and the Supreme Court, as provided for by the Constitution.
The procedural rules governing recourses are provided by the Procedural Regulations of the Supreme Constitutional Court of 1962 (3/1962) as were amended, as well as by the Procedural Regulations on Functioning on Administrative Court (No. 1) of 2015 of the Supreme Court.
It is could be said, that administrative procedure is inquisitional and adversarial. The Court has broad power to accept evidence on any issue that it considers relevant and necessary for the trial in process and is not bound by the rules of evidence that apply in civil cases.
Interim applications, are the applications for the temporary suspension of the enforcement of an administrative act, where there are amendments of pleadings, supplementary testimony and are usually submitted to the Administrative Court, according to the Procedural Rules within the context of a recourse. Indicatively, the following amount to interim applications:
Suspension of the Execution of an Administrative Decision
The general rule is that a submission of a recourse has no suspensive result on the administrative act, except for certain exceptions where different conditions apply. The suspension of the execution of an administrative action is generally considered an exceptional measure, as it disrupts the principle that requires the direct enforcement of administrative decisions. The applicant can apply to the Court, based on Rule 13 of the Procedural Rules 2 of the Procedural Regulations on Functioning of Administrative Court (No. 1) of 2015, for the suspension of an administrative act, which is the subject matter of the recourse, which may last until the final outcome of the case. Effectively, this allows the Court to provide protection until the issuance of the judgment of the Court.
This remedy is provided exceptionally and parsimoniously by the Court, since the suspension of the execution of the administrative action is considered to be an exceptional measure which disrupts the enforcement of an administrative acts in general. The Court exercises its discretion, considering the facts of the specific case and the relevant principles of case law. As suspicion order is issued only if specific conditions are met and they are aligned with the relevant case law and concern situations of obvious, evident and directly recognizable illegality or situations of irreparable damage to the individual, which has to be adequately evidenced and specified. The Court is not required to examine the substance of the recourse at this stage.
In order for the suspension of the act to be ordered, the applicant must have already filed a recourse application. Denying acts of the Administration cannot be suspended. The contrary would mean the issue of a positive act by the Court.
Provision of Evidence
During the trial of a recourse, the Court applies the inquisitorial and adversarial procedural and is granted with broad powers. Not abolishing the principle that the written pleadings constitute the main forum where all arguments of the trial are laid out, the Court is able to order the provision of evidence and witness testimony etc.
The Court must duly authorize the provision of new evidence, which is not contained within the administrative file, but which is deemed to be necessary for the substance of the trial.
In order for the Court to grant such permission it is necessary demonstrate that the requested testimony is substantial and relevant to the trial. The court does not accept evidence which differentiates, impairs or amends the content of the issues which were considered in the first place at the time of the issuance of the administrative decision.
An appeal can be submitted against a judgment of first instance of the Administrative Court, within a deadline of 42 days from the date of issuance of the first instance judgment.
In 1964 the Supreme Court issued the Procedural Regulation on Appeals (Review Procedure) of the Supreme Court of 1964, which provides for the procedure of appeals before the Supreme Court. This was considered necessary since the Regulations of 1962 did not provided anything relevant to the procedure of appeals.
Furthermore, the Procedural Regulation on Appeals (pretrial, written pleadings, limitation of time of oral speeches as well as Brief Procedure for the Rejection of Evidently unfounded Appeals) of 1996 (4/1996), is also relevant.
During the pretrial of the appeal, the Supreme Court usually issues directions for the submission of the written pleadings by the parties, within specified time limits, that are provided for by the relevant Procedural Regulations. Subsequently, the appeal and counter-appeals, if any, are scheduled for hearing according to chronological order.
Before the Plenary Session of the Supreme Court which tries a Review Appeal, the subject at issue is still the legality of the action that was the subject during the recourse in the Administrative Court. However, the re-examination of the legality of the action is examined by Supreme Court on the issues and to the extent which the parties have limited the issues in the relevant notice of appeal or of counter-appeal, except if it concerns issues that are tried by the Court on its own motion.
The judgment which is issued by the Supreme Court is considered as the final judgement on the issue that has been tried.
Mrs Elena Papageorgiou, Senior Counsel of the Republic is Head of the Subsection of Recourses before the Administrative Court.
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