[*48] 1963 April 2

 

(forsthoff, p., triantafyllides and munir, jj.)

 

(October 2, November 1, 10, 17, December 1, 1962, March 7, April 2, 1963)

 

Pantelis Petrides,

And

The Greek Communal Chamber, through the Committee of Selection and Administration.

(Case No. 168/62)

Time—Art. 146.3.

Compensation to those who suffered Damage during the Struggle Law, No. 12 of 1961*—A law of public administration—Decision of appropriate authority thereunder, an exercise of executive or administrative authority in the sense of Art. 146.1—Applicants under s.4, have a legitimate interest in the sense of Art. 146.1—”Damage” as defined in s. 2, in relation to “damage” in s.3—Construction of s.5(l) subject to whole law and, particularly, to ss.2 & 3.

The Applicant, a member of the Greek Community, was prior to, and at the time of, the events leading to the present recourse, the owner and manager of a prosperous tourist and travel agency business in the Turkish quarter of Nicosia not very far from Attaturk Square.

As a result of Turkish riots during the liberation struggle the Applicant’s office suffered damage on two occasions, in 1956 and 1957, and, eventually, the Applicant had to evacuate his office in March, 1958, his business, in the meantime, having been seriously affected and progressively diminishing because the Greeks who were the majority of his clientelle, would not go to his office. There was no dispute as to the fact that the Applicant had suffered actual financial loss, but the extent and nature of such loss was disputed.

In accordance with the provisions of the Supplementary Appropriation Law, (No. 3) of 1960, Law No. 4 of 1960†, the Government of the Republic made a grant, inter alia, to the Greek Communal Chamber of an amount of £620,000 which on the 2nd November, 1960, the Chamber decided to dispose of in certain ways‡, £200,000 being intended to be used for compensating those who had suffered damage caused either by the security forces or by Turks.

In November, 1960, the Applicant applied to a Relief Committee of the Chamber claiming “at least £2,000” compensation for alleged damage suffered due to rioting. After some correspondence and certain contacts the Applicant addressed a further letter to the President and Members of [*48] the Chamber giving details of his claim for compensation which was estimated at £13,228. The Respondent informed the Applicant that his claim was under consideration, but as the amount allocated for the purpose was limited claims could only be met partly, and that, in any case, the whole matter had to await the promulgation of relevant legislation.

Such legislation was enacted in August, 1961, by Law No. 12 of 1961, entitled “The Compensation to those who have suffered Damage during the Struggle Law, 1961”. After further correspondence between the parties the Respondent informed the Applicant on the 6th December, 1961, that he could not be compensated under the relevant legislation as the damage suffered by him had no relationship to the pursuit of the promotion of the objects of the liberation struggle, and that he was a well-off-person.

A recourse was filed by the Applicant on the 13th January, 1962, which was, eventually, withdrawn by him, as it was discovered during the Presentation that the Committee of Selection and Administration had not finally confirmed the decision not to compensate him, as provided under s.8 of Law 12 of 1961, an undertaking for review of the matter by the 31st July, 1962, having been given by the Respondent.

On the 31st July, 1962, the Committee decided not to grant the Applicant any compensation.

The Applicant filed the present recourse on the 1st August, 1962, claiming that-

(a) the decision of the Respondent of the 3rd November, 1960, concerning the appropriation of the Government Grant was invalid as having been taken in abuse of powers, and

(b) the decision of the Respondent of the 31st July, 1962, refusing the grant to Applicant of compensation under Law No. 12 of 1961, was null and void and of no effect.

Held : (a) in addition to the fact that the decision of the Chamber of the 3rd November, 1960, was of a preparatory nature in the legislative field and, therefore, not within the ambit of the jurisdiction of this Court under Art. 146, that part of the Applicant’s recourse which related to it was out-of-time as not having been filed within the time limit provided in Art. 146.3;

(b) the disposal of the amount of money provided for in s.3 of Law 12 of 1961 in pursuance of the public purposes defined in the Law, rendered the Law itself a law of public administration, any decision of the appropriate authority thereunder being an exercise of executive or administrative authority in the sense of Art. 146.1;

(c) once a person applied under s.4 of Law 12 of 1961, he was entitled to have his application dealt with in accordance with the provisions of the said Law and by a proper exercise of the discretion of the appropriate authority, such person having a legitimate interest in the matter in the sense of Art. 146.2;

(d) the “damage” referred to in s. 3 of Law 12 of 1961, was such “damage” as defined in s.2 thereof; [*50]

(e) to construe s.5(l) of Law No. 12 of 1961, in which no mention was made of those persons who had suffered damage through riots by Turks, as excluding such persons, irrespective of the provisions of s.3 and of the definition of “damage” in s.2 thereof, would not be reasonable, as such a construction would, inter alia, render meaningless the definition of “damage” in s.2 of the Law which was a definition of a comprehensive nature making positive distinctions;

(f) s.5(l) which was only intended to make possible differentiations among applicants for compensation on the basis of their financial position in view of the limited funds available for the purpose, had to be given its proper effect within the framework of the whole Law, and particularly in connection with the provisions of ss.2 and 3 thereof;

(g) the Applicant’s financial position at the time he applied for compensation and at all times thereafter was, mainly because his business had been ruined as a result of the events in question, very bad, the Respondent wrongly assuming the contrary.

Decision declared null and void.

The Applicant in person.

L. Demetriades and E. Odysseos for the Respondent.

Cur. adv. vult.

March, 21. The Judgment of the Court was read by:

FORSTHOFF, P. : The Court declares—

The decision of Respondent dated the 31st July, 1962, as communicated to Applicant by letter dated the 1st August, 1962, is null and void and of no effect whatsoever.

The Applicant is a member of the Greek Community. The Applicant was, prior to and at the time of the events leading to the present recourse, the owner and manager of a quite prosperous tourist and travel-agency business which had its offices on the corner of Kyrenia and Asmalti streets, a very short distance from Ataturk Square, in the Turkish quarter of Nicosia.

In or about April, 1956, and as a result of disturbances between Greeks and Turks, the said office of Applicant suffered damage on two occasions due to riots by Turks. This was repeated also in December, 1957. There were minor incidents in between. Eventually Applicant had to evacuate his said offices in March, 1958. All through this distrubed period the business of Applicant was seriously affected and diminishing more and more, as Greeks, who were the majority of his clients, would not come to Applicant’s office in the Turkish quarter. Though the extent and nature of the financial loss suffered by Applicant as a result of such events [*51] is in dispute among the parties, there is no dispute about the fact that actual financial loss has in fact been suffered by Applicant in the circumstances.

By a Supplementary Appropriation Law, Law 4/60, the Government of the Republic made a grant to the Greek Communal Chamber (hereinafter referred to as ‘the Chamber’) of an amount of £620,000. The law in question was promulgated on the 27th October, 1960.

On the 3rd November, 1960, a decision was taken by the Chamber, which was published in the official Gazette of the 22nd December, 1960, concerning the said grant of £620,000, to the effect that £400,000 were to be deposited with the Cooperative Central Bank as income-yielding capital for pensions to dependants of those fallen during the liberation struggle, £20,000 were to be used in meeting the immediate needs of such dependants and £200,000 were to be used in compensating those who suffered damage due to the action of security forces or riots by Turks.

On the 28th November, 1960, the Applicant applied to a Relief Committee of the Chamber for compensation concerning damage suffered due to rioting, as aforesaid, and he claimed an amount of £2,000 “at least”.

On the 9th December, 1960, Applicant addressed a letter to the President of the Chamber complaining that he had not received any reply to his application for compensation. Applicant was informed by letter of the 15th December, 1960, that all claims were under consideration, category by category.

On the 5th June, 1961, after a meeting of the 2nd June, 1961, between Applicant and a certain Mr. George Violaris, who was acting as an assessor on behalf of the Chamber in respect of claims for compensation, Applicant addressed a letter to the President and Members of the Chamber setting out his claim for compensation in very great detail and stating that the total amount of his loss was, thus, £13,228.

On the 12th June, 1961, Respondent wrote to Applicant informing him that all claims were under examination but as the amount to be distributed was only £200,000, they could be met in part only. It was stated further therein that the whole matter would have to wait the promulgation of the relevant legislation.

Such legislation, Law 12/61 of the Greek Communal Chamber, was promulgated on the 11th August, 1961.

On the 1st September, 1961, Applicant cabled the President of the Chamber complaining against the delay in relation [*52] to his claim. On the 2nd of September, 1961, Respondent wrote back stating that the work of the Relief Committee was still in progress.

On the 17th November, 1961, Applicant addressed yet another letter to the President of the Chamber, stating that he had heard unofficially that he had been classified as a person who was well off and, therefore, no compensation at all was to be paid to him, and stating that this was not at all the true position.

On the 6th December, 1961, Applicant was informed in writing by Respondent that he could not be compensated under the relevant legislation.

On the 11th December, 1961, Applicant wrote to the President of the Chamber complaining against the decision not to compensate him, alleging that he had received unequal treatment and asking for the reasons for the said decision, pursuant to Article 29 of the Constitution. No reply appears to have been received to this letter.

On the 13th January, 1962, the Applicant filed in this Court Case No. 19/62 against the decision not to compensate him but the recourse was withdrawn on the 2nd May, 1962, on being discovered, during Presentation, that the Committee of Selection and Administration had not finally confirmed the decision in question, as provided under section 8 of Law 12/61. It was undertaken that the said Committee would review the matter not later than the 31st July, 1962.

On the 1st August, 1962, the present recourse was filed, as Appliant had not received any further communication from Respondent. On the same day, however, a letter had been written to Applicant by Respondent, which had been posted on the 2nd August, 1962, and received by Applicant on the 3rd August, 1962, and by which he was informed that the Committee of Selection and Administration had decided on the 31st July, 1962, not to grant him any compensation.

By the motion for relief in the Application, which was filed on the 1st August, 1962, and amended on the 4th October, 1962, the Applicant applies for a declaration that -

(a)   the decision of the Respondent, taken on the 3rd November, 1960, concerning the appropriation of the Government grant of £620,000, is invalid as having been taken in abuse of powers; and,

(b)   the decision of Respondent dated the 31st July, 1962, by which Applicant was finally refused any compensation, under Law No. 12/61, is null and void and of no effect whatsoever. [*53]

The Opposition to the amended Application was filed on the 16th October, 1962. It is stated therein that Respondent had decided not to compensate Applicant, because, inter alia, the damage suffered by him “had no connection at all with the promotion of the objects of the liberation struggle, as required by law 12/61” and, also, “the financial position of the Applicant was such as not to justify the payment to him of any compensation, in view of the fact that his business, in which it is alleged that he had suffered damage, was sold for a considerable sum”.

A Presentation of the Case took place on the 2nd October, 1st, 10th and 17th November, and the 1st December, 1962, and the hearing of the Case took place on the 7th March, 1963.

The Court will deal first with the question of whether or not this recourse is entertainable under Article 146 of the Constitution.

Concerning claim (a) of the Applicant the Court is of the opinion that it is not competent to entertain it under Article 146 inasmuch as, in any case, this recourse was filed on the 1st August, 1962, i.e. well after the lapse of a period of seventy-five days, as prescribed under Article 146.3, after the publication of the relevant decision of the Chamber on the 22nd December, 1960. Moreover such decision is of a preparatory nature in the field of legislation and as such not within the ambit of the jurisdiction of this Court under Article 146.

Concerning claim (b) of the Applicant the Court is of the opinion that it is entertainable by it under Article 146.

Law 12/61 provides for the disposal of an amount of £200,000, as stated in section 3 thereof, in pursuance of certain public purposes defined in such Law. This is, therefore, a matter of public administration and a decision of the appropriate authorities under the said Law is an exercise of executive or administrative authority in the sense of Article 146.1.

The Court does not have to decide to what extent the said Law 12/61 creates, as such, any individual rights to compensation, as, in any case, it is of the opinion that once a person has applied for compensation, under section 4 of such Law, he is entitled to have his application dealt with in accordance with the provisions of the said Law and by a proper exercise of the discretion of the said appropriate authorities, even if such discretion is of a very wide nature. In the circumstances, the particular applicant concerned has a legitimate interest in the matter in the sense of Article 146.2.

Coming now to the substantive issues of this Case, it is useful to refer, first, to certain of the provisions of Law 12/61. [*54]

Section 2 of such Law defines, inter alia, ‘damage’ as meaning the material damage, which has been suffered by members of the Greek Community during the liberation struggle, and bears a direct relationship to the objects of such struggle, or as a consequence of riots by Turks; it comprises only actual damage and not lost profits as well.

Section 3 of the same Law provides that a sum of £200,000 is placed at the disposal of the Committee (i.e. the Relief Committee under the Law) for the purpose of paying compensation, in accordance with the provisions of the Law, to those who have suffered damage.

Sub-section (1) of section 5 of the same Law provides that the Committee classifies the instances of damage assessed in categories using as criteria the relationship of the damage-causing event and/or of the person who has suffered damage to the pursuit of the promotion of the objects of the struggle, taking into account also the financial position of such person. Sub-section (2) of section 5 provides that the Committee, after classifying the instances of damage as above, may meet the damage in each category to such extent as it may deem fit.

One of the reasons given in the Opposition, and quoted above, as to why the Applicant has not been compensated at all, is that in the opinion of Respondent the damage suffered by him had no connection with the promotion of the objects of the liberation struggle.

In the opinion of the Court a course, such as the above, involves a wrong application of the relevant provisions of Law 12/61.

The provision of the said Law which lays down that compensation is to be paid to certain persons is section 3 and there can be no doubt that the ‘damage’ referred to in such section 3 is the ‘damage’ defined in section 2. Such definition clearly makes a distinction between damage bearing relationship to the promotion of the objects of the liberation struggle and damage suffered as a result of riots by Turks, in the latter instance no such relationship being required.

Though in the text itself of sub-section (1) of section 5 no mention is made of those persons who have suffered damage through riots by Turks, it is not reasonable to construe the said sub-section (1) as excluding from compensation under section 3 all such persons, such a construction would, inter alia, render the definition of ‘damage’ in section 2 meaningless. Such definition, which is of a comprehensive nature and makes positive distinctions, should be treated as if the text thereof was actually included in the text of the said section 3 itself. [*55]

Sub-section (1) of section 5 has to be given its proper effect within the framework of the whole Law 12/61 and in connection in particular with the provision made by sections 2 and 3 of the said Law. Such effect is to enable the Relief Committee to differentiate among applicants for compensation on the basis of certain criteria, as there was not enough money to meet all claims in full, though they may otherwise have been found to be validly made.

Furthermore, in considering Applicant’s application for compensation the Respondent appears to have acted under a misconception of fact to the effect that the financial position of Applicant was such as to warrant, in view of the limited amount at the disposal of Respondent, the non-payment of any compensation to him at all. This was admitted in evidence given on behalf of the Respondent.

The Court is satisfied from the evidence given in this Case that the financial position of Applicant at the time when he applied for compensation to Respondent, and at all material times thereafter, was and is very bad and that this is largely, if not mainly, due to the fact that his business was ruined during and as a result of the events in question.

In this respect it has been submitted by counsel for Respondent that whatever may have been the wrong assumption on which the Relief Committee may have proceeded, the final decision not to pay any compensation to Applicant was confirmed by the Committee of Selection and Administration on the 31st July, 1962, and such Committee is presumed, and there is nothing to show the contrary, to have had in mind all relevant circumstances of the case of Applicant including his financial position, as explained by Applicant in his communications addressed to Respondent.

In the opinion of the Court, however, it is shown by the other of the two passages from Respondent’s Opposition, quoted above, that up to the time of the fifing of such Opposition, and, therefore, well after the confirmation of the relevant decision by the Committee of Selection and Administration, the view was still wrongly prevailing with Respondent that Applicant was rather well-off, because allegedly he had sold his business for a considerable sum, whereas the true position is that Applicant has sold, not his business but his I.A.T.A. agency for an amount of £3,000.- which was paid over in part-payment of his debts, and that the Applicant, having even sold his own home for the same purpose, is still in debt.

In the circumstances the Court has to declare the decision in question of Respondent to be null and void and of no effect whatsoever and the Respondent has to re-consider now the application of Applicant for compensation by applying correctly the relevant legislation in the light of the correct facts.