Constitutional recourse abates upon applicant's death unless heirs possess a direct proprietary interest in the subject matter.

[*7] 1964 October 3

(TRIANTAFYLLIDES, J.)

REVISIONAL JURISDICTION

In the matter of Article 146 of the Constitution

Kyriakos Chrysostomides of Kedares, Paphos District

Applicant,

and

The Greek Communal Chamber through the

Disciplinary Council of the Elementary School

Teachers,

Respondent.

(Case No.8/63).

Disciplinary suspension - Application for a declaration that disciplinary suspension of an elementary school teacher was null and void - Intervening death of the Applicant - Consequences of regarding fate of proceedings - Proceedings continuable if heirs possess interest of their own in subject-matter, otherwise abated.

L. N. Clerides, for the Applicant.

G. Tornaritis, for the Respondent.

RULING

The Applicant in this case applied, by filing recourse on the 30th January, 1963, for a declaration that his disciplinary suspension from the post of elementary schoolteacher, for a year, from the 8th January, 1963, was [*8] null and void as having been decided upon contrary to the rules of natural justice and in abuse of powers. The Respondent joined issue by filing an Opposition on the 3rd April,1963.

The Case was pending at the Presentation stage, when on the 23rd June, 1963, Applicant died. This was stated to, and recorded by, a Rapporteur, when the Case came up for mention on the 7th December, 1963·

At the outset of the hearing on the 10th September, 1964, counsel for Applicant sought to have the title of the Case amended by substituting in the place of Applicant the administrators of his estate, his father and mother. Counsel for Respondent objected.

In view of the question of the amendment being a possible procedural corollary of the substantive issue as to whether or not this recourse can proceed, in spite of the intervening death of the Applicant, it was directed that the said question of the amendment should be postponed, pending the determination of the aforesaid issue concerning the further fate of these proceedings.

On this issue of the consequences of the death of an applicant for the fate of his pending recourse, under Article 146 of the Constitution, there does not exist, as far as I am aware, any authoritative pronouncement in the Cyprus jurisprudence.

The position cannot be said to be necessarily the same as when the death supervenes of a plaintiff in a civil action, due to the essential and fundamental differences between private law civil proceedings and public law administrative proceedings.[*9]

Under rule 18 of the Supreme Constitutional Court Rules - which are still applicable to proceedings such as the present by virtue of s.s. 11 and 17 of the Administration of Justice (Miscellaneous Provisions) Law, 1964 (Law 33/64) - it is provided that the Civil Procedure Rules "shall apply, mutatis mutandis, to all proceedings before the Court so far as circumstances permit or unless other provision has been made by these Rules or unless the Court or any Judge otherwise directs". The Case, however, under examination is such that circumstances i.e. its nature in the realm of public law proceedings for annulment, do not permit the automatic application of the Civil Procedure Rules. As Fleiner states in his textbook on Administrative Law (8th ed. translated by Stymphaliades, p. 240) "The procedure before the administrative courts has been formulated, as regards its basic characteristics, by imitating the civil procedure, but for the rest it has been fitted to the special purposes of proceedings on administrative issues". In any case, applying the relevant provisions of the Civil Procedure Rules would not resolve the problem that has arisen in this Case because such provisions would have applied to the procedural only, and not the substantive as well, aspect of the matter.

Though no express provision is to be found in Article 146 itself, under which this recourse has been made, yet, paragraph 2 of the said Article, may be usefully referred to. It provides that "… a recourse may be made by a person whose any existing legitimate interest ... is adversely and directly affected ..." Thus expression is given to the basic condition precedent of the annulment

jurisdiction of an administrative court, viz, the existence of an interest of [*10] an applicant. A recourse for annulment is not an actio

popularis; it requires in respect of the applicant a legitimatio ad causam. (Vide Fleiner ibid p. 243)·

In Greece, where an analogous provision such as Article 146(2) exists in the corresponding legislation (see s.48 of Law 3713/1928) the view is that the requisite I interest of the applicant must subsist on the date of the hearing of a recourse as well (vide "The Recourse for annulment before the Council of State", 2nd ed. p. 42 by Tsatsos). Such view is a reasonable consequence of the premise that a recourse for annulment is not an actio popularis. This being so, I am of the opinion that the same holds good in the case of Article 146(2).

In my opinion in view of the aforesaid requirement of interest under Article 146(2), it follows that the consequences of the death of an applicant in a pending recourse, such as this, should be as follows:- there in spite of the death there exists, in relation to the subject-matter of such recourse, an existing legitimate interest, vested in the heirs of applicant as their own, which has been directly and adversely affected, then the recourse may he continued by the heirs. If this is not so, then the recourse is abated.

Much guidance has been derived, in reaching this conclusion, from the decisions of the Council of state in Greece in similar cases. The annulment jurisdiction of the Greek Council of State appears to have been used as a prototype in creating the jurisdiction under Article 146, in the same way as the corresponding competence of the Conseil [*11] d' Etat in France was adopted as the model when the Greek Council of State was to be created in 1 928. In this respect, it is useful to compare Article 146 with the relevant-provisions of Greek legislation (particularly Law 3713/1928).

The effect of the aforesaid decisions has been summarized in the officially issued "Conclusions from the Jurisprudence of the Council of State" (1929-1959). at p. 273, and has been explained in "The Recourse for annulment before the Council of State" by Tsatsos, 2nd ed. p. 238, para. 486.

The principle evolved there may be stated as follows:-

On the death of an applicant a pending recourse is continued by his heirs, so long as they possess an interest of their own in continuing the recourse; if, however, the subject-matter of the recourse is personal to the deceased applicant only i.e. jus personalissimum, so that the successful outcome of the proceedings would lead the administration to a course of action concerning a right personally attached to the applicant, without any legitimate interest of his heirs being involved, or where there does not come forward any person seeking to continue the recourse, then it is abated.

Some of the relevant decisions of the Greek Council of State may be usefully referred to:-

First,

decision 574/36; (Decs. Coun. of st. 1 936 vol. A II, p. 463); it was specifically relied upon by counsel for Applicant. From its report it appears that the Council of State proceeded to determine a recourse

against the termination of the services of an applicant, after the death of the [*12] applicant. This decision has been

relied upon in this Case as laying down the principlee that the death of an applicant never prevents the determination of a recourse such as the present. It has, though, to be read as part of the whole jurisprudence of the Council of State on the relevant issue. If this is done then it would appear that the principle followed in Greece is not so wide but it is subject to the requirement for the existence in the heirs of an interest of their own arising out of the subject-matter of the recourse. Decision 574/36 would fit within such principle because there the applicant was the head of a family and presumably his heirs had an interest of their own in the validity of his dismissal in view of pension being otherwise payable to them, under Greek Law. It is significant that the aforesaid "Conclusions from Decisions of the Council of State", mention decision 574/36 at p. 273, in support of the principle that a recourse can be continued by the heirs of the applicant if they have an interest of their own in the subject-matter of such recourse.

A decision of the Greek Council of state which should help to see decision 574/36 in its proper light is decision 93/49. (Decs. Coun. of St. 1949 vol. A . p. 199). There the applicant, who died while the recourse was pending, was challenging his non-promotion to a certain post and the Council of State held that the recourse had been abated because "the possible promotion of applicant, after the annulment of the omission complained of, not being retrospective, would carry no benefit for his lawful heirs so as to vest in them a legitimate interest to continue the recourse in the name of applicant". [*13]

It is also of assistance, in this respect to refer to decision 1883/1950 (Decs. Coun. of St. 1950 vol. B. p. 348) where, the Applicant, being a municipal employee and having complained by recourse to the Council of State that there had been an omission to promote him retrospectively, died while the recourse was pending; it was held that it could not be continued after his death, because he only left as an heir a married sister who was not entitled to pension. The same line was taken by the Council of State in decision 1911/1950 (Decs. Coun. of St, 1950, vol. B, p. 366). It was held there that the recourse could not be continued as nobody had appeared "having a direct legitimate and personal interest in continuing the present recourse". Reference may likewise be made to cases 560/1949 and 1031/1949 (Decs. Coun. of St. 1949 vol. B. p. 64 and p. 791). On the other hand, the existence of a legitimate interest in the heirs was adopted, expressly or impliedly, as the reason for the continuation of the recourse by the heirs, notwithstanding the death of applicant, in decisions of the Council of State 31/57, 104/57, 139/57, 232/57 (Decs. Coun. of St. 1957 vol. A p.p. 40, 122, 161 , 247).

Lastly, reference may be made to decision 627/56 (Decs. Coun. of St. 1956 vol. A p. 761) in which the facts are similar to the circumstances of the present case, in that a public officer, having been dismissed for disciplinary reasons as a result of a conviction and having made a recourse to the Council of State against such dismissal, died while it was pending, but his recourse was continued by his heirs, in view of its proprietary context. [*14]

Counsel for Applicant, in this Case, has tried to base his allegation, that a proprietary interest of their own has vested in the heirs of the deceased for the continuation of the recourse, on para. 6 of Article 146 which gives the right to a successful Applicant to claim damages as a result of a judgment under para. 4 of the same Article. He put forward the argument that the expectation of claiming damages, by stepping into the shoes of Applicant, as a result of the possible successful outcome of the recourse was a sufficient interest of the heirs in order to continue the recourse. In my opinion, this is not correct. First of all, para. 6 itself of Article 1 46 seems to imply by its very terms the existence in life of the person in respect to whom restitution is to be made and damages appear to be only an eventual mode of restitution. Secondly, in any case, this para. 6 is not a sui generis provision unique in Cyprus. In Greece, also, after a successful recourse to the Council of State, it is possible to claim restitution including damages before the civil courts - vide Kyriakopoullos on "The Greek Administrative Law", 4th edition, volume III, p. 155 - and yet as it has been seen from the review of the afore-mentioned decisions of the Greek Council of State, the mere existence of a recourse which, if successful, could always give rise to an action for damages, has apparently not been considered as providing sufficient legitimate interest for the heirs to continue a recourse, without an interest of the heirs themselves in the subject-matter of the recourse. Otherwise in all instances the Council of State would have invariably held that the heirs could have continued the recourse because of their eventual expectation to claim damages by stepping into the shoes of Applicant; it is obvious that this view was not adopted by the Council of State of Greece.[*15]

There now remains, in the light of all the foregoing, to decide whether the heirs of Applicant in the Case have a legitimate interest of their own which has been directly and adversely affected by his suspension, so that they may be entitled to continue this recourse. On this point I would like to hear counsel further. It is e.g. possible that through the suspension of Applicant his heirs have been deprive of some benefit by way of pension, gratuity or other grant to which they would have been entitled under the relevant legislation applicable to Applicant at the time of his death.