Supreme Court dismisses appeal; mere expression of administrative intention is not an executory act.

[*1534] 1972 April 25

(TRIANTAFYLLIDES, P., STAVRINIDES, HADJIANASTASSIOU, A. LOIZOU, JJ.)

APPELLATE JURISDICTION

The Republic of Cyprus, through

1. The Council of Ministers,

2. The Minister of Commerce and Industry,

3. The Minister of Interior,

Appellants,

v.

Costas Ch. Demetriou and Others,

Respondents.

(Revisional Jurisdiction Appeal No.98)

Administrative Law - Executory Act - What constitutes an executory act - A mere expression of intention of the Administration, as contradistinguished from an expression of its will, does not amount to an executory Act – Letter written in answer to representations against abolition of a public street - Only a statement of intention of an informative nature - Does not amount to an executory Act - And cannot, therefore, be made the subject matter of a recourse under Article 146 of the Constitution.

L. Loucaides, Senior Counsel of the Republic, for the Appellants.

J. Kaniklides, for the Respondents.

JUDGMENT

The judgment of the Court was delivered by:

TRIANTAFYLLIDES, P.: This is an appeal from a [*1535] decision given by a Judge of this Court in relation to preliminary legal issues which were raised before him, as a trial Judge, in recourse No. 201/71.

By the said recourse the respondents in this appeal-applicants in the recourse - had claimed:-

" (a) A declaration that the act of the Respondents” - the present appellants – “or either of- -them whereby the full and/or free use of Aharnon Street, Famagusta, or part thereof is interfered with, is in excess or abuse, of powers, unconstitutional and illegal and/or against the general principles of Administrative Law, null and void and of no effect whatsoever.

(b) A declaration that the decision of the Respondents No. 1 and 2 to abolish that part of Aharnon Street, Famagusta, which runs between Kennedy Avenue and the beach, i.e. a stretch of about 600 feet, is in excess or abuse of powers, unconstitutional and illegal and/or against the general principles of. Administrative Law, null and void and of no effect whatsoever. "

During the proceedings before the trial Judge it was stated that the decision referred to in paragraph (b) of the motion for relief was reached on the 30th December, 1971 - after the filing of the recourse on the 19th May, 1971 - and it was agreed by counsel for the parties that [*1536] the recourse was, therefore, premature in this respect; and it was so ruled by the trial Judge.

The Judge proceeded then to decide that the recourse should proceed in so far as paragraph (a) of the motion for relief was concerned; he held that as the “act” to which such, paragraph related, namely a letter of the Director-General of the Ministry of Commerce and Industry, dated 5th April, 1971, made known the will of the administration on the subject of Aharnon street and this will was put into execution on the 1hth May, 1971, such act was an executory administrative act against which a recourse could be made.

We are of the opinion that the said letter, which was written in answer to representations made by affected inhabitants against the abolition of Aharnon street, is, as shown by its wording, a communication stating merely the intention of the administration and giving information, and not expressing its will as a final decision in the particular matter.

As stated in the Conclusions from the Case-Law of the

Council of State in Greece ("Πορίσματα Νομολογίας του Συμβουλίου της Επικρατείας") 1929 - 1959, at p. 237, executory

administrative acts are acts by means of which there is expressed the will of the administration in order to produce legal consequences regarding those governed, and which entail immediate administrative enforcement; the main [*1537] element of the notion of an administrative act is the production of a legal result through the creation, modification or termination of a legal situation (" ...... αι εκτελεσταί

πράξεις, τουτέστιν εκείναι δι' ων δηλούται βούλησις διοικητικού οργάνου,

αποσκοπούσα εις την παραγωγήν εννόμου αποτελέσματος έναντι των διοικουμένων και

συνεπαγο­μένη την άμεσον εκτέλεσιν αυτής διά της

διοικητικής οδού. Το κύριον στοιχείον της εννοίας της εκτελεστής πράξεως είναι

η άμεσος παραγωγή εννόμου αποτελέσματος, συνισταμένου εις την

δημιουργίαν, τροποποίησιν ή κατάλυσιν νομικής καταστά­σεως ...... ") See, also, in this respect, the

decisions of the Council of State in Greece in cases 487/36, 950/54 and 1866/67.

A mere expression of the intention ("πρόθεσις") of the administration - as contradistinguished from an expression of its will ("βούλησις")

- does not amount to an executory act (see the Conclusions from the Case-Law of the Council of State in Greece, 1929-1959, at p. 239, as well as the decision of such Council in case 296/32); also, there are not executory those acts of the administration which are only of an informative nature (see the Conclusions, supra, at p. 238, as well as the decisions of the Council of State in Greece in cases 1713/68 and 2446/68).

As already stated we are of the view that the aforesaid letter of the Director-General of the Ministry of Commerce and Industry, dated 5th April, 1971, was only a [*1538] statement of intention and of an informative nature; therefore, not being an executory act it could not he made the subject matter of a recourse under Article 146 of the Constitution.

For this reason the recourse No. 201/71 cannot proceed even as regards paragraph (a) of the motion for relief and having been found to be otherwise premature it is dismissed as a whole.

Before concluding we would like to observe that since any physical interference with Aharnon street which has taken place before the filing of this recourse on the 19th May, 1971, has taken place in advance of the subsequent executory decision in the matter by the Council of Ministers on the 30th December, 1971, it is clear that such interference is action for which a remedy could lie only before a civil court.

In the light of the foregoing this appeal is allowed and, in the circumstances, we order that the respondents should pay £15 towards the costs of the appellants.

Appeal allowed.

Order for costs as above.