State not liable for illegal acts of coup government usurpers under constitutional deprivation clause.

[*94] 1978 November 3

(PIKIS, P.D.C. AND PITSILLIDES, S.D.J.)

In the District Court of Famagusta sitting at Larnaca.

Athina Righa ,

Plaintiff,

v.

The Attorney-General of the Republic,

Defendants.

(Action No. 186/76).

Coup d' etat of the 15th July, 1974

- Coup d'etat Government - Acts of Appointees of - Tainted with illegality - Republic not liable - Cosma v. Attorney General of the Republic at p. 31 in this Part ante - Coup’ d' etat (Special Provisions) Law, 1975 (Law 57/75).

Fr. Saveriades, for the Plaintiff.

M. Florentzos,for the Defendants.

JUDGMENT

The judgment of the Court was delivered by:-

PIKIS, P.D.C.: Following the coup d'etat the [*95] usurpers of State power, through the illegally appointed chief of the police, namely Michalakis Pantelides, issued an order requiring citizens of the Republic of Cyprus to surrender all weapons and ammunition, including sporting guns (see excibit 3). Following this order the plaintiff and her husband handed over at the Famagusta central police station two sporting guns of an agreed value of £2,160. Perusing the evidence of the plaintiff (P.W.1) and that of her husband (P.W.2) it is manifest that they surrendered the guns in response to a radio announcement requiring all citizens to hand over guns in their possession, fearing unpleasant consequences in the event of refusing to comply with the order of the coup Government. Inspector Christos Shimitras (D.W.2) described in detail the events of 15th July 1974, at Famagusta, and what followed after Greek officers and EOKA B men took over the Famagusta police station and placed it under their control. The guns that were collected were stored in two stores under the control of a Greek officer. On 20th July 1974, on the day of the Turkish invasion, the guns collected were distributed at random to citizens demanding to be issued with weapons under chaotic circumstances. Subsequently a number of weapons were apparently recovered and handed back to their lawful owners.

The guns of the plaintiff were apparently never recovered. The plaintiff raises the present action seeking compensation, as stated in paragraph 3 of the statement of claim, for breach of her constitutional rights safeguarded under article 23. Learned counsel for [*96] the plaintiff submitted, in his final address, that article 23 confers an absolute right to compensation for any deprivation suffered by a citizen apparently meaning thereby deprivation suffered at the instance of State or public authorities. Hence he submitted that any rights conferred by article 23 cannot/be taken away by any law, including Law 57/75. an attempt was made at the stage of the final address to raise orally the question of constitutionality of Law 57/75. It was pointed out to Mr. Saveriades that questions of constitutionality can only be raised in the formal manner approved by the Supreme Court in the case of The Improvement Board of Eylenja v. Andreas Constantinou (1967)

1 C.L.R. 167. See also Constantinos Chimonides v. Evanthia K. Maglis

(1967) 1 C.L.R. 125. The solemnity attendant to the raising of issues of constitutionality is warranted by the seriousness of the matter in issue for what the Court is required to do is to override the will of the legislature.

Learned counsel for the Republic submitted that the Republic is not answerable for the acts of usurpers of State power both on a consideration of the general principles governing the liability of the State for acts of its organs as well as on/a consideration of the provisions of Law 57/75 intended to sap of legal content every action of the usurpers of State power. Furthermore he invited us to take judicial notice of the state of affairs that prevailed after the manifestation of the coup on the authority of Attorney-General v. Aresti (1976) 1 J.S.C.81. [*97]

The question that arises for determination is whether the lawful authorities of the Republic are liable for the illegal acts of the coup Government and its organs, In Liassi and Others v.The Attorney-General and Others (1975) 12 J.S.C. 1899, it was held, rightly in our respectful views, that the acts of the appointees of the coup Government were equally tainted with illegality as the acts of the those immediately forming the coup Government, In our judgment the Republic is not liable either for the seizure or the non return of the guns of the plaintiff for the reasons given below. In Civil Action 132/1977* of the District Court of Famagusta sitting at Larnaca, I had to resolve similar issues, The reasoning in support of the dismissal of the claim of the plaintiff in that action for the seizure of a traxcavator and its non return apply with greater force still in the present case. We propose to recite hereinafter the relevant passage from that judgment. Before so doing we may mention, in answer to the submission of counsel relating to the implications of Law 57/75, that this piece of legislation does not purport either to override the provisions of article 23 of the Constitution or deviate in any way from the constitutional order. On the contrary it manifests the will of the people through its representatives to be governed by law and law alone and not by the whims of the usurpers of power. –

Judgment in 132/77 Extracts:-

"1. Liability of the Republic for Acts of its Officers and Organs

"Article 172 of the Constitution provides that the [*98] Republic of Cyprus may be held liable in tort for the wrongful acts or

omissions of any officer or authority of the Republic committed in the exercise or purported exercise of their duties. The aim of this provision is not to render the Republic liable for any act of its servants, a position that would be both harmful and contrary to the public interest, The liability of the Government is limited to acts falling within the sphere of authority of its servant whose acts are impeached albeit wrongful either because of lack of proper authorization or for any other reason. Therefore we must examine in the first place whether the action complained of came within the sphere of authority of the officer in question. The notion of 'purported exercise of duties’ encompasses acts that fall, under the provisions of the law, within the sphere of authority of the officer in question and not every action of the officer that he personally or anybody else attributed to his office. As stated in Dendias on Administrative Law, volume A, p. 450-451, 5th edition, the State is answerable for the wrongs of public servants so long as the latter act within the sphere of their activities as defined by law. If so a correlative duty arises for the State to remedy the wrong. No law has been cited and no authority has been quoted conferring authority on an officer of the National Guard to commandeer property at times of war or hostilities. The power to requisition property is [*99] regulated by the provisions of Article 23.8 of the Constitution and the provisions of the Compulsory Acquisition Law (Law 15/62) and the Requisition of Property Law (Law 15/62).”

“2. The Coup D' Etat Law - 57/75

“In my judgment independently of the ruling above given the action of the plaintiff could not be sustained because of the provisions of Law 57/75. Section 4 of the aforesaid law invalidates and renders void ab initio every act of the coup d’ etat Government carried out in purported exercise of a power or duty. It has been held, rightly in our view, if we can say so with respect, that not only collective acts of the coup Government or acts taken individually by members of it are invalidated by Law57/75 but also acts of its subordinates and appointees as well. (See Liassi and Others v. The Attorney- General and Another (1975) 12 J.S.C. 1889). Law 57/75 is an all embracing legislative provisionintended to free the State of liability for the acts of usurpers of State power and extends to acts taken to implement decisions of the Coup Government. Mr. Poetis argued that the provisions of Law 57/75 encompass only administrative acts of an executory nature as opposed to administrative actions (energie) of a purely administrative content not productive of a change in a legal situation or [*100] status (and cited in support Dandias On Administrative Law, 5th edition, volume 8 at pages 111, 125, 126 and 440). The distinction between ’executory’ and ’non executory acts’ is well known and has been the subject of discussion in many decisions of the Supreme Court. (See, inter alia, Kasparian v. The Attorney-General (1975) 1 J.S.C. 72 - Evagoras Pitsillides v. The Republic

(1973) 3 C.L.R. 15 - Nicos Theocharides v. The Republic (1973) 3 C.L.R. 702). Only administrative acts of an executory nature taken in the domain of public law can form the subject matter of a recourse at the instance of a person whose interests were affected thereby, a present interest at that. The distinction referred to by Mr. Poetis between different kinds of administrative acts may be valid in other spheres but it is in no way warranted by the plain provisions of section 4 Law 57/75 that sweeps away in one spell all administrative acts of the coup Government and its subordinates independently of their nature. The expression dhiikitikis fyseos praxin i apofasin’ covers as a matter of literary interpretation of the plain words used both executory and non executory administrative acts of the coup Government and its organs. One may note that an act does not cease to qualify for the description 'administrative’ if it is not of an executory nature. The sweeping nature of the enactment under consideration was emphasized by the Supreme Court in R. v. Sampson (1977) 2 J.S.C. 108. What the law does not do is to free the usurpers of power of personal liability for their [*101] acts. But that is not a matter that poses for consideration here. If we were to presume that the officer at Yaloussa acted on the instructions of the coup Government then the answer is that Law 57/75 renders his actions void ab initio and deprives the plaintiff of any right he might otherwise have for damages though in my view, for the reasons above given, he never enjoyed any such right.”

“Even if I were to acknowledge, though the matter has not been discussed before me, that the coup Government could lawfully take certain steps in the face of Turkish aggression the steps could only be taken by the organ of Government that had authority under the law to take the relevant decision, in this case the Council of Ministers or, perhaps, the Minister of Interior & Defence. In Re Pantelis Vrakas and Another (1977) 4 J.S.C. 457, Triantafvllides P. pointed out that even if we were to accept that emergency powers vested in the Government after the Turkish invasion this could not be construed as a total break down of lawful procedures authorizing any man on the spot to take a decision he judged appropriate; and that decisions could only be taken, unless this was factually impossible, by the appropriate organ of the State.”

"4. The Implications of the CoupD' Etat

"I had on at least two previous occasions the opportunity to examine the implications of the coup d’etat and express my views on the subject. (See [*102] judgment in Civil Action No. 1098/1 975 given on 7th January 1978 and judgment in Civil Action No. 1141/ 1975, delivered on 17th. June 1978). In accordance with English precedent and the common law theory on the subject of legality and the principles partinent to the preservation of the rule of law State power can only emanate from the Sovereign, that is the body competent under the law to invest a person or persons with governmental powers. In Cyprus the Sovereign is the people of the country and only they tan confer authority to govern. The Privy Council in Madzimbamuto v. Lardner-Burke and Another (1968) 3 All E.R. 561 and Adams v. Adams

(1970) 3 All E.R.572, refused to acknowledge the existence of an implied mandate from the Sovereign to those de facto in power to deal with matters absolutely essential for the preservation of law and order and the running of essential services of the country. In so doing they were no doubt alive to the danger that the recognition of such a doctrine would pose to the preservation of the rule of law. Indeed any deviation from the doctrine of the rule of law threatens in the long run the foundations of civilization and undermines democracy. Hence the actions of the Coup Government were outside the realm of the law and therefore void of legal content."

Reverting to the facts of the case we may point out that the obligation cast on the authorities by virtue of article

23.3 of the Constitution arises only when restrictions or limitations are imposed or deprivation [*103] takes place in accordance with the law. It is not intended to render the State liable for the illegal acts of any usurper of State power.

For all the above reasons the action is dismissed. As no costs are claimed on behalf of the defendants there shall be no order as to costs.

Action dismissed.

No order as to costs.

* See p. 31 in this part ante