THE APPLICATION FILE
The appeal procedure starts with the registration of an Application.
The type of Application is prescribed by Regulation 4 of the Supreme Constitutional Court Rules 1962 as amended.
The Application shall state:
1. Name of the Applicant
2. Name of the administrative body that issued the instrument
3. The contested act
4. Request for redress.
5. Legal grounds supporting the Request for Treatment.
6. Facts.
The name of the administrative body that issued the act shall be the name of the body that had the decision-making power for the act issued.
Based on the case law of the Supreme Court if the act is executed by one body, for example a legal person under public law, but is under the approval of another, e.g. In accordance with the case law of the Council of Ministers, the decision-making power is not transferred to the latter. The action is therefore directed against the decision of the legal person governed by public law.
In addition, the request for remedy as well as the contested act must be clearly stated and not in general and vague terms. If the action is not directed against a specific act, it is dismissed as ‘manifestly unfounded’ without a public hearing, but after the parties have been heard on the specific issue.
It is also noteworthy that only acts adopted before the date of registration of the application are challenged in the action. It is not possible to challenge intermediate acts (e.g. Notification of Expropriation). It is also not possible to challenge an act that was but has ceased to be enforceable. Acts that were and are enforceable are contested.
A further Applicant may be either the sufferer himself or a person duly authorised in accordance with the law.
THE LEGAL POINTS
Where a party appears with a Lawyer, written submissions must also state the points of law on which the Application is based under Regulation 7 of the Supreme Constitutional Court Rules 1962 as amended.
Accordingly, the points of law on which the Application is made are:
1. Contradiction with the Constitution.
2. Contradiction with the law.
3. Excess of authority.
4. Abuse of power.
The case law of the Supreme Court has established the following traditional grounds for annulment of an administrative act:
1. Incompetence
2. Infringement of the provisions of the Constitution and the law.
3. Violation of the formula.
4. Lack of adequate reasoning.
5. Infringement of the principle of equality.
6. Infringement of the principle of natural justice.
7. Misuse of discretionary powers.
8. Abuse of power.
9. Error of fact and law.
10. Insufficient investigation.
11. Violation of the principles of good administration.
The matters at issue are specified and substantiated by the written pleadings.
The applicant cannot raise a new ground for annulment in his reply. A ground for annulment not developed in the written pleading shall be deemed to have been abandoned.
Only grounds for annulment relating to matters of public policy contained in the contested measure or in the files or known to the Court shall be dealt with by the Court of its own motion.
That’s who they are:
- Poor constitution of the deciding body.
2. Incorrect constitution of the body giving an opinion.
3. Lack of competence of the deciding body.
4. Lack of competence of the body delivering the opinion.
5. Failure to adopt an act.
6. Failure to obtain the required opinion.
7. Failure to publish an act in accordance with the law.
No ex officio review:
1. Failure to state reasons.
2. Infringement of the principle of equality.
3. Infringement of the principles of natural justice.
4. Breach of good faith.
5. The alleged unconstitutionality of the law.
The existence of the conditions required for filing an Appeal is examined ex officio. In particular, the Court examines the issues:
1. Τhe jurisdiction of the court
2. Whether or not the act is enforceable.
3. Legitimate interest of the applicant.
4. Timeliness of the appeal (75 days).
The decision on legitimacy precedes the decision on the jurisdiction of the Court.
OBJECTION INTERVENTION BY AN INTERESTED PARTY
The Respondent may within 21 days register an Objection under Form 2 of Rule 4 of the Supreme Constitutional Court Rules 1962 as amended. (Usually in practice more time is allowed)
A third party called “interested party” may intervene in the proceedings if he has a legitimate interest in not having the administrative act annulled.
The existence or otherwise of the legitimate interest of the EM is judged in the same way as the legitimate interest of the applicant is judged.
The right to intervene is given to those directly affected by the Court’s decision (e.g. those who were not appointed to the post). For example, the person who resigned from the post and intervenes to support the appointment of A or to argue that B should have been appointed instead of A is not entitled to intervene.
RELEVANCE, CO-EXISTENCE
Two or more applications may be heard together where they are related. Relevance exists when:
1. One is a precondition of the other.
2. They concern the same applicant.
3. They are based on the same legal provisions.
4. They have identical grounds.
5. They were issued in the same administrative procedure by the same body.
6. They are directed against the same administrative act.
7. They have common issues in dispute.
8. The validity of one affects the validity of the other.
The Court, in the exercise of its discretion, shall decide whether or not the Appeals are related.
Where two or more Applications which are not related are challenged in the same application, only the first one shall be heard. The remaining ones will have to be challenged in a new pleading and its timeliness will be decided on the basis of the time of filing of the original Appeal.
HEARING
As a rule, the case is heard by written submissions by the parties. The written pleadings shall be submitted in turn:
1. Applicant.
2. Respondent.
3. EM.
4. Petitioner (Responsive Written Request).
Then set for Clarification and presentation of the administrative file. The submission of the administrative file is an essential matter and cannot be superseded by the fact that presumably the Respondent attached it as an Appendix to his written statement.
The absence of the administrative file makes judicial review impossible and inevitably leads to the invalidity of the contested act.
Unlike the procedure in civil proceedings, which applies the deliberative system, in the hearing of the Appeal before the Supreme Court the interrogative system is applied. Thus the judge has the discretion to:
1. Order the production of evidence.
2. Call witnesses.
3. Determine issues in dispute.
4. Reopen the case.
The legality of the contested administrative act shall be judged regardless of the arguments and positions of the parties. In theory, it is possible for an Appeal to be heard in the absence of the Applicant or the Respondent.
No new evidence attempting to interpret the administrative act which is not included in the administrative file which the administration had before it when it took the decision on the contested act may be allowed to be presented. However, the production of evidence other than the administrative file is permitted
Finally, after the judge has signed the judgment, the pending case before him becomes inactive and any modification of the judgment can only be made in the appellate jurisdiction of the Supreme Court.
