Compliance of the Public Administration with court decisions is a fundamental principle of the Rule of Law and a basic condition for ensuring legality, which should govern the action of the Administration.
Article 146 of the Cyprus Constitution sets out the framework within which the Administration must act when an act of its is annulled by a court decision. This obligation is not limited to accepting the annulment but also extends to restoring legality and ensuring that the same illegal conduct is not repeated.
Annulment Decision and its Legal Consequences
When the court annuls a decision of the Administration following an Appeal under Article 146 of the Constitution, the result is the complete and retroactive elimination of the annulled act as if it had never been issued.
This result is of general force (erga omnes), and applies to all, not just the parties (Inter parts).
The annulment decision is accompanied by res judicata, which is distinguished into formal and substantive. The annulment res judicata, as res judicata, does not apply to third parties who are not legally identified with the parties (res interios allios judicata), nor to issues that are not of an administrative nature but of another nature (e.g. civil, criminal, etc.) and that may have been decided incidentally, nor that resulted from a decision that does not have a jurisdictional character (or that is not final).
Formal res judicata means that the decision is final and cannot be reviewed or challenged through regular legal means. Therefore, it is an element that consists of the exhaustion of the procedure.
Substantive res judicata binds both administrative bodies and courts (see Case No. 916/2017, ABRAAM v. CYPRUS ELECTRICITY AUTHORITY, decision dated 15.04.2020), preventing the re-examination of the same issue based on the same legal and factual data (see Revisional Appeal 107/2011 OF THE REPUBLIC OF CYPRUS, THROUGH THE PUBLIC SERVICE COMMISSION AND ANDROULLAS PETROU, decision dated 30.06.2016). Substantive res judicata refers to the binding nature of the decision with respect to the issues adjudicated, in the sense that the relationship to which it refers has been definitively regulated. The presumption of legality, with which administrative acts are equipped, should not be confused with res judicata.
Management Compliance Obligation
The Administration’s compliance with annulment decisions can have two forms: deductive and positive compliance (See “The Administration’s compliance with annulment court decisions ” Dr. Costas Paraskeva, Nomiki Bibliothiki Publications, 2021, pages 75 – 122).
1. Deductive compliance means that the annulled act ceases to be valid and to produce legal effects. Furthermore, the Administration cannot issue a new act with exactly the same content if it contains the same legal defect that led to its annulment. However, it can issue a new decision, if it has corrected the errors identified by the court.
2. Positive compliance means that the Administration must take all necessary actions to restore the actual and legal situation that would have existed if the act that was annulled had not occurred.
Consequences of Non-Compliance
In the event that the Administration either explicitly or implicitly does not comply with an annulment decision, based on the Article 146.6 of the Cyprus Constitution, following an annulment decision, grants the right to the subject of administration who has suffered damage and whose claim has not been satisfied by the Administration, to claim compensation or other remedy from the competent body, authority or person through the courts ( See Iosifidis Christos v. Republic (1998) 3 AAD 490 ) .
In order for non-compliance to lead to claims for compensation, it is not sufficient to simply annul the act, but on the one hand the Administration must refuse or fail to comply with the annulment decision and on the other hand the injured party must have submitted a written request for compensation or other remedy and the Administration must either not accept this or fail to examine it.
Concluding, compliance by the Public Administration with court decisions is essential for maintaining the Rule of Law and protecting the rights of citizens.
Article 146 of the Cyprus Constitution clearly defines the obligations of the Administration and provides citizens with the necessary legal tools to defend their rights. In a democratic state, the acceptance and implementation of court decisions is not only a legal obligation but also a fundamental principle of good administration.
Maria P. Prokopiou
Lawyer, Litigation Department
CONSTANTINOU – PANAYIOTOU & CO LLC
