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The request of the Attorney General was rejected by the Supreme Constitutional Court in a decision…

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 ΑπορρΙφθηκε α ;πo Ανoτατο Συνταγματικo Δικασ&tau ριηεκοαγελσ ε απoφαση...

The rationale of the decision

The Supreme Constitutional Court rejected an application by the Attorney General in a previous decision of the Court of Appeal concerning land expropriation.

This is a request by the Attorney General on the appeal against the decision of the Administrative Court between the KD through the Ministry of Agriculture, appellant and L.M.A.F. the appellant regarding the decision of the Court of Appeal in the appeal against the decision of the Administrative Court.

< p>As stated in his decision, the Petitioner (GE) invokes that, with the issued decision of the Court of Appeal, legal issues arise which are related to the differentiation of established jurisprudence or to the need for a correct interpretation of a primary substantive legislative provision or to a major issue of public interest or general of public importance or with a question of the coherence of the law on conflicting or contradictory decisions of the Court of Appeal, according to the revisional jurisdiction exercised under it, and on which a referral to the Supreme Constitutional Court is necessary”.

Legal issues, he adds, which, during the public debate, were limited to the differentiation of standing Jurisprudence, which, by extension, led to a wrong interpretation of Article 7(1) of the Law.

The facts of the case, as they emerge from the decision of the Court of Appeal, are that the Republic of Cyprus, the Appellant, issued, on 25.7.2014, a decree revoking the decree of expropriation of the Petitioner's/Appellant's property, which is located in the Kamaro area of Municipality of Larnaca.

The revoked expropriation decree was published on 6.12.2002. The expropriation of the properties, including that of the Respondent/EM, was deemed necessary for purposes of public benefit, i.e. to protect the existing habitats and ecosystems.

This was followed, on 21.3.2003, by the publication of the Revised Local Plan of Larnaca, which included the plot in the Larnaca Salt Lake Protection Zone, with a lower building factor.

The Respondent/EM did not accept the offer, from Applicant, amount of compensation and filed a Referral (3/2009) to the Larnaca District Court to determine the compensation, which was pending for adjudication at the time in dispute. An appeal was filed against the decision to revoke the expropriation decree, which had a successful outcome.

The Supreme Constitutional Court stated in its decision that “the Court of First Instance ruled that the disputed revocation “clearly aimed exclusively at circumventing the Judicial Referral process for awarding compensation to the owner of the plot and had no other purpose and, as therefore, it constitutes an abuse of power”. It also decided that “… it was done solely for the financial interest of the expropriating authority and against the principles of good administration and good faith…”.

The Court of Appeal, he adds, to which the first instance decision was referred, after the appeal brought by the Petitioner, upheld (by a majority) the first instance judgement, citing Iraklidis and what was said in Kyriakidis v. Republic of Cyprus, A.E. No. 239/2012, dated 24.10.2018, and pointed out that revocation is permitted at any time before payment or deposit of compensation, as clearly provided for in Article 7 (1) of the Compulsory Expropriation Law of 1962 (L. 15/1962). However, the revocation cannot be manifested as an absolute expression of arbitrary will, but, in accordance with the principles established in Jurisprudence and which, as was judged in Heraclidis, had been violated, since the revocation was made with great delay and for the financial interest of expropriating authority.

In the case under consideration, he adds, the Court of Appeal, after recording its conclusions, ruled that “in this case, under the circumstances of the Peratikos case, abusive behavior by the administration is established. He took into account the lapse of twelve years since the publication of the expropriation decree, the opposition of the Department of the Environment to the revocation and that the reason that led the Administration to revoke the Expropriation Decree was the financial benefit of the expropriating authority, i.e. the non-payment of amount claimed by the Petition”.

“The facts of the specific case were those that led to the issuance of the decision of the Court of Appeal, without it mentioning or passing judgment on the existence or not of financial hardship and inability to pay the compensation, since such a thing was not brought before it, nor did it arise from the administrative files and the letters of the competent bodies, at least directly”, states the Court.

It adds that the particular circumstances of each case constitute the difference that warrants notice, which justifies its differentiation, but without implying a conflict of with the established principles. And, in this particular case, the Court of Appeal, and we are not examining the correctness of its judgement, submitted the specific facts to the Jurisprudence, considering that they are not covered by Peraticou, but are similar to those of Heraklid.

As stated in Court rejecting the request of the Attorney General, “we consider that there was no variation of fixed Jurisprudence, but in particular, different incidents and events, which do not contradict it”.

Source: politis.com.cy

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