“It has no jurisdiction in an application for execution of a judgment for costs”
The eighth amendment of the constitution with Law 130 (I)/2015 amended article 146 provides for the establishment, jurisdiction and powers of the administrative court to deal with a recourse related to public law. In particular, it empowered it to decide, in the first instance, any recourse brought before it against a decision, act or omission of any body, authority or person exercising an executive or administrative function, because it is contrary to the provisions of the constitution or the law or has been an abuse of power. The administrative court may, in whole or in part, uphold a decision or act or omission, declare it invalid and that it lacks any effect, or amend the decision or act, as the law defines, provided that it concerns a tax issue or is a decision relating to an international protection procedure under European Union law.
A question arises as to whether the administrative court has or does not have jurisdiction to deal with an application for the execution of a judgment for costs that have been awarded and not been paid, by examining the debtor and issuing an order against them for monthly payments. This legal issue concerning the jurisdiction to deal with such an application was raised ex officio by the president of the court in her decision on March 10, whereby she examines the constitutional, legislative and regulatory provisions governing the issue.
The applicants referred to the Law on the Establishment and Functioning of the Administrative Court, Law 131 (I)/2015, article 11, which concerns jurisdiction and provides that the president and every judge shall exercise the powers vested in the administrative court by the constitution, the provisions of this law and any other in force, and it was suggested that it also concerns the Law on Civil Procedure, Cap.6, which vests in the court dealing with lawsuits and the jurisdiction for the execution of court decisions. They referred to Article 82 (1) of Cap.6 which, inter alia, states that when a debt due by a court decision or order remains in full or in part unpaid, the creditor may apply to the court in order to examine the debtor on his ability to pay his debt by monthly instalments.
The president of the court in her judgment emphasised that it escaped the applicants that the constitution authorises the enactment of a law that regulate the jurisdiction and powers of the administrative court, save the provisions of Article 146, and that in Cap.6 the term ‘court’ is defined as the court before which the action is brought. The court was not in agreement with this submission of the applicants, since this term refers to the specific law where it is found. She added that the Civil Procedure Rules are applied proportionally where and when necessary at the discretion of the court, with the necessary adjustments to be in line with the nature of its jurisdiction. However, their application up to giving jurisdiction to the administrative court to issue an order for examination and payment by monthly instalments for the execution of the order for costs, under Cap.6, which explicitly entrusts such jurisdiction to the Civil Courts, there is a big difference, which cannot be covered outside the intentions of the Legislator (Cap.6).
Finally, the president emphasied that paragraph 6 of Article 146 of the constitution is of great interpretative importance. According to it, the party who suffered a damage by an annulled administrative decision or omission may apply to the court for restoration of fair and reasonable compensation, something that caselaw decided that concerns only civil courts and not the supreme court under Article 146.6. Regarding the damage from the non-compliance with the order for costs, which were awarded in a dismissive judgment, the applicant should also seek restoration in the civil courts under article 82 of Cap.6.
George Coucounis is a lawyer in Larnaca and the founder of George Coucounis Llc, [email protected]