Pitsillides v Republic of Cyprus
| Jurisdiction | Chipre |
| Date | 20 January 1973 |
| Court | Supreme Court (Cyprus) |
(Loizou J)
Nationality Dual nationality Liability to military service Hague Protocol Relating to Military Obligations in Certain Cases of Double Nationality, 1930 Dual national completing military service in one State Whether liable to military service in other State of nationality if he becomes permanently resident there
Relationship of international law and municipal law Treaties Cyprus Treaties possessing status superior to national legislation The law of Cyprus
Summary: The facts:The applicant held dual nationality of Cyprus and the United States of America but had resided on a permanent basis in the United States for ten years.
The applicant contemplated returning to reside in Cyprus if he was exempted from service with the Cyprus National Guard. He had already completed national service in the United States. While the applicant was in Cyprus, he communicated with the authorities and the Ministry of the Interior referred the matter to the Attorney-General for advice. The Attorney-General advised that the applicant could not be exempted. This decision was communicated orally to the applicant. Consequently, the applicant sought and received an exit permit to resettle in the United States. The Attorney-General then advised the Ministry of Interior that, in view of the application for an exit permit, there was no need for a formal reply to the applicant regarding the exemption from military service.
The applicant sought a declaration under Article 146 of the Cyprus Constitution1 that the alleged decision that he was liable for service in the National Guard was null and void. The applicant claimed that such a decision violated Article 1 of the Hague Protocol Relating to Military Obligations in Certain Cases of Double Nationality, 1930 (the Protocol).2 He also maintained that the decision was unreasonable and that it had been taken without competence. The respondent contended that the decision was not that of an administrative or executive organ and therefore could not give rise to a recourse under Article 146 of the Cyprus Constitution.
Held:The application was dismissed.
(1) The relevant decision had not been made by an administrative or executive organ and therefore was not within the scope of Article 146 of the Cyprus Constitution (pp. 2078).
(2) Cyprus was under a duty to fulfil its international obligations under the Convention, and the provisions under municipal law which exempted citizens who resided abroad permanently from military service fulfilled those obligations arising under Article 1 of the Protocol. Furthermore, Article 6(1) of the National Guard Laws 196469,3 provided for a discretionary exemption granted by the Council of Ministers when in the public interest to do so (pp. 2056).
(3) A person who held dual nationality relinquished the right to military exemption in a State when he took up permanent residence in that State and he was a national of that State. The right to exemption was applicable only where a person was permanently resident outside the State in which he would otherwise be compelled to fulfil military service (pp. 2067).
The following is the text of the judgment of the Court:
The applicant by the present recourse seeks that the decision communicated to him orally on or about the 28th April, 1972 that he is not exempted from liability for service in the National Guard, be declared null and void and with no effect whatsoever.
The grounds of law on which this application is based are that the sub judice decision
(a) was taken without competence;
(b) is not duly reasoned;
(c) is contrary to Article 1 of the International Protocol Relating to Military Obligations in certain cases of
Double Nationality, of the 12th April, 1930 (hereinafter referred to as the Protocol), of Article 8 of the Treaty of Establishment of the Republic of Cyprus and Articles 32, 188 and 195 of the Constitution of Cyprus.
The facts of the case are briefly as follows :-
The applicant was born in Cyprus in the village of Pera Orinis on the 15th January, 1943. During the incidents of December, 1963 he served in the voluntary armed groups at Kaimakli and Omorphita, until February, 1964, when he left for the United States for higher studies in engineering. After completing his studies he remained there. He was called up in the armed forces of the United States, he served for two years, he reached the rank of sergeant and he was demobilized on the 12th July, 1969. He is a citizen of the United States of America and also a citizen of Cyprus. His class in Cyprus was called up for service in the National Guard on the 29th June, 1964 by an order published in the Official Gazette dated 22.6. 1964, Supplement No. 3, Notification No. 178.
On the 8th December, 1969 he returned to Cyprus as a visitor. He submitted an application to the Ministry of Interior (exhibit 3) whereby he claimed to be a resident of the United States, but he was exploring the possibility of finally deciding to settle in Cyprus or not, depending on whether, in view of the military service he did in the United States; he could be exempted from service in the National Guard and be placed on the reserves. This application was refusedletter dated 28.1.1970, exhibit 5as the applicant did not fall within the provisions of section 15(1)(d) of the National Guard Laws 1964 to 1969 which provides as to who may constitute...
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