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The party who is affected by an administrative act can seek temporary protection from the Administrative Court through an application for provisional injunction to stay the enforcement of that administrative act until the Administrative Court decides the lawfulness of the said administrative act.

Introduction

Upon an issue of an administrative act, an affected party is entitled to seek temporary protection through the issuing of a provisional injunction staying the enforcement of an administrative act until the Administrative Court has the opportunity to decide the lawfulness of such administrative act. An order staying enforcement serves the administration of justice as it prevents the creation of factual situations which will be very difficult or to reverse if the contested act is subsequently annulled by the Court.

The law

The stay of enforcement is governed by the Rule 13 of the Rules of Procedure of the Supreme Court (Reviewing Jurisdiction) (3/1962) (the Rules of Procedure). A party may apply for a stay along with the filing of the main application requesting the review under article 146 of the Constitution.

The applicant will succeed to a stay order provided that is satisfying the Court that either of the following two requirements are met.

1. Manifest illegality

The illegality must be objectively relevant to the subject matter of the challenge and the infringement of a legal provision should be apparent so that it can be identified without the need to make any findings of fact or investigate contradictory facts allegations. Although there is no exhaustive definition of manifest illegality, it does appear to include a clear breach of the relevant legal process or an unquestionable disregard of the fundamental rules of administrative law.

2. Irreparable damage

An irreparable damage exists when the execution of the act shall cause foreseeable damage that will be irreparable or difficult to remedy. The damage must: (i) be direct and specific; (ii) not debate on a third party right; and (iii) be proved by the applicant or arise from the information in the file. The burden of proof for the irreparable damage lies with the applicant, who is responsible for making and proving all the allegations of fact which are a prerequisite for the exercise of the Court's discretion in favour of the stay.

Recent Case Law

The concepts of "manifestly illegal" and "irreparable harm" in the context of stay of an administrative act have been discussed in the following two, very recent, judgments of the Administrative Court of Cyprus:

In case of Church of St. Nicholas and other -v- Republic of Cyprus and other., with case no. 651/2019, dated 04/06/2019, the Administrative Court of Cyprus issued a temporary injunction staying the construction of a petrol station near Panagia Chrysospiliotissa, due to the fact that the distance from a nearby UNESCO protected cave was less than the legally required 200m. The possibility of the church’s destruction made the Court to decide that the issue of injunction was necessary. The applicant argued that there was an infringement to the relevant Policy on the location of petrol stations. The significance of this case is that the Court issued injunction staying the enforcement of an administrative act based on the real facts of the case. The construction of the petrol station could lead to manifest illegality. These observations of the Court are based on the material before it and there was no need for weighing any further material.

Similarly, in Smirnov -v- Republic of Cyprus, Case no. 784/2019, dated 19/07/2019, the Court clarified that its ability to stay an administrative act is an exceptional jurisdiction and is exercised only if the contested administrative decision is found to be manifestly illegal or where irreparable damage is apparent, provided that at the same time no insurmountable obstacles to administration are created. It was also stressed that the applicant should specify the evidence on which their allegation of irreparable damage is based, so that the Court is enabled to understand the magnitude of the problem created, on the basis of the necessary specific facts and information. In that case the Court considered that the evidence before is not capable of rendering the contested decision as manifestly illegal. The applicant argued that the contested act is manifestly illegal because it infringes a Russian Law whilst the Court decided that because there are legal issues which can only be decided by weighing and judging the different positions, an injunction for staying is not able to be issued in that case.

Final thoughts

Case law has made clear that for a temporary injunction staying an administrative act to be issued, it is required that but for such injunction, either a manifest illegality or an irreparable damage would accrue. However, in the two recent consistent decisions referred above, the Administrative Court seems to set a further provision requiring that no insurmountable obstacles are being created to the Administration at the same time, expanding in this way the center of attention to include not only the addressee of the administrative act but also the Administration.

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