This article briefly examines the possibility of revoking a formal waiver (resignation) from a legal recourse (appeal) under both Greek and Cypriot administrative procedural law. 

In Greek law, the waiver of a legal document (pleading) is provided for in every corresponding procedure, specifically under Article 143 of the Code of Administrative Procedure (ΚΔΔ) and Article 30 of Presidential Decree (ΠΔ) 18/89. According to the Code above, a waiver of a legal remedy or medium can be made until the conclusion of the final hearing. Similarly, under Article 30 of ΠΔ 18/89, the waiver of a filed legal remedy, which results in the termination of the proceedings, is permitted until the discussion of the case.

In both provisions, there is an explicit prohibition against the revocation of the waiver (Para. 4, Art. 30 of ΠΔ. 18/89 and Para. 4, Art. 143 of KΔΔ).

Case Law of the Council of State (ΣτΕ)

According to decisions by the Council of State (ΣτΕ), a written declaration of waiver from a filed petition for annulment results in the termination of the trial initiated by that petition. Any subsequent revocation of the waiver carries no legal weight, unless the person waiving the right invokes an excusable error or another legal ground consisting of a defect in the declared intent to waive, the validity of which is determined by the Court [1].

In one specific case, the applicant—who was herself a lawyer—argued that the submitted waiver was invalid because "a waiver may only be submitted by an authorized lawyer holding a general or special power of attorney." she claimed she had never instructed the lawyer who signed the declaration to waive the case, evidenced by the fact that the declaration was not accompanied by a power of attorney from her to him.

The Council of State did not find this argument valid. It ruled the waiver valid as it was signed by the same lawyer who had signed the initial petition for annulment. It is presumed that such a lawyer holds the necessary authorization until that point, leading to the termination of the trial.

In another instance, a litigant appeared in court during the calling of the cases and orally declared that he was waiving the petition. However, before the end of the session, the applicant reappeared and requested, both orally and in writing, that his prior waiver be disregarded as having been submitted by mistake (oversight).

The Court ruled that the revocation did not undo the legal consequences of the waiver. The reason cited by the applicant did not constitute an "excusable error" or any other legal defect of will existing at the time of the declaration [2].

ΣτΕ also rejected the validity of a revocation in a case where the applicant invoked "confusion and stress" while exercising the right to waive the recourse. The court’s judgment was not swayed by a certificate from a private neurologist-psychiatrist stating the applicant was in an "anxious state." The Council of State deemed this did not fall under the concept of excusable error, "at least insofar as the applicant does not simultaneously claim that, due to a specific reason such as illiteracy, they were unable to perceive the meaning of the signed waiver" [3].

From both the explicit legislative prohibition and the indicative case law above, it is evident that the margins for revoking a submitted waiver in administrative trials are extremely limited. It is only possible in exceptional cases where an excusable error or a defect of will is proven.

It is also worth noting the legal position that excludes any possibility of revocation on the grounds that the waiver of the petition has already triggered the termination of the trial, thereby creating an irrevocable procedural status [4].

The Legal Status in Cyprus

The aforementioned principles are generally accepted by the courts of Cyprus as well. The possibility of revoking a waiver of recourse is limited to cases of obvious error that reveal a defect of will or misconception.

The Supreme Court of Cyprus accepted a request to reinstate a recourse after finding a gap in the procedural regulations regarding such cases, referencing Greek case law. In that specific instance, a counsel withdrew the client's recourse without instructions. This happened because another client, who happened to have the same name as the applicant, had given instructions to withdraw his own (separate) recourse.

The Court concluded that the applicant had not intentionally waived the right to the petition for annulment; therefore, the case was reinstated to the court’s list [5].

In line with Greek case law, the Supreme Court of Cyprus applies a specific criterion when considering the reinstatement of a recourse dismissed for failure to prosecute: whether, based on the overall history, there was a genuine intention to abandon the recourse, with the timeliness of the reaction being a relevant factor.

As noted: "The common criterion in cases of withdrawal and cases of dismissal for non-prosecution appears to be the reality of the intention to abandon the recourse. However, this criterion has different parameters in each case."

In dismissal for non-prosecution, the court looks at the circumstances to objectively infer whether there was an intent to maintain the case, as there was no positive expression of abandonment, only an omission.

Conversely, the withdrawal of a recourse (analogous to the withdrawal of an action) explicitly declares the intention to abandon. This intent is definitive and does not need to be inferred through the interpretation of other actions [6].

This article is for informational purposes only. For any matters regarding Greek or Cypriot administrative law, please contact us at Tel: +357 22507666 or via Email: This email address is being protected from spambots. You need JavaScript enabled to view it..

Footnotes:

ΣτΕ 1733/2017 (D) "Nomos" Database

ΣτΕ 108/2012 (C) "Nomos" Database

ΣτΕ 1234/1996 NoB/1998 (116)

Kostas Beys, Art. 30 P.D. 18/1989.- Revocation of the waiver of a legal document, "Diki" Magazine (kostasbeys.gr)

Mavrou v. Republic of Cyprus, through the Revisory Authority of Licenses, (1997) 4 AAD 3020 (cylaw.org)

Spyros Stavrinakis v. Republic through the President of the Republic, Decision 24.2.2014 (cylaw.org)