ARTICLE 146
THE CONSTITUTION LEFCOS GEORGHIADES, Applicant, and THE REPUBLIC
CYPRUS, THROUGH THE PUBLIC SERVICE COMMISSION, Respondent. (Case No. 179/69). Constitutional Law-Public
ficer punished for disciplinary
fences committed prior to the coming into operation
the Public Service Law 1967 (Law No. 33
1967)-Allegation that such
ficer has been charged with, and punished for,
fences (disciplinary) under said Law-Even assuming allegation to be correct, such disciplinary punishment still does not contravene the provisions
paragraph 1
the Constitution safeguarding the principle nullum delictum (or crimen) sine lege-Disciplinary
fences by public
ficers are outside the ambit
such paragraph the provisions
which clearly do not apply to such
fences-Cf. European Convention
Human Rights
1950 Article 7
the European Convention
Human Rights (Ratification) Law 1962 (Law No. 39
1962) and Article 169.3
our Constitution)-Cf. English and French texts
said Article 7
the Convention. Disciplinary
fences by public
ficers-Outside the ambit
.1
the Constitution as well as
the European Convention
Human Rights 1950-See, also, supra. Public
ficers-
ficer employed in the public service on contract-Still he is a "public
ficer" in the sense
the Public Service Law, 1967 (Law No. 33
1967)-Sections 2 and 32
the said Law. Public Service Law, 1967 (Law No. 33
1967)-Disciplinary
fences-Investigating
ficer appointed under the proviso to regulation 1 in Part I
the Second Schedule to the Law-Whether he has to be an
ficer
higher rank than the
ficer under investigation-Investigation not completed within the thirty days provided for in regulation 2 in Part I
the Second Schedule to the said Law-Still valid-Provisions
said regulation 2 being in the way
directive-See also herebelow. Investigating
ficer-Appointed under said regulation 1 (supra)-Rules
natural justice not contravened merely because he Counsel
the Republic had previously given legal advice in relation to one
the matters into which he later investigated. Statutes-Construction
-Proviso-Meaning and effect-Canon
construction to the effect that a statute should be construed as a whole applicable also to provisos. Proviso-Effect
-Construction
-See hereabove under Statutes. Words and Phrases- "Αδίκημα" and "
fence" in Article 12.1
the Constitution-"Infraction" in the French text
the European Convention
Human Rights
1950-"Δημόσιος Υπάλληλος" (Public
ficer) in sections 2 and 32
the Public Service Law, 1967 (Law No. 33
1967)- "Λειτουργός" in regulation 1 in Part I
the Second Schedule to the Public Service Law, 1967 (Law No. 33
1967). In this recourse under Article 146
the Constitution the Applicant complains against his demotion, by decision
the Respondent Public Service Commission dated April 30, 1969 to "Counsellor A" from the rank
"Ambassador" in the service
the Ministry
Foreign Affairs. It was argued on behalf
the Applicant that, inter alia, as he was, in effect charged with, and found guilty
disciplinary
fences provided for under the Public Service Law, 1967 (Law No. 33
1967) and as the relevant events took place prior to the coming into force
the said Law, the sub judice decision should be annulled as being contrary to paragraph 1
the Constitution. The said paragraph 1
provides: "No person shall be held guilty
any
fence on account
any act or omission which did not constitute an
fence under the law at the time when it was committed.". Various other points have been taken by counsel for the Applicant in relation to the appointment by the Council
Ministers,
Mr. P. Paschalis a counsel in the Legal Department
the Republic, as an Investigating
ficer, under the Proviso to regulation 1 in Part I
the Second Schedule
the said Public Service Law, 1967 (Law No. 33
1967). This proviso reads as follows: "Provided that if in any case the appropriate authority considers that it would not be possible, practicable or advisable to nominate an investigating
ficer from its Ministry or
fice, it shall refer the matter to the Council
Ministers which shall nominate a suitable
ficer to conduct the investigation." Overruling the submissions made on behalf
the Applicant the Court: Held, I. As regards the submission to the effect that the decision complained
is contrary to Article 12.1
the Constitution.
the European Convention
Human Rights, 1950 (which Convention is now in force in Cyprus by virtue
the European Convention
Human Rights (Ratification) Law, 1962 (Law No. 39
1962) and Article 169.3
our Constitution)-which paragraph makes similar provision as paragraph 1
our Constitution (supra); but therein, unlike in our constitutional provision in question the term "
fence" is qualified by the term "criminal"; therefore, counsel went on, it should be inferred that it was not intended that the application
.our said constitutional provision should be limited to criminal
fences only. (b) It is quite correct that in the English
ficial text
the European Convention (supra) the term "
fence" is qualified by the term "criminal"; but, on the other hand, in the French
ficial text
the same Article no such qualification is to be found; there the French word "infraction" is used, which means, substantially, a "breach
a law or regulation", and such word is not qualified by anything equivalent to the term criminal in the English text. So it may well be that the drafters
our Constitution, assuming they were influenced by Article 7
the European Convention, adopted the style
the French text
the Convention. (c) In my opinion no safe conclusion can be drawn about the exact effect
.1
our Constitution from a comparison
the English and French texts
the European Convention with the English text
our said Article 12.1, which text is not, after all, its
ficial text. (d) On the other hand, an examination
the
ficial Greek text
.1
the Constitution shows that there has been used therein the term "αδίκημα" and that it is this term which has been translated-correctly so-into "
fence" in English.
the Greek Constitution
1927 (Article 8); and it was held by the Greek Council
State (see inter alia its decisions Nos. 278/1932, 645/1935) that such provision did not apply to disciplinary
fences by public
ficers (see also Conclusions from the Jurisprudence
the Greek Council
State 1929-1959 p. 366).
the foregoing I cannot accept that the first part
paragraph 1
the Constitution (supra)-with which only we are concerned at this stage-can, or should be construed so as to render applicable to disciplinary matters, concerning public
ficers the principles
nullum delictum (or nullum crimen) sine lege. (b) Thus, even on the assumption that the Applicant has been charged with, or found guilty
, disciplinary
fences contrary to the aforesaid Public Service Law, 1967 (Law No. 33
1967) (supra)-and I am leaving this issue entirely open for the time being-I cannot find that Article 12.1
our Constitution has been contravened. Held, II. Regarding the submissions in relation to the appointment and action
Mr. P. Paschalis as Investigating
ficer under the proviso to regulation 1 in Part I
the Second Schedule to the said Public Service Law, 1967 (Law No. 33
1967):-
ficer because he was no longer a "public
ficer" as defined in section 2
the said Public Service Law, 1967. In my view when one reads together the relevant definitions in section 2
the Law and the provisions
section 32
the same Law, it appears quite clearly that Mr. Paschalis is a "public
ficer" in the sense
such Law, even though he is serving on contract. (b) Moreover, the term used in the aforementioned regulation 1 is "λειτουργός" ("
ficial") which is wider than the notion
"δημόσιος υπάλληλος" ("public
ficer"); so, even if Mr. Paschalis were not to be found to be a public
ficer in the strict sense under the said Law No. 33
1967 he is, at any rate, an "
ficial" ("λειτουργός") and as such he could be appointed as an Investigating
ficer.
the Second Schedule to the said Law No. 33
1967 (supra) the whole disciplinary process against the Applicant should be annulled as having not complied with the said regulation 2. In my opinion this regulation, which specifies a period
thirty days for the completion
the investigation is not a provision which entails invalidity in case
noncompliance with it, but it is in the nature
a directive only (see, also, Conclusions from the Jurisprudence
the Greek Council
State 1929-1959 p. 105); any other interpretation
regulation 2 would lead to absurd results.
ficer in view
the fact that he was not an
ficer
a higher rank than the Applicant. It is correct that under the relevant regulation (the aforesaid regulation 1 supra) the Investigating
ficer should be a senior
ficer
a higher rank than the
ficer whose conduct is being investigated, in case both such
ficers belong to the same Ministry or
fice. But in the present case he was appointed under the proviso to the said regulation (see the proviso supra). (b) In construing a proviso it must be borne in mind that it prima facie exempts out
the previous enacting part
a statute something which but for the proviso would have been within the enacting part (see, inter alia, Mullins v. The Treasurer
the County
Surrey [1880] 5 Q.B.D. 170 at p. 173 per Lush, J.; Duncan v. Dixon [1890] 44 Ch. D. 211 at p. 215 per Kekewich, J.; Local Government Board v. South Stoneham Union [1909] A.C. 57 at pp. 62-63 per Lord Macnaghten; Corporation
the City
Toronto v. Attorney-General for Canada [1946] A.C. 32 at p. 37 per Lord Macmillan); furthermore it is a basic canon
construction
statutes applicable in case
provisos too, that a statute must so far as possible be construed as a whole in such a way as to give effect to all its parts (see, inter alia, Jennings v. Kelly [1940] A.C. 206 at pp. 220 and 229 per Lord Wright). (c) Applying these principles to the construction
regulation 1 and its said proviso; bearing in mind that the proviso speaks only
a "suitable" (κατάλληλον)
ficer; and not losing sight
the fact that the need for the investigation to be carried out by an
ficer
a higher rank can only be
any real importance in cases in which there exists between the Investigating
ficer and the
ficer under investigation a hierarchical or other service relationship, I have reached the conclusion that even assuming that Mr. Paschalis is
a lower or an equal rank as compared to the Applicant there existed no legal impediment to the appointment
Mr. Paschalis as an Investigating
ficer in this case. (Cf. the decision
the Greek Council
State No. 2046/1956). (d) Moreover it is, in my view not possible to hold that Mr. Paschalis is actually,
a lower or
an equal rank as compared to the Applicant because there is really no significant relationship whatsoever between the post
the former and that
the latter. On the other hand the criterion
salary is not, in my view, an infallible and decisive test.
this case I cannot see how the rules
natural justice can be said to have been in any way contravened through Mr. Paschalis having been appointed, and acted as an Investigating
ficer because he had earlier given legal advice as counsel
the Republic in relation to one
the matters into which he later was called upon to investigate. Order in terms. Cases referred to: Mullins v. The Treasurer
the County
Surrey [1880] 5 Q.B.D. 170 at p. 173 per Lush, J.; Duncan v. Dixon [1890] 44 Ch. D. 211 at p.215 per Kekewich, J.; Local Government Board v. South Stoneham Union [1909] A.C. 57, at pp. 62-63 per Lord Macnaghten; Corporation
the City
Toronto v. Attorney-General for Canada [1946] A.C. 32 at p. 37 per Lord Macmillan; Jennings v. Kelly [1940] A.C. 206 at pp. 220 and 229; Decisions
the Greek Council
State Nos.: 278/1932, 645/1935, .2046/1956. Recourse. Recourse against the decision
the Respondent Public Service Commission taken as a result
disciplinary proceedings against the Applicant whereby he was demoted to "Counsellor, A/Consul-General, A" from the rank
"Ambassador". L. Clerides with C. Indianos, for the Applicant. L. Loucaides, Senior Counsel
the Republic, for the Respondent. Cur. adv. vult. The following decision on preliminary issues was delivered by: TRIANTAFYLLIDES, J.: In this case the Applicant complains against his demotion, by decision
the Respondent Public Service Commission, to "Counsellor, A/Consul-General, A" from the rank
"Ambassador", in the service
the Ministry
Foreign Affairs. The Decision
the Commission, which was taken as a result
disciplinary proceedings against the Applicant, is dated the 30th April, 1969 (exhibit AD) and was communicated to the Applicant by letter dated the 5th May, 1969 (Exhibit AE). When the hearing
the recourse commenced, on the 14th July, 1969, counsel for the parties were heard on certain preliminary issues and, then, the further hearing was postponed until I would decide whether, the determination
any one
such issues, at this stage, could result in the final determination
the recourse as a whole. From what is stated hereinafter it is apparent that I have reached the conclusion that this is 'not the position and that the hearing
the recourse should proceed further in the ordinary course; I have, however, decided to dispose
those issues which could be conveniently, and properly, be determined at this stage
the proceedings: Counsel for the Applicant has submitted that as the Applicant was, in effect, charged with, and found guilty
, disciplinary
fences provided for under the Public Service Law 1967, (Law 33/67) and as the relevant events took place prior to the coming into force
Law 33/67, the sub judice decision should be annulled as being contrary to paragraph
the Constitution. Such paragraph reads as follows:- "No person shall be held guilty
any
fence on account
any act or omission which did not constitute an
fence under the law at the time when it was committed; and no person shall have a heavier punishment imposed on him for an
fence other than that expressly provided for it by law at the time when it was committed." It has been argued by counsel for Applicant that this provision applies to disciplinary
fences, too, and not only to criminal
fences; and, in this connection, he has drawn attention to the fact that paragraph
the European Convention
Human Rights,
1950-(which Convention is now in force in relation to Cyprus by virtue
the European Convention
Human Rights (Ratification) Law, 1962, (Law 39/62) and
.3
our Constitution)-makes similar provision as paragraph
our Constitution, but therein, unlike in our constitutional provision in question, the term "
fence" is qualified by the term "criminal", and, that, therefore, it should be inferred that it was not intended that the application
our said provision should be limited to criminal
fences only. It is quite correct that in the English
ficial text
the Convention concerned the term "
fence" is qualified by the term "criminal";-but, on the other hand, in the French
ficial text
the same Article no such qualification is to be found; there the French word "infraction" is used, which means, substantially, a "breach
a law or regulation", and such word is not qualified by anything equivalent to the term "criminal" in the English text. So, assuming that the drafters
our Constitution were influenced by Article 7
the Convention when deciding to insert in the Constitution a provision such as Article 12.1, it may well be that they adopted the style
the French text
the Convention and that, they, therefore, considered it a surplusage to qualify the term "
fence" by the term "criminal". In my opinion no safe conclusion can be drawn, about the exact effect
.1
the Constitution, from a comparison
the English and French texts
the Convention with the English text
our said Article 12.1, which text is not, after all, its
ficial text. On the other hand, an examination
the
ficial Greek text
.1 shows that there has been used therein the term "αδίκημα", and that it is this term which has been translated-correctly so-into "
fence" in English. The same term, "αδίκημα", is to be found in the corresponding provision
the 1927 Greek Constitution (Article 8); and it was held by the Greek Council
State (see, inter alia, its decisions 278
fences by public
ficers. In this respect the Council
State took the view that the principle
nullum delictum sine lege (which is given effect to by the first part
paragraph
our Article 12) cannot, because
the nature
the status
a public
ficer, be applied to disciplinary matters regarding public
ficers (see the Conclusions from the Jurisprudence
the Greek Council
State 1929-1959, p. 366). In the light
the foregoing I cannot accept that the first part
paragraph
the Constitution-with which, only, we are concerned at this stage-can, or should, be construed so as to render applicable to disciplinary matters concerning public
ficers the principle
nullum delicturn sine lege (or, nullum crimen sine lege). Thus, even on the assumption that the Applicant has been charged with, or found guilty
, disciplinary
fences contrary to Law 33/67-and I am leaving this issue entirely open for the time being-I cannot find that Article 12.1 has been contravened. The next aspect
this case with which I will now deal consists
a series
points taken by counsel for the Applicant in relation to the appointment, by the Council
Ministers,
Mr. P. Paschalis, as an Investigating
ficer, under the proviso to regulation 1 in Part I
the Second Schedule to Law 33/67. It has, first, been submitted that Mr. Paschalis-who retired from his post as counsel in the Legal Department and has been re-employed, in the same capacity, on contract-could not be appointed as an Investigating
ficer because he is not a "public
ficer", as defined in section 2
Law 33/67. In my view, when one reads together the relevant definitions in section 2
Law 33/67 and the provisions
section 32
the same Law, it appears quite clearly that Mr. Paschalis is a "public
ficer", in the sense
such Law, even though he is serving on contract. Moreover, it is to be noted that the term, used in the aforementioned regulation 1 is "λειτουργός" (
ficial), which is wider than the notion
"δημόσιος υπάλληλος" (public
ficer); so, even if Mr. Paschalis were not to be found to be a public
ficer, in the strict sense, under Law 33/67, he is, at any rate, an
ficial, and as such he could be appointed as an Investigating
ficer. Counsel for the Applicant has complained that Mr. Paschalis received, from the Council
Ministers, more than one appointment-in fact three appointments-as Investigating
ficer regarding one and the same matter, namely the conduct concerned
the Applicant. In the light
the circumstances in which the original appointment
Mr. Paschalis as Investigating
ficer had to be renewed twice-as for reasons beyond his control he did not manage, earlier, to even embark upon the investigation within the thirty days' period provided for by means
regulation 2 in Part I
the Second Schedule to Law 33/67 (see the relevant records
the Council'
Ministers, exhibit Al, and paragraph 2
the Opposition)-I can find nothing in the course adopted, by the ,Council
Ministers, in this matter, which is either contrary to law or in abuse or excess
powers. Nor do I find any merit in the submission that because the investigation was not completed within thirty days, the whole disciplinary process against the Applicant should be annulled as having not complied with the said regulation 2. In my opinion such regulation, which specifies a period
thirty days for the completion
the investigation, is not a provision which entails invalidity in case
non-compliance with it, but it is in the nature
a directive only (see, also, Conclusions from the Jurisprudence
the Greek Council
State 1929-1959, p. 105); any other interpretation
regulation 2 could lead to absurd results because there may, indeed, arise cases in which the investigation, in view
the extent thereof, cannot be completed within thirty days; or, in which the non-completion
the investigation is due to the fact that the
ficer whose conduct is being investigated requests, and is granted, an extention
time in order to be enabled to present his side
the matter to the Investigating
ficer; and this is exactly what did happen in the present case (see paragraph 2
the opposition). The next contention
Applicant's counsel, regarding the appointment
Mr. Paschalis, was that he was invalidly appointed as Investigating
ficer in view
the fact that he was not an
ficer
a higher rank than the Applicant: It is correct that under the relevant regulation (the aforesaid regulation 1) the Investigating
ficer should be a senior
ficer
a higher rank than the
ficer whose conduct is being investigated, in case both such
ficers belong to the same Ministry or
fice. The question that has to be resolved is whether when the Investigating
ficer is appointed under the proviso to regulation 1-as in this case-then he still has to be an
ficer
higher rank than the
ficer under investigation. This proviso reads as follows:- "Provided that if in any case the appropriate authority considers that it would not be possible, practicable or advisable to nominate an investigating
ficer from its Ministry or
fice, it shall refer the matter to the Council
Ministers which shall nominate a suitable
ficer to conduct the investigation". In construing a proviso it must be borne in mind that it prima facie exempts out
the previous enacting part
a statute something which but for the proviso would have been within the enacting part (see, inter alia, the judgments
Lush, J. in Mullins v. The Treasurer
the County
Surrey [1880] 5 Q.B.D. 170, at p. 173,
Kekewich, J. in Duncan v. Dixon [1890] 44 Ch. D. 211, at p. 215,
Lord Macnaghten in Local Government Board v. South Stoneham Union [1909] A.C. 57, at pp. 62-63, and
Lord Macmillan in Corporation
the City
Toronto v. Attorney-General for Canada [1946] A.C. 32, at p. 37); furthermore, it is a basic canon
construction
statutes applicable in cases
provisos, too, that a statute must, so far as possible, be construed as a whole in such a way as to give effect to all its parts (see, inter alia, the judgments
Lord Russell
Killowen and
Lord Wright in Jennings v. Kelly [1940] A.C. 206 at pp. 220 and 229). Applying these principles to the construction
regulation 1 and its proviso; bearing in mind that the proviso speaks only
a "suitable" (κατάλληλον)
ficer; and not losing sight
the fact that the need for the investigation to be carried out by an
ficer
a higher rank can only be
any real importance in cases in which there exists between the Investigating
ficer and the
ficer under investigation a hierarchical or other service relationship, I have reached the conclusion that even, assuming that Mr. Paschalis is
a lower, or
an equal, rank as compared to the Applicant, there existed no legal impediment to the appointment
Mr. Paschalis as an Investigating
ficer in this case (and in this respect it might be
some interest to refer, by way
analogy, to decision 2046
the Greek Council
State). Moreover, it is, in my view, not possible to hold that Mr. Paschalis is, actually,
a lower, or
an equal, rank as compared to the Applicant, because, apart from the criterion
the comparison
their respective salaries, which is not, in itself, an infallible and decisive test, there is really no significant relationship whatsoever between the post
Mr. Paschalis and that
the Applicant. The last point which has been raised against the appointment
Mr. Paschalis as an Investigating
ficer was that he was disqualified, in any case, for such appointment because, earlier, on the 24th April, 1967, he gave, as Counsel
the Republic, legal advice (see exhibit AF) to the Ministry
Foreign Affairs regarding one
the matters which eventually was included among the disciplinary charges against the Applicant: On that occasion Mr. Paschalis merely gave legal advice on the basis
a factual situation which was placed before him by the Ministry
Foreign Affairs and was assumed by him, for the purpose, to be correct; he was not deciding himself on the existence or not
such situation. Later on, when acting as an Investigating
ficer, regarding the same situation, Mr. Paschalis had to examine what were the exact facts and decide, then, which were their consequences from the disciplinary point
view; his function this time was essentially different from what he had done in the past when simply giving legal advice. But even when Mr. Paschalis was acting as an Investigating
ficer he was not acting in a judicial or quasi-judicial capacity, because he was not called upon, or entitled, to decide the guilt or innocence
the Applicant from the disciplinary point
view; he was merely investigating into acts
the Applicant in order to prepare a report on the basis
which the Attorney-General would advise the appropriate authority whether the Applicant might be charged disciplinarily (see the relevant regulations in Part I
the Second Schedule to Law 33/67). Bearing all the above in mind I cannot see how in the circumstances
this case the rules
natural justice can be said to have been in any way contravened through Mr. Paschalis having been appointed, and acted, as an Investigating
ficer after he had given legal advice in relation to one
the matters into which he later investigated. Lastly, in this Decision, I am going to deal with the allegation that there existed bias on the part
the Respondent against the Applicant: This allegation has been based on the contents
certain correspondence exchanged between the Chairman
the Respondent and the Applicant, in his then capacity as Development
ficer in the service
the Planning Commission (see exhibit AG). I can find nothing therein to satisfy me that the Applicant has discharged the burden
establishing bias by the Respondent, or its Chairman or any
its members, against him. As the remaining issues which have been raised in argument by counsel are connected with the merits
this case I have decided not to go into them and to leave them entirely open for determination at the proper stage. Order in terms. cylaw.org: Από το ΚΙΝOΠ/CyLii για τον Παγκύπριο Δικηγορικό Σύλλογο
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