clr/1980/1980_3_203.pdf

(1980)to Orders contrary to regulation 7, paragraph 3, of the First Scheduleofthe DisciplineCode,that onthe4th and 5thAugust, 1977,beingamemberofthePoliceForceoftherank ofInspector and while on duty disobeyed the Order of the Chief of Police dated 3rd August, 1977, by which he was bound to wear black 5 arm band due to the death of Archbishop Makarios, the late Presidentof theRepublicof Cyprus.Thecase was referredtothe Minister of the Interior and Defence under regulation 10(A)* of the aboveRegulations, who appointed byvirtue of regulation 32a Disciplinary Committee consisting of threemembers of the 10 Force in order to try thecaseagainsttheapplicant.ThisDisciplinary Committee tried the case and under regulation 35imposed on 1stDecember, 1977,ontheapplicant thedisciplinary sentence of dismissal from the ranks of the Force. The case was then reviewed by virtue of regulation 36 by the 15 Minister who, on the 7th March, 1978, confirmed the decision of the Committee. The applicant appealed against the decision of the Minister to the Council of Ministers in accordance with regulation 38** and the Council of Ministers by its decision dated 17th May, 20 1978, dismissed the appeal; and hence this recourse. In issuing the decision complained of the respondent Council of Ministers did not hear the applicant or his advocate, but it had before it only the record of proceedings before the Disciplinary Committee and the Minister as well as the grounds*** 25 on which the appeal against the decision of the Minister was based. These grounds were submitted in response to a letter dated 4th April, 1978,addressed by the Director-General ofthe Ministry of Interior to Counsel for applicant infoiming him that hehad to statethe grounds on which the appeal was based. 30 Counsel for the applicant contended: (a) That the Disciplinary Committee, which was appointed by the Minister was wrongly constituted as it was entirely composed of Members of the Police Force and did not contain any Member of the Public Service; 35 * Quoted at pp. 211—12 post. ** Quoted at p. 215 post. *** These grounds are quoted at pp. 217-18 post. 204 3 C.L.R. Perrou v. Republic whereas under regulation 32*, this Committee should bea mixed committee of Public Servants and Members of the Police Force. 5 10 15 20 25 30 35 ThattheMinisterinreviewingthecaseunder regulation 36 took into account a disciplinary offence for which the applicant was charged but was not convicted, as proceedings against him were suspended due to the coup d'etat and the Turkish Invasion that followed. (c) That theprinciples of naturaljustice in the proceedings before the Council of Ministers have been violated as the applicant was not invited to express his views and so hewasdeprived of the right to be heard. Held,

(1)that thepurpose of insertion of thewords "including the force" in regulation 32 was to cover Police Officers who otherwise would be excluded, as Members of the Police Force are not considered as Public Servants (see the definition of "Public Service" appearing in section 2 of the Public Service Law, 1967 (Law 33/67));that, thus, the Disciplinary Committee may be composed either of Public Servants or Police Officers, or both; and that, therefore, the Disciplinary Committee in the present case, which was composed solely of Police Officers, was not wrongly constituted.

(2)That though the Minister in examining as to whether the sentenceimposedbytheDisciplinaryCommitteeontheapplicant wasexcessive,didnotonlymakereference tohispreviousconvictions but also referred tothefact that onthe29th dayofAugust, 1973,the applicant was interdicted for a serious offence, i.e. for insulting the then President of the Republic; that although, as it appears from the decision of the Minister this fact might have had some bearing on the matter, yet, this Court will not pronounce on it since as an administrative Court, it has no jurisdiction to decide on the question of sentence asto whether it is excessive or not (seeArticle 146.4of the Constitution).

(3)That there is no doubt that where we are concerned with disciplinary proceedings before the Council of Ministers as a Regulation 32 provides as follows: "The Minister appoints a Committee consisting of three members of the Public Service, including the Force ", 205 Petrou τ. Republic

(1980)hierarchically superior organ, as in the present case, the rules of natural justice, which under Article 12 of the Constitution are applicable to offences in general, should be followed; that, consequently, the applicant had arightto be heard (see Haws v. TheRepublic, 4 R.S.C.C. 39); that, however, it is not necessary 5 for an applicant to be heard before theCouncil of Ministersviva voce, as in open Court, but this right should be considered as fully satisfied if he were invited to submit his views in writing (see The Right of Defence Before theAdministrative Authorities by Stasinopoulos, 1974 edition,pages 173to 175); that it cannot 10 be said that by the letter of the 4th April, 1978, addressed by the Director-General of the Ministry of Interior and Defence to counsel for applicant to the effect that he had to state the grounds on which his appeal was based, the right to be heard was satisfied; that applicant had, also, to be asked to express 15 his views and give reasons in support of the said grounds; that, theiefore, there has been a violation of the rules of naturaljusti­ ce; and that, accordingly, the decision of the Council of Mi­ nisters complained of should be, and it is hereby declared null and void. 20 Subjudice decision annulled. Cases referred to: Harosv. The Republic, 4 R.S.C.C. 39. Recourse. Recourse against the decision of the respondent Council of Ministers to confirm the sentence of applicant's dismissal from the ranks of the Police Force. L. N. Clerides, for the applicant. N. Charalambous, Counsel of the Republic, for the respondent. Cur. adv. vult. MALACHTOS, J.: The applicant in this recourse, which is made under Article 146 of the Constitution,claims a declaration of the Court that the decision of the Council of Ministers, which was taken on 17th May, 1978, and communicated to him by 35 letter dated 26th May, 1978, by virtue of which the respondents confirmed the sentence of dismissal from the ranks of the Police Force imposed on the applicant, is null and void and of no legal effect. 206 25 30 3 C.L.R. Petrou v.Republic Malachtos J. The following are the relevant facts of the case. The applicant, an Inspector of Police, was charged under the Police (Discipline) Regulations 1958 to 1977 for disobedience to Orders contrary to regulation 7, paragraph 3, of the First 5 Schedule of the Discipline Code, that on the 4th and 5th August 1977, being a member of the Police Force of the rank of Inspector and while on duty disobeyed the Order of the Chief of Police under No. Limassol/56/6 dated 3rd August, 1977,by which he was bound to wearblackarm banddueto the death of 10 Archbishop Makarios, the late President of the Republic of Cyprus. The case was referred totheMinister of theInterior and Defence under regulation 10(A) of the above Regulations, who appointed by virtue of regulation 32a Disciplinary Committee consisting of three members of the Force in order to try thecase 15 against the applicant. This Disciplinary Committee tried the case and under regulation 35 imposed on 1st December, 1977, on the applicant the disciplinary sentence of dismissal from the ranks of the Force. The case was then reviewed by virtue of regulation 36 by 20 the Minister who,onthe7th March, 1978,confirmed the decision of the Committee. The applicant appealed against the decision of the Minister to the Council of Ministers in accordance with regulation 38 and the Council of Ministers by its decision under No. 16881 25 dated 17th May, 1978, dismissed the appeal. The said decision reads as follows: "Appeal of Inspector Evangelos Petrou, who was convicted by the Disciplinary Committee to the Punishment of Dismissal 30 35 (Submission under No. 396/78) The Council considered the appeal attached to the submission of Appendix B, on the part of Inspector Evangelos Petrou, as well as all the elements of his case, who was convicted to the punishment of dismissal by virtue of Regulation 36 of the Police (Discipline) (Amendment) Regulations of 1976 and decided, by virtue of Regulation 38 of the said Regulations, to confirm it. 207 Malachtos J. Petroa τ. Republic

(1980)The Minister of Interior did not take part in the above decision." As against this decision the applicant filed the present recourse. The relevant Regulations in the present case are regulations 10A and 32 to 38, both inclusive, and read as follows: 5 "10A. Μελέτη Πορίσματος υπό ύπουργοΰ.

(1)'Ανεξαρτήτως των διατάξεων των Κανονισμών 10 έως 22, αμφοτέρων συμπεριλαμβανομένων, 6 Υπουργός δύναται, καθ' οίονδήποτε χρόνον καΐ προτοΰ ό 'Αστυνομικός Διευ- 10 θυντής ή ό Βοηθός 'Αρχηγός (Διοικήσεως), ένεργήση ως προνοείται υπό τοΰ Κανονισμού 10, νά άΕιώση παρά τοΰ 'Αρχηγού όπως το πόρισμα έρεύνης όμοΰ μεθ' απάντων τών σχετικών έγγραφων διάπειθαρχικήνδίω£ινοίουδήποτε μέλους ύποβληθη προς αυτόν προς μελέτην. 15

(2)Ό Υπουργός άφοϋ μελετήση τά πόρισμα καΐ τά έγγραφα έάν είναι της γνώμης ότι— (α) δέν διεπράχθη οίονδήποτε πειθαρχικόν αδίκημα, εντέλ­ λεται δπως ουδεμία πειθαρχική δίω£ις άσκηθή κατά τού καθ* ού ή καταγγελία. 20 (β) διεπράχθη μέν αδίκημααλλά τούτο δύναταινάέκδικασθη επαρκώς ώς προνοείται ύπό των Κανονισμών 12 Ιως 18, αμφοτέρων συμπεριλαμβανομένων, εντέλλεται όπως ή ύπόθεσις έπιστραφή είς τόν Άστυνομικόν Διευθυντήν ή τόν Βοηθόν Άρχηγόν (Διοικήσεως) αναλόγως της 25 περιπτώσεως, προς κατηγορίαν τοΰ καθ* ού ή καταγγε­ λία συμφώνως προς τόν Κανονισμόν 10 καΐ τήν μετά ταύτα έκδίκασιν της υποθέσεως δυνάμει τών ρηθέντων Κανονισμών 12 έως 18, (γ) διεπράχθη αδίκημα,δπερ, λόγω της σοβαρότητος αύτοΰ 30 ή τών περιστάσεων ύπό τάς οποίας διεπράχθη, θά έπρεπε, κατάτήν κρίσιν του, νά έκδικασθη ύπό 'Επιτρο­ πής ώς προνοείται είς τόν Κανονισμόν 32, κατόπιν διατυπώσεως της σχετικής κατηγορίας, διορίζει τοιαύτην Έπιτροπήν καΐ παραπέμπει τήν ύπόθεσιν είς αυτήν 35 προς έκδίκασιν, οπότε οί Κανονισμοί 33, 34, 35, 36, 37 καΐ 38, τηρουμένων τών αναλογιών, θά έφαρμόζωνται 208 3 CX.R. Petrou v. Republic Malacfatos J. είς αυτήν. Είς τοιαύτην περίπτωσιν ό Υπουργός παρέχει ή μεριμνά ΐνα παρασχεθώσι προς τόν καθ' ού ή καταγγελία άντίγραφον τοΰ πορίσματος, τών σχετικών έγγραφων καΐ της κατ* αυτού κατηγορίας. 5 10 15 32. Διορισμός επιτροπής.

(1)Ό 'Υπουργός διορίζει Έπιτροπήν άποτελουμένην έκ τριών μελών προερχομένων έκ της Κυβερνητικής Υπηρεσίας συμπεριλαμβανομένης και της Δυνάμεως, καθορίζει δέ ταυτοχρόνως τόν Πρόεδρον της 'Επιτροπής τοΰ οποίου απαραιτήτως ή Ιεραρχική τάξις ή ή οργανική θέσις δέον νά είναι υψηλότερα εκείνης τοΰ καθ' ού ή κατηγορία.

(2)Ή 'Επιτροπή κέκτηται έξουσίαν όπως εκδίκαση τήν ύπόθεσιν κατά τοΰ 'Ανωτέρου 'Αξιωματικού, ή δέ άκρόασις της υποθέσεως διεξάγεται, κατά τά δυνατόν, διά τοΰ αυτού τρόπου ώς ή άκρόασις ποινικής υποθέσεως έκδικαζομένης συνοπτικώς: Νοείται ότι ό 'Ανώτερος 'Αξιωματικός έχει τό δικαίωμα νά ύπερασπισθη μετά ή άνευ συνηγόρου. 33. Έϋουσίαι Άρχηγου/Έπιτροπης. 20

(1)Ό 'Αρχηγός ή ή 'Επιτροπή κέκτηται έξουσίαν όπως— (α) καλέση μάρτυρας καΐ απαίτηση τήν προσέλευσιν αυτών ώς καΐ τήν προσέλευσιν τοϋ "Ανωτέρου 'Αξιωματικού εναντίον τοϋ οποίου γίνεται ή άκρόασις ώς είς συνοπτικήν ποινικήν δίκην. 25 (β) απαίτηση π ρ ο σ α γ ω γ ή ν παντός έγγραφου σχετιζομένου προς τήν κατηγορίαν, συμπεριλαμβανομένου καΐ τοΰ Προσωπικού Φακέλλου τοΰ 'Ανωτέρου 'Αξιωματικού, ( γ ) άναβάλλη τήν άκρόασιν α π ό καιρού είς καιρόν νοουμένου ότι ή ύπόθεσις προχωρεί τό ταχύτερον δυνατόν, 30 35 (δ) χορηγή είς ιταν πρόσωπον, μή μέλος της Δυνάμεως, τό όποιον εκλήθη ώς μάρτυς είς τήν άκροαματικήν διαδικασίαν, οιονδήποτε ποσόν (καταβαλλόμενον έκ τού Προϋπολογισμού της Δυνάμεως) τ ό όποιον κατά τήν κρίσιν τοΰ 'Αρχηγού ή της 'Επιτροπής θά ήδύνατο ευλόγως νά αντιπροσώπευση τ ά έξοδα είς τ ά όποϊα τό έν λ ό γ ω πρόσωπον υπεβλήθη έν σχέσει προς τήν κλήσιν του ώς μάρτυρας, 209 Malachtos J. Petrou τ. Republic

(1980)(ε) διάταξη τήν καταβολήν αποζημιώσεων προς οίονδήποτε παραπονούμενον είτε ύπό τοΰ καθ* ού ή δίωξις είτε έκ τοΰ σχετικού κονδυλίου τοΰ Προϋπολογισμού της Δυνάμεως: Νοείται ότι αϊ τοιαύται αποζημιώσεις δέν Θά ύπερβαίνουν τάς 50 λίρας. 5

(2)Παν πρόσωπον τό όποιον αρνείται νά συμμορφωθη προς τάς έντολάς τοΰ 'Αρχηγού ήτης 'Επιτροπήςώςένταϊς ύποπαραγράφοις(α)καί(β)της παραγράφου

(1)τού παρόντος Κανονισμού προνοείται ή αρνείται είς οίονδήποτε διαδικα- J0 σίαν ενώπιον τού Άρχηγοΰ ή της 'Επιτροπής νά απάντηση είς οίονδήποτε έρώτησιν νομίμως τεθεϊσαν είς αυτό, δια­ πράττει ποινικόν αδίκημα τιμωρούμενον διά χρηματικής ποινής μή ύπερβαινούσης τάς 200 λίρας: Νοείται ότι ουδείς μάρτυρας υποχρεούται νά απάντηση 15 είς ερωτήσεις τείνουσας νά ενοχοποιήσουν τούτον ή νά τόν καταστήσουν ύπόλογον είς πληρωμήν προστίμου ή κατάσχεσιν της περιουσίας του.

1. Άπόφασις 'Επιτροπής Ή 'Επιτροπή δι* αποφάσεως αυτής δύναται νά εύρη τον 20 Άνώτερον Άξιωματικόν ένοχον οιουδήποτε αδικήματος διά τό όποιον κατηγορείται καί νά έπιβάλη εις αυτόν οίονδήποτε τών πειθαρχικών ποινών τήν οποίαν αϊ περι­ στάσεις της υποθέσεως θά έδικαιολόγουν, ή νά άπαλλάξη τούτον της κατηγορίας. Πάσα άπόφασις της 'Επιτροπής 25 λαμβάνεται κατά πλειοψηφίαν καί υπογράφεται ύπό τού Προέδρου της 'Επιτροπής.
2. Ποιναί. Αί ακόλουθοι πειθσρχικαΐ ποιναί δύνονται νά έπιβληθώσιν ύπό της 'Επιτροπής: 30 (α) Έπίπληξις, (β) αυστηρά έπίπληξις, (γ) πρόστιμον μή υπερβαίνον τάς 100 λίρας, (δ) κατακράτησις, διακοπή ή αναβολή προσαυξήσεως, (ε) υποβιβασμός είς κατώτερον βαθμάνή κατωτέραν θέσιν, (στ) άπαίτησις προς παραίτησιν, (ζ) άπόλυσις. 210 35 3 C.L.R. Petrou v. Republic Malachtos J.
3. Άναθεώρησις ποινής ύπό Υπουργού. 5

(1)Είς πδσαν περίπτωσιν καθ' ήν 'Ανώτερος 'Αξιωματικός ήθελεν εύρεθή ένοχος διά πειθαρχικόν αδίκημα, ή καταδίκη αυτού καί ή είς αυτόν επιβληθείσα ποινή αναθεωρούνται ύπό τού Υπουργού. Κατά τήν άναθεώρησιν ό Υπουργός δύναται— (α) νά άπαλλάξητόν Άνώτερον 'Αξιωματικόν τηςκαταδίκης ή καί τής ποινής, (β) νά μετατρέψη τήν άπόφασιν ή ποινήν, 10 (γ) νά μειώση ή αύξηση τήν ποινήν, (δ) νά επικύρωση τήν άπόφασιν ή ποινήν: Νοείται ότι ό Υπουργός κατά τήν άναθεώρησιν ποινής επιβληθείσης υπό τοΰ 'Αρχηγού δύναται νά έπιβάλη μόνον ποινήν προνοουμένην ύπό τού Κανονισμού 30. 15

(2)Οιαδήποτε ποινή επιβληθείσα ύπό τού 'Αρχηγού ή τής 'Επιτροπής δέν θά είναι εκτελεστή εΙμή κατόπιν ανα­ θεωρήσεως καί επικυρώσεως ταύτης ύπό τού Υπουργού.

1. Πρακτικά διαδικασίας 20 Κατά τήν άκρόασιν υποθέσεως ύπό τού 'Αρχηγού ή τής Επιτροπής, καί κατά τήν άναθεώρησιν ύπό τοϋ Υπουρ­ γού, τηρούνται πρακτικά διαδικασίας.
2. 'Εφέσεις 25 'Ανώτερος 'Αξιωματικός εναντίον τού οποίου εξεδόθη αναθεωρητική άπόφασις δυνάμει τοΰ Κανονισμού 36 δύναται, εντός επτά ήμερων άπάτής ημερομηνίας τής τοιαύ­ της αποφάσεως,νά έκκαλέση ταύτην ενώπιον τού Υπουρ­ γικού Συμβουλίου τού οποίου ή άπόφασις θά είναι τελε­ σίδικος." ("10Λ. Considerationof report by Minister. 30 35

(1)Notwithstanding the provisions of regulations 10-22, both inclusive, the Minister may, at any time and before the Divisional Commander or the Assistant Chief of Police (Administration) takes action in accordance with regulation 10, request from the Chief of Police that the report of investigation together with all relevant 211 Malacbtos J. Petrou τ. Republic

(1980)documents for disciplinary proceedings against any member be submitted to him for consideration.

(2)The Minister, after considering the report and the docu­ ments if of opinion that— (

1. a)no disciplinary offence has been committed, directs that no disciplinary charge be preferred against the member of the Forcein respect of whom the accusation has been made; 5 (b an offence has been committed but it can be tried adequately in accordancewith the provisions of regula- 10 tions 12-18, both inclusive, directs that the case be sentback to theDivisional Commanderor theAssistant Chief of Police (Administration) as the case may be, for preferring a charge against the member in respect of whom the accusation was made in accordance with 15 regulation 10 and the subsequent trial of the case under the said regulations 12-18; (
2. c)an offence has been committed which due to its gravity or the circumstances under which it was committed, should, in his opinion, be tried by a committee as 20 provided for under regulation 32, after preferring the relevant charge, appoints such a committee and refers the case to it for trial, in which case regulations 33, 34, 35, 36, 37 and 38 will be applicable, mutatis mutandis. In such a case the Minister provides or 25 sees that the member against whom the accusation is made is provided with a copy of the report, the relevant documents and the charge preferred against him. 32. Appointment of a Committee.

(1)The Minister appoints a Committee consisting of three 30 members of the Public Service including the Force, and at the same time he determines who shall be the Presiding Officer, whose hierarchical order or organic post should indespensably be higher than that of the accused. 35

(2)The Committeehas power to try thecase against a Senior Officer and the hearing of the case is carried out,as far as 212 3 C.L.R. Petrou τ. Republic Matechtos J. possible, in the same way as the trial of a criminal case tried summarily: Provided that a Senior Officer has the right to defend himself with or without an advocate. 5 33. Powers of ChiefofPolice/Committee.

(1)TheChiefofthePoliceortheCommitteehavepowerto— (

1. a)call witnesses and demand their attendance and the attendance of the Senior Officer against whom the hearing takes place as in a summary criminal trial; 10 (
2. b)demand the production of every document relative to thecharge, including thePersonal Fileof theSenior Officer; (
3. c)adjourn the hearing from time to time provided the case proceeds the soonest possible; 15 20 (
4. d)grant to every person, who is not a member of the Force, who had been called as witness at the hearing, any sum (paid from theBudget of the Force) whichin thejudgment of the Chief of Police or the Committee would reasonably represent the costs which the said person has incurred in connection with his being called as a witness; (
5. e)orderthepaymentof compensationtoany complainant either by the officer under charge or from the relevant vote of the Budget of the Force: 25 Provided that such compensation will not exceed £50.—. 30

(2)Every person who refuses to comply with the directions of the Chief of Police or the Committee as provided for insub-paras,(a)and(b)of para. I.of this regulation or refuses in any proceeding before the Chief of Police or the Committeeto reply to any question lawfully put to him commits a criminal offence punishable with a monetary punishment not exceeding £200.—; 35 Provided that no witness is obliged to answer any questions tending to incriminatehim or make him liable to the payment of a fine or seizure of his property. 213 Malacfatos J. Petrou v. Republic

(1)In every case in which a Senior Officer is found guilty of a disciplinary offence, his conviction and the punish- 20 ment imposed on him are reviewed by the Minister. Upon review the Minister may— (

1. a)discharge the Senior Officer of the conviction and/or punishment, (
2. b)vary the decision or punishment, 25 (
3. c)reduce or increase the punishment, (
4. d)confirm the decision or punishment: Provided that the Minister upon review of a punishment imposed by the Chief of police may impose only a punishment provided for under rugulation 30.

(2)Any punishment imposed by the Chief of Police or the Committee is not executory except upon its revision and confirmation by the Minister.

1. Minutes of proceedings. During the hearing of a case by the Chief of police or 35 214 30 Petrou v. Republic 3 C.L.R. Malachtos J . the Committee, and upon revision by the Minister, minutes of proceedings are kept.
2. Appeals. 5 A Senior Officer against whom a decision after a review was given under regulation 36 may, within seven days from the date of such judgment, appeal to the Council of Ministers whose judgment shall be final" ). The first submission of counsel for applicant in arguing the case is that the Disciplinary Committee, which was appointed 10 by the Minister was wrongly constituted as it was entirely composed of Members of the Police Force and did not contain any Member of the Public Service. According to his own interpretation of regulation
3. this Committee should be a mixed committee of Public Servants and Members of the Police 15 Force. I have considered the wording of this regulation and I must say that I do not agree with the interpretation given by counsel for applicant. The purpose of insertion of the words "including the force" in regulation 32 was to cover Police Officers who 20 otherwise would be excluded, as Members of the Police Force are not considered as Public Servants, according to the definition appearing in section 2 of the Public Service Law, 1967 (Law 33/67). This definition is as follows: 25 30 '"'Public Service* means any service under the Republic other than the Judicial Service of the Republic or Service in the Armed or Security Forces of the Republic or Service in the Office of Attorney-General of the Republic or Auditor-General or Accountant-General or their deputies or service in any office in respect of which other provision in made by Law or service by persons whose remuneration is calculated on a daily basis". So, the Disciplinary Committee may be composed either of Public Servants or Police Officers, or both. And, therefore, the Disciplinary Committee in the present case,which was composed 35 solely of Police Officers, was not wrongly constituted. The next argument of counsel for applicant was that the Minister in reviewing the case under regulation 36 took into account a disciplinary offence for which the applicant was charged but was not convicted, as proceedings against him were 215 Mftlacfatoi J. Petrou τ.Republic

(1980)suspended due to the coup d'etat and the Turkish Invasion that followed. It is quite true that the Minister in examining as to whether the sentence imposed by the Disciplinary Committee on the applicant was excessive, did not only make reference to his 5 previous convictions but also referred to the fact that on the 29th day of August, 1973, the applicant was interdicted for a serious offence, i.e. for insulting the then President of the Republic. Although, as it appears from the decision of the Minister this fact might have had some bearing on the matter, 10 yet, I am not going to pronounce on it since this Court, as an administrative Court, has no jurisdiction to decide on the question of sentence as to whether it is excessive or nor. This is clear from the wording of Article 146.4 of the Constitution, which reads as follows:15 "146.4.—Upon such a recourse the Court may, by its decision— (

1. a)confirm, either in whole or in part, such decision or act or omission; or (
2. b)declare, either in whole or in part, such decision or act 20 to be null and void and of no effect whatsoever; or (
3. c)declare that such omission, either in whole or in part, ought not to have been made and that whatever has been omitted should have been performed." Another submission of counsel for applicant is that the prin- 25 ciples of natural justice in the proceedings before the Council of Ministers have been violated as the applicant was not invited to express his views and so he was deprived of the right to be heard. He submitted that under regulation 38 the Council of Ministers was acting in a quasi judicial capacity and so it 30 was bound to invite the applicant to be heard. It is not in dispute that the Council of Ministers in issuing the decision complained of, did not hear the applicant or his advocate, but it had before it only the record of proceedings before the Disciplinary Committee and the Minister as well as the grounds on which the appeal against the decision of the Minister was based. On this point, on the other hand, counsel for the respondents submitted that under regulation 38 the Council of Ministers 216 35 3 C.L.R. Petrou v. Republic Malachtos J. was acting as a hierarchically superior organ exercising admi­ nistrative powers and the appeal filed before it is nothing else but a hierarchical recourse provided by law and in such a case the party affected has a right to be heard. To this principle, 5 however, there is an exception in that where the opportunity to the person affected is given to submit in writing his views, it is considered that the right to be heard is satisfied. In the present case as it appears from Appendix Β of the Submission to the Council of Ministers, exhibit 2, this procedure was followed 10 and the views of the applicant were expressed in the grounds of appeal which were submitted on 3rd May, 1978 through his advocate. Appendix Β of exhibit 2 consists of: 15 20 25 30 (
4. i)a letter addressed to theCouncil of Ministers by counsel for applicant dated 10th March, 1978, by which notice was given that the applicant was appealing againsl the decision of the Minister and stated therein that he was reserving the right to submit in detail before theCouncil of Ministers the legal points of the case at the hearing; (ϋ) a letter dated 4th April, 1978, addressed by the Director-General of the Ministry of Interior to counsel for applicant to which the record of proceedings before the Disciplinary Board and the Minister were attached, informing him that he had to state the grounds on which the appeal was based so as to be able to submit the case before the Council of Ministers; and (iii) a letter addressed to the Director-General of the Ministry of Interior by counsel for applicant dated 3/5/78containingthegrounds of appeal with the request that they should be transmitted to the Council of Ministers. The grounds of appeal are the following: 35 (
5. a)The Honourable Minister of Interiorwrongly took into consideration a case against the applicant which was not tried and connected it with the present case. (
6. b)Since the Honourable Minister in the reasoning of his .decision reached the conclusion that the fault of the applicant "was at first sight rather insignificant", the confirmation by him of the imposed sentence of dismis- 217 Malachtos J. Petrou τ. Republic

(1980)sal from the ranks of the Police Force, was entirely disproportionate to the offence committed by the appellant and ought to be cancelled. There is no doubt that where we are concerned with discipli­ nary proceedings before the Council of Ministers as a hierarchi- 5 cally superior organ, as in the present case, the rules of natural justice, which under Article 12of our Constitutionare applicable to offences in general, should be followed. Consequently, the applicant had a right to be heard. (Nicolaos D. Haros v. The Republic, 4 R.S.C.C. 39). However, it is not necessary for an 10 applicant to be heard before the Council of Ministers viva voce, as in open Court, but this right should be considered as fully satisfied if he were invited to submit his views in writing. This proposition finds support in the Right of Defence Before the Administrative Authorities by Stasinopoulos, 1974 edition, 15 pages 173 to 175. Therefore, the question posed in the case in hand is whether by the two grounds of appeal appearing in Appendix Β of exhibit 2, the rules of naturaljustice have been observed. The answer should be in the negative. It cannot be said that by the 20 letter of the 4th April, 1978, addressed by theDirector-General of the Ministry of Interior and Defence to counsel for applicant to the effect that he had to state thegrounds on which his appeal was based, the right to be heard was satisfied. He should also be asked to express his views and give reasons in support of the 25 said ground. The net result is that in the present case there is a violation of the rules of naturaljustice and so the decision of the Council of Ministers complained of should be, and it is hereby declared null and void. It is up to the Council of Ministers to reconsider its decision in the light of thisjudgment. 30 In view of my above decision on this ground, I consider it unnecessary to deal with the other grounds submitted on behalf of the applicant. As regards costs, the respondent Authority is adjudged to pay to the applicant £20.—against his costs. 35 Subjudice decision annulled. Orderfor costs as above. 218