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(1981)1981 December I [A. Loizou, J.] IN THE MATTER OF ARTICLE 146OF THE CONSTITUTION COSTAS SHIAKALLIS, Applicant, v. THE REPUBLIC OF CYPRUS, THROUGH THE MINISTER OF INTERIOR, Respondent. (CaseNo. 13/80). Administrative law—Misconception of fact—Principles applicable. Disciplinary offences—Disciplinary conviction—Recourse against— Court,as a rule, willnotinterfere withthe subjective evaluation of the relevant facts as madeby the appropriate organ. Disciplinary offences—Disciplinary punishment—Severity of—Cannot be tested and decided uponin a recourse underArticle 146 of the Constitution. Administrative law—Disciplinaryoffences—Disciplinary conviction —Court as a rule, will not interferewith subjective evaluation of the relevant facts as madeby the appropriate organ—Disci- 10 plinary punishment—Severity of—Cannotbe testedand decided upon in a recourseunderArticle 146 of the Constitution. The applicant, a member of the PoliceForcewastried desciplinarily on five counts*, interalia,of the disciplinary offences of unlawful arrest, of unlawfully manning a road block and 15 of ill-treatment which were committed during the period of the coup d' etat of July 15, 1974. He was found guilty on all these counts andwas sentenced to a total fine of £180. The Divisional Police Commander in the exercise of his revisional jurisdiction, under regulation 20 • Particulars of these counts appear at pp. 443-446 post. 440 5 3 C.L.R. 5 Shiakallis τ. Republic 18
(4)of the Police (Disciplinary) Regulations 1958-1977, after giving to the applicant the opportunity to put forward any grounds of defence, considered that thesentences imposed, in thelight of the seriousness of the offences, were insufficient and increased them to a total of £300.—fine. 15 The Assistant Chief of Police (Administration), exercising the powers vested inhim under regulation 20
(3)(
  1. c)of the above Regulations, appealed against the sentences imposed onthe applicant, to the Chief of Police. Theappeal was heard by the Deputy Chief of Police, duly authorized for that purpose by theChief of Police; andtheDeputy Chief of Police, acting under regulation 21, found that-the disciplinary sentences imposed were insufficient and changed them to reduction to the salary scale of the first appointed. 20 In his decision theDeputy Chief ofPolicereferred tothecoup d' etat andthedisaster that brought to Cyprus andsaid that "the fact is that if there didnotexist in Cyprus followers and collaborators ofEOKA B,oftheAthens Juntaandtheleadership of thecoup d' etat, thecoup d_etat would not take place". 10 The applicant challenged the above decision by means of this recourse and contended: 25 30 35 (
  2. a)That thesubject decision was misconceived, themis­ conception consisting of the fact that facts were taken into consideration anddescriptions were given to the applicant which were not born out either from the particulars of the various counts to which he was found guilty orfrom thejudgment of the Disciplinary Court. (
  3. b)That if the Court found that their did notexist mis­ conception offact, the sentence imposed wasexcessive. Held,
(1)that for theexistence of a misconception of fact thereisrequired anobjective non-existence ofthe actualcircum­ stances and requisites upon which the act is based, which is ascertained in theabsence of the element of the subjective test (see Georghiades v.TheRepublic
(1972)3 C.L.R. 594at p. 694); that in thepresent case theparticulars of the several offences and in particular those for counts 4 and5, refer clearly to the applicant's participation in and contribution to the success 441 Sttakallis τ. Republic
(1981)of the coup d' etat; that the facts also emanating from the evidence heard at the trial of the applicant clearly reveal such a participation and that the other offences were committed in relation to the furtherance of the aims of the coup d' etat; that there did not exist, therefore, objectively examining the 5 matter, a non-existence of the actual circumstances and prere­ quisites upon which the subject decision was based, so that the ground of misconception of fact could exist; that there were not taken any facts into consideration by the Deputy Chief of Police that ought not to have been taken into consideration; 10 that the description of the conduct of the applicant to be found in the subject decision was born out by the facts of the case, on the basis of which the conviction of theapplicant was duly warranted; accordingly contention (a) should fail.
(2)That in a recourse against a disciplinary conviction this 15 Court, as a rule, will notinterfere with the subjective evaluation of the relevant facts as made by the appropriate organ (see Enotiades v. The Republic
(1971)3 C.L.R. p. 409, at p. 415); that the severity, as such, of a disciplinarily punishmentcannot be tested and decided upon by means of a recourse under Article 20 146 of the Constitution; accordingly contention (b) should, also, fail. Application dismissed. Cases referred to: Georghiades v. The Republic
(1972)3 C.L.R. 594 at p. 694; Enotiades v. The Republic
(1971)3 C.L.R. 409 at p. 415; Platritisv. The Republic
(1969)3 C.L.R. 366 at pp. 375, 376; Republic v. Mozoras
(1970)3 C.L.R. 210 at p. 221; Christofides v. CYTA
(1979)3 C.L.R. 99 at p.
  1. 25 Recourse. Recourse against the disciplinary sentence imposed on lhe applicant by the Deputy Chuf of Policewhereby hewas reduced to the salary scale of the first appointed. R. Schizas, for the applicant. R. Gavrielides, Senior Counsel of the Republic, for the 35 respondent. Cur. adv. vult. A. Loizou J. read the following judgment By the present 442 30 3 C.L.R. Shiakallis v. Republic A. Loizou J. recourse the applicant seeks a declaration that the disciplinary sentence imposed on him by the Deputy Chief of Police whereby he was reduced to the salary scale of the first appointed, is null and void and of no effect whatsoever. The relevant facts are 5 as follows: The applicant joined the Cyprus Police Force on the 27th '. February,
  2. A report in writing was made to the Minister of Justice against him to the effect that he had committed disciplinary offences as defined in section 2 of the Certain Disci10 plinary Offences (Conduct of Investigation and Adjudication) Law, 1977 (Law No. 3 of 1977). The Council of Minister:* by virtue of the provision- of section 4 of the Certain Disciplinary Offences (Conduct of Investigation and Adjudication) Laws, 1977-1978 (Suspension of Proceedings) Law, 1978 (Law No. 15 57 of 1978), remitted the case to the Chief of Police for further investigation and trial under the provisions of the relevant laws and regulations. The Chief of Police transmitted the case to the Divisional Police Commander, Nicosia, who by virtue of the powers vested in him under regulation 14 of the Police 20 (Disciplinary) Regulations 1958-1977 (hereinafter to be referred to as the Regulations),appointed Chief Inspector Stelios Christodoulou, as presiding officer for the trial of the case. In the light of the evidence available, the applicant was charged with five counts as follows: 25 "Count 1 Statement of Disciplinary Offence Disciplinary offence as defined by Section 2 of Law 3/77, para. 19 of the First Schedule and Regulations 7 ά 18 of the Police (Disciplinary) Regulations 1958-
  3. 30 35 Particulars of Disciplinary Offence Between the 15th July, 1974, and 27th July, 1974, whilst the accused was a member of thePolice Force hecommitted the following unlawful acts: (a) Between the 15th July, 1974, and 27th July, 1974, in various places in Nicosia District, namely, Paphos Square, Kaimakli, Exo Metochi, Kythrea and Neon Chorion Kythrea, was seen armed. (b) On the 17th July, 1974, and 19th July, 1974, unlawfully 443 A. Loizou J. Shiakallis v. Republic
(1981)aided and abetted to theunlawful arrest of Polycarpos Fantis, of Kaimakli, Andreas Philippides of Neon Chorion Kythreas, Andreas Christodoulou of Exo Metochi, Nicos Gaourkotisof Neon Chorion Kythreas and Kyriacos Hadji Panayiof Neon ChorionKythreas. 5 (
  1. c)Between the 17th July, 1974 and 27th July, 1974, at Kaimakli, Neon Chorion Kythreas and Kythrea Police Station, unlawfully interrogated Polycarpos Fantis of Kaimakli, Andreas Philippides of Neon Chorion Kythreas and P.C. 3229 Theodotos Christou. 10 Count 2 Statement of Disciplinary Offence Unlauwful exercise of authority contrary to paras. 8(a), (
  2. b)and (
  3. c)and 19 of the First Schedule of Regulations 7 and 18 of the Police (Disciplinary) Regulations 1958/1977. 15 Particulars of Disciplinary Offence The accused between the 17.7.1974 and 19.7.1974 whilst he was a member of the Police Force exercised unlawful authority, namely, he committed the following unlawful acts: 20 (
  4. a)On the 17.7.1974 and 19.7.1974, unlawfully arrested Polycarpos Fantis, of Kaimakli, Andreas Philippides, of Neon ChorionKythreas andAndreas Christodoulou of Exo Metochi, without a warrant of arrest. (
  5. b)Between 17.7.1974 and 27.7.1974, at KaimakJi, Neon 25 Chorion and Kythrea Police Station, unlawfully interrogated Polycarpos Fantis, of Kaimakli, Andreas Philippides of NeonChorionand P.C.3229Theodotos Christou. (
  6. c)On the 15th July, 1974, with other armed soldiers 30 unlawfully manned a road block by the "ΒΑΤΑ" Factory at Kaimakli. (
  7. d)On the 16.7.1974 at Kythrea threatened Theocharis Charalambous of Kythrea with the following words: "Your death my life". (
  8. e)On the 17.7.1974 at Kythrea he ill-treated and threa444 35 3 C.L.R. Shiakallis v. Republic A. Loizou J. tened Andreas .Kyriacou of Kythrea that he would kill him and bury him. (
  9. f)On the 19.7.1974 heill-treated and threatened Andreas Christodoulou, of Exo Metochi. 5 Count 3 Statement of Disciplinary Offence Improper behaviour contrary to para. 1 of the First Scheduleof Regulations 7and 18of the Police (Disciplinary) Regulations 1958-1977. 10 Particulars of Disciplinary Offence (
  10. a)The accused on the 16th July, 1974, at Kythrea, whilst he was a member of the Police Force insulted the late Archbishop Makarios with the words "tsouros". 15 (
  11. b)On the 17th July, 1974, the accused tried to tear the photograph of the late Archbishop Makarios at the house of Andreas Philippides. of Neon Chorion Kythreas. Count 4 Statement of Disciplinary Offence 20 Disciplinary offence as defined in Section 2 of Law 3/77 and Regulation; 7 & 18 of the Police (Disciplinary) Regulations 1958-1977. Particulars of Disciplinary Offence 25 30 35 The accused between the 15.7.1974and 27.7.1974, whilst he was a member of the Police Force with other armed persons acted in concert for the success of the coup d'etat, that is, he took pert in battle?, arrests and interrogations of law-abiding citizens. Count 5 Statement of Disciplinary Offence Encouragement or participation in seditions or mutiny, contrary to Sections 26(a), (
  12. b)and 27, of the Police Law, Cap. 285, as amended by Law 43/72, para. 19 of the First Schedule and Regulations 7 and 18 of the Police (Disciplinary) Regulations 1958-1977. 445 A. Loizou J. ShiakaDis v. Republic
(1981)Particulars of Disciplinary Offence The accused between the 15th July, 1974 and 27th July, 1974,whilst a member of the Police Force with other armed persons acted in concert for the success of the coup d'etat, that is, he took part in battles, arrests and interrogations of law-abiding citizens". 5 The applicant who was represented by coun el pleaded not guilty to all of them and the case was heard in accordance with the procedure set out in regulation 14of the Regulations, having been given all rights of defence provided by regulations 12and 10 13 thereof. At the conclusion of the hearing and the addresses made, the appellant was found guilty on all counts in the rtasoned judgment delivered. The appellant was sentenced then as follows:Count 1 C£80.- fine " 2 C£20.- " " 3 C£10.- " " 4 C£50.- " " 5 C£20.- " 15 20 The Divisional Police Commander in the exercise of his revisional jurisdiction under regulation 18
(4)of the Regulations and after having given to the applicant the opportunity to put forward any grounds of defence, considered that the sentences imposed in the light of the seriousness of the offences were 25 insufficient and increased them as follows:Count 1 - from 2- " 3- " 4- " 5- " C£80.- to C£100.- fine 20.- " 40.- " 10.- " 50.- " 50.- " 70.- " 20.- " 40.- " The Assistant Chief of Police (Administration) exercising the powers vested in him under regulation 20
(3)(
  1. c)of the Regulations, appealed against thesentences imposed on the applicant, to the Chief of Police. The appeal was heard by the Deputy 35 Chief of Police, duly authorized for that purpose by the. Chief of Police. The Deputy Chief of Police acting under regulation 21, found that the disciplinary sentences imposed were insufn446 30 3 C.L.R. Shiakallis τ. Republic A. Loizou J . cient and changed them to reduction to the salary scale of the first appointed (thi decision of the Deputy Chief of Police is contained in exhibit 1 attached to the application). In the said decision the Deputy Chief of Police referred to the coup d'etat and the disaster that brought to Cyprus and condemned those that in some way or other participated in it and made it possible for those who planned it to prosecute their treacherous aims. In particular he said that "the fact is that if there did not exist in Cyprus followers and collaborators 10 of EOKA B, of the Athens junta and the leadership of the coup d'etat, the coup d'etat would not take place". 5 It is thecase for the applicant that the recourse should succeed on the following grounds: 15 20 (
  2. a)Thesubject decision is misconceived, themisconception consisting of the fact that facts were taken into consi­ deration and descriptions were given to the applicant which were not born out either from the particulars of the various counts to which he was found guilty or from the judgment cf the Disciplinary Court. (b). If the Court found that there did not exist miscon­ ception of fact, the sentence imposed was excessive for the following reasons: (
  3. i)the passage of six years from the date of the com­ mission of the offences. 25 (
  4. ii)the conduct of the applicant before and after the commission of the offences. (iii) the clean criminal record of the applicant. (
  5. iv)the non-prosecution of the organizers and main culprits of the coup d'etat. 30 35 (
  6. v)everything that was mentioned in mitigation of sentence at the trial. With regard to the ground -of misconception of fact it was said in the case of Lefkos Georghiadesv. The Republic
(1972)3 C.L.R., p. 594, at p. 694, by reference to what is stated in the "Conclusions of the Caselaw of the Greek Council of State 1929-1959", p. 268, that "for the existence of a misconception 447 A. LOIZOD J. Shiakallis v. Republic
(1981)offact there isrequired an objective non-existence of theactual circumstances and requisites upon whichtheact isbased, which is ascertained in the absence of the element of the subjective test. There does not exist a misconception of fact when the administration determines items whichinsubstance aredifferent and conflicting; whose determination may in principle lead to the conclusion arrived at by the administration. The substance of such determination isnot controlled in the annulment trial". 5 In the present case the particulars of the several offences 10 and in particular those for counts 4 and 5, refer clearly to the applicant's participation in the contribution to the success of the coup d'etat. The facts also emanating from the evidence heard at thetrial of theapplicant clearly reveal sucha participation and that the other offences were committed in relation 15 to the furtherance of the aims of the coup d'etat. There did not exist, therefore, objectively examining the matter, a nonexistence of the actual circumstances and prerequisites upon which the subject decision was based, so that the ground of misconception of fact could exist. Nor were there any facts 20 taken into consideration by the Deputy Chief of Police that ought not to have been taken into consideration. Thedescription of the conduct of the applicant to be found in the subject decision was born out by the facts of the case, on the basis of which the conviction of the applicant was duly warranted! 25 In a recourse against a disciplinary convinction this Court, as a rule, will not interfere with the subjective evaluation of the relevant facts as made by the appropriate organ (see Enotiades v. The Republic
(1971)3C.L.R. p. 409,at p.415). I turn now to the ground that the disciplinary punishment 30 imposed on theappellant wasexcessive. In that respectcounsel for the applicant has referred to a number of mitigating factors to which reference has already been made in this judgment. Theanswer to theabove submission isto befound ina number of judgments of this Court. In the case of Platritisv. The 35 Republic
(1969)3 C.L.R. p. 366, at pp. 375, 376, Hadjianastassiou, J., had this to say: " There can be no doubt, that Article 146was specifically intended to create a separate system of administrative 448 3 C.L.R. 5 10 15 20 Shiakallis v. Republic A. Loizou J. justice which has been entrusted to that Court, and that the Court can only adjudicate in cases relating to matters, where consequent upon its decision, the Court may order the Respondent to take some executive or administrative action. That this is not so in thia case is obvious, because the Court cannot interfere with the severity or not of the sentence of the Presiding Officer imposed upon the Applicant, once the Council of Ministers decided to dismiss the appeal, thus confirming the punishment". In the case of Republic v. Mozoras
(1970)3 C.L.R. 210, at p. 221, TriantafyHides, J., had this to say: " The short answer to this isthat failing any legislative provisions entitling this Court, in the exercise of its competence underArticle 146,todecideonthesubstance of certain asp.-cts of disciplinary matters (and it would be in the interests of justice if such provision.^ came to be enacted here, as in Greece) the severity, as such of a disciplinary sanction cannot be tested, and decided upon, by means of a recourse under Article 146 (see Kyriacopoulos on Greek Administrative Law, 4th ed., Vol. Ill, p. 305, p. 308)". This passage was also adopted by me in the case of Christofides v. CYTA
(1979)3 C.L.R. p. 99, at p. 125. For all the above reasons this ground also fails. 25 In the result this recourse is dismissed, but in the circumstances I make no order as to costs. Application dismissed. No order as to costs. 449

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