clr/1982/1982_3_745.pdf

(1982)upon the Committee imposed on the applicant the disciplinary punishment of stoppage of his annual increments for a period of two years. Upon a recourse against the above decision it was contended on behalf of the applicant: (

1. a)That the respondent Committee acted under a misconception of fact inasmuch as the acquittal of the applicant on the first fourteen counts, by the respondent Committee non-accepting the evidence regardinghisallegedactivities,assetoutintheparticulars 10 thereof, should have also led to his acquittal of counts 15 and 16, which were alternative counts to the rest. (
2. b)That the decision of the respondent Committee was not based on the evidence adduced and the accepted facts of the caseand was not examined in conjunction 15 with therest of theevidence and itsfindingsin relation to the other counts and it was therefore contradictory to its previous conclusions and could not stand. Held,that an administrative Court in dealing with a recourse made against a disciplinary conviction should not as a rule 20 interfere with the subjective valuation of the relevant facts as made by the appropriate organ; that for the existence of misconception offact thereisrequired anobjective non-existence of the actual circumstances and prerequisites upon which the act is based which is ascertained in the absence of the element 25 of the subjective test; that there does not exist a misconception of fact when the administration determines items which in substance are different andconflicting, whichdetermination may in principle lead to the conclusion arrived at by the administration; that thesubstance of such determination is not controlled 30 in the annulment trial; that the ground for annulment directed against the administration's determination of the facts oi questioning its determination of the merits, is unacceptable, since is not proved to be the product of a misconception of fact oi in excess of theextreme limits of the discretionary power 35 of the administration; that itcannot besaid that the respondent Committee acted under any misconception of fact since there was no, objectively examined, non-existence of the acts and conduct referred to in the decision against which the recoune 746 5 3 C.L.R. 5 10 15 20 25 Semelides v. Republic has been filed; that on the contrary, a perusal of the record shows that there was ample material before the respondent Committeetoarrive attheconclusionit did;thatitsappreciation of the facts, — having decided upon the credibility of thewitnesses, — which were found by it to have occurred, justified their evaluation and assessment as constituting the conduct charged in counts 15 and 16 of the charge; that the fact that the applicant was acquitted on the remaining counts could not inevitably lead to theconclusion that he was innocentof counts 15 and 16 as well inasmuch as he was found to have uttered the phrase referred to therein and to have conducted himself in a manner that it made it reasonably open for therespondent Committee to conclude that they established these two disci­ plinary offences of which he has been found guilty; accordingly the recourse should fail. Application dismissed. Cases referred to: Enotiadouv. Republic

(1971)3 C.L.R. 409; Lambrou v. The Republic

(1972)3 C.L.R. 79; Georghiades v. The Republic

(1972)3 C.L.R. 594; Decisions of the GreekCouncil of State Nos. 1508/1950, 2654/ 1965 and Π29/1966. Recourse. Recourse against the decision of the respondents whereby applicant was found guilty of two disciplinary offences. E. Efstathiou, for the applicant. A.S. Angelides, for the respondents. Cur. adv. vult. 30 35 40 A. Loizou J. read the following judgment. Against the applicant who has been a schoolmaster in the Secondary Educa­ tion since 1959, there were instituted on the 14th December 1978, before the respondent Committee,disciplinary proceedings and he was charged with sixteen counts (exhibit A). Eight of them referred to acts or omissions showing lack of loyalty and of devotion to the Republic of Cyprus and of respect to the Laws, or in any way tending to promote the Coup d' Etat or the overthrow of the Constitutional order or the State structure, contrary to section 2 of The Certain Disciplinary Offences (Conduct of Investigation and Adjudication) Law, 1977 (Law No. 3 of 1977). The other eight referred to acts 747 Λ. Loizou J. Semelides v. Republic

(1982)or omissions amounting to a contravention of the duties or obligations of an Educational Officer, contrary to section 63 of the Public Educational Service Law, 1969, (Law No. 10 of 1969). The hearing of the case commenced on the 26th January and was concluded on the 22nd June 1979 when the applicant was acquitted and discharged on counts 1 to 14 inclusive and was found guilty on counts 15 and 16 by a majority of its members, the Chairman dissenting. 5 Counts 15 and 16 are as follows: 10 "Count

1. Statement of the Disciplinary Offence. Disciplinary offence as defined in Section 2 of Law 3 of" 1977, i.e. acts or omissions showing lack of loyalty and devotion to theRepublic of Cyprus andrespect totheLaws 15 or in any way tending to promote the Coup d' etat or the overthrow of the Constitutional order of the state structure. Particulars of the Disciplinary Offence. On the 18 July 1974 you visited loyal arrested detainees 20 at Larnaca Rural Station when you made propaganda in favour of the Coup d' Etat by saying among other things the following: 'The Coup d* Etat is a revolution and has taken place for just and for unjust and all those who are unjust will pay.' 25 Count
2. Statement of the Disciplinary Offence. Acts oromissions or conduct amounting to a contraven­ tion of the duties or obligations of an Educational Officer contrary to Section 63 of Law 10 of
3. 30 Particulars of the Disciplinary Offence. On the 18 July 1974 you visited loyal arrested detainees at the Larnaca Rural Station when you made propaganda in favour of the Coup d' Etat by saying among other things the following 'the Coup d' Etat is a revolution and 35 748 3 C.L.R. Semelides v. Republic A. Loizou J. has taken place for just and unjust and those that are unjust will pay.' " 5 10 15 20 25 The judgment of the respondent Commission was delivered on the 22nd June 1979 (exhibit X). After the Chairman summed up the evidence which had been adduced, he gave the reasons for acquitting the applicant on the first fourteen counts as well as his own dissenting judgment for acquitting him on counts 15 and 16 as well, whereas in respect of these latter two counts the following is recorded: "Counts 15 and
4. The members Georghiou, Papadouris and Papadopoullos, accept the evidence adduced (Odyssea Christodoulou, Minutes 13th March 1979 p. 3, Mina HadjiCosta, Minutes 22nd March 1979, pp. 8 and 9), but also the statement of the accused p. 4 of the Minutes of the 9th April
5. ' "Εγινε μια επανάσταση παιδιά έδώ και για δικαίοι/s καΐ άδίκοι/s θα τιμωρηθούν οί ένοχο», εσείς δέν έχετε νά φοβηθηττ τίποτε.' 'Chaps a revo­ lution has taken place here and for just and unjust those guilty will be punished, you do not have to be afraid at all.' The fact that the various witnesses coloured in different ways what was said by the accused, to describe a schoolmaster of literature of the calibre of the accused, the Coup d' Etat as a revolution and that the guilty will pay allows no other interpretation than that which coldly and simply convey the expression 'a revolution has taken place and those guilty will pay'. Therefore they find the accused guilty in Counts 15 and
6. They believe that the accused has been concerned to see that some of his friends were freed". 30 The Chairman, then asked the accused if he had anything to say before a disciplinary punishment was imposed on him and after his counsel left the matter to the respondent Com­ mittee, although his client, he stated was innocent, the respondent Committeeimposed on the applicant the disciplinary 35 punishment of stoppage of his annual increments for a period of two years. It terminated then his interdiction as from the 23rd June 1979, and with regard to the deductions from his emoluments made during his interdiction, the respondent Committee decided that the whole sum deducted be refunded 40 to him. 749 Λ. Loizou J. Semelidcs v. Republic

(1982)The particulars for the first fourteen counts for which the applicant was acquitted were these. Counts I and 2, that on the 15th July 1974, during the curfew he was seen celebrating with officers of the National Guard for the success of theCoup d' Etat. Counts 3 and 4, that between the 16th and 19th of 5 July 1974 he was seen visiting at the Larnaca Rural Station detainees, accompanied by the Coup d* Etat activist Kouppis and was cooperating with him travelling in the same car. Counts 5 and 6, that in the afternoon of the 15thJuly, he was seen outside theKitium Bishopric dressed ingreygreen uniform, 10 holding a loudspeaker and asking loyal persons in it to give themselves up to the Coup d' Etat activists. Counts 7 and 8, that between the 16thand the 19thof July hewas seen repeatedly moving freely within the Central Police Station of Larnaca and cooperating with theCoupd' Etatactivists andinparticular 15 he was visiting regularly the office of the Divisional Police Commander, which was used as Head-quarters by the Coup d' Etat people. Counts9 and 10, that on the 17th July 1974, after the Central Police Station was taken over by the Coup d' Etat people, the applicant was seen wearing a grey green 20 uniform, carrying a pistol in a leather case and shaking hands with Papapanayiotou, the Coup d' Etat activist from Greece and he said, 'glory to all Mighty, let us now go to theChurch and make our cross". Counts 11 and 12, that on the 16th July 1974,hewas seen with greygreen uniform visitingtheCoup 25 d' Etat Captain of the National Guard Nicolettis, who was in the army barracks opposite GSZ Larnaca. Counts 13 and 14, that on the 19th July 1974, in the evening Georghios Angelides was taken to the Central Police Station for interroga­ tion he was present at the Station and waited outside, opposite 30 the door of the office and watched the interrogation. It has been the case for the applicant that the respondent Committee acted under a misconception of fact inasmuch as the acquittal of the applicant on thefirstfourteen counts, by the respondent Committee nonaccepting the evidence regarding 35 his alleged activities, as set out in theparticulars thereof, should have also led to his acquittal of counts 15 and 16, which were alternative counts to the rest. Moreover it was urged that the decision of the respondent Committee was not based on the evidence adduced and the accepted facts of the case and was 40 not examined in conjunction with the rest of the evidence and 750 3 C.L.R Semelides Λ. Republic A. Lolzou J. its findings in relation to the other counts and it was therefore contradictory to its previous conclusions and could not stand. Itwas argued thattheapplicantcould notbefound tohave been making propaganda in favour of theCoup d' Etat when he paid 5 avisit at the Larnaca Rural Station,which at thetime was under the control of the Coup d' Etat forces, which included a certain Kouppis who had a leading position in the Coup d' Etat and who was present and accompanying the applicant, as the expres­ sions used by him at such a visit in addressing the persons 10 detained were made for the purpose of pacifying those detained, and it was so inoffensive that the witnesses either did not notice or paid no attention or did not remember exactly the expressions used In the case of Enotiadou v. The Republic

(1971)3 C.L.R. 15 p. 409, it was held that an administrative Court in dealing with a recourse made against a disciplinary conviction should not as a rule interfere with the subjective valuation of the relevant facts as made by the appropriate organ. In support of this proposition reference is made therein to decisions numbers 20 2654/1965 and 1129/1966 of the Greek Council of State. In the case of Lambrou v. The Republic

(1972)3 C.L R. p. 79, it was held that the disciplinary conviction of that applicant was in the view of the Court reasonably open to the respondent Committee and reconfirmed what was said in the Enotiadou 25 case (supra). In Lefkos Georghiades v. The Republic

(1972)3 C.L.R. p. 594, it was held as to the argument set forth by the respondent the officer concerned, the existence or not of facts or the reasonableness of the inferences drawn thereof by the appellant, Public Service Commission—sitting as a 30 disciplinary tribunal—that it was enough for the Court to state that there was ample material before the Commission on which it was entitle to arrive at the conclusion it did and it did not interfere and substitute its own view for that of the Commission which had duly weighed the probative effect of 35 the evidence and had correctly arrived at the conclusion that the facts and circumstances, which it was its duty to consider, amounted to the disciplinary offences of which the officer was found guilty. 4f) At p. 692 of the report I dealt with the difference that exist between a right of appeal to the First Section of the Council 751 A. Loizou J. Semelides v. Republic

(1982)of State in Greece from a disciplinary decision to the right of a recourse under Article 146 of the Constitution to this Court from such a decision and I referred to Kyriakopoullos Greek AdministrativeLaw, 4th edition volume 3 p. 305 where it is stated that the Council of State may arrive at a different appre- 5 ciation of facts which are the foundation for the disciplinary liability. I indicated, however, that "the fact that the Council of State determines the merits of the appeal, does not only emanate from section 34, paragraph

(1)of Law No. 3713, but alsofrom section 1,paragraph

(6)oftheCode oftheAdmi- 10 nistrative Civil Servants which sets down the general rule by which—'in accordance with the said law in a recourse before the Council of State is determined by it and on its merits.' " I then went on to point out the legal principles governing the extent that an administrative Court will interfere with the 15 determination of the factual basis of an administrative act or decision, as contained in a number of decisions, which can be found in the Digest of Decisions of the Greek Council of State for the years 1961-1963, volume A (A—N) p. 77 under the heading "The Nonreviewability of Determination on the 20 Merits". They set out theprinciple that theground for annulment directed against the administration's determination of the facts or questioning its determination on the merits, is rejected as unacceptable, since is not proved to be the product of a misconception of fact or in excess of the extreme limits 25 of the discretionary power of the administration. Moreover I adopted the summing up madein the Conclusions of the Case Lawof theGreek CouncilofState(1929-1959)p. 268,regarding thequestion ofmisconception offact, for theexistenceofwhich there isrequired an objective nonexistence of theactual circum- 30 stances and prerequisites upon which the act is based which is ascertained in the absence of the element of the subjective test, and that there does notexist a misconception of fact when the administration determines items which in substance are different and conflicting, which determination may in principle 35 lead to the conclusion arrived at by the administration. The substance of such determination not being controlled in the annulment trial. I still believethat theaforesaid principlesrepresent thecorrect legal position on the matter and they apply with equal force 40 to the case in hand. 752 3 C.L.R. Semelides v. Republic A. Loizou J. In our case the respondent Committee has ascertained the acts of the applicant according to its unfettered judgment and having described them as constituting the disciplinary offence of acts or omissions showing lack of loyalty and devotion to 5 the Republic of Cyprus and respect to its Laws or as tending to promote the Coup d' Etat or the overthrow of, the Constitutional Order, or the State structure and also as being acts or omissions or conduct amounting to a contravention of the duties or obligations of an educational officer, the act against which 10 this recourse isdirected, renders the subject decision, as pointed out in decision 1508/50 of the Greek Council of State legally reasoned. Moreover it cannot be said that the respondent Committee acted under any misconception of fact since there was no, 15 objectively examined nonexistence, as argued on behalf of the applicant, of the acts and conduct referred to in the decision against which the recourse has been filed. On the contrary, a perusal of the record shows that there was ample material before the respondent Committee to arrive at the conclusion 20 it did. Its appreciation of the facts—having decided upon the credibility of the witnesses—which were found by it to have occurred, justified their evaluation and assessment as constituting the conduct charged in counts 15 and 16 of the charge, that is that it amounted to propaganda in favour of the Coup 25 d' Etat. The fact that the applicant was acquitted on the remaining counts could not inevitably lead as argued to the conclusion that he was innocent of counts 15 and 16 as well inasmuch as he was found to have uttered the phrase referred to therein 30 and to have conducted himself in a manner that it made it reasonably open for- the respondent Committee to conclude that they established these two disciplinary offences of which he has been found guilty. For all the above reasons this recourse is dismissed, but in 35 the circumstances I make no order as to costs. Application dismissed. No order as to costs. 753