(1982)1982 October 23 [STYLIANIDES, J.] IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION CHARALAMBOS MYLONAS, Applicant, v. THE EDUCATIONAL SERVICE COMMITTEE, Respondent. (Case No. 172/81). Administrative Law—Administrative acts or decisions—Executory act—Confirmatory act—It lacks executory nature and it cannot be made the subject of a recourse under Article 146 of the Constitution—But an act containing a confirmation of an earlier one may be executory and, therefore, subject to a recourse if made 5 after a new inquiry—// is a question offact when a new inquiry is carried out—The taking into consideration of new substantive legal andfactual elements, not used before, amounts to adecision reached after a new inquiry. Constitutional Law—Equality—Article 28 of the Constitution— Concept of equality—A relative one and applies only in cases of legality—Non-application of the Law by the administration onanother occasionnogroundfor annulment ofsubjudice decision. Superior orders—Soldiers—Not bound to obey superior orders which are contrary to the basic principles of the Constitution—Coup if etat of July 15, 1974—Orders from the coupists to reservists —They were manifestly illegal—Applicant a reservist, had a duty to obey the Law of the land and protect the constitutional order—Plea of superior orders, absence of mens rea and acting under compulsion not constituting a defence. The applicant, a school-master of the elementary education was tried disciplinarily and was convicted by the Educational Service Committee on four disciplinary offences committed 880 10 \$ 20 3 C.L.R. 5 10 Mylooas v. Republic during the days of, and in connection with, the Coup d'etat of July 15, 1974. Following a request by his counsel the Committee decided to re-examine his case and the applicant submitted to the Committee a number of written signed statements by inhabitants of Kokkinotrimithia, going to the guilt or innocence of the applicant, together with a petition iigned by a number of villagers. After considering this material the Committee decided not to interfere with the conviction but it decided to reduce the sentence. As against the decision of the Committee which was taken after the above re-examination the present recourse was filed. Counsel for the applicant mainly contended that: 15 20
(1)Thedecision of theCommittee and the sentence imposed onhimarecontrary totheprincipleofequality enunciated in Art. 28 of the Constitution as it constitutes unequal treatment and discrimination against the applicant in view of the fact that by decision of the Government other persons, who committed more serious similar offences, were not proceeded with; and,
(2)The charges against the applicant were not brought home against him as— (
- a)Mens rea has not been proved; (
- b)The applicant was obeying superior orders; and, (
- c)He was acting under compulsion. 25 Counselfor therespondent inhisopposition raised the objection that'the recoursewasout oftimeastherewasno newexecutoryadministrativeactinthesenseofArticle 146.1of theConstitution. Held, (I) on theobjection: 30 35 That a confirmatory act lacks executory nature and it cannot bemadethesubject ofarecourseunderArticle 146oftheConstitution; that an act which contains a confirmation of an earher one may be executory and, therefore, subject to a recourse for annulmentifithasbeenmadeafter anewinquiiyintothematter; that when a new inquiry is carried out it is a question of fact; that the taking into consideration of new substantive legal and factual elements,not used before, amountsto a decision reached 881 Mylonas v. Republic
(1982)after a new inquiry; that the respondent Committee examined applicant's case in the light of the new material placed before it which partly refers to the issue of his guilt or innocence; that therefore, its decision is not a confirmatory act but an executory administrative act; accordingly the preliminary objection fails both in fact and in law. 5 Held, (IT) on the merits of therecourse:
(1)That the concept of equality is a relative one and applies only in cases of legality; that the non-application of the Law by the administration on another occasion is no ground for 10 annulment of the sub judice decision; accordingly contention
(1)should fail.
(2)That the disciplinary offences of which the applicant was found guilty were committed in the days of the abortive coup; that no doubt could beentertained by any person living in this 15 country—and more so by a school-master, Grade "A", as the present applicant—that the coupists and the purported overthrow of the constitutional ordei were illegal acts; that the citizens of a country, irrespective of whether they are members of the Police, the Forces, etc., not only are not bound to obey 20 superior orders which are contrary to the basic principles of the Constitution but, on the contrary, they are bound to take actioninsupport ofthefreedom ofthepeopleandtheprotection ofthe constitutional order; that the orders and directions which the applicant raised in defence were manifestly illegal and they 25 constitute no defence at all; that they were unlawful and the duty of this teacher reservist officer was to obey the Law of the land and to protect, as other Cypriote did at the time, the constitutional oider; that the plea of mens rea and compulsion failed before the Committee; that these matteis arewell settled 30 and useful leference may bemadeto the Criminal Code and the Case Law on the matter; accordingly contention
(2)should, also, fail. Application dismissed. Cases referred to: 35 Moran v. The Republic, 1 R.S.C.C. 10 at p. 13; Holy See of Kitium v. The Municipal Councilof Limassol,I R.S.C.C. 15 at p. 18; 882 3 C.L.R. 5 10 15 20 25 Mylonas v. Republic Protopapas v. TheRepublic
(1967)3C.L.R. 411 at pp.415-416; Mahdesian v. TheRepublic
(1966)3 C.L.R. 630 at p.633; HadjiKyriacos and Sons Ltd. v. The Republic
(1971)3 C.L.R. 286; Papademetrlou v. Boardfor Registration of Architects and Civil Engineers
(1977)3 C.L.R. 411 at p. 420; Varnava v. The Republic
(1968)3 C.L.R. 566; Limassol ChemicalProductsLtd. v. The Republic
(1978)3 C.L.R. 52; Dr. G.N. Marangos Ltd. v. The Municipality of Famagusta and Another
(1979)3 C.L.R. 73; Kolokassides v. The Republic
(1965)3 C.L.R. 542; Ktenas andAnother {No.1)v. TheRepublic
(1966)3C.L.R. 64; Voyiazianos v. The Republic
(1967)3 C.L.R. 239, Ioannides v. The Republic
(1973)3 C.L.R. 117; Karayianni and Others v. The Educational Service Committee
(1979)3 C.L.R. 371; Enotiadou v. TheRepublic
(1971)3 C.L.R. 409 at pp 414-415; Harosv. The Republic,4 R.S.C.C. 39 at p. 43; Kyprianou v. The PublicService Commission
(1973)3 C.L.R. 206; Lambrou v. The Republic
(1972)3 C.L.R. 379; Constantinou v. The Republic
(1969)3 C.L.R. 190 at pp. 207208; Republicv. Georghiades
(1972)3 C.L.R. 594; Anastasslou v. Demetriouand Another
(1981)1 C.L.R. 589; Keighley v. Bell [1886] 4F.&F. 769 at p. 790; Queen v. Smith [1900] 17 Cape S.C. Reports 561. Recourse. 30 Recourse against that part of the decision of the respondent Whereby the applicant was found guilty on certain disciplinary offences. C. L. Clerides, for the applicant. 35 M. Flourentzos, Counsel of the Republic, for the respondent. Cur. adv. vult. 883 Mylouas v. Republic
(1982)STYLIANIDES J. read the following judgment. By this recoursetheapplicant seeksadeclarationthat thepart ofthedecision of the Educational Service Committee issued on 28th February, 1981,whereby upon a re-examination of applicant's case, he was found guilty on certain disciplinary offences, is 5 null and void and of no effect. The applicant, a school-master of the elementary education, during the summer school vacations of 1974wasresiding at his native village, Kokkinotrimithia. He was a reservist of the National Guard. The bloody abortive coup d'etat took place 10 on 15thJuly,
- As a result of certain acts of thisapplicant and after the proper procedure was followed, he was charged with four disciplinary offences committed during the days of, and in connection with, the coup d'etat. Two of them were preferred under s.2 of The Certain Disciplinary Offences (Con- ]5 duct of Investigation and Adjudication) Law, 1977(Law No. 3 of 1977) and two under s.63 of the Public Educational Service Law, 1969, (Law No. 10 of 1969). Counts No. 1and 3 refer to acts or omissions showing lack of loyalty and of devotion to theRepublicof Cyprusand ofrespecttotheLawsorinanyway 20 tending to promote the coup d'etat or the overthrow of the constitutional order or the State structure, and counts No. 2 and 4 refer to acts or omissions amounting to contravention of the duties or obligations of an educational officer. The Educational Service Committee dealt with this case on 25 14.5.79,28.6.79,25.9.79 and 26.9.
- On 17.10.79 it delivered its decision finding the applicant guilty on all four counts. After hearingaddressinmitigation,itimposed onhimoncounts No. 1and 2 the punishment of reduction of his salary to the starting point of the scale of School-master "A" as from 30 17.10.79,and on counts No.3and 4disciplinary transfer to the Elementary School of Kyperounta as from 18.10.
- The applicant by Recourse No. 470/79 challenged before the Supreme Court the aforesaid decision. The applicant through his counsel on 5.12.80 applied in 35 writing to the respondent Committee for re-examination of its decision of 17.10.79 in virtue of the respondent's powers under s.5
(2)ofthe Public Educational Service Law, 1969(Law No. 10 884 3 C.L.R. Mylonas v. Republic Styllanides J. of 1969). (See Blues 67-68 of exhibit No. 1and Appendix "A" to the opposition). 5 After obtaining legal advice from the Attorney-General (see Appendices " B " and " C " ) , the respondent on 29.12.80 decided to re-examine its said decision and informed the appli cant accordingly. The applicant and his advocate appeared before the re spondent Committee. New material, consisting of a number of written signed statements by inhabitants of Kokkinotrimithia, 10 going to the guilt or innocence of the applicant and a petition signed by a number of villagers in support of the applicant, was placed before the Committee. All these documents purport to have been signed from the 20th May - 3rd June, 1979, long before the first hearing of the case. (See Blues No. 50-66 in 15 exhibit No. 1). In their letter of 5.2.80 it is stated that by oversight these had not been placed before the Committee earlier. 20 25 30 35 After hearing counsel for the applicant, the respondent Committee reserved its decision to study the new material submitted to it by applicant's side and consider the address of his counsel. On 28.2.81 they issued the sub judice decision. They did not interfere with the conviction but they reduced the sentence. The material part reads as follows:"Γι' αυτό ανακαλεί τήυ απόφασητης γιά την επιβολή της ποινής τοϋ υποβιβασμού στο αρχικό σημείο της κλίμακας τού δασκάλου Α' από τις 17.10.1979 καΐ αντί αύτης επι βάλλει ώς χρηματική ποινή τό ποσό το όποϊο ό δάσκαλος έχασε άπότις 17.10.1979 μέχρι τήν 1.1.1981 λόγω τοΰ υπο βιβασμού. 'Από τήν 1.1.1981 ό δάσκαλος αποκαθίσταται και επανέρχεταιστό σημείο της κλίμακαςστο όποϊο Θαβρι σκόταν τήν 1.1.1981 άν6έν είχε μεσολαβήσει ό υποβιβασμός. Ή ημερομηνία προσαυξήσεως παραμένει όπως ήταν. Ώς προςτήν πειθαρχική ποινή της πειθαρχικής μεταθέσεως ή Επιτροπή θεωρεί Οτι ό δάσκαλος, μέ ιήν μετάθεση του στή Κυπερούντα όπου υπηρέτησε γιά ενα χρόνο περίπου, έχει Ικανοποιήσει τού^ σκοπούς γιά τους οποίους τοϋ είχε επιβληθεί". ("For this reason it revokes its decision for the imposition of the punishment of demotion to the starting point of the 885 Stylianldes J. Mylonas τ. Republic
(1982)scale of Teacher Ά ' as from 17.10.1979 and in its place it imposes as a monetary sentence the amount which the teacher has lost from 17.10.1979 - 1.1.1981 due to the demotion. As from 1.1.1981 the teacher is reinstated and returns to the point on the scale to which he would have 5 been on 1.1.1981 had the demotion not intervened. The incremental date remains as it was. As regards the disciplinary punishment of disciplinary transfer the Committeeconsiders that the teacher, with his transfer to Kyperounda where he served for about a year, io has fulfilled the purposes for which it had been imposed"). The respondent in his opposition raised the objection that the recourse is out of time as there is no new executory administra tive act in the sense of Art. 146.1 of the Constitution. Mr. Flourentzos, in his address contended that, as the respondents did not revoke its previous decision on the guilt of the applicant, either there is no new decision or their decision is simply a confirmatory one, and, therefore, this recourse is notentertainable by the Court. 15 It is well settled that the provision of Art. 146.3 - that a re- 20 course shall be made within seventy-five days of the date when the decision or act was published or, if not published and in the case of an omission, when it came to the knowledge of the person making the recourse - is mandatory and has to be given effect in the public interest in all cases. 25 The Courtmay on its own motionraise theissue as to whether or not a particular recourse is or is not out of time. (John Mourn and The Republic, (The Attorney-General and Another), 1 R.S.C.C. 10, at p.13; TheHoly See of Kitium and The Muni cipal Council of Limassol, 1 R.S.C.C. 15, at p. 18; Protopapas 30 and The Republic,
(1967)3 C.L.R. 411, at pp. 415-416; Mahdesian and The Republic,
(1966)3 C.L.R. 630, at p.633). Mr. Flourentzos cited in support of his objection, inter alia, Kyriacopouhs - Greek Administrative Law - 4th edition, volume 3, pp.94 and 96, and the decisions of this Court in Hadjikyriakos 35 & Sons Ltd. v. The Republic of Cyprus, through the Minister of Agriculture and Natural Resources,
(1971)3 C.L.R. 286; Demetrios S. Papademetriou v. TheBoardfor Registration of Architects 886 3 C.L.R. Mylonas v. Republic Styllanides J. and Civil Engineers,
(1977)3 C.L.R. 411,at p.420; Varnavav. TheRepublic,
(1968)3C.L.R. 566; Limassol ChemicalProducts Co. Ltd. v. The Republic of Cyprus, through the Minister of Commerce and Industry,
(1978)3 C.L.R. 52; and Dr. G. N. 5 Marangos Ltd. v.
- The Municipality of Famagusta,
- The Republic of Cyprus, through the Council of Ministers,
(1979)3 C.L.R. 73. A confirmatory act or decision is an act or decision of the administration which repeats the contents of a previous execu10 tory act and signifies the adherence of the administration to a course already adopted; it is not in itself executory because it does not itself determine the legal position of an individual case, and cannot, therefore, be the subject of a recourse. (Stassinopoulos - The Law of Administrative Disputes -4th edition, p.175; 15 Conclusionsfrom the Jurisprudence of the Greek Council of State, 1929-1959, pp. 240-241). A confirmatory act lacks executory nature and it cannot be the subject of a recourse under Art. 146 of the Constitution. (Tsatsos - Applicationfor Annulment - 3rd ed., p.131; Kyriaco20 poulos - Greek Administrative Law - 4th ed., volume 3, p.96). The decisions cited by respondent's counsel are to the same effect. An act whichcontains a confirmation of an earlier one may be executory and, therefore, subject to a recourse for annulment 25 if it has been made after a new inquiry into the matter. This is borne out by the authorities above referred. (See also Kolokassides v. The Republic,
(1965)3 C.L.R) 542; Ktenas and ~ Another (No. 1) v. The Republic,
(1966)3 C.L.R. 64). Was a new inquiry carried out in the present case? This is a 30 question of fact. The taking into consideration of new substantive legal and factual elements, not used before, amounts to a decision reached after a new inquiry. There is a new inquiry when, before the issue of the subsequent act, an investigation takes place of newly emerged elements or although pre-existing 35 were unknown at the time and were taken into consideration in addition to the others, but for the first time. Similarly, the collection of additional information in the matter under consideration constitutes a new. inquiry. (Stassinopoulos - The Law of Administrative Disputes - 4th edition, p.176). 887 Stylianides J. Mylonas v. Republic
(1982)Blues No. 50, 51, 52, 53, 54 and 55 are statements of inhabitants of Kokkinotrimithia relating to the disciplinary offences of which the applicant was found guilty. The aforesaid statements arecontradicted bythe written statement ofthe applicant repeated by him on oath before the Committee. The respon- 5 dent Committee at thefirst inquiryhad before ittheevidenceof another school-master and the statement of the applicant in his own handwriting - (Blues 8and 9)- in which he admitted that he was manning, dressed in military uniform and armed with automatic weapon, a check-point from 16th - 19th July, 1974. 10 The respondent expressly took time to study the new elements submitted by the applicant. (See Blue 73). Also in their sub judice decision they referred specifically to Blues50-66inclusive. I have no reason to doubt that the Committee re-examined applicant's case in the light of the newmaterial placed before it 15 whichpartlyrefers totheissueofhisguiltorinnocence. Therefore, therewasnewmaterial and newelementsoffact before the respondent when it re-examined applicant's case. The silence of the respondent on the subject of the earlier conviction signifies only that they decided not to revoke their decision whereby the applicant was found guilty of the disciplinary offences. The respondent re-examined the case; it carried out a new inquiry and arrived at the decision not to change their previous decision on the guilt of the applicant. Such decision is not a confirmatory but an executory administrative act. The preliminary objection fails both in fact and in law. 20 25 A number of grounds of Law were set out in the recourse. Most of them have been abandoned at the commencement of the hearing and I need not advert to them. 30 It was submitted by counsel for the applicant that:
(1)The decision of theCommittee and the sentenceimposed on him are contrary to the principle of equality enunciated in Art. 28 of the Constitution as it constitutes unequal treatment and discrimination against the appli- 35 cant in view of thefact that by decision of the Government other persons,whocommitted more serious similar offences, were not proceeded with; and,
(2)Thecharges against theapplicant werenot brought home against him as 888 4Q 3 C.L.R. Mylonas v. Republic Stylianides J. (
- a)Mens rea has not been proved; (
- b)The applicant was obeying superior orders; and, (
- c)He was acting under compulsion. 5 1. The principle of equality is enshrined in Art. 28 of the Constitution which was judicially considered by the Supreme Court and its predecessor, the Supreme ConstitutionalCourt,in a great number of cases. The concept of equality is a relative one and applies only in cases of legality. The non-application of the Law by the 10 administration on another occasion is no ground for annulment of the sub judice decision. (Greek Council of State - Case No. 761/36; Conclusions from the Jurisprudence of the Greek Council of State, 1929-1959, p.158; Voyiazianos v. The Re public of Cyprus,
(1967)3 C.L.R. 239; loannides v. TheRe~ 15 public,
(1973)3 C.L.R. 117; Ecaterini Karayianni & Others v. The Educational Service Committee,
(1979)3 C.L.R) 371). 20 25 30 35 2. As pointed out in Enotiadou v. TheRepublic,
(1971)3C.L.R. 409, at pp. 414-415, disciplinary proceedings are not a trial by a Court but an inquiry by an administrative organ. (See also Haws and The Republic, 4 R.S.C.C. 39, at p.43). It is well settled that an administrative Court in dealing with a recourse made against a disciplinary conviction should not, as a rule, interfere with the subjective evaluation of the relevant facts as made by the appropriate organ. (Decisions of the Greek Council of State in Cases No. 2654/65 and 1129/66; loanna Enotiadou v. The Republic,
(1971)3 C.L.R.409; Kypros Kyprianou v. The Public Service Commission,
(1973)3 C.L.R. 206; Lambrou v. The Republic,
(1972)3 C.L.R. 379). In Constantinou v. The Republic,
(1969)3 C.L.R. 190, at pp. 207-208, it was said:*Ί would like to reiterate once again what has been said in a number of cases, that the evaluation of the evidence remains the province of the council, and that the Court, in reviewing the determination of the council, would not interfere if there was any evidence on which the council could reasonably have come to the conclusion which they did. If, on the other hand, there was no evidence upon 889 Stylianides J. Mjlonas v. Republic
(1982)which they could reasonably have arrived at that conclusion or they have misconceived the effect of the facts before them, or they misdirected themselves on the question of the law, then their decision can be reviewed by this Court." The ground for annulment directed against the administra- 5 tion's determination of thefacts or questioning its determination on the merits, isunacceptable ifitisnot proved to bethe product of misconception of fact or in excess of the extreme limits of the discretionary powers of the administration. (Digest of Decisions of the Greek Council of State for the Years 1961-1963, 10 volume A (A - N) p.57; Republic v. Lefkos Georghiades,
(1972)3 C.L.R. 594). The disciplinary offences of which the applicant was found guilty were committed in the days of the abortive coup. No doubt could be entertained by any person living in this country - 15 and more so by a school-master, Grade "A", as the present applicant -that the coupists and the purported overthrow of the constitutional order were illegal acts. The applicant alleged in his statement (Blues 8 and 9) that he obeyed orders given to reservists in general on the wireless and 20 later directions by the officers who took part in the coup at YEEF. The National Guard was established under the Law in order to avert any threatened invasion or any other activity directed against the independence or territorial integrity of the Republic or threatening the safety of life or property. (Section 3 of The National Guard Law, 1964). It was definitely out of the object or purpose or duties of the National Guard to overthrow the constitutional order and impose a despotism on the people of this country. The Army in a democratic society is an organ of the State for the maintenance of the national liberty and is subordinate to the Constitution and the Laws of the country. A soldier may incur special obligations in his official character but is not thereby exempted from the ordinary liabilities of a citizen. The 35 establishment and maintenance of military forces in a country have to be reconciled with the maintenance of freedom and the supremacy of the Law of the land. A member of the National 890 25 30 3 C.L.R. Mylonas v. Republic Stylianides J. Guard is subject to the Law and to all the duties and liabilities of an ordinary citizen. He is subject to the same criminal liability as a civilian and his military character will not save him from standing in the dock on the charge of violating the 5 Laws of the country. A soldier cannot escape even from his civil liabilities except if and where there is specific provision in the Law. In Anastassiou v. Demetriou & Another,
(1981)1C.L.R. 589, it was held that obedience to superior orders does not exonerate 10 a person from civil liability. When a soldier is put on trial on a charge of crime, obedience to superior orders is not of itself a defence. (A. V. Dicey The Law of the Constitution - 10th edition, pp. 302-306; Stephen - History of the CriminalLaw - [1883],vol. 1,pp. 204-206). 15 It is incontrovertible principle of the common law that the fact of a person being a soldier and of his acting strictly under orders does not of itself exempt him from criminal liability for acts which would be crimes if done by a civilian, but compare Keighley v. Bell,
(1866)4 F. & F. 763, at p.790, cited in 20 The Queen v. Smith, [1900] 17 Cape S.C. Reports 561. In the opinion of Willes, J., obedience to an order of a superior officer which is not necessarily or manifestly illegal may be a good defence to a criminal charge against a person subject to military law. 25 The notion prevailing is that the citizens of a country, irrespective of whether they are members of_the Police, the Forces, etc., not only are not bound to obey superior orders which are contrary to the basic principles of the Constitution but, on the contrary, they are bound to take action in support of the free30 dom of the people and the protection of the constitutional order. (See Article 120
(4)of the Constitution of Greece, 1975). The orders and directions which the applicant raised in his defence were manifestly illegal; they constitute no defence at all. They were unlawful and the duty of this teacher reservist 35 officer was to obey the Law of the land and to protect, as other Cypriots did at the time, the constitutional order. The plea of mens rea and compulsion failed before the Committee. I need not expand on these two matters. They are 891 Stylianides J. Mylonas v. Republic
(1982)well settled and useful reference may be made to the Criminal Code and the Case Law on the matter. Having regard to all the facts and circumstances, I find that the decision of the Committee was reasonably open to it. For all the above reasons this recourse is dismissed. No 5 order as to costs is made. Recourse dismissed. No order as to costs. 892