(1983)1983 February 14 [TRIANTAKYLLIDES. P.. HADJIANASTASSIOU, MALACHTOS, DEMETRIADES, LORIS, STYLIANIDES, JJ.] CHARALAMBOS PAPACLEOVOULOU, Appellant, v, THE REPUBLIC OF CYPRUS, THROUGH THE MINISTER OF DEFENCE. Respondent. (Rerisional Jurisdiction Appeal No. 272). Disciplinary Offences—National Guard—Disciplinary conviction and punishment of Army Officer by Disciplinary Board set up under regulation 13
(1)of the National Guard (Discipline) Regulation,';, 1964—Review of decision by Minister in exercise of his powers under regulation 23 of the Regulations—Minister under no duty 5 to afford applicant opportunity to make representations inwriting or orally if he is not going to alter the disciplinary punishment to the detriment of applicant—Regulation 23 not inconsistent with Article 12.5 and 30.3 of the Constitution and not applied in a manner incompatible with such Articles—Minister not 10 influenced wrongly by extraneous considerations in affirming the disciplinary punishment. The appellant was tried disciplinarily and there was imposed on him the disciplinary punishment of dismissal from the ranks of the National Guard, in which he was serving as a Captain. 15 The trial Judge dismissed his recourse against the above decision and hence this appeal. Counsel for the appellant mainly contended: (
- a)That the trial Judge erred in holding that the respondent Minister did not have to afford to the appellant an 20 opportunity to be heard, at least by means of written representations, in relation to his application, for re1300 3 C.L.R. Papaclemoulou v. Republic view by the Minister of the aforementioned conviction and punishment, in exercise of his powers under regulation 23 of the National Guard (Discipline) Regulations. 1964. 5 10 15 20 25 30 35 40 (
- b)That the respondent Minister was influenced by extraneous considerations, in that he took into consideration the fact that a member of the Security Forces, such as the appellant, had cooperated with others in the commission of acts of violence after the recent calamities that had been caused on a vast scale to our country due to acts of violence such as those committed during the abortive coup d'etat and the Turkish military invasion in the summer of 1974. Held,(I) that the respondent Minister hud to afford an opportunity to the appellant to make representations in writing or orally only if he was going to alter to the detriment of the appellant the disciplinary punishment that had been imposed on him, and this has not happened in the present instance (see proviso to regulation 23
(6)of the National Guard (Discipline) Regulations, 1964). Held, further, that the said regulation 23 is not in any way inconsistent with Articles 12.5 and 30.3 of the Constitution; and that in the present case it has not been applied in a manner which is, in any way, incompatible with such Articles: that. also, the fact that the appellant had no opportunity to make representations in support of his applications for review has not resulted in a breach of the rules of natural justice, because the Minister had already before him. set out in such applications at considerable length, all the reasons for which the appellant was contending that his disciplinary conviction and punishment were unjustified.
(2)That the respondent Minister was properly defining "the context within which sentence had to be measured" in punishing the appellant and there isno merit in the contention of the appellant that the respondent Minister was influenced wrongly by extraneous considerations in affirming the disciplinary punishment that had been imposed on him. Appeal dismissed. Cases referred to: Petrou v. Republic
(1980)3 C.L.R. 203 at p. 218. 1301 Papacleovoulou v. Republic
(1983)Appeal. Appeal against thejudgment of a Judge of the Supreme Court (Pikis, J.) given on the 26th March, 1982 (Revisional Jurisdiction Case No. 396/79)* whereby appellant's recourse against his dismissal from the ranks of the National Guard was 5 dismissed. A. Eftychiou, for the appellant. CI. Antoniades, Senior Counsel of the Republic, for the respondent. Cur. adv. vult. 10 TRIANTAFYLLIDCS P. read the followingjudgment of the Court. By the present appeal the appellant challenges a first instance decision of a Judge of this Court by means of which was dismissed his recourse against a decision of the Minister of Defence affirming the conviction of the appellant for a discipli- 15 nary offence and the disciplinary punishment of his dismissal from the ranks of the National Guard, in which the appellant at the material time was serving as a captain. The matter in question came before the respondent Minister by virtue of regulation 23 of the National Guard (Discipline) 20 Regulations, 1964, (Nos. 554, Third Supplement, to the Official Gazette of 3rd December 1964) as amended by the National Guard (Discipline) (Amendment) Regulations, 1978 (No. 240, Third Supplement, Part I, to the Official Gazette of 24th November 1978). It has been submitted by counsel for the appellant that the trial Judge erred in holding that the respondent Minister did not have to afford to the appellant an opportunity to be heard, at least by means of written representations, in relation to his applications, for review by the Minister of the aforementioned conviction and punishment, which were lodged on 4th and 5th June 1979 respectively. 3Q In the light of the provisions of the said regulation 23, and particularly in view of the wording of the proviso to paragraph
(6)of such regulation, we have no doubt that the respondent 35 Minister had to afford an opportunity to the appellant to make * Reported in
(1982)3 C.L.R. 187. 1302 25 3 C.L.R. Papacleovoulou \. Republic Trlantafyllides P. representations in writing or orally only if he was going to alter to the detriment ofthe appellant thedisciplinaiy punishment that had been imposed on him, and this has not happened in the present instance. 5 Futthermore, we have not been satisfied that we should hold that the respondent Minister had to afford, in any event, an opportunity to the appellant to make representations in support of his applications for review because, as has been contended by counsel for the appellant, such a course was rendered neces10 sary in view of the fact that the aforesaid regulation 23 has to be applied in a manner consonant with Articles 12.5 and 30.3 of the Constitution. We cannot agree that regulation 23 as framed is, in any way, inconsistent with Articles 12.5 and 30.3, above, or that in the present instance it has been applied 15 in a manner which is. in any way, incompatible with such Articles. Moreover, it cannot be said that the fact that the appellant had no opportunity to make representations in support of his applications for review resulted in a breach of the rules of natural 20 justice, because, in our opinion, the Minister had already before him, set out in such applications at considerable length, all the reasons for which the appellant was contending that his disciplinary conviction and punishment were unjustified; and, in actual fact, such reasons were framed in such a way 25 as to amount to extensive and full representations by the applicant in support of his applications for review; and in this respect we consider that the case of Petrou v. The Republic.
(1980)3 C.L.R. 203, 218, to which we have been referred to by counsel for the appellant as being distinguishable from the 30 present case both as regards the factual and the legal aspects. It has, also, been argued in support of this appeal that in affirming the punishment of dismissal of the appellant from the ranks of the National Guard the respondent Minister was influenced by extraneous considerations, in that, as it appears 35 from his decision dated 26th June 1979, he took into consideiation, in finding that the disciplinary punishment which was imposed on the appellant was just and reasonable, the fact that a member of the Security Forces, such as the appellant. had cooperated wilh others in the commission of acts of violence 1303 Triantafyllides P. Papacleovoulou \. Republic
(1983)after the recent calamities that had been caused on a vast scale to our country due to acts of violence such as those committed during the abortive coup d' etat and the Turkish military invasion in the summer of 1974. We agree fully with the trial Judge that the respondent Minister in adopting the above approach was properly defining "the context within which sentence had to be measured" in punishing the applicant and wefindno merit inthecontention of the appellant that the respondent Minister was influenced wrongly by extraneous considerations in affirming the disciplinary punishment that had been imposed on him. For all these reasons we have found no merit in this appeal and we dismiss it accordingly; but we make no order as 1o its costs. Appealdismissedwithno order as to costs. 1304