clr/1984/1984_3_1476.pdf

(1983)3 C.L.R. 1460 at pp. 1479-1481. Recourse. ' Recourse against the decision of the respondent to promote the interested parties to the post of Senior Specialist in the 10 Department of Medical Services in preference and instead of the applicant. K. Talarides, for the applicant. A. Papasavvas, Senior Counsel of the Republic, for the respondent. 15 AS. Angelides, for interested party Angelides. Cur. adv. vuit. DEMETRIADES J. read the following judgment. By means of the present recourse the applicant challenges, in effect, the decision of the respondent Public Service Commission to pro20 mote, instead of him, the interested parties N. Angelides and A.Papanastassiou, tothepost ofSenior Specialist inthe Department of Medical Services. The facts that led to the present proceedings are briefly the following: 25 On the 30th November, 1983, this Court made an order for thesubmission bycounselfor thepartiesoftheirwritten addresses. After the written addresses of counsel for the respondent and interested party Angelides were filed, counsel for the applicant filed a reply in which he alleged that the Chairman of the 30 Public Service Commission was disqualified from participating in the selection of the candidates for promotion to the post concerned as his wife was the second cousin of the wife of interested party Angelides. On the day the recourse was fixed for hearing and as this 35 allegation was a new ground of law not included in the original 1477 Demetriades J. Xiros v. Republic

(1984)grounds of law on which the recourse of the applicant was based, counsel for the respondent and for interested party Angelides submitted that the applicant was not entitled to argue this point without first applying to the Court for leave to have his grounds of law amended. 5 After hearing the arguments of counsel, it occurred to me that I too was related to the wife of interested party Angelides in the same degree of relationship as that of the wife of the Chairman of the Public Service Commission and I accordingly informed counsel of this fact. My statement, which I made 10 in openCourt, andtheresponse toit by counselfor theapplicant, as these appear in the official transcript, read: "ΔΙΚΑΣΤΗΡΙΟ: Θα ήθελα να παρατηρήσω ότι με την σύζυγο του ενδιαφερομένου προσώπου έχω την (δια συγ­ γένεια που έχει η σύζυγος του Προέδρου τη? Δημοσίας 15 Υπηρεσίας. κ. Ταλαρίδης: Δεν εγνώριζα αυτή την λεπτομέρεια. Πιστεύω ότι δενέχω καμμία αμφιβολία διατην αμεροληψίατουΔικα­ στηρίου και του προσώπου σας και το λέγω χωρίςκανένα ενδοιασμό ούτε επιφύλαξη είμαι σίγουρος δια την αμερο- 20 ληψία αλλά πιστεύω ότι υπό τας περιστάσεις έχωκαθήκον να θέσω εις το Δικαστήριο ότι το Δικαστήριο σας πρέπει να εξαιρέσει τον εαυτό του να εκδικάσειτην προσφυγήαυτή και πρέπει να μας δοθεί ευκαιρίαναεπιχειρηματολογήσουμε επί του θέματος αυτού". 25 ("COURT: I would like to point out that with the wife of the interested party I have the same relationship which the wife of the Chairmanof the Public Service Commission has. Mr. Talarides: I was not aware of this detail. I believe 30 that I have no doubt about the impartiality of the Court and your person and I say this without any hesitation or reservation I am sure for the impartiality but I believe that under the circumstances I have a duty to submit to the Court that your Court must disqualify itself from 35 trying this recourse and theremust be given to us the oprx*· rtunity to argue on this issue*'). Arguments on the submission of counsel for the applicant on my statement were then adjourned for another date. 1478 3 C.L.R. Xiros v. Republic Demetriades J. Counsel for the applicant has referred, in this respect, to the provisions of Article 30.2 of the Constitution which read as follows: 5 10 15 30.2"In the determination of his civil rights and obligations or of any criminal charge against him, every person is entitled to a fair and public hearing within a reasonable time by an independent, impartial and competent Court established by law. Judgment shall be reasoned and pronounced in public session, but the press and the public may be excluded from all or any part of the trial upon a decision of the Court where it is in the interest of the security of the Republic or the constitutional order or the public order or the public safety or the public morals or where the interests of juveniles or the protection of the private life of the parties so require or, in special circumstances where, in the opinion of the Court, publicity would prejudice the interests of justice". He stated that in the present case there is no actual bias or partiality either in favour or against anyone of the parties and 20 referred to the principle that justice should not only be done but also appear to be done. In deciding the issue raised by counsel for the applicant in the present case, useful guidance may be derived from the case of Kritiotis v. The Municipality of Paphos,

(1983)3 C.L.R. 25 1460,where StylianidesJ., after settingout theprinciples governing the impartiality of the Courts, said the following (at pp. 1479-1481): 30 35 "These principles apply not only to the Courts of Law, inferior and superior, but to all bodies,disciplinary boards, administrative authorities, etc., which take decisions that have legal results and affect the interests of the citizen. Objection to a Judge, where bias or reasonable suspicion of bias is alleged, has to be taken at the earliest stage in proceedings and hasto bedecided bythe Judge concerned. His decision is always subject to judicial review. The. right of the citizen to have his civil disputes and criminal charges against him determined by impartial Courts wastraditionally part of our Law. It has, however, been constitutionally enshrined and safeguarded by the 1479 Demetriades J. Xiros τ. Republic

(1994)provisions of Art. 30.2 of the Constitution which is cast in identical words with the relevant part of Art. 6

(1)o f the European Convention for the Protection of Human Rights and Fundamental Freedoms, ratified by Law No. 39 of 1962. Impartiality denotes absence of prejudice or bias. There can be no unfairness or impartiality without bias. We are not concerned with actual bias. There is the sub­ jective approach and the objective approach. In the obje­ ctive approach the Judge should offer the guarantees 10 sufficient to exclude any legitimate doubt. The test is the opinion of the reasonable and fair-minded person who knows all the relevant facts. Surmise or conjecture is not enough. The suspicion is that of a reasonable • fair-minded person and not a fanciful suspicion by a 15 party. The right to a fair hearing requires a Court to appreciate impartially all the matters of fact and of law submitted to it by both parties, with reference to the particular issues it is called upon to decide. Thejudge must think dispass- 20 ionately and submerge private feeling on every aspect of a case. On the whole, however, Judges do lay aside private views in discharging their judicial functions. This is achieved through training, professional habits, selfdiscipline and that fortunate alchemy by which men are 25 loyal to the obligation with which they are entrusted. It is also true that reason cannot control the subconscious influence of feelings of which it is unaware. When thereis groundfor believing thatsuch subconscious feelings may operate in the ultimate judgment, or may 30 not unfairly leadotherstobelievetheyareoperating, Judges recuse themselves. The guiding consideration is that the administration of justice should reasonably appear to be disinterested as well as be so in fact. When there is any cause incapacitating a member of this Bench, he 35 is the first to exclude himself. On the other hand, to accede'to applications for the exclusion of Judges in any given case in the absence of proper justification, would undermine the impersonal and proper administration of justice. As was said in Hadjicostav. Anastassiades,

(1982)40 1480 5 3 C.L.R. 5 Xiros τ. Republic Demetriades J. 1 C.L.R. 296, at p. 299, 'sensitive though we remain to the views of the parties on the delicate subject undercon­ sideration, it would be injudicial and wrong in principle to make the composition of the Court dependent on the whims of the parties'". In the present case interested party Angelides is not directly relatedtome,thoughhiswifeiswithinthesixthdegreeof kindred with me. I have never had social conduct with him or his wife and I have never sought his medical advice. In fact I 10 have not seen either the interested party or his wife for quite a number of years and, in the circumstances, I feel that I am unable to accede to the application to disqualify myself from trying the present recourse. Order accordingly. 1481