clr/1984/1984_3_707.pdf

(1984)of the decision of the respondent whereby he was discharged from the National Guard as other rank and not as an Officer; and his conduct was graded as bad. He, further, sought a declaration that the omission of the respondents to reinstate himtotherankofofficer afterhisacquittal bytheMilitaryCourt 5 andthetakingofnofurther stepstowardsdisciplinaryprosecution against him was null and void. Held,

(1)that since applicant has filed no recourse against hisdemotion totheranks,ofwhichhewasinformed onthe 18th October, 1977 any attempt to seek the annulment of the said 10 decision is out of time and has to be dismissed as offending Article 146.3 of the Constitution.

(2)That it is a well established principle of Administrative Law that the acquittal of an Officer by a Criminal Court does not preclude the administrative organ concerned from taking 15 into consideration thecircumstances of thecasein order to form ajudgment onthecharacterofsuchOfficer, except thosecircumstances and facts which they have objectively been found not to exist by the Criminal Court (see Conclusions of the Greek Councilof State 1929-1959,p.391,and Decision No.752/1956); 20 that being so the opinion formed by the administrative organ concerned on the conduct of the applicant, even based to some extent on the facts and circumstances that took place and on which the criminal prosecution was based, is not contrary to the general principles of Administrative Law and none of the 25 grounds relied upon in respect of this issue can succeed, as the grading of the applicants' conduct was reasonably open to the Military Authority on the material before them and nothing has been shown apart from the fact of the withdrawal of the charges against him and hisconsequential acquittal to persuade 30 this Court that there has been an excess or abuse of power or wrong exercise of their discretion.

(3)That as far as the alleged omission is concerned, there hasbeen no omission as therewas no duty in law cast upon the respondents to reinstate him after the withdrawal of the charges 35 that were pending against him. Application dismissed. Cases referred to: Decisions Nos. 752/1956, 1092/46 and 1603/48 of the Greek Councilof State. 708 40 3 C.L.R. Georgallides v. Republic Recourse. Recourse against the decision of the respondents to discharge applicant from the National Guard as other rank and not as an officer and/or as a Cadet Reserve Officer (DEA). 5 M. Christofides, for the applicant. 7?. Gavrielides,Senior Counsel of the Republic, for the respondents. Cur. adv. vult. A. Loizou J. read the following judgment. By the piesent 10 recourse the applicant seeks the annulment of the decision of the respondents by which he:(

1. a)was discharged from the National Guard as other rank and not as an Officer and/or as a Cadet Reserve Officer (DEA); 15 20 25 (
2. b)his conduct was graded as bad as appearing in the relevant Dischargepaper dated 12thMarch, 1979, and, (
3. c)a declaration of the Court that the omission of the respondents to reinstate him to the rank of officer and/or Cadet Reserve Officer after his acquittal by the Military Court and the taking of no further steps towards a disciplinary prosecution against him, as regards the facts upon which the respondents relied for the demotion of the applicant from a Cadet Officer to the ranks was null and void, and that what was omitted had to be performed. The applicant was born in Nicosia in 1957 and was called up for service in the National Guaid on the 12th July, 1976. The General Staff of the National Guard (G.E.E.F.) by document dated 15th January, 1977, addressed to the Ministry of 30 Defence sent a list of national guardsmen which it proposed that they be selected as Cadet Reserve Officers. One of them was the applicant. On the submission of the Ministiy of Defence the Council of Ministers by its Decision No. 15.756 dated 21st April, 1977, approved by viitue of section 13 of the 35 National Guard Laws, 1964-1976, the promotion as Cadet Reserve Officers as from 22nd December, 1976, of all those on the said list. 709 A. Loizou J. GeorgalUdes v. Republic

(1984)TheGeneial Staffbyletterdatedthe 13thMay, 1977,informed the Ministry of Defence the following:**Wehave the honour to submit a summary report on the investigation carried out on DEA Georgalides Christoforos of Georghios accused for acts of indecency on soldiers of his unit. 5

1. The said DEA on the Opinion of the Physical Fitness Examination Committee (No. 154/5530) was granted six months suspension of service on account of disturbed conduct because of imm?tuic personality.
2. G.E.E.F. will proceed with a criminal prosecution of theaforesaid asonthebasisoftheOpinion oftheSpecialist -Psychiatrist, he is not exoneiated by being irresponsible of his acts.
3. On account of the aforesaid, DEA Georgallides Chri- 15 stoforosisconsideredunsuitableasOfficer anditisproposed that he be reduced to the other ranks.
4. We lequest actionby you". Before proceeding any further, it may be mentioned that a summary of the Investigating Officer's report, including the ver- 20 sion oftheapplicant, wasattached theretoandboththesedocuments are in the file, exhibit 1—Red8—
5. The Council of Ministers by its decision No. 15.917, dated 9.6.1977, decided his demction to the ranks and the General Staff was informed accordingly by lettei dated 17.6.
6. In 25 the meantime, the charges again,t ihe applicart, as itgaids indecent assault and indecent actt. with seveial soldiers—his subordinates—were dismissed by the Military Court having been withdrawn by the Attorney-General. The applicant on that dateappeared before theMilitary Court inperson, whereas 30 his two co-accused were represented by counsel. The statement made by the Prosecuting Officer was as follows:" In this case we have instructions from the Attorney-General on account of the facts of the case to withdraw, with the leave of the Court, under section 91 35 this case. The facts of the case, Honourable President, , are that accused 1 suffers psychologically and there is 710 10 3 C.L.R. 5 10 GeorgalUdes v. Republic A. Loizou J. in that respect the relevant certificate of Dr. Neophytou. Also there is a temporary discharge document of accused 1 as suffering from disturbed conduct on account of immature personality and this temporary discharge document is valid until the 16th October,
7. It was issued to the accused on the 16th April,
8. As it is probable to affect adversely his treatment, we have decided and we request the leave of the Couit in order to withdraw the present case against accused
9. We also withdraw the case against accused 2 and 3 and this is a matter of fair administration of justice". Copy of the relevant record of the proceedings appeared in exhibit 1, Red 15-
10. On the 6th March, 1979, the applicant applied to the Minister 15 of Defence and attached thereto two reports, one from his two successive Commanding Officers (exhibit 1—Red 17-19). In his said application, after referring to the facts of the case as aheady outlined, he says: 20 "On the 18th October, 1977, I returned to the National Guard asa soldier after mysixmonths suspension ofservice. As from the 20.11.1977 I served in the 256 I.B. and I am one of the excellent soldiers of my unit. I attach reports of my Commanding Officers. Havinginmind theaforesaid and especially the following: 25 (a) that Iwasacquitted of thechargeswhichwere preferred against meand that thefacts and theevidenceon which the charges were based were untrue and false; (b) the serious health ground that 1 had; 30 (c) the excellent conduct and my performance as shown from the attached certificate; I appeal to you with the warm request to take the necessary action in order to help me so that I shall be reinstated to my office and I shall be rated with excellent conduct in my discharge document ". 35 TheMinistry of Defence by their letter dated 8.3.1979 (exhibit 1—Red 20) acknowledged receipt of the aforesaid lettei and informed the applicant that the matter was sent to G.E.E.F./ 711 A. Loizou J. Georgallides v. Republic

(1984)First Staff Office within the competence of which the matter came for examination. On the 12th March, 1979, the applicant was discharged from the National Guard as a private soldier having apparently completed his military service. The grading for his "Conduct" as recorded in his Discharge Document, photocopy of which is attached to the recourse is "bad". As against hisdemotiontotheranks of which hewas certainly informed when his commission was taken from him, and that 10 must be the latest the 18th October, 1977, when he returned to the National Guard as a private soldier after the six months suspension of his serviceonmedical grounds,as it appears from his own letter earlier referred to,theapplicantfiledno recourse and therefore any attempt to seek the annulment of the said 15 decision is out of time and has to be dismissed as offending Article 146.3 of the Constitution. What, however, his counsel has urged inthewritten address filed on hisbehalf,the applicant seeks is the annulment of the decision of the respondents by whichhewas discharged from theNationalGuardasotherranks 20 and not as an Officer and/οι as a Cadet Reseive Officer (DEA) and graded with "Bad Conduct". It is a well establishid principle of Administrative Law that theacquittal of anOfficer by aCriminalCourtdoes notpreclude theadministrative organ concerned from taking into consider- 25 ation thecircumstancesof the case in order to form ajudgment on the character of such Officer, except those circumstances and facts which they have objectively been found not to exist by the Criminal Court (See Conclusions of the Greek Council of State 1929-1959, p. 391, and Decision No. 752/1956), 30 That being so the opinionformed by theadministrative organ concerned on the conduct of theapplicant,even based to some extent on the facts and circumstances that took place and on which the criminal prosecution was based, is not contrary to the general principles of Administrative Law and none of the 35 grounds relied upon in respect of this issue can succeed, as the grading of the applicant's conduct was reasonably open to the Military Authorities on the material before them and nothing 712 5 3 C.L.R. Georgallides v. Republic A. Loizou J. has been shown apart from the fact of the withdiawal of the charges against him and his consequential acquittal to persuade me that there has been an excess or abuse of power or wrong exercise of their discretion. 5 I have approached this matter on the assumption that the grading of the conduct of a person in the armed forces could be the subject of an administrative recourse under Article 146 of the Constitution and leave the objection raised on behalf of the respondents, to the effect that such grading cannot be 10 the subject of a recourse, open although reference hasbeen made in support of such proposition to the Decisions of the Council of State No. 1092/46 and 1603/48, as I could not myself find their full report and they have not been made available to me. Moieover, there has been no violation of the right to be heard 15 as there was nothing disciplinary in the whole process leading to the preparation of the Discharge Document of the applicant which was only an administrative process. As regards that part of the relief sought by the applicant to the effect that the respondents have omitted to reinstate him 20 after he was acquitted by the Military Court, I have already answered the aspect of the issueas regards the time limits within which the decision of the Council of Ministeis by which the applicant was demoted to the ranks could be challenged. As far as the alleged omission is concerned, there has been 25 no omission as there was no duty in law cast upon the respondents to reinstate him after the withdrawal of the charges that were pending against him. The applicant, in fact, never asked for anything to be done in that direction which by his conduct he must be taken to have accepted and waived thereby 30 any right, thus losing his legitimate interest in the matter. The only step taken is in the form of his last application which, if it is considered to have been answered by the issue of the Discharge Document which constitutes the sub judice decision, challenged by this lecourse, renders same as filed within time 35 but cannot succeed asthe said subjudicedecision isgood in law, duly warranted by the material before the authorities issuing same in exercise of their discietion and it is neither contrary to law nor in abuse or excess of power. If, on the other hand, 713 Λ. Loizou J. GeorgalUdes v. Republic

(1984)the said Discharge Document is not treated as an answer to the application of the applicant, this recourse is prematureand again ought to be dismissed. For all the above reasons, the recouise is dismissed but in the circumstances 1 make no order as to costs. 5 Recourse dismissedwith no order as tocosts. 714