3 C.L.R. 1984 August 21 [PIKIS, J.] IN THE MATTER OFARTICLE 146OFTHE CONSTITUTION GEORGHIOS CHRISTODOULOU, Applicant. v. THE REPUBLICOFCYPRUS, THROUGH
- THEvCOUNCILOF MINISTERS,
- THEMINISTER OF INTERIOR, Respondents. (Case No. 30/82) Resjudicata—Principle of, in the areaoj administrative law. Disciplinary offences—Disciplinary punishment—Choice andlength o—Exclusively within discretion oj the appropriate disciplinary body. 5 Disciplinaryand criminal proceedings—Not mutually exclusiveThey can be pursued independently of one another. .Natural Justice—Disciplinaryproceedings—Right to anoral.hearingAccrues only if specijicatly postulatedby{a law. 10 15 The CounciI,of Ministers dismissed applicant's,appeal.agains thedecisionof.adisciplinary Committee,set.up under regulatio; .32 of thePolice Disciplinary,Regulations, and.confirmed byth Minister of Interior under regulation 36; and hence .this-re course where the following issues arose for consideration (a) Whether following theannulment^ ithe.firsttdecisio of the Council of.Ministers by.the.SupremevCourtith retrial of theapplicant constituted.infringementof th rule of res judicata. (b) Whether the sentence of dismissal .was ,excessivi .20 •(c) 1Whether rthere was ilack iOf jurisdiction Ίο-try -.th ^disciplinary (Offence ^preferred ;against :the appUcajn ''because <of iits (ostensible .criminal ^nature. 1865 ) Christodoakra v. Republic
(1984)(d) Whether, given that applicant submitted in writing his reasons in support of his appeal, the Council of Ministers had a duty to afford him an oral hearing. Held,
(1)that it wasnot only opentotheCouncilof Ministers to deal withthe matter afresh, but mandatory for themsoto do 5 in view of the decision of the Court (see Article 146.4(a) of the Constitution and Pieris v.Republic
(1983)3C.L.R. 1054on the principles of resjudicata in the area of administrative Law).
(2)Thatthechoiceofsentenceandthelengthofitisexclusively cast to the discretion of the appropriate disciplinary body. 10
(3)That it is a settled principle of law that disciplinary and criminal proceedings are not mutually exclusive; they are designed to serve different purposes and objects and can be pursued independently of one another.
(4)That the hearing of a disciplinary offence need not be 15 ' attuned to the patern envisaged bythe Criminal ProcedureLaw for the hearing of a criminal case; a right to an oral hearing accrues only if specifically postulated by a law; that in the absenceofanysuggestionthatapplicantwasinanywayhindered from puttingforward his casebefore theCouncilof Ministers it 20 must be concluded that sufficient opportunity was given to him to defend himself; accordingly the recourse must fail. Application dismissed. Cases referred to: Pieris v. Republic
(1983)3 C.L.R. 1054; 25 Papacleovoulou v. Republic
(1982)3 C.L.R. 187; Platritis v. Republic
(1969)3 C.L.R. 366; Christofidesv. CY.T.A.
(1979)3 C.L.R. 99; Solomou v. Republic
(1984)3 CL.R. 533; Christodoulou v. Disciplinary Board
(1983)1 C.L.R. 999; Petrou v. Republic
(1980)3 CL.R. 203; Bushellv. Secretary oj State [1980] 2 All E.R. 608 (H.L.); Payne v. Lord Harris[1981] 2 All E.R. 842; Re Pergamon Press Ltd.[1970]3All E.R. 535at p.
- 866 30 3 C.L.R. Christodoulou w. Republic Recourse. Recourse against the dismissal of applicant's appeal against thedecision of thedisciplinary committee, set up under reg.32 of the Police Disciplinary Regulations and confiimed by the 5 MinisterofInterior underreg.36wherebyhehadbeendismissed for improper conduct. A. Eftychiou, for the applicant. M. Florentzos, Senior Counsel of the Republic, for the respondents. 10 Cur.adv. vult. PIKIS J. read the following judgment. The validity of the decision of the Council of Ministers, of 22.10.81, dismissing applicant's appeal against thedecision of a disciplinary committee set up under reg. 32of the Police Disciplinary Regulations 15 and confirmed by the Minister of the Interior under reg.36 of the same Code, is the subject we must resolve in these proceedings. Thedecisionwaschallengedonseveralgroundsbut,ascounsel acknowledged, following the submission of written addresses, 20 oneisthecentralissue-namely,theadequacyoftheopportunity afforded bytheCouncilofMinisterstotheapplicanttobeheard inthematterofhisappealtotheCouncilof Ministersbywayof hierarchical review of the conviction and sentence imposed by the aforementioned subordinate organs. The essence of the 25 case for the applicant in this respect is that the Council of Ministers acted in breach of the rules of natural justice, by failing to afford an oral hearing. For the respondents it was submitted, the rule of natural justice that no one should be condemned without being given an opportunity to be heaid. 30 that finds expression in Article 12.5 of the Constitution, was properlyobservedbyinvitingtheapplicantto submit,inwriting. his reasons in support of the appeal, to which he responded, somewhat belately, by a statement submitted on his behalf by his counsel on 28.9.
- 35 s Theother grounds,faintly pursuedinsupport oftherecourse. were(a) Infringement of therule of resjudicata by retryingthe applicant, following theannulment ofthefirst decision of the Council of Ministers on the same matter, by 867 Pikis J. Christodoulou v. Republic
(1984)thedecision of theSupreme Court in theexerciseofits revisional jurisdiction in Recourse No. 270/80, delivered on 30.5.80. Theshortanswertothiscontention isthat it wasnot only open to the Council of Ministers todeal with the 5 matter afresh, butmandatoryfor themsotodoinview of the decision of the Court. In accordance with Article 146.4(a),itwaslegallyopentotheCourt,inthe first place, to annul the composite decision leading to the dismissal of the applicant, only in part, by dis- 10 charging the final step in the process. Res judicata operates the other way, by making impossible a fresh review of prior steps that were in issue in the first recourse, notably, the legality of the decision of the disciplinary committee and its subsequent affirmation 15 by the Minister (the principles of res judicata, in the area of administrative law, were discussed in Pieris v. Republic
(1983)3 CL.R. 1054)., (b) The severity of thesentenceimposed, allegedlyexcessive in the light of the facts of the case. 20 Applicant had been dismissed for improper conduct contrarytoreg.7ofthePoliceDisciplinary Regulations 1958 - 1977, a disciplinary offence entailing, at the maximum, dismissal, in accordance with reg. 35of the aforementioned disciplinary Code. This submission 25 is, like the previous one, ill premised in view of the principle of administrative law that casts the choiceof sentence, and the length of it, exclusively to the discretion of the appropriate disciplinary body. I shall not elaborate on the reasons behind this principle, 30 explainedinPapacleovoulou v. Republic
(1982)3CL.R. 187. I need only mention that this-iule is an indisputable principle of administrative law - See, inter alia, Platritisv. Republic
(1969)3 C.L^R. 366; Christophides v.CY.T.A.
(1979)3 C.L.R. 99; Sohtnou v. 35 Republic
(1984)3-CL.R. 533. (
- c)Lack of jurisdiction to try the -disciplinary offence '868 3 C.L.R. Christodoulou v. Republic Plkis J. preferred against theapplicant,becauseof its ostensible criminal nature. The argument is that it was incompetent to try the applicant disciplinarily, once the offence constituted on its face a crime as well. Like the submissions under (
- a)and (b), it is unsustainable; it is a settled principle of law that disciplinary and criminal pro ceedings are not mutually exclusive. They are de signed to serve different purposes and objects andcan be pursued independently of one another. The decision of the Full Bench in Christodoulou v.Dis ciplinary Board
(1983)1CL.R. 999, is explicit onthe matter. 5 10 Having dealt with the less consequential aspects of the case, 15 we shall ιevert to the basic issue revolving roundthe sufficiency of the opportunity afforded to the applicant to be heard, with particular reference to the duty of the Council of Ministers, if any, to afford him an oial hearing. Malachtos, J., decided otherwise in Petrou v. Republic
(1980)3 C.L.R. 203. 20 AspointedoutinPapacleovoulouv. Republic
(1982)3CL.R.187, the hearing of a disciplinary offence need not be attuned tothe pattern envisaged by the Criminal Procedure Law for ,thehear ingof acriminalcase. Thesameconclusionis supported bythe above decision of theSupreme Court. A right to an oralhear25 ingaccruesonlyif specifically postulatedbyalaw*. InEngland, too, the Courts lean against judicialisation of administrative proceedings -See,Bushell v. Secretary of Stgte[19.80]2All E.R. 608 (H.L.). Intheabsenceof anysuggestion thatapplicant was in any way hindered from putting forward his case before the 35 Council of Ministers,we mustconclude that sufficient opportu nity was given him to defend himself**. Upon proper appre ciation of thiselement of thecase,the lecoursc of theapplicant isdoomedtofailure. Thathisdefence,as wellastheremaining papersof thecase were piocessed tothe Councilof Ministers by * Sec, Stasslmpouhs—Tk*Right of DefenceJBffort 4dmpifstrqtivf Bfniies— 1974, p. 215. ** At the rootof naturaljusticelies the duty to act fairly—Payne v. LordHarris Π981]2 Ai) E-R-£42<C,A.). And ΒΛhuraai) situations are apt to vary infinitely flexibility ia procedure is all important, as Sackt, L.J.observed in Re PergamonPress Ltd. [1970] 3 All E.R. 535, -342. ,869 Pikis J. Christodoulou v. Republic
(1984)the Minister of Interior, is no ground for complaint. The Minister of the Interior,itisnoted, refrained from participating inthedelibeiations and decision of the Council of Ministers,as heshould. Hadhetakenpart,thedecisionmight bevulnerable to be set aside for bias. Therecoursefails. Itisdismissed. Letthere beno orderas to costs. Appealdismissed. No order as to costs. 870 5