clr/1984/1984_3_871.pdf

(1984)regulation 36of the Police(Discipline) Regulations, who upheld the decision of the disciplinary committee on the 7th March,

1. Applicantthen appealedfrom thedecisionoftheMinister totheCouncilofMinistersundertheprovisionsof regulation
2. The Council by its decision of the 17th May, 1978, dismissed 5 applicant's appeal and confirmed the decision of the Minister. The applicant next filed recourse No. 272/78, against the above decision of the Council of Ministers. The recourse was heard and judgment was given on the 10th April, 1980, allowing the recourseonthe ground ofviolation ofthe rulesofnaturaljustice 10 inthattheCouncildidnotgivetheapplicanttherighttobeheard. Following the annulment of the decision of the Council of Ministers, Counsel of the Republic appearing in that case informed theDirector-General of the Ministry of Interior of the outcomeofthecaseandadvisedhimthattheSupremeCourthad 15 annulled partly the decision of appellant's dismissal i.e. the decision oftheCouncilofMinisters,and that theissuewhichhad to be re-examined was only the decision of the Council of Ministersandnot thedecisionsprecedingitand alsothat inaccordancewiththejudgmentoftheSupremeCourtbefore re-examining 20 the case the applicant should be given the right to be heard. Thereafter the Minister of Interior asked applicant to submit in writing, if he so wished, his representations in support of his grounds of appeal so that they might be transmitted to the Council of Ministers. Inresponseapplicant addressed, through 25 hiscounsel a letterto theCouncilof Ministersinwhichhe,inter alia, raised the point "that the Minister of the Interior erred in hisjudgment inthat he-took intoconsideration acaseagainstthe applicant which was finally not proceeded with and, therefore, he is presumed to be innocent until his guilt is proved*'. 30 The matter wasthen submitted totheCouncil of Ministersby means of a submission of the Ministry of Interior but no reference was made in such submission to the decision of the Ministernor wasitappendedtothesubmission. TheCouncilof Ministers dismissed the appeal and hence this recourse. Held,

(1)that the Minister could not .legitimately take into consideration a disciplinarycaseagainst theapplicant whichwas finally not proceeded withbecauseeveryperson chargedwith an offence a presumed innocent until his guilt is proved before a 872 35 3 C.L.R. Petrou v. Republic competent tribunal; accordingly the decision of ihe Minister was vulnerable on this ground. 5 •10 15 20 25 30 35

(2)That what the Council had to do when re-examining the matter was to consider the validity or otherwise of the decision of the Minister against which the appeal before it was made by the applicant in the light of his representations, as that was the only issue before them; that, it, also, logically follows that in order to consider the representations of the applicant the Council had to examine the decision of the Minister against which they were directed; that although in the decision of the Council it is stated in general terms that they examined the whole case and did'take into consideration applicant'; representations, nowhere is'it stated nor can it be deduced that in reaching their decision to dismiss the appeal they have, at least, either disregarded or excluded from consideration the above offending part in the Minister's decision, or that, notwithstanding that, they were, nevertheless, stillof the viewthat the appeal should be dismissed; that this fact alone renders the reasoning incomplete or, to say the least, vague and the gap is not bridged from material contained in any of the documents relevant to this casenor does the presumption of regularity which as applicable in relation to administrative acts can, properly, be invoked in the circumstances of this case; that no one specific reason can be discerned as to why the appeal was dismissed; that, therefore, the sub judice decision is not duly reasoned and it is contrary to the principles of administrative law; and that, accordingly.it must be annulled. Sub judice decision annulled. Cases referred to: Menelaou v. Republic

(1980)3 C.L.R. 467 at p. 484; HadjiVassitiou and Others v. Republic

(1974)3 C.L.R. 130; Ierides v. Republic

(1976)3 C.L.R. 9 and on appeal

(1980)3 C.L.R. 165; -Zavros v. Republic

(1969)3 C.L.R. 310; Demosthenous v. Republic

(1973)3 C.L.R. 354; 'Pancyprian-Federation of Labour (P.E.O.) v. The Board of Cinematograph Film Cencors and-Anotker

(1965)3 C.'L.R. 27; .Eleftheriou and'Others v. Republic

(1980)3 C.L.R. 85 at p. 98. 873 Petrou v. Republic

(1984)Recourse. Recourseagainstthedismissalbytherespondent ofapplicant's appeal,againstthedecisionoftheMinisterofInterior confirming the sentence of applicant's dismissal from the ranks of the Police Force. 5 L. N. Clerides,for the applicant. M. Florentzos,Senior Counsel of the Republic, for the respondent. Cur.adv. vult. L. Loizou J. read the following judgment. The applicant 10 by this recourse seeks a declaration that the decision of the Council of Ministers communicated to him by letter dated 3rd October, 1980,by which they decided to dismiss hisappeal be declared void and of no effect whatsoever. The facts of the case are as follows: 15 The applicant joined the police force in 1955and since 1974 he was holding the rank of Inspector. In 1977 he was charged with the disciplinary offence of disobedience to orders in that on the 4th and 5th August, 1977, whilstonduty,hedidnot wearablackarm-band,indisobedien- 20 ce to an order of the Chief of Po'ice which was issued on the occasion of the death of the late President of the Republic Archbishop Makarios, on the 3rd August,

1. Applicant wastried by a disciplinary committee which found himguiltyof theoffence, onhisownplea,andimposedonhim, 25 on 1st December, 1977, the punishment of dismissal fiom the ranks of the police force. He appealed to the Minister of the Interiot,in accordance withregulation36ofthePolice(Discipline) Regulations, who upheld the decision of the disciplinary committee on the 7th Match,
2. Applicant then appealed 30 from the decision of the Minister to the Council of Ministers undei the provisions of regulation
3. The Council by its decisionofthe 17thMay, 1978,dismissedapplicant'sappealand confirmed the decision of the Minister. The applicant next filed recourse No. 272/78, against the above decision of the 35 Council of Ministers. The recourse was heard and judgment was given on the 10th April, 1980,allowingthe recourse on the ground of violation of the rules of natural justice in that the Council did not give the applicant the right to be heard. The 874 3 CX.R. Petrou τ. Republic L. Loizoo J. judgment in the above recourse is reported in

(1980)3C.L.R. 203 and it concludes, at p. 218, as follows: 5 "Thenetresult isthatinthepresent casethereisaviolation of the rules of natural justice and so the decision of the Council of Ministers complained of should be, and it is hereby, declared null and void. It is up to the Councilof Ministers to reconsider its decision in the light of this judgment." On thesamedayCounselof theRepublic,who was appearing 10 in that case, wrote a letter to the Director-Generalof theMi­ nistry of theInterior(exhibit 3)inwhichhestated thefollowing: "With reference totheaboverecourseIinform youthatthe SupremeCourtdelivered todayitsreservedjudgmentacopy of which I enclose. 15 20 25 By its judgment the Supreme Court annulled partly the decisionfor applicant'sdismissalthatisit annulledonlythe decision of the Council of Ministers and, therefore, the issue which has to be examined is only the decision of the Council of Ministers and not the decisions preceding it. (See decision 2427/1966 of the Council of State andCon­ clusions from the Case Law of the Greek Council of State 1929-1959 at p. 280). The re-examination must be effected in the light of the judgment of the Supreme Court in accordancewith which theCouncilof Ministersis required before re-examiningthe case, to give the applicant therightto be heard,i.e. to set out in full detail his views but not necessarily viva voce." On the 10th May, 1980, the Minister of the Interior wrote a lettertotheapplicant(exhibit 10)informing himthattheCouncil 30 intendedto re-examine his appeal in oneof its comingmeetings and asking him to submit in writing, if he so wished, within fifteen days, his representations in support of his grounds of appeal, to the Director-General of the Ministry of theInterior so that they might be transmitted to the Council of Ministers. 35 Inresponsetotheabovelettertheapplicantonthe20thJune, 1980, addressed through his counsel a letter to the Council setting outhis representations (exhibit 4). Inthis lettercounsel for applicant raised the following points: 875 L. Loizou J. Petrou v. Republic

(1984)(

1. i)That the Council merely confirmed the decision of the Ministers. (
2. ii)That the Minister ofthe Interior erred in hisjudgment in that he took into consideration a case against the applicant which was finally not proceeded with and, therefore, he is presumed to be innocent until his guilt is proved. 5 (iii) That sincethe Minister ofthe Interior inthereasoning ofhisjudgment cametotheconclusionthatthe offence oftheapplicant appeared, onthefaceofit,toberather 10 trivial the sentence of dismissal from the ranks of the police force and especially from the rank of Inspector imposed on him was disproportionate to the offence committed by him. (
3. iv)That the Minister did not take into consideration the 15 'facts in mitigation of sentence i.e. the long service of the applicant; .thefact that hefought bravely against the Turks at Ayios Sozomenos and was seriously . injured with.a resulting 10%incapacity; that at the time of the Turkish invasion hefought bravely against 20 theTurkishinvaders; andthatheistheonlysupporter of his family consisting of a wife and two minor children. On the 13th July, 1980, a submission was prepared in the Ministry of the Interior to the Council of Ministers (exhibit 5). ;25 There were attached to it the letter ofCounsel of the Republic (exhibit 3), the judgment of the Court referred to above, the letter of the Minister requesting applicant to submit his representations (exhibit 10)and theletter ofcounsel for theapplicant containing such representations. 30 The Council considered the appeal of the applicant at its meeting held on the 28th August, 1980,and decided to dismiss it (exhibit 6). Applicant was informed accordingly by the letter exhibit! dated 3rd October, 1980,.and as a result he filed .the present recourse. 35 The.grounds-of lawupon which the recourseis based are the following: (
4. a)That the decision of the Council of Ministers is not .876 3 CX.R. Petrou τ. Republic L. Loizou J. duly reasoned as clearly provided by Article 29 of the Constitution. 5 (
5. b)Thatthe submission to the Council of Ministersmade by theMinisterof theInteriorwas partialinthatitdid not stress sufficiently the mitigating circumstancesand other facts which werein favour of the applicantand the contentions of his counsel. (
6. c)That the decision of the Council of Ministers was reached without a due inquiry. 10 (
7. d)That the Council of Ministers exercised its power under a misconception of facts and on wrong criteria. (
8. e)Thatthedecision of theCouncilof Ministersshould be annulled because the Minister of the Interior took part in the proceedings. 15 (
9. f)That the decision of the Council of Ministers was taken in contravention of thejudgment of theSuprme Court in case No. 272/80. Duringthehearingofthecasecounselfor theapplicantlimited his arguments onthree basic ground of law; thatthedecision 20 of the Councilis not duly reasoned; that the Ministerimpro­ perly participated in the proceedings of the Council by intro­ ducing the subject; that the Council was misled in taking its decision by the letter/advice of counsel of the Republic. In arguing his first ground, that of reasoning, counsel for 25 applicantsubmittedthattheCouncildid notgiveany reasons at all why it dismissed the appeal of the apphcant and that due reasoningis an absolute necessity in a case of disciplinary pro­ ceedings. He maintained further that since the applicant has raisedcertaingroundsinhisappealitwas-thedutyof theCouncil 30 to refer to them and explain why it rejected them. With regard;tothe second ground of law counsel argued that although theMinister of the Interiordidnot vote he took part in the proceedings andintroduced the submission in which he gives certain-directives to the Council as to how they should 35 proceed withthe examination ofthe caseinstead offending all iclevant documents to them without any comment As far as thelast groundis-concernedcounsel aigued that the J877 L. Loizou J. Petrou v. Republic

(1984)Council were misled by the letter ofCounselof the Republic in that he asked them tore-examine onlyits own decision and not any previous ones. This,it wascounsel's contention, amounts to him telling the Council not to take into account what the Minister said in hisdecision and that the Council, sitting as an 5 appeal Court, had to re-examine the Minister's decision. Counselfor therespondent,ontheotherhand,arguedthatthe Ministei did not participate in the decision of the Council and stated that the Council re-examined the whole case, having before it the representations of the applicant which concerned 10 thedecision of the Minister and that they werenot, in anyway, misled by the letter ofCounsel of the Republic which, in any event,wasnotcapableofmisleading. Hefinallyargued thatthe Council acted within its discretionary powers and theCourt cannot interfere with then subjective evaluation of the severity 15 of the sentence to be imposed on the applicant. Before dealing with the grounds argued Ifind it necessary to refer to thedecision ofthe Minister asit ismaterial for theconsideration of this case. Itis obvious from a merereading of thedecision that hedid 20 take into consideration the fact that the apphcant was once interdicted upon achargefor adisciplinaryoffence whichfinally wasnot pursued and hisinterdiction wasin theend terminated; and although it iscorrect to saythat the Court cannot interfere with the severity of the sentence imposed bydisciplinary oigans 25 this is a matter which goes to the very validity of the decision itselfinthatitcouldnotlegitimatelybetaken into consideration becauseeveryperson charged withanoffence ispresumedinnocent until his guilt is proved before a competent tribunal. Relevant in this respect is,inter aha, the case of Menelaou v. The 30 Republic

(1980)3 C.L.R., 467 where at p. 484 the following is stated: "Having considered thearguments of both counsel, andin thelight of theauthorities quoted at length, Ihavereached theconclusionthattherulesofnaturaljusticeareapplicable 35 to the disciplinary proceedings and because the Acting Commander of Police has taken also into consideration a caseagainsttheapplicantwhichuntilthattimehadnotbeen heard and which wasfixed on another date for hearing,he 878 3 C.L.R. 5 10 Petrou v. Republic L. Lolzou J. allowedhimself wronglyinmyview,andinviolation ofthe principlesofnaturaljustice,to beinfluenced byit andthus to impose finally the punishment of dismissal from the service. In reaching this conclusion, I have relied on Cyprus cases, and particularly on cases decided by the Greek Council of State, viz., that the disciplinary organ, whentryingacase,cannottakeintoconsiderationapending caseagainstanapphcant whichuntilthattimehadnotbeen tried and there is no decision with regard to it." It is clear in the light of the above that the decision of the Minister was vulnerable on this ground. Itisconvenientandinsequenceoftheeventsthat haveledto thesubjudicedecisiontodealfirst withthethird groundargued whichrelatesto theletter ofCounsel of the Republic,exhibit3, 15 addressedtotheDirector-General ofthe Ministry oftheInterior and the possible effect of that letter i.e. whether as a result the Council of Ministeis did not examine the decis<on of the Minister. The full text of the letter has been set out earlier on in this 20 judgment and need not be repeated. Asa matter of lawthe result of theannulment of anadministrative act or decision is that such act or decision ceases to existas ifithad nevertaken place; and undertheprinciplesof administrative lawincaseofa hierarchical recoursethedecision 25 oftheinferior organmergesinthedecision of thehierarchically superiororganandlosesitsexecutorycharactertheonlyexecutory act being the final one, that of the hierarchially superior organ. (See Conclusions from the Case Law of the Greek Council of State 1929-1959, pp. 241-242). 30 Inthe present casethe Court hasdeclared thedecision of the Council of Ministersto benull and void withthedirection that it should be reconsidered in the light of the said judgment i.e. to givetheapphcantthe rightto beheard. Thiswasdone and the apphcant in due course submitted his representations in 35 support of his appeal. The representations so submitted concerned thevalidity ofthedecisionofthe Minister and were put before the Councilfor thefirst timesincetherightto beheard was not given to the applicant before. But what the Council had to do when re-oxamining the matter was to consider the 879 L. Lofzou J. Petrou v. Republic

(1984)validity or otherwise of the decision of the Minister against whichtheappealbeforeit wasmadebytheapplicantinthelight of his representations, as that was the only issue before them. It also logically follows that in order to consider the representationsoftheapphcanttheCouncilhadto examine the decision 5 of the Minister against which they were directed. Itisnot, therefore, inmyviewof muchconsequencewhat the letter ofCounsel of the Republicwasmeant toconvey to them because they could neither re-examine their previous decision nor therepresentationsoftheapphcant withoutconsideringalso 10 the decision of the Minister. What is stated in the extract of therelevant minute of therespondent Council,exhibit 6,isthat the Council re-examined the whole case of ex-Inspectoi Evangelos Petrou and after consideringin detail his representations in support of the grounds of appeal against his conviction and 15 sentencecontained intheletterdated20thJune, 1980,forwarded to them by his lawyers decided, in accordance with regulation 38 of The Police (Discipline) (Amendment) Regulations, 1976 to dismiss the appeal filed by him. One matter, however, that creates some ambiguity and tends 20 to lend support to the submission of learned counsel for the apphcant isthefact that inthesubmission totheCouncil bythe Ministry of the Interior express reference is made to the letter of Counsel of the Republic,exhibit 3, and on the basis of that letter it is stressed that what the Council has to re-examine is 25 only its previous decision and not any decision preceding that. Reference is also made therein to the letter forwarded to the applicant requesting him to submit his representations and to the representations submitted on his behalf. All documents mentioned above, including the judgment of the Court, are 30 marked and appended to the submission. No reference at all ismadeto thedecision oftheMinister nor isit appended to the submission. But, on the other hand, as stated earlier on, it is mentioned in the relevant extract of the minutes of the meeting of the re- 35 spondent Council,exhibit 6, that the Council re-examined the whole case of ex-Inspector Evangelos Petrou and considered in detail also his representations in support of the grounds of appeal against his conviction and sentence contained in the letter dated 20th June, 1980,forwarded to them by his lawyers. 40 880 3 C.L.R. Petrou v. Republic L. Loizou J. It may be argued that what the above extract purports in effect to convey isthat the respondents did consider the decision of the Minister since they re-examined the whole case and considered in detail the representations of the apphcant. But in 5 the light of all the circumstances mentioned above the matter is not free from doubt; and such doubt has to be reckoned in favour of the apphcant. I think I can next deal very briefly with the second ground argued i.e.the role of the Ministei at the relevant meetingof the 10 Council. It does not seem to me that the decision can be faulted either on the ground that the submission to the Council, exhibit 5, was in any way partial or that the Minister took an active part in the proceedings. The submission is quite neutral in nature 15 and merely sets out the relevant facts of the case including the letter containing the represenations of the apphcant in support of his grounds of appeal in a fair manner and without any comment as to the merits of the case. In the decision itself it is expressly slated that the Minister did not take any part and I 20 do not think that in the absence of any indication whatsoever to the contrary in any of ihe documents I can reasonably assume that this is not so. Lastly I will deal with the first ground argued before me, that of reasoning. 25 The nature of the reasoning required is always a question of degree depending upon the nature of the decision concerned. (See HadjiVassiliouand Othersv. The Republic

(1974)3 C.L.R. 130). Also it isnot necessary to mention in the decision specifically 30 every factor required by law that was taken into consideration, provided that this can be deduced from the whole reasoning. (See Ierides v. The Republic

(1976)3 C.L.R. 9 and on appeal

(1980)3 C.L.R. 165). And leasoning may always be supplemented by the material 35 in the relevant file. The object of the rule requiring due reasoning of administrative decisions is obviously the need to enable the person concerned, and the Court on review, to ascertain whether the deci881 L. Loitou J. Petroa τ. Republic

(1984)sion is well-founded in fact and in law. (See Zavrosv. The Republic

(1969)3 C.L.R., 310; Demosthenous v. The Republic

(1973)3 C.L.R. 354; and Pancyprian Federation ofLabour (PEO)v. TheBoardof Cinematograph Films CensorsandAnother

(1965)3 C.L.R. 27). 5 As stated above theMinisterin reachinghisdecisionwrongly took into consideration a disciplinary offence for which the apphcant was never tried or convicted; and this is one of the points, the most important onein my view,raised on behalf of the apphcant in his representations in support of his appeal; 10 and althoughinthedecision of theCouncilitis statedingeneral terms thatthey examined thewhole case anddid take into con­ sideration applicant's representations, nowhere is it stated nor can it be deduced that in reaching their decision to dismissthe appeal they have, at least, either disregarded or excluded from 15 consideration the offending part in the Minister's decision, or that, notwithstanding that,they were, nevertheless, still of the view that the appeal should be dismissed. Thisfact alone,in my view,rendersthereasoningincomplete or, tosay theleast, vagueandthegap is notbridged from mate- 20 rial containedin any of the documentsrelevant to thiscasenor do Ithinkthatthepresumption of regularity which is applicable in relation to administrative acts can, properly, be invoked in the circumstances of this case. But apart from the above point I think it is correct to say 25 that, going through the decision of the Council as a whole,no one specific reason can be discorned as to why the appeal was dismissed. In the PEO case (supra) Triantafyllides, J. as he then was, said at p. 37: "Administrative law requires further, that administrative decisions, through which there results a situation un­ favourable for the subject, is to be duly reasoned. This principle has been adopted also in Greece. (See Conclu­ sions from theJurisprudence of the Council of State 1929- 35 1959,p. 184; Stassinopoulos ontheLaw of Adininistrative Acts

(1951)p.340; Kyriacipoulos onGteek Adininistrative Law, 4th ed., vol. 2, p. 386). Moreover, decisions of 882 30 3 C.L.R. 5 Petrou τ. Republic L. Loizou J. collective organs such as theonewith which we aredealing with,areparticularly requiredtobereasonedbecause ofthe very fact that such decisions are expected to be the result of the'deliberations of the members of the said organs (see Tsatsos on the Recourse for Annulment before the Council of State, 2nd ed., p. 151). Relevant in this respect is also the case of Eleftheriou and Others v. TheRepublic

(1980)3 C.L.R. 85 at p. 98. In thelight of theabove Iamdriventotheconclusionthatthe 10 decisionchallengedis notdulyreasonedandthatitis,therefore, contrary to the principles of administrative law. In view of the conclusions that I have reached the subjudice decision hastobedeclarednull andvoid andof noeffect what­ soever. 15 With regard tocoststherespondentsareadjudged topay£30.against applicant's costs. Subjudicedecision annulled. Order for costsas above. 883