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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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(1982) 3 CLR 988
1982 September 17
[LORIS, J.]
IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION
PANAYIOTIS PANTELI LOIZOU,
Applicant,
v.
THE REPUBLIC OF CYPRUS, THROUGH
THE COMMANDER OF POLICE AND/OR
THE MINISTER OF INTERIOR AND DEFENCE,
Respondents.
(Case No. 152/75).
Natural justice—Rule of audi alteram partem—Termination of applicant's acting appointment to rank of Acting Police Inspector—True nature and purpose of termination was to impose a sanction—Applicant never given the chance to be heard before such termination—Above rule of natural justice violated.
The applicant, a police sergeant was on 15.9.1972 appointed to the rank of Inspector. On 7.8.1975 he was, by virtue of a judicial warrant, arrested as a suspect for attempted murder. He remained in custody for 14 days and was released as there was no evidence justifying prosecution. On the same day it came to the knowledge of the Divisional Police Commander that applicant appeared prima facie to be involved in disciplinary offences; so he was interdicted on the same day and disciplinary proceedings were commenced against him pursuant to the provisions of regulation 8 of the Police (Discipline) Regulations. These disciplinary proceedings eventually resulted in the conviction of the applicant of two disciplinary offences. Also, on the same day (7.8.1975) the Divisional Police Commander decided to terminate the acting appointment of the applicant independently of the outcome of the pending disciplinary proceedings, owing to applicant's arrest which rendered him incapable of performing his duties and the fact that the future applicant's posting with the guard of the General was not feasible due to the abolition of the institution of secondment of an officer to the office of the Chief of Staff of the National Guard. The termination was approved by the Chief of Police on the same day and was on such date sanctioned by the Minister of Interior. Hence this recourse.
It was common ground that the applicant was neither informed beforehand of the intended termination of his acting appointment nor was he heard before such decision was taken by the respondents.
Held, that as the true nature and purpose of the sub judice decision was to impose a sanction on the applicant, the latter ought to have been given the chance to be heard before such decision was taken; that this was never done and therefore one of the most important rules of natural justice was violated, notably the rule that both sides must be heard—audiatur et alteram partem—; accordingly the sub judice decision must be annulled.
Sub judice decision annulled.
Cases referred to:
Kalisperas v.The Republic, 3 R.S.C.C. 146;
Pantelidou v.The Republic, 4 R.S.C.C. 100;
Rallis v.The Greek Communal Chamber, 5 R.S.C.C. 11;
Ladaki-Philippou v.The Republic (1981) 3 C.L.R. 153;
Marcoullides v.The Republic, 3 R.S.C.C. 30 at p. 35;
Republic v. Mozoras (1966) 3 C.L.R. 356 at pp. 399-400;
Kazamias v.The Republic (1982) 3 C.L.R. 239 at pp. 284-299.
Recourse.
Recourse against the decision of the respondents whereby applicant's acting appointment to the rank of Police Inspector was terminated.
E.Efstathiou, for the applicant.
Cl.Antoniades, Senior Counsel of the Republic, for the respondent.
Cur.adv. vult.
LORIS J. read the following judgment. The applicant in the present recourse prays for the annulment of the decision of the respondents dated 7.8.75 published in the Weekly Bulletin of Police Force Orders (Appendix A to the recourse) by virtue of which his acting appointment to the rank of Police Inspector was terminated.
The facts of the present case are briefly as follows.
(1)On 26.8.55 the applicant joined the Police Force.
(2)On 15.6.69 he was promoted to the rank of Police Sergeant.
(3)On 15.9.72 the applicant was appointed to the acting rank of Police Sub-Inspector pursuant to the provisions of Regulation 11 of the Police (General) Regulations 1958 as amended. (Vide appendices A and B attached to the opposition.
[It must be noted here that the rank of Sub-Inspector was abolished in 1974 (vide K.∆.π. 210/1974)]
(4)The said acting appointment of the applicant was terminated by virtue of the decision of the respondents dated 7.8.75. (Vide appendix ┌/l attached to the opposition.)
The applicant attacks the aforesaid decision of the respondents on seven grounds of law set out in his recourse the main two being that the said decision of the respondents was taken (a) in direct conflict with the Rules of Natural Justice, (b) contrary to the Police (Discipline) Regulations 1958.
The respondents in their opposition support their aforesaid decision as rightly and lawfully reached according to the Police Law, Cap. 285, the Police (General) Regulations - in particular regulation 11 thereof - and in the light of the relevant facts and circumstances of the present case.
The main facts relied upon in their opposition are, very briefly, as follows.
(i) On 7.8.75 the applicant was arrested by virtue of a judicial warrant as a suspect for attempted murder; he remained in custody for 14 days and he was then released "as there was no evidence justifying prosecution."
(ii) On the same day it came to the knowledge of the Divisional Police Commander of Section A, under whom the applicant was serving, that the latter appeared prima facie to be involved in disciplinary offences; so he was interdicted on the same day and disciplinary proceedings were commenced against him pursuant to the provisions of regulation 8 of the Police (Discipline) Regulations.
It may be added here that these disciplinary proceedings eventually resulted in the conviction of the applicant for two disciplinary offences set out in Appendix "Δ" of the opposition.
(iii) As stated in para. 5 of the opposition "under the circumstances the Divisional Police Commander of Section A decided to terminate the acting appointment of the applicant independently of the outcome of the pending disciplinary proceedings, owing to applicant's arrest which rendered him incapable of performing his duties and the fact that the future applicants posting with the guard of the General was not feasible due to the abolition of the institution of secondment of an officer to the office of the Chief of Staff of the National Guard."
Learned counsel appearing for the respondents submitted in his written address that:
(a) The main complaint of the applicant, notably the violation of the Rules of Natural Justice is devoid of any legal support as Regulation 18 of the Police (Discipline) Regulations 1958 (which provides for the punishment to be imposed on any member of the Force found guilty of an offence against the Discipline Code) does not make any provision for the termination of an acting appointment.
(b) The duration of the acting appointment is of a temporary nature according to the provisions of regulation 11 of the Police (General) Regulations 1958.
(c) The reduction in rank in question was not imposed as a sanction, but was merely carried out as a "pure administrative measure" in which case no question arises for hearing the other side. Learned counsel based this leg of his submission oh (i) "The Greek Administrative Law" by Elias Kyriacopoulos, 4th ed. pages 327-328 and (ii) the Conclusions from the Jurisprudence of the Greek Council of State 1929-1959 at p. 360 (Σ.E. 1411/46).
The relevant passage from the Conclusions from the Jurisprudence of the Greek Council of State 1929 - 1959 at p. 360 (Σ.E. 1411/46) reads as follows:
"Επίσης εκρίθη ότι υποβιβασμός γενόμενος κυρίως δι' ακαταλληλότητα συναχθείσαν και εκ πειθαρχικών παραπτωμάτων και ουχί λόγω πειθαρχικής διώξεως νομίμως συντελείται και άνευ κλήσεως εις απολογίαν".
("It was also held that reduction effected mainly on account of incompetence deduced from disciplinary faults as well, but not due to disciplinary action is lawfully effected and without need arising to call upon in defence.")
Learned counsel for the respondents summed up in his written address the grounds for the termination of applicant's acting appointment as follows:
I.The arrest of the applicant (on 7.8.75) and his interdiction (on the same day) rendered the performance of his duties impossible.
II.Future posting of the applicant with the Guard of the general was not feasible due to the abolition of the institution of secondment of an officer to the Chief of Staff of the National Guard.
It is a fact that the applicant was appointed in the acting rank of Police Inspector pursuant to the provisions of regulation 11 of the Police (General) Regulations; and it is apparent from the wording of the aforesaid regulation that such an appointment was of a temporary nature. But this is not the point; nor is it, with respect, whether termination of an acting appointment is or is not a mode of punishment provided by regulation 18 of the Police (Discipline) Regulations. The gist of the present recourse is: Was the termination of the acting appointment in question an administrative act or decision meant to impose a sanction on the applicant or not?
For the purpose of answering the above query it is necessary to ascertain the true nature and purpose of the administrative decision in question and in case there is doubt concerning the essential nature and predominant purpose of same, such decision must be treated as having disciplinary character. (Vide Kalisperas v. The Republic, 3 R.S.C.C. 146; Maro Pantelidou v.The Republic, 4 R.S.C.C. 100; Stavros Rallis v.The Greek Communal Chamber, 5 R.S.C.C. 11; Niki Ladaki-Philippou v.The Republic (1981) 3 C.L.R. 153).
The relevant decision of the respondents which is contained in appendix ┌/1 reads as follows:
" Αρχ. Π.Φ. Λοχ. 947 ΥΠΟΥΡΓΕΙΟΝ ΕΣΩΤΕΡΙΚΩΝ
ΑΡΧΗΓΕΙΟΝ ΑΣΤΥΝΟΜΙΑΣ
ΛΕΥΚΩΣΙΑ
7η Αυγούστου, 1975.
Αρχηγόν Αστυνομίας,
Αναπλ. Υπαστυνόμος Παναγιώτης Π. Λοΐζου
Επιθυμώ να σας πληροφορήσω ότι ο Αναπληρωτής Υπαστυνόμος Παναγιώτης Π. Λοΐζου, όστις υπηρετεί εις το Τμήμα Α' Αρχηγείου και ο οποίος απεσπάσθη ως οδηγός του Αρχηγού ΓΕΕΦ, συνελήφθη την 7.8.1975, δυνάμει δικαστικού εντάλματος διά την υπόθεσιν της αποπείρας φόνου του Ιωάννη Γεωργίου εκ του χωρίου Σιά την 2.8.1975.
2. Ούτος τη εγκρίσει σας ετέθη εις διαθεσιμότητα με ημισείας απολαβάς από της 7.8.1975.
3. Ανεξαρτήτως της εκβάσεως της κατ' αυτού υποθέσεως δεν προτίθεμαι να τον επανατοποθετήσω εις τα ίδια καθήκοντα, δι' ο και αιτούμαι όπως ο αναπληρωματικός του διορισμός τερματισθή πάραυτα, μελετηθή δε το ενδεχόμενο μεταθέσεως του εις Λευκωσίαν. Πιθανώς θα ηθέλατε η μετάθεσις να πραγματοποιηθή μετά την τελικήν απόφασιν διαθέσεως της κατ' αυτού υποθέσεως ίνα μη δυσκολευόμεθα ποίος Αστυνομικός Διευθυντής θα χειρισθή την αρξαμένην πειθαρχικήν υπόθεσιν.
(υπ.) Αστυνομικός Διευθυντής
Τμήματος Α'
Εγκρίνω τον τερματισμόν του Αναπληρωματικού διορισμού.
Τούτο έτυχε και της επικυρώσεως του κυρίου Υπουργού Εσωτερικών.
7.8.1975 (υπ.) Αρχηγός Αστυνομίας".
("No. P. Serg. 947
MINISTRY OF INTERIOR
POLICE HEADQUARTERS
NICOSIA
7th August, 1975.
Chief of Police,
Acting Police Inspector Panayiotis P. Loizou
I wish to inform you that Acting Police Inspector Panayiotis P. Loizou, who is serving at Section A of Police Headquarters and who was seconded to the post of driver of the General, was arrested on the 7.8.75, by virtue of a judicial warrant in respect of the case of the attempted murder of Ioannis Georghiou of Shia village on 2.8.75.
2. He was with your approval, interdicted with half of his salary as from 7.8.75.
3. Irrespective of the outcome of the case against him I do not intend to put him back to the same duties and therefore I apply that his acting appointment be terminated immediately and that the possibility of his transfer to Nicosia be considered. Probably you might wish that the transfer be effected after the final decision disposing the case against him so that we will not find any difficulty as to which of the Divisional Commanders will handle the disciplinary case.
(Sgd.) Divisional Commander
Section A'
I approve the termination of the acting appointment. The approval of the Hon. Minister of Interior has been obtained.
7.8.75
(Sgd.)Chief of Police").
The following facts emerge from the perusal of appendix ┌/1:
A. (i)The applicant was arrested on 7.8.75 by virtue of a judicial warrant as a suspect for attempted murder.
(ii)On the same day he was interdicted.
(iii) On the same day the Divisional Police Commander of Section A, under whom the applicant was serving, applied to the Chief of Police for the termination of applicant's acting appointment.
(iv)On the same day the Chief of Police approved such termination.
(v) Such termination was sanctioned on the same day by the Minister of Interior.
(vi)On the same day the termination of the acting appointment was communicated to the applicant. (Vide para. 5 of the opposition).
B.Para 3 of the letter of 7.8.75 addressed by the Divisional Police Commander of Section A to the Chief of Police is indicative of the reasons which led to the recommendation of the termination of the acting appointment of the applicant. The relevant part thereof reads as follows:
"Independently of the outcome of the case against him (the applicant) I do not intend to place him again on the same duties, for this reason I apply that his acting appointment be terminated immediately....."
And further down "the possibility of his transfer to Nicosia be examined."
It can be deduced from the above that:
(1)The Divisional Police Commander of Section A decided on 7.8.75, i.e. on the day the applicant was arrested on suspicion of attempted murder, to terminate his (the applicant's) acting appointment "independently of the outcome of the case against him."
In this respect it must be borne in mind that the applicant was in custody as a suspect for 14 days after the 7.8.75 and he was then released "as there was no evidence justifying prosecution" as stated in the last part of para. 4 of the Opposition.
(2)The Divisional Police Commander of Section A "did not intend to place him (the applicant) again on the same duties". The aforesaid portion of the letter in question signifies two things:
(a) That "the same duties" existed on the 7.8.75 (by "same duties" we understand "the Applicant's Posting with the guard of the General"), and no mention whatsoever is made therein that such duties were to be abolished in the future as stated in para. 5 of the Opposition, where one of the reasons for the termination of the applicant's acting appointment put forward by the respondents is that the applicant's posting with the guard of the General was not feasible due to the abolition of the institution of such secondment. Thus the aforesaid allegation contained in para. 5 of the Opposition is disproved and the relevant ground for termination of the applicant's acting appointment is nullified.
(b) It throws ample light on the intentions of the Divisional Police Commander when he was reaching the sub judice decision.
C.The last lines of para. 3 of Appendix ┌/l reveal that disciplinary proceedings were commenced against the applicant on the day of his arrest but I must stress that such proceedings, which were eventually terminated some two months later ((8.10.75)—vide Appendix D) were not in any way connected nor had any bearing on the decision of the respondents for the termination of the applicant's acting appointment which was taken on 7.8.75.
Having considered all the above facts established before me I am satisfied that the true nature and purpose of the administrative decision challenged by the present recourse was a disciplinary measure directed against the applicant, for the reasons following:
(1) The haste with which the decision was taken and was carried into effect: (The Divisional Police Commander applied to the Chief of Police for the termination of applicant's acting appointment on 7.8.75—that is the day on which the applicant was arrested as a suspect for attempted murder—the Chief of Police approved such termination and the appropriate minister sanctioned same on the same day; and on the same day the termination was communicated to the applicant who was in custody).
(2)The wording of the decision (appendix ┌/l):
(a) Applicant's acting appointment to be terminated "immediately".
(a) "Independently of the outcome of the case against him (the applicant) I do not intend to place him again on the same duties..."
(b) "The possibility of his transfer (applicant's) to Nicosia to be examined".
(3)The lack of any reason whatsoever for such termination:
(i)The applicant's arrest on suspicion of attempted murder was not a reason for the termination of the acting appointment on the same day of his arrest; some 14 days after such termination he was released "as there was no evidence justifying prosecution".
(ii)The commencement of disciplinary proceedings on the same day of applicant's arrest was not a reason either for the immediate termination of his acting appointment.
The fact that some two months after the termination of the acting appointment the said disciplinary proceedings resulted in the conviction of the applicant for two disciplinary offences could not have any bearing on the sub judice decision of the respondents taken two months earlier.
(iii)I wish to stress that nowhere in the sub judice decision "abolition of the post in the Guard of the General" is referred to either expressly or by implication as one of the reasons for the termination of the acting appointment of the applicant. On the contrary the wording of appendix ┌/1 "I do not intend to place him again on the same duties" denotes, as already stated above, that the "same duties" existed and would continue to exist after the termination of applicant's acting appointment, but there was no intention to place him "again on the same duties."
In conclusion the coincidence of applicant's arrest with the termination of his acting appointment coupled with the circumstances accompanying such termination establish beyond doubt that his acting appointment was terminated as a measure of punishment for the offence he was suspected to have committed.
It is common ground that the applicant in the present case was neither informed beforehand of the intended termination of his acting appointment nor was he heard before such decision was taken by the respondents.
As stated earier on in my present judgment learned counsel appearing for the respondents submitted in his written address, inter alia, that when a reduction in rank or grade is not imposed as a sanction but is merely "a pure administrative measure" then no question arises for hearing the other side; and he relied on the case ∑.E. 1411/46 cited in the Conclusions from the Jurisprudence of the Greek Council of State 1929 -1959 at p. 360.
In spite of my finding that the true nature and purpose of the sub judice decision was a disciplinary punishment I feel that I should go further and say that (a) the facts of the aforesaid case decided by the Greek Council of State are completely different from the facts of the sub judice case. (b) The recent trend in Greece appears to have superseded that of the old cases concerning the right of hearing. Thus in "Administration and the Law" by Tsoutsos 1979 ed. at p. 132 we read the following:
"Σαφέστερον και αποτελεσματικώτερον η νομολογία του Ελληνικού Συμβουλίου της Επικρατείας εστράφη προσφάτως υπέρ της εφαρμογής της αρχής της ακροάσεως επί λήψεως μέτρου προσωπικού χαρακτήρος κατ' ασκούντων δημόσιον λειτούργημα, εν αντιθέσει προς την παλαιοτέραν νομολογίαν".
("In a clearer and more effective way the jurisprudence of the Greek Council of State lately leaned towards the implementation of the rule of hearing on the taking of measures of personal character against persons holding public offices in contrast to the previous jurisprudence.")
The author in the same text-book at p. 134 concludes as follows:
"Κατά ταύτα δυνάμεθα εν συμπεράσματι να είπωμεν ότι κατά την νομολογίαν του Ελληνικού Συμβουλίου της Επικρατείας η αρχή της εκατέρωθεν ακροάσεως επιβάλλεται και άνευ ρητής διατάξεως εις τας εξής περιπτώσεις:
(α) Προκειμένης επιβολής πειθαρχικής ποινής εις πρόσωπον ευρισκόμενον εν υπηρεσιακή εξαρτήσει εκ της Διοικήσεως.
(β) Επί λήψεως διοικητικού μέτρου, απευθυνομένου ειδικώς καθ' ωρισμένου προσώπου ασκούντος δημόσιον λειτούργημα λόγω αποδιδομένης εις αυτό υπαιτιότητος.
(γ) Επί επιλύσεως υπό διοικητικού οργάνου αμφισβητήσεως εγειρομένης μεταξύ δύο μερών ή κατά διοικητικής πράξεως, εξ ης ωφελείται τις".
("Therefore, we can in conclusion, say that according to the jurisprudence of the Greek Council of State the rule of hearing both sides is obligatory without any express provisions in the following instances:
(a) In respect of the imposition of a disciplinary punishment on a person who is officially depended on the Administration.
(b) On the taking of an administrative measure directed specially at a certain person exercising a public function due to blame attributed to him.
(c) On resolving by an administrative organ of a dispute which has arisen between two parties or against an administrative act, whereby someone has derived some benefit".)
Turning now to the sources of our own jurisprudence: It was held as early as 1962 by the then Supreme Constitutional Court in the case of Marcoullides v. The Republic, 3 R.S.C.C. 30 at p. 35 that the Public Service Commission which exercises disciplinary control over the applicant "has to comply with certain well established principles of natural justice and the accepted procedure governing dismissal of public officers....."
Elaborating on the subject of natural justice, Josephides, J. stated the following, inter alia, in the case of The Republic v. Mozoras (1966) 3 C.L.R. 356 at p. 399-400.
"Now, what are the rules or principles of natural justice? The two essential elements of natural justice are in modern times usually expressed as follows:
(a) no man shall be judge in his own cause; and
(b) both sides shall be heard, or audi alteram partem.
Other principles which have been stated to constitute elements of natural justice, e.g. that the parties must have due notice of when the tribunal will proceed, etc., may be said to be merely extensions or refinements of the two main principles stated above.
According to Professor B. Schwartz in his book entitled "French Administrative Law and the Common Law World" (1954), at page 207, the British Courts have endeavoured to ensure administrative fair play through the concept of natural justice. The principles of natural justice can be said to be as much a part of British administrative law as the procedural demands that the United States Supreme Court has held are required of the American administration under the "due-process" clause.
In dealing with a statute prescribing that the particular decision should be made "after due inquiry" (see later in this judgment), Lord Justice Bowen said in Leason v. General Council of Medical Education [1889] 43 Ch. D. 366, at page 383, 'The statute says nothing more but in saying so much it certainly imports that the substantial elements of natural justice must be found to have been present at the inquiry. The accused person must have notice of what he is accused. He must have an opportunity of being heard, and the decision must be honestly arrived at after he has had a full opportunity of being heard'.
Throughout the web of our system of administration of justice in Cyprus (if I may borrow the happy phrase of Lord Chancellor Sanky in another context in the Woolmington case) one golden thread is always to be seen, that is to say, that a person is entitled to a fair hearing, which means that he must be informed of the accusation made against him and given an opportunity of being heard before judgment is passed on him. These principles are now enshrined in our Constitution, Articles 12.5 and 30 reproducing the provisions of Article 6 of the Rome Convention on Human Rights of 1950."
I need not refer to other cases where the rules of natural justice have been expounded except perhaps to the recent one of Kazamias v. The Republic (1982) 3 C.L.R. 239, decided by my brother Judge Savvides J. where the relevant topic is expounded at length at pp. 284—299.
From the above it is abuntantly clear that as the true nature and purpose of the sub judice decision was to impose a sanction on the applicant, the latter ought to have been given the chance to be heard before such decision was taken. This was never done and therefore one of the most important rules of natural justice was violated, notably the rule that both sides must be heard - audiaturet alteram partem-.
I do not intend to deal with the remaining complaints of the applicant; they are ancillary to his main complaint which I have already sustained.
The complaint that the sub judice decision was taken contrary to the Police (Discipline) Regulations cannot stand as it is common ground that the Police investigations were commenced on the same day the applicant was arrested (and the termination of his acting appointment was decided and effected), but such proceedings as already stated earlier on in the present judgment, were completed some two months later and they could not and in fact they did not have any bearing on the sub judice decision.
In the result this recourse succeeds and the sub judice decision of the respondents is hereby annulled.
Having given to the case my best consideration I have decided to make no order as to costs.
Sub judice decision annulled. No
order as to costs.