Cylaw

PETROU ν. REPUBLIC (1980) 3 CLR 203 THE CYPRUS LAW REPORTS

(1980) 3 CLR 203

[*203] 1980 April 10

[MALACHTOS, J.]

IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION

EVANGELOS PETROU,

Applicant

THE REPUBLIC OF CYPRUS, THROUGH

THE COUNCIL OF MINISTERS,

Respondent.

(Case No. 272/78).

Police officers-Disciplinary offences-Disciplinary Committee set up under regulation 32 of the Police (Discipline) Regulations 1958 to 1976-May be composed either of Public Servants or Police Officers or both-Definition of “Public Service” in section 2 of the Public Service Law, 1967 (Law 33/67).

Administrative Law-Disciplinary punishment-An administrative Court has no jurisdiction to decide whether it is excessive or nor- Article 146.4 of the Constitution.

Constitutional Law-Recourse under Article 146.1 of the Constitution concerning disciplinary punishment-Administrative Court has no jurisdiction to decide whether it is excessive or not-Article 146.4 of the Constitution.

Natural Justice-Rules of-Right to be heard-Rule of natural justice applicable to offences in general-Article 12 of the Constitution-Police officer-Disciplinary punishment-Review and confirmation by Minister-Appeal to the Council of Ministers under regulation 38 of the Police (Discipline) Regulations, 1958 to 1977-Police officer had the right to be heard or to submit his views in writing-Sub judice dismissal of his appeal annulled as amounting to a violation of the above rule of natural justice.

The applicant, an Inspector of Police, was charged under the Police (Discipline) Regulations 1958 to 1977 for disobedience[*204]to Orders contrary to regulation 7, paragraph 3, of the First Schedule of the Discipline Code, that on the 4th and 5th August, 1977, being a member of the Police Force of the rank of Inspector and while on duty disobeyed the Order of the Chief of Police dated 3rd August, 1977, by which he was bound to wear black arm band due to the death of Archbishop Makarios, the late President of the Republic of Cyprus. The case was referred to the Minister of the Interior andDefence under regulation 10(A) of the above Regulations, who appointed by virtue of regulation 32 a Disciplinary Committee consisting of three members of the Force in order to try the case against the applicant. This Disciplinary Committee tried the case and under regulation 35 imposed on 1st December, 1977, on the applicant the disciplinary sentence of dismissal from the ranks of the Force.

The case was then reviewed by virtue of regulation 36 by the Minister who, on the 7th March, 1978, confirmed the decision of the Committee.

The applicant appealed against the decision of the Minister to the Council of Ministers in accordance with regulation 38 and the Council of Ministers by its decision dated 17th May, 1978, dismissed the appeal; and hence this recourse.

In issuing the decision complained of the respondent Council of Ministers did not hear the applicant or his advocate, but it had before it only the record of proceedings before the Disciplinary Committee and the Minister as well as the grounds on which the appeal against the decision of the Minister was based. These grounds were submitted in response to a letter dated 4th April, 1978, addressed by the Director–General of the Ministry of Interior to Counsel for applicant informing him that he had to state the grounds on which the appeal was based.

Counsel for the applicant contended:

(a) That the Disciplinary Committee, which was appointed by the Minister was wrongly constituted as it was entirely composed of Members of the Police Force and did not contain any Member of the Public Service;[*205]whereas under regulation 32, this Committee should be a mixed committee of Public Servants and Members of the Police Force.

(b) That the Minister in reviewing the case under regulation 36 took into account a disciplinary offence for which the applicant was charged but was not convicted, as proceedings against him were suspended due to the coup d’état and the Turkish Invasion that followed.

(c) That the principles of natural justice in the proceedings before the Council of Ministers have been violated as the applicant was not invited to express his views and so he was deprived of the right to be heard.

Held, (1) that the purpose of insertion of the words “including the force” in regulation 32 was to cover Police Officers who otherwise would be excluded, as Members of the Police Force are not considered as Public Servants (see the definition of “Public Service”, appearing in section 2 of the Public. Service Law, 1967 (Law 33/67)); that, thus, the Disciplinary Committee may be composed either of Public Servants or Police Officers, or both; and that, therefore, the Disciplinary Committee in the present case, which was composed solely of Police Officers, was not wrongly constituted.

(2) That though the Minister in examining as to whether the sentence imposed by the Disciplinary Committee on the applicant was excessive, did not only make reference to his previous convictions but also referred to the fact that on the 29th day of August, 1973, the applicant was interdicted for a serious offence, i.e. for insulting the then President of the Republic;. that although, as it appears from the decision of the Minister this fact might have had some bearing on the matter, yet, this Court will not pronounce on it since as an administrative Court, it has no jurisdiction to decide on the question of sentence as to whether it is excessive or not (see Article 146.4 of the Constitution).

(3) That there is no doubt that where we are concerned with disciplinary proceedings before the Council of Ministers as a[*206]hierarchically superior organ, as in the present case, the rules of natural justice, which under Article 12 of the Constitution are applicable to offences in general, should be followed; that, consequently, the applicant had a right to be heard (see Haros v. The Republic, 4 R.S.C.C. 39); that, however, it is not necessary for au applicant to be heard before the Council of Ministers viva voce, as in open Court, but this right should be considered as fully satisfied if he were invited to submit his views in writing (see The Right of Defence Before the Administrative Authorities by Stasinopoulos, 1974 edition, pages 173 to 175); that it cannot be said that by the letter of the 4th April, 1978, addressed by the Director-General of the Ministry of Interior and Defence to counsel for applicant to the effect that to had to state the grounds on which his appeal was based, the right to be heard was satisfied; that applicant had, also, to be, asked to express his views and give reasons in support of the said grounds; that, therefore, there has been a violation of the rules of natural justice; and that, accordingly, the decision of the Council of Ministers complained of should be, and it is hereby declared null and void.

Sub judice decision annulled.

Cases referred to:

Haros v. The Republic, 4 R.S.C.C. 39.

Recourse.

Recourse against the decision of the respondent Council of Ministers to confirm the sentence of applicants’ dismissal from the ranks of the Police Force

L. N. Clerides, for the applicant

N. Charalambous, Counsel of the Republic, for the respondent.

Cur. adv. vult.

MALACHTOS, J.: The applicant in this recourse, which is made under Article 146 of the Constitution, claims a declaration of the Court that the decision of the Council of Ministers, which was taken on 17th May, 1978, and communicated to him by letter dated 26th May, 1978, by virtue of which the respondents confirmed the sentence of dismissal from the ranks of the Police Force imposed on the applicant, is null and void and of no legal effect.[*207]

The following are the relevant facts of the case.

The applicant, an Inspector of Police, was charged under the Police (Discipline) Regulations 1958 to 1977 for disobedience to Orders contrary to regulation 7, paragraph 3, of the First Schedule of the Discipline Code, that on the 4th and 5th August 1977, being a member of the Police Force of the rank of Inspector and while on duty disobeyed the Order of the Chief of Police under No. Limassol/56/6 dated 3rd August, 1977, by which he was bound to wear black arm band due to the death of Archbishop Makarios, the late President of the Republic of Cyprus. The case was referred to the Minister of the Interior and Defence under regulation 10(A) of the above Regulations, who appointed by virtue of regulation 32 a Disciplinary Committee consisting of three members of the Force in order to try the case against the applicant. This Disciplinary Committee tried the case and under regulation 35 imposed on 1st December, 1977, on the applicant the disciplinary sentence of dismissal from the ranks of the Force.

The case was then reviewed by virtue of regulation 36 by the Minister who, on the 7th March, 1978, confirmed the decision of the Committee.

The applicant appealed against the decision of the Minister to the Council of Ministers in accordance with regulation 38 and the Council of Ministers by its decision under No. 16881 dated 17th May, 1978, dismissed the appeal.

The said decision reads as follows:

“Appeal of Inspector EvangelosPetrou, who was convicted by the Disciplinary Committee to the Punishment of Dismissal

(Submission under No. 396/78)

The Council considered the appeal attached to the submission of Appendix B, on the part of Inspector EvangelosPetrou, as well as all the elements of his case, who was convicted to the punishment of dismissal by virtue of Regulation 36 of the Police (Discipline) (Amendment) Regulations of 1976 and decided, by virtue of Regulation 38 of the said Regulations, to confirm it.[*208]

The Minister of Interior did, not take part in the above decision.”

As against this decision the applicant filed the present recourse.

The relevant Regulations’ in the present case are regulations 1OA and 32 to 38, both inclusive, and read as follows:

“10Α. Μελέτη Πορίσματος υπό υπουργού.

(1) Ανεξαρτήτως των διατάξεων των Κανονισμών 10 έως 22, αμφοτέρων συμπεριλαμβανομένων, ο Υπουργός δύναται, καθ' οιονδήποτε χρόνον και προτού ο Αστυνομικός Διευθυντής ή ο Βοηθός Αρχηγός (Διοικήσεως), ενεργήση ως προνοείται υπό του Κανονισμού 10, να αξιώση παρά του Αρχηγού όπως το πόρισμα ερεύνης ομού μεθ' απάντων των σχετικών εγγράφων διά πειθαρχικήν δίωξιν οιουδήποτε μέλους υποβληθή προς αυτόν προς μελέτην.

(2) Ο Υπουργός αφού μελετήση το πόρισμα και τα έγγραφα εάν είναι της γνώμης ότι—

(α) δεν διεπράχθη οιονδήποτε πειθαρχικόν αδίκημα, εντέλλεται όπως ουδεμία πειθαρχική δίωξις ασκηθή κατά του καθ' ου ή καταγγελία.

(β) διεπράχθη μεν αδίκημα αλλά τούτο δύναται να εκδικασθή επαρκώς ως προνοείται υπό των Κανονισμών 12 έως 18, αμφοτέρων συμπεριλαμβανομένων, εντέλλεται όπως η υπόθεσις επιστραφή εις τον Αστυνομικόν Διευθυντήν ή τον Βοηθόν Αρχηγόν (Διοικήσεως) αναλόγως της περιπτώσεως, προς κατηγορίαν τού καθ' ου η καταγγελία συμφώνως προς τον Κανονισμόν 10 και την μετά ταύτα εκδίκασιν της υποθέσεως δυνάμει των ρηθέντων Κανονισμών 12 έως 18,

(γ) διεπράχθη αδίκημα, όπερ, λόγω της σοβαρότητος αυτού ή των περιστάσεων υπό τας οποίας διεπράχθη, θα έπρεπε, κατά την κρίσιν του, να εκδικασθή υπό Επιτροπής ως προνοείται εις τον Κανονισμόν 32, κατόπιν διατυπώσεως της σχετικής κατηγορίας, διορίζει τοιαύτην Επιτροπήν και παραπέμπει την υπόθεσιν εις αυτήν προς εκδίκασιν, οπότε οι Κανονισμοί 33, 34, 35, 36, 37 και 38, τηρουμένων των αναλογιών, θα εφαρμόζωνται [*209] εις αυτήν. Εις τοιαύτην περίπτωσιν ο Υπουργός παρέχει ή μεριμνά ίνα παρασχεθώσι προς τον καθ' ου η καταγγελία αντίγραφον του πορίσματος, των σχετικών εγγράφων και της κατ' αυτού κατηγορίας.

32. Διορισμός επιτροπής.

(1) Ο Υπουργός διορίζει Επιτροπήν αποτελουμένην εκ τριών μελών προερχομένων εκ της Κυβερνητικής Υπηρεσίας συμπεριλαμβανομένης και της Δυνάμεως, καθορίζει δε ταυτοχρόνως τον Πρόεδρον της Επιτροπής του οποίου απαραιτήτως η ιεραρχική τάξις ή η οργανική θέσις δέον να είναι υψηλοτέρα εκείνης του καθ' ου η κατηγορία.

(2) Η Επιτροπή κέκτηται εξουσίαν όπως εκδικάση την υπόθεσιν κατά του Ανωτέρου Αξιωματικού, η δε ακρόασις της υποθέσεως διεξάγεται, κατά το δυνατόν, διά του αυτού τρόπου ως η ακρόασις ποινικής υποθέσεως εκδικαζομένης συνοπτικώς:

Νοείται ότι ο Ανώτερος Αξιωματικός έχει το δικαίωμα να υπερασπισθή μετά ή άνευ συνηγόρου.

33. Εξουσίαι Αρχηγού/Επιτροπής.

(1) Ο Αρχηγός ή η Επιτροπή κέκτηται εξουσίαν όπως—

(α) καλέση μάρτυρας και απαίτηση την προσέλευσιν αυτών ως και την προσέλευσιν του Ανωτέρου Αξιωματικού εναντίον του οποίου γίνεται η ακρόασις ως εις συνοπτικήν ποινικήν δίκην.

(β) απαιτήση προσαγωγήν παντός εγγράφου σχετιζομένου προς την κατηγορίαν, συμπεριλαμβανομένου και του Προσωπικού Φακέλλου του Ανωτέρου Αξιωματικού,

(γ) αναβάλλη την ακρόασιν από καιρού εις καιρόν νοουμένου ότι η υπόθεσις προχωρεί το ταχύτερον δυνατόν,

(δ) χορηγή εις παν πρόσωπον, μη μέλος της Δυνάμεως, το όποιον εκλήθη ως μάρτυς εις την ακροαματικήν διαδικασίαν, οιονδήποτε ποσόν (καταβαλλόμενον εκ του Προϋπολογισμού της Δυνάμεως) το οποίον κατά την κρίσιν του Αρχηγού ή της Επιτροπής θα ηδύνατο ευλόγως να αντιπροσωπεύση τα έξοδα εις τα οποία το εν λόγω πρόσωπον υπεβλήθη εν σχέσει προς την κλήσιν του ως μάρτυρας,[*210]

(ε) διατάξη την καταβολήν αποζημιώσεων προς οιονδήποτε παραπονούμενον είτε υπό του καθ' ου η δίωξις είτε εκ του σχετικού κονδυλίου του Προϋπολογισμού της Δυνάμεως:

Νοείται ότι αι τοιαύται αποζημιώσεις δεν θα υπερ βαίνουν τας 50 λίρας.

(2) Παν πρόσωπον το όποιον αρνείται να συμμορφωθή προς τας εντολάς του Αρχηγού ή της Επιτροπής ως εν ταις υποπαραγράφοις (α) και (β) της παραγράφου (1) του παρόντος Κανονισμού προνοείται ή αρνείται εις οιανδήποτε διαδικασίαν ενώπιον του Αρχηγού ή της Επιτροπής να απαντήση εις οιανδήποτε ερώτησιν νομίμως τεθείσαν εις αυτό, διαπράττει ποινικόν αδίκημα τιμωρούμενον διά χρηματικής ποινής μη υπερβαινούσης τας 200 λίρας:

Νοείται ότι ουδείς μάρτυρας υποχρεούται να απαντήση εις ερωτήσεις τείνουσας να ενοχοποιήσουν τούτον ή να τον καταστήσουν υπόλογον εις πληρωμήν προστίμου ή κατάσχεσιν της περιουσίας του.

34. Απόφασις Επιτροπής

Η Επιτροπή δι' αποφάσεως αυτής δύναται να εύρη τον Ανώτερον Αξιωματικόν ένοχον οιουδήποτε αδικήματος διά το οποίον κατηγορείται και να επιβάλη εις αυτόν οιανδήποτε των πειθαρχικών ποινών την οποίαν αι περιστάσεις της υποθέσεως θα εδικαιολόγουν, ή να απαλλάξη τούτον της κατηγορίας. Πάσα απόφασις της Επιτροπής λαμβάνεται κατά πλειοψηφίαν και υπογράφεται υπό του Προέδρου της Επιτροπής.

35. Ποιναί.

Αι ακόλουθοι πειθαρχικαί ποιναί δύνανται να επιβληθώσιν υπό της Επιτροπής:

(α) Επίπληξις,

(β) αυστηρά επίπληξις,

(γ) πρόστιμον μη υπερβαίνον τας 100 λίρας,

(δ) κατακράτησις, διακοπή ή αναβολή προσαυξήσεως,

(ε) υποβιβασμός εις κατώτερον βαθμόν ή κατωτέραν θέσιν,

(στ) απαίτησις προς παραίτησιν,

(ζ) απόλυσις.[*211]

36. Αναθεώρηση ποινής υπό Υπουργού.

(1) Εις πάσαν περίπτωσιν καθ' ην Ανώτερος Αξιωματικός ήθελεν ευρεθή ένοχος διά πειθαρχικόν αδίκημα, ή καταδίκη αυτού και η εις αυτόν επιβληθείσα ποινή αναθεωρούνται υπό του Υπουργού. Κατά την αναθεώρησιν ο Υπουργός δύναται—

(α) να απαλλάξη τον Ανώτερον Αξιωματικόν της καταδίκης ή και της ποινής,

(β) να μετατρέψη την απόφασιν ή ποινήν,

(γ) να μειώση ή αυξήση την ποινήν,

(δ) να επικυρώση την απόφασιν ή ποινήν:

Νοείται ότι ο Υπουργός κατά την αναθεώρησιν ποινής Επιβληθείσης υπό του Αρχηγού δύναται να επιβάλη μόνον ποινήν προνοουμένην υπό του Κανονισμού 30.

(2) Οιαδήποτε ποινή επιβληθείσα υπό του Αρχηγού ή της Επιτροπής δεν θα είναι εκτελεστή ειμή κατόπιν αναθεωρήσεως και επικυρώσεως ταύτης υπό του Υπουργού.

37. Πρακτικά διαδικασίας

Κατά την ακρόασιν υποθέσεως υπό του Αρχηγού ή της Επιτροπής, και κατά την αναθεώρησιν υπό του Υπουργού, τηρούνται πρακτικά διαδικασίας.

38. Εφέσεις

Ανώτερος Αξιωματικός εναντίον του οποίου εξεδόθη αναθεωρητική απόφασις δυνάμει του Κανονισμού 36 δύναται, εντός επτά ημερών από της ημερομηνίας της τοιαύτης αποφάσεως, να εκκαλέση ταύτην ενώπιον του Υπουργικού Συμβουλίου του οποίου η απόφασις θα είναι τελεσίδικος.”

(“10A. Consideration of report by Minister.

(1) Notwithstanding the provisions of regulations 10-22, both inclusive, the Minister may, at any time and before the Divisional Commander or the Assistant Chief of Police (Administration) takes action in accordance with regulation 10, request from the Chief of Police that the report of investigation together with all relevant[*212]documents for disciplinary proceedings against any member be submitted to him for consideration.

(2) The Minister, after considering the report and the documents if of opinion that-

(a) no disciplinary offence has been committed, directs that no disciplinary charge be preferred against the member of the Force in respect of whom the accusation has been made;

(b an offence has been committed but it can be tried adequately in accordance with the provisions of regulations 12-18, both inclusive, directs that the case be sent back to the Divisional Commander or the Assistant Chief of Police (Administration) as the case may be, for preferring a charge against the member in respect of whom the accusation was made in accordance with regulation 10 and the subsequent trial of the case under the said regulations 12-18;

(c) an offence has been committed which due to its gravity or the circumstances under which it was committed, should, in his opinion, be tried by a committee as provided for under regulation 32, after preferring the relevant charge, appoints such a committee and refers the case to it for trial, in which case regulations 33, 34, 35, 36, 37 and 38 will be applicable, mutatis mutandis. In such a case the Minister provides or sees that the member against whom the accusation is made is provided with a copy of the report, the relevant documents and the charge preferred against him.

32. Appointment of a Committee.

(1) The Minister appoints a Committee consisting of three members of the Public Service including the Force, and at the same time he determines who shall be the Presiding Officer, whose hierarchical order or organic post should indispensably be higher than that of the accused.

(2) The Committee has power to try the case against a Senior Officer and the hearing of the case is carried out, as far as[*213]possible, in the same way as the trial of a criminal case tried summarily:

Provided that a Senior Officer has the right to defend himself with or without an advocate.

33. Powers of Chief of Police/committee.

(1) The Chief of the Police or the Committee have power to-

(a) call witnesses and demand their attendance and the attendance of the Senior Officer against whom the hearing takes place as in a summary criminal trial;

(b) demand the production of every document relative to the charge, including the Personal File of the Senior Officer.;

(d) grant to every person, who is not a member of the Force, who had been called as witness at the hearing, any sum (paid from the Budget of the Force) which in the judgment of the Chief of Police or the Committee would reasonably represent the costs which the said person has incurred in connection with his being called as a witness;

(e) order the payment of compensation to any complainant either by the officer under charge or from the relevant vote of the Budget of the Force:

Provided that such compensation will not exceed £50 -

(2) Every person who refuses to comply with the directions of the Chief of Police or the Committee as provided for in sub-paras. (a) and (b) of para. 1. of this regulation or refuses in any proceeding before the Chief of Police or the Committee to reply to any question lawfully put to him commits a criminal offence punishable with a monetary punishment not exceeding £200.-:

Provided that no witness is obliged to answer any questions tending to incriminate him or make him liable to the payment of a fine or seizure of his property.[*214]

34. Decision of the Committee.

The Committee by its decision may find a Senior Officer guilty of any offence for which he is charged and impose on him any one of the disciplinary punishments which the circumstances of the ,case might justify or discharge him of the charge. Every decision of the Committee is taken by majority and is signed by the Presiding Officer.

35. Punishments.

The, following disciplinary punishments may be imposed by the Committee:

(a) Reprimand,

(b) severe reprimand,

(d) withholding, stoppage or deferment of increment,

(e) reduction in, rank or gra4e, ‘

f) requirement to resign,

(g) dismissal.

36. Review of punishment ‘by Minister.

(1) In every case in which a Senior Officer is found guilty of a disciplinary offence, his conviction and the punishment imposed on him are reviewed by the Minister.

Upon review the Minister may-

(a) discharge the Senior Officer of the conviction and/or punishment,

(b) vary the decision or punishment,

(d) confirm the decision or punishment:

Provided that the Minister upon review of a punishment imposed by the Chief of police may impose only a punishment provided for under regulation 30.

(2) Any punishment imposed by the Chief of Police or the Committee is not executory except upon its revision and confirmation by the Minister.

37. Minutes of proceedings.

During the hearing of a case by the Chief of police or[*215]the Committee, and upon revision by the Minister, minutes of proceedings are kept.

38. Appeals.

A Senior Officer against whom a decision after a review was given under regulation 36 may, within seven days from the date of such judgment, appeal to the Council of Ministers whose judgment shall be final”).

The first submission of counsel for applicant in arguing the case’ is that the Disciplinary Committee, which was appointed by the Minister was wrongly constituted as it was entirely composed of Members of the Police Force and did not contain any Member of the Public Service. According to his own interpretation of regulation 32, this Committee should be a mixed committee of Public Servants and Members of the PoliceForce.

I have considered the wording of this regulation and I must say that I do not agree with the interpretation given by counsel for applicant. The purpose of insertion of the words “including the force” in regulation 32 was to cover Police Officers who otherwise would be excluded, as Members of the Police Force are not considered as Public Servants, according to the definition appearing in section 2 of the Public Service Law, 1967 (Law 33/67). This definition is as follows:

“‘Public Service’ means any service under the Republic other than the Judicial Service of the Republic or Service in the Armed or Security Forces of the Republic or Service in the Office of Attorney-General of he Republic or Auditor-General or Accountant-General or their deputies or service in any office in respect of which other provision in made by Law or service by persons whose remuneration is calculated on a daily basis”.

So, the Disciplinary Committee may be composed either of Public Servants or Police Officers, or both. And, therefore, the Disciplinary Committee in the present case, which was composed solely of Police Officers, was not wrongly constituted.

The next argument of counsel for applicant was that the Minister in reviewing the case under regulation 36 took into account a disciplinary offence for which the applicant was charged but was not convicted, as proceedings against him were[*216]suspended due to the coup d’etat and the Turkish Invasion that followed.

It is quite true that the Minister in examining as to whether the sentence imposed by the Disciplinary Committee on the applicant was excessive, did not only make reference to his previous convictions but also referred to the fact that on the 29th day of August, 1973, the applicant was interdicted for serious offence, i.e. for insulting the then President of the Republic. Although, as it appears from the decision of the Minister this fact might have had some bearing on the matter, yet, I am not going to pronounce on it since this Court, as an administrative Court, has no jurisdiction to decide on the question of sentence as to whether it is excessive or nor. This is clear from the wording of Article 146.4 of the Constitution, which reads as follows:-

“146.4.-Upon such a recourse the Court may, by its decision-

(a) confirm, either in whole or in part, such decision or act or omission; or

(b) declare, either in whole or in part, such decision or act to be null and void and of no effect whatsoever; or

(c) declare that such omission, either in whole or in part, ought not to have been made and that whatever has been omitted should have been performed.”

Another submission of counsel for applicant is that the principles of natural justice in the proceedings before the Council of Ministers have been violated as the applicant was not invited to express his views and so he was deprived of the right to be heard. He submitted that under regulation 38 the Council of Ministers was acting in a quasi judicial capacity and so it was bound to invite the applicant to be heard.

It is not in dispute that the Council of Ministers in issuing the decision complained of, did not hear the applicant or his advocate, but it had before it only the record of proceedings before the Disciplinary Committee and the Minister as well as the grounds on which the appeal against the decision of the Minister was based.

On this point, on the other hand, counsel for the respondents submitted that under regulation 38 the Council of Ministers[*217]was acting as a hierarchically superior organ exercising administrative powers and the appeal filed before it is nothing else but a hierarchical recourse provided by law and in such a case the party affected has a right to be heard. To this principle, however, there is an exception in that where the opportunity to the person affected is given to submit in writing his views it is considered that the right to be heard is satisfied. In the present case as it appears from Appendix B of the Submission to the Council of Ministers, exhibit 2, this procedure was followed and the views of the applicant were expressed in the rounds of appeal which were submitted on 3rd May, 1978 through his advocate.

Appendix B of exhibit 2 consists of:

(i) a letter addressed to the Council of Ministers by counsel for applicant dated 10th March, 1978, by which notice was given that the applicant was appealing against the decision of the Minister and stated therein that he was reserving the right to submit in detail before the Council of Ministers the legal points of the case at the hearing;

(ii) a letter dated 4th April, 1978, addressed by the Director-General of the Ministry of Interior to counsel for applicant to which the record of proceedings before the Disciplinary Board and the Minister were attached, informing him that he had to state the grounds on which the appeal was based so as to be able to submit the case before the Council of Ministers; and

(iii) a letter addressed to the Director–General of the Ministry of interior by counsel for applicant dated 3/5/78 containing the grounds of appeal with the request that they should be transmitted to the Council of Ministers.

The grounds of appeal are the following:

(a) The Honourable Minister of Interior wrongly took into consideration a case against the applicant which was not tried and connected it with the present case.

(b) Since the Honourable Minister in the reasoning of his decision reached the conclusion that the fault of the applicant “was at first sight rather insignificant”, the confirmation by him of the imposed sentence of dismissal [*218]from the ranks of the Police Force, was entirely disproportionate to the offence committed by the appellant and ought to be cancelled.

There is no doubt that where we are concerned with disciplinary proceedings before the Council of Ministers as a hierarchically superior organ, as in the present case, the rules of natural justice, which under Article 12 of our Constitution are applicable to offences in general, should be followed. Consequently, the applicant had a right to be heard. (Nicolaos D. Haros v. The Republic, .4 R.S.C.C. 39). However, it is not necessary for an applicant to be heard before the Council of Ministers viva voce, as in open Court, but this right should be considered as fully satisfied if he were invited to submit his views in writing. This proposition finds support in the Right of Defence Before the Administrative Authorities by Stasinopoulos, 1974 edition, pages 173 to 175.

Therefore, the question posed in the case in hand is whether by the two grounds of appeal appearing in Appendix B of exhibit 2, the rules of natural justice have been observed. The answer should be in the negative. It cannot be said that by the letter of the 4th April, 1978, addressed by the Director-General of the Ministry of Interior and Defence to counsel for applicant to the effect that he had to state the grounds on which his appeal was based, the right to be heard was satisfied. He should also be asked to express his views and give reasons in support of the said ground. The net result is that in the present case there is a violation 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 Council of Ministers to reconsider its decision in the light of this judgment.

In view of my above decision on this ground, I consider it unnecessary to deal with the other grounds submitted on behalf of the applicant.

As regards costs, the respondent Authority is adjudged to pay to the applicant £20.-against his costs.

Sub judice decision annulled.

Order for costs as above.

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