(1985) 3 CLR 518
[*518] 1985 April 30
[DEMETRIADES, J.]
IN THE MATTER OF ARTICLE 146
OF THE CONSTITUTION
ARISTOS GEORGHIOU STYLIANIDES,
Applicant,
v.
THE REPUBLIC OF CYPRUS, THROUGH
1. THE MINISTER OF INTERIOR,
2. THE COMMANDER OF POLICE,
Respondents.
(Case No. 305/83).
Administrative Law-Administrative acts or decisions-Reasoning-Assumed if it can be found in the records before the Court.
Firearms-Cancellation of certificate of registration of-Section 11(3) of the Firearms Law, 1974 (Law 38/1974)-Reasons of public interest-Law I.Q. of the applicant, his immature personality, and fact that he Was an alcoholic who had threatened to shoot his wife and relatives by shooting them -Imposed a duty on Commander of Police in the interest and safety of the public to cancel the registration without any other inquiry-No violation of the rules of natural justice by not affording applicant a right to be heard be- cause the rules of natural justice cannot apply when public safety is at stake.
Natural justice-Cancellation of certificate of registration of firearm-For reasons of public safety-Without affording applicant an opportunity to be heard-Rules of natural justice not violated because these rules do not apply when public safety is at stake.
On the 22nd April, 1983, the applicant was taken by relatives of his to the Psychiatric Wing of the Limassol Hospital after he had threatened his wife and relatives of his that he was going to kill them. He was released from[*519]the Phychiatric Wing on the 28th April, 1983. In a report which was prepared in respect of him by a specialist psychiatrist of the said Hospital it was stated that he was a person of a very low I. Q., of an immature personality who was finally led to alcoholism and that his disturbed conduct was due to a combination of the above three factors.
On the 4th May, 1983, the Divisional Commander of the Limassol Police wrote to the Commander of Police stating that as the applicant was under medical treatment and in accordance with the report of the doctor he was an alcoholic, the possession by him of a firearm was dangerous and, therefore, for reasons, also, of public interest, the certificate of registration of his firearm had to be cancelled. As a result of this letter the Commander of Police, exercising his powers under section 11(3) of the Firearm Law, 1974 (Law 3 8/74) decided on the 12th May, 1983, to order the cancellation of the certificate of registration of the firearm possessed by the applicant; and this decision was communicated to the applicant by a letter dated the 13th May, 1983. Hence this recourse.
Counsel for the applicant contended:
(a) That the sub judice decision was not duly reasoned.
(b) That the Commander of Police failed to carry out a due inquiry.
(c) That the Commander of Police had reached his decision without affording to the applicant the opportunity to be heard and that this violates the rules of natural justice.
Held, (1) that though it is correct that in the letter addressed by the Commander of Police to the applicant, no reasons are stated by him as to why he had reached such decision it is a well established principle of administrative Law that due reasoning is assumed if it can be found in the records before the Court; and that in the relevant re cords which are before the Court there is disclosed fully the reasoning of the sub judice decision.
(2) That in the present case the Commander of Police and the Police in general had acted promptly in the public[*520]interest and that had they not acted so in view of the special circumstances of the, case they would be responsible if anything happened not only to people close to the applicant but those coming into contact with him; that on the basis of the particular facts of the case, which were before the Commander of Police, he had a duty, in the interest and safety of the public, to take the decision which is the subject matter of this recourse and, therefore, the complaint of the applicant regarding absence of due inquiry cannot stand.
(3) That though the rules of natural justice must apply in each particular case for the protection of the rights of the citizens these rules cannot apply in matters of this or similar nature, that is when public safety is at stake; that more so because in this country a citizen, who feels aggrieved by the decision of an administrative organ can always apply to the Court by recourse under Article 146 of the Constitution for an interim, injunction to restrain the organ concerned from enforcing its decision; and that although there is no provision in the relevant Law that the applicant or anybody likewise affected by such a decision taken by the Commander of Police can object, a person affected by such decision has the right on its communication to him to put forward in writing his grounds why the decision was wrongly taken or else he can apply to the Supreme Court for redress; that in this case there has been no violation of the rules of natural justice; and that, therefore, the recourse must fail.
Recourse dismissed.
Cases referred to:
HadjiSavva v. Republic (1972) 3 C.L.R. 174;
Korai and Another v. C.B.C. (1973) 3 C.L.R. 546;
Vanezis v. Republic (1976) 3 C.LR. 200.
Recourse.
Recourse against the decision of the respondents where-by the applicant was considered as unfit to possess a firearm. [*521]
Chr. Pourgourides, for the applicant.
N. Charalambous, Senior Counsel of the Republic, for the respondents.
Cur. adv. vult.
DEMETRIADES J. read the following judgment. By means of this recourse the applicant prays for a declaration of the Court that the decision of the Commander of Police dated 13th May, 1983, by which the applicant was considered as unfit to possess a firearm, is null and void and of no legal effect.
The applicant bases his recourse on the following grounds of Law:
1. The sub judice decision was taken in contravention of the rules of natural justice in that the applicant was not heard.
2. The sub judice decision was taken without a due inquiry.
3 The sub judice decision is not duly reasoned in that it does not contain the facts and/or material which led the respondents to reach their decision.
4. The sub judice decision violates established principles of administrative Law.
The respondents oppose the application and allege that the sub judice decision is lawful; that it was taken. After a correct exercise of their discretionary powers and after all relevant facts of the case were investigated and, were taken into consideration.
The facts on which the applicant bases his application and which, as, it appears from the file, are not the correct ones, are the following:
On the 22nd April, 1983, members of the Police Station of KaloChorio Limassol visited the house of the applicant in his absence and took from his wife a firearm under Registration No. AA 8543 which belongs to and was possessed by the applicant. On the 13th May, 1983, the Commander of Police, by his aforesaid letter, copy of which is appended[*522]to this application, informed the applicant that the certificate of registration of the said firearm was cancelled because he had decided that the applicant was unfit possess a firearm.
It is the allegation of the applicant that he is fit to possess the said firearm and that the sub judice decision is, therefore, unlawful, null and void.
The facts on which the respondents rely and which, from the record of the case appear to be the correct ones, are the following:
On the 22nd April, 1983, the applicant was taken, by relatives of his to the Psychiatric Wing of the Limassol Hospital after he had threatened his wife and relatives of his that he was going to kill them. The Police, for preventive reasons, visited the house of the applicant and took the firearm away. The applicant was released from the Psychiatric Wing on the 28th April, 1983. On the following day a report was prepared in respect of him by a specialist psychiatrist of the said Hospital, in which it is stated that the, applicant is a person of a very low I. 0., of an immature personality, who was finally led to alcoholism and that his disturbed conduct is due to a combination of the above three factors. It also, stated, that on his release from the Hospital the applicant was under medication, quiet, co operative and that his treatment was to continue (see Appendix “A” to the opposition).
On the 4th May, 1983, the Divisional Commander of the Limassol Police wrote to the Commander of Police stating that as the applicant was under medical treatment and, in accordance with the report of the doctor he was alcoholic, the possession by him of the firearm was dangerous and, therefore, for reasons, also, of public interest, the certificate of registration of his fireman had to be cancelled (see Appendix ‘B’ to the opposition).
As a, result of this letter the Commander of Police decided on the 12th May, 1983, to order the cancellation of the certificate of registration of the firearm possessed by the applicant. This decision was communicated to the applicant by a letter dated the 13th May, 1983, (see Appendix “C” to the opposition).[*523]
Counsel for the applicant in his address submitted that the sub judice decision is null and void for the following three reasons:
(a) Lack of due reasoning;
(b) Lack of due inquiry; and
(c) violation of the rules of natural justice.
The relevant legal provision empowering the Commander of Police to cancel the registration of a firearm is section 11(3) of, the Firearms Law, 1974 (Law 3 8/74), which reads as follows:
«(3) Ό Αρχηγός της Αστυνομίας, δύναται καθ' οιονδήποτε χρόνον δια λόγους δημοσίου συμφέροντος νά άκυρώση οιονδήποτε πιστοποιητικόν έγγραφης δι' εγγράφου ειδοποιήσεως εις τον κάτοχον αύτοϋ, έπί τη τοιαύτη δέ άκυρώσει ό κάτοχος τοϋ πιστοποιητικού οφείλει νά έπιστρέψη τοϋτο πάραυτα εις τον Άρχηγόν της 'Αστυνομίας και έάν παραλείψη νά πράξη τοϋτο είναι ένοχος άδικήματος καί, έπί τή καταδίκη του, ύπόκειται εις χρηματικήν ποινήν μή ύπερβαίνουσαν τάς έκατόν λίρας»».
(“(3) The Commander of Police may at any time for, reasons of public interest cancel any certificate of registration by written notice to the possessor thereof, andupon such cancellation the possessor of the certificate must return it immediately to the Commander of Police and if he fails to do so he is guilty of an offence and, upon his conviction, he is subject to a fine not exceeding one hundred pounds.”)
Regarding the submission of counsel for the applicant that the sub judice decision is not duly reasoned, it is correct that in the letter addressed by the Commander of Police to the applicant, no reasons are stated by him as to Why he had reached such decision. It is, however, a well established principle of administrative Law that due reasoning is assumed if it can be found in the records before the Court (see, inter alia, in this respect, Hadjisavva v. The Republic, (1972) 3 C.L.R. 174; Korai and Another v. The Cyprus Broadcasting Corporation, (1973.) 3 C.L.R. 546,[*524]and Vanezis v. The Repu6lic, (1976) 3 C.L.R. 200) and in my view Appendices “A” and “B” attached to the opposition disclose fully the reasoning of the sub judice decision.
As regards the contention of counsel for the applicant that the Commander of Police had failed to carry out a due inquiry, it has been submitted that the Commander of Police, in exercising his discretionary power to cancel the registration of the firearm, ought to have before him all material and relevant factors and that as to the state of health of the applicant, he ought not to have relied only on the medical certificate (Appendix ‘A’ to the opposition), but he ought to have delayed his decision, and call for further medical evidence so that he could know of the prospects of applicant’s future complete recovery.
It is my view that in the present case the Commander of Police and the Police in general had acted promptly, in the public interest and that had they not acted so in view of the special circumstances of the case, namely that the applicant had already threatened to kill his wife and relatives by shooting, them, that he was an alcoholic, of low I. Q. and of immature personality, they would be responsible if anything happened not only to people close to the applicant but those coming into contact with him.
On the basis of the particular facts of the case, which were before the Commander of Police, he had a duty, in the interest and safety of the public, to take the decision which is the subject matter of this recourse and, therefore, the abovesaid complaint of the applicant cannot stand.
I shall deal lastly with the complaint of the applicant that the Commander of Police had reached his decision without affording to the applicant the opportunity to be heard and that this violates the rules of natural justice.
Professor Stassinopoulos in his book “To Dikeoma tis IperaspiseosEnopion ton Diikitikon Archon” (“The Right of Defence Before the Administrative Authorities”) (1974), with regard to this issue states, at p. 157, para. 22, that there is no such legal provision in Greece (see, also, Case No. 133/1929 of the Council of State in Greece) and that where the Law is silent on the matter of whether a citizen[*525]has the right to be heard before an administrative decision is taken, the Judge has an obligation to seek and find out whether, in the particular case, the hearing, of the citizen, before the decision is taken, is necessary so that the principles of legality are fulfilled. He further goes on to say that the Judge has to proceed to estimate the circumstances of the case and reach a conclusion whether, in the absence of legal provision, a hearing is necessary.
Undoubtedly, the rules of natural justice must apply in each particular case for the protection of the rights of the citizens but, in my view, these rules cannot apply in matters of this or similar nature that is when public safety is at stake. More so because in our country a citizen who feels aggrieved by the decision of an administrative organ can always apply to the Court by recourse under Article.146 of the Constitution for an interim injunction to restrain the organ concerned from enforcing its decision.
Although there is no provision in the relevant Law that the applicant, or anybody likewise affected by such a decision taken by the Commander of Police can object, in my view a person affected by such decision has the right on its communication to him to put forward in writing his grounds why the decision was wrongly taken or else he can apply to the Supreme Court for redress.
In the present case and in view of its circumstances, I find that there has been no violation of the rules of natural justice.
In the result, the recourse is dismissed but, in the circumstances of the case, there will be no order as to costs.
Recourse dismissed.
No order as to costs.
cylaw.org: Από το ΚΙΝOΠ/CyLii για τον Παγκύπριο Δικηγορικό Σύλλογο