Supreme Court declares indefinite military interdiction after criminal acquittal contrary to law and an abuse of power.

[*732] 1970 August 6

(LOIZOU, J.)

REVISIONAL JURISDICTION

In the matter of Article 146 of the Constitution

Charalambos Dalitis,

Applicant,

and

The Republic of Cyprus, through

The Minister and/or Ministry of Defence,

Respondent.

(Case No, 82/69).

Administrative Law - Army of the Republic - Discipline - Lieutenant - Interdicted pending Criminal proceedings - Regulation 19 of the Disciplinary Regulations of the Army of the Republic, 1962

- Omission to terminate interdiction for a long time after concludion of criminal, proceedings for reasons irrelevant to the present case - Contrary to law and in abuse of powers.

Army of the Republic - Disciplinary proceedings - Interdiction - Object of interdiction - Regulation 19 of the Disciplinary Regulations of the Army of the Republic, 1962.

Interdiction - See under "Administrative Law" - "Army of the Republic".

N. Charalambous, for the Applicant.

S. Georghiades Senior Counsel of the Republic, for the Respondent.

JUDGMENT

The following judgment was delivered by:

LOIZOU, J. The applicant is a lieutenant in the Cyprus army having enslisted in May, 1961. [*733]

In July, 1968, a charge was filed against him in the Military Court containing three counts as follows: (a) for having carnal knowledge of a soldier against the order of nature contrary to s.

171 of the Criminal Code; (b) for unlawfully and indecently assaulting the said soldier contrary to s. 152 of the Criminal Code and (c) for behaviour prejudicing the military discipline and the maintenance of military order contrary to s. 101 of the Military Criminal Code and Procedure of 1964 (Law No. 40 of 1964).

As a result of these charges the applicant was, under the provisions of reg. 19 of the 1962 Disciplinary Regulations of the Army of the Republic, interdicted from the exercise of the functions of his office with effect from the 15th July, 1968, pending the trial of the case by the Military Court. The decision to interdict the applicant is contained in the letter dated 13th July, 1968 (exhibit 1) addressed by the Director General, Ministry of Defence to the General Staff of the National Guard. It appears from para. 2 of this letter that the applicant was, by virtue of the provisions of -para. (2)(b) of the same regulation allowed to draw half his salary and allowance as well as the whole of his rent allowance during the period of his interdiction. Copy of this letter was handed to the applicant on the 15th July, 1968.

The case came up for hearing before the Military Court on the 29th October, 1968. On that day counsel appearing for the prosecution offered no evidence against the [*734] applicant on the first two counts and he was consequently acquitted and discharged on those counts. He pleaded guilty to the third count and he was sentenced to three weeks imprisonment with suspension of sentence for six months.

The interdiction of the applicant has never been brought to an end and he continues to receive the allowances authorised under the provisions of reg. 19.

As a result this recourse was filed on the 10th March, 1969. The applicant prays for a declaration that the omission of the respondents to revoke their decision by which he was interdicted is null and void and of no effect.

The respondents by their opposition alleged that no recourse lies in as much as the omission challenged is not completed. They base their opposition (a) on the ground that neither under the Army of the Republic (Constitution, Enlistment and Discipline) Law 1961 (8 of 1961) nor under the regulations made thereunder is any time limit provided for terminating the interdiction and (b) that the applicant has never applied to the respondents to terminate his interdiction and to resume his duties.

It was submitted by learned counsel for the applicant that applicant’s interdiction should have been brought to an end upon the conclusion of the Criminal proceedings against him and even if no specific time limit was provided by the Law the omission of the respondents, in the circumstances of this case, amounts to abuse [*735] of powers and also to inhuman and degrading treatment contrary to Article 8 of the Constitution.

Learned counsel for the respondents, on the other hand, had this to say in the course of his address.

"It is a fact that the authorities consider the applicant undesirable in the ranks of the National Guard in view of his behaviour and of the acts which he committed. He was not as a matter of fact tried on the first two counts but the prosecution offered no evidence against him. Unfortunately it is not possible for the Ministry of Defence to pursue the procedure laid down in s. 6 of Law 8 of 1,961 because no Disciplinary Board can be appointed as at the moment there is no Commander of the Army who, according to Regulation 12, appoints the Disciplinary Board."

He has made no reference at all to the grounds set out in the written opposition.

The sole question that falls for consideration and decision in the present case, on the basis of the issues raised and argued by the parties, is the effect of the omission on the part of the respondents to terminate applicant's interdiction for so long after the

conclusion of the Criminal Proceedings against him. [*736]

The object of interdiction is that a suspected offender should cease to exercise the powers and functions of his office pending the investigation into the alleged offence and in case such investigation results in proceedings against him until the final disposal of such proceedings. I think that this is reasonably clear from the wording of reg. 19 of the 1962 Disciplinary Regulations.

It seems to me that in the present case the real reason why the respondents have omitted to bring the interdiction to an end are those so frankly stated by learned counsel for the respondents in the course of his address i.e. that the applicant is considered undesirable in the ranks of the National Guard and that as things are at present they have no means of getting rid of him. I think that, independently of the fitness or otherwise of the applicant to be a member of the National Guard, these considerations are quite irrelevant to the present case and cannot justify the indefinite interdiction of the applicant either by way of punishment or as a means of preventing him from resuming his duties.

I am of the view that, in the circumstances of this case, the omission to treat applicant's interdiction as terminated is contrary to law and that the keeping in force of such interdiction is made in abuse of powers.

For the above reasons this recourse must succeed. [*737]

In the result it is hereby declared that the omission complained of ought not to have been made and that whatever has been omitted should have been performed. In all the circumstances the applicant is entitled to costs which I assess at £20.

Declaration and order for

costs as aforesaid.