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The Ulysses case: A landmark in documenting misconduct

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 Υπoθεση Οδυσ&sigma ;α οημοκμηρωημοσ τηςσυμπιφορàς

The specifics of an institutional conflict of enormous proportions, the ending up in the courts and clearly the result, have captured the interest, in view of the start of the trial – in fact – next Wednesday

The eyes of the legal world and beyond have rightly been fixed on the ongoing case for the suspension of the auditor general Odysseus Michaelidis. The specifics of an institutional conflict of enormous proportions, the ending up in the courts and clearly the result, have captured the interest, in view of the start of the trial – on the merits – next Wednesday, after the rejection of the pre-trial objection registered by the side of the auditor general.

During the examination of the preliminary objection, the Supreme Constitutional Court, sitting as a council, referred at length to the decision to suspend the former assistant attorney general Rikkos Erotokritos, following a related application registered by the then attorney general Kostas Cleridis. However, the facts of the two cases are not identical. The “P” was addressed by a former Supreme Court judge who explained the board's decision on the dismissed appeal and where the review of the DA's application to suspend the auditor general will focus.

Authority beyond doubt

Initially, he stated that the rejection of Odysseus Michaelidis' objection was out of the blue, due to the convictions that existed, mainly regarding the case of Rikkos Erotokritos. As he explained, the council's decision confirms the finality of previous decisions, which were based on the Granada decision, when the auditor general insulted the country's finance minister and was terminated for misconduct. After the council's decision, beyond any doubt, the Attorney General of the Republic of Cyprus has the power and the right to request the suspension of senior government officials for inappropriate behavior.

At this point, he clarified that, in this case, the difficult point about which much debate and legal battle will arise is whether the actions and reports of the auditor general fall within the definition and interpretation of the term misconduct. He pointed out that the essential difference between the case of the auditor general and the case of Rikkos Erotokritos is that, in addition to what he had said against the then general prosecutor, when he was presented to the Supreme Court there was an admission and he apologized for his mistake. Therefore, the case of Erotokritos was obvious and there was no question of whether or not it was inappropriate behavior. It was a clear case of inappropriate behavior and he himself apologized.

As far as the case of Odysseus Michaelides is concerned, there is no obvious evidence – as in the Erotokritos case – to constitute inappropriate behavior. The interpretation of inappropriate behavior has been given in the decision on the case of Rikkos Erotokritos. For example, however, inappropriate behavior can be considered when you behave inappropriately towards an institution. The same former judge said that the auditor general's reports from time to time to the Legal Service and the Commissioner of Administration are not clear cases of misconduct and that it is something that must be documented and the court will be convinced by the arguments that will be presented by the lawyers on the side of the auditor general. “Improper conduct may be proven through good documentation of the actions that the Legal Service found that the auditor general took. It will be an attempt to document misconduct. The behavior should be so seriously inappropriate as to justify the suspension of an official appointed by the President of the Republic”, he said.

Difficulties in documentation

The two legal camps are expected to “step” on the disputes of the Rikkos Erotokritos case, each to defend and substantiate their arguments. In the case of the auditor general, the attorney general's side, in order for the petition filed to succeed, must document the misconduct through specific points attributed to him. That is, a report or letter may not constitute misconduct, but collectively may fall within its definition and warrant the auditor's termination.

“This is a case of increased difficulty, given that on the one hand there is no admission and on the other hand that all the reasons that constitute such a degree of inappropriate behavior must be documented in order to justify the suspension of the official,” the former judge told “P”. It noted that “if it is shown that he went beyond his duties within the scope of his authority, if it is shown that he made insinuations against the attorney general or assistant attorney general without a bona fide basis in the reports, if it is indicated that his reports or actions were malicious, these factors may, if taken together, constitute misconduct'.

The auditor general's side, rebutting the arguments of the attorney general's side, is expected to argue that his actions were intended to best serve the public interest and that he is not prohibited from criticizing the attorney general and assistant attorney general, pointing out that whatever criticism was leveled was done in good faith. Rejecting possible allegations of malicious complaints, Odysseus Michaelidis' lawyers will likely refer to the report of the Anti-Corruption Authority's finding, according to which the promotion of the complaints by the auditor general was done in good faith.

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The posts

Of particular interest to the final outcome of the case is the interpretation of the Constitutional Court with regard to the posts made mainly on Social Media by close relatives of the auditor general. It is noted that the specific posts are part of the annexes registered with the application by the attorney general. The question is whether the court will count the online postings in its decision. He is expected to weigh in on the question of whether a high-ranking official should separate his position from appointments by close relatives, who serve as the attorney general or assistant attorney general. Depending on the evidence that will be presented and the argumentation that will be developed, it will depend on whether the non-separation of the position of the auditor general, from publications of this nature, falls under the definition of improper conduct.

< p >SEPARATE

References in the case of Rikkos Erotokritos

The impropriety must be established< /p>

The case with the suspension of Rikkos Erotokritos was characterized in the decision as unprecedented, with the Supreme Court noting that never in the past, at least since the establishment of the Republic of Cyprus, has there been any similar request for the dismissal of a high official due to inappropriate behavior. Regarding the definition and interpretation of misconduct, we quote relevant references from the Supreme Court decision:

• It is not specified in the Constitution, nor is there any other Law, which clarifies in any way what constitutes misconduct for the purposes of dismissing the judges of the Supreme Court, the general and the assistant attorney general.

• Therefore, the search for the concept of “improper conduct” for the purposes of the present case is of particular importance since this conceptual definition is necessary for purposes of conclusion. And it has wider consequences by regulating the behavior of a number of other top independent officials accordingly.

• In the disciplinary case against Judge Kostas Kamenos, dated On 19.9.2006, the Supreme Judicial Council was asked to consider two charges of misconduct against the judge under Articles 153.7(4) and 157.3 of the Constitution. “What constitutes misconduct is not defined in the Constitution. And this, in our opinion, is logical because it is not possible to define the elements that make it up. Such an effort would prove to be ineffective as not all acts, omissions or general behavior can be covered so that they are classified and fall under the term 'misbehaviour'. We are of the opinion that the etymological root of the word 'inappropriate' contains its usual meaning. The word 'inappropriate' is compound, consisting of the negative 'if' and the word 'appropriate' which is derived from the verb 'armozo', which means to match. 'Inappropriate' is one who does not fit. Therefore, inappropriate behavior, in the case we are concerned with, is the behavior that does not fit-proper, i.e. it reflects the status of the judge. It is, therefore, on the basis of the particular circumstances of each case that it is decided whether the conduct, subject of the case, constitutes misconduct. We are also of the opinion that misconduct can be demonstrated in the performance and in reference to the duties of a judge as well as outside of them.

• Misconduct, in relation to the holding of an office, is determined by reference to the consequences of such conduct on the official's ability to continue to perform the duties of his office.

• The criterion for whether a conduct is unfit for the specific position is objective, and since it is not a criminal offense, we do not consider it necessary to prove the subjective status (mens rea) of any offence. However, we consider that the categorization and inclusion of behavior in the concept of “improper” is always done with special caution and with corresponding sparing.

< p >• It does not escape our attention that the Constitution, determining the level of behavior for judges and other high officials, has also determined the consequence if it is found that the Petitioner has shown inappropriate behavior within the meaning of the Constitution, the sanction that will be imposed on him is necessarily that of dismissal, expulsion, that is, from his office. In the absence of specialized legislation that further defines the parameters of misconduct, but also in the absence of a gradation of the sanctions that could possibly be imposed, the council considers it right to interpret the relevant constitutional provision in the light of the principle of proportionality, a fundamental principle in rule of law, so that even in the event of a finding of behavior that is considered below the circumstances, it does not necessarily lead to its inclusion in the definition of the constitutional dimension of the term 'improper behavior' which has as its sole consequence the dismissal of the judge or other official from his position. In other words, the seriousness of the conduct must also be such as to establish its impropriety. In this context, the council will also keep in mind the fact that the petitioner was appointed by the President of the Republic, as his own inalienable constitutional right. It is therefore desirable for the council to keep the above constitutional dimension of the matter in mind.

Source: politis.com.cy

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