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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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(1985) 3 CLR 21
1985 January 31
[SAVVIDES, J.]
IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION
MODESTOS PITSILLOS,
v.
1. THE ATTORNEY-GENERAL OF THE REPUBLIC,
2. THE DEPUTY ATTORNEY-GENERAL,
Respondents.
(Case No. 311/84).
Act or decision in the sense of Article 146.1 of the Constitution—Which can be made the subject-matter of a recourse thereunder—Refusal of Attorney-General to sanction an appeal from an acquittal in private criminal proceedings—In exercise of his powers under section 137 of the Criminal Procedure Law, Cap. 155—So closely related to judicial proceedings as not to fall within the ambit of the above Article 146.1:
The applicant instituted criminal proceedings against two persons accusing them of, inter alia, conspiracy to prevent or obstruct him in the free exercise of his trade or occupation. The trial Judge found that a prima facie case had not been made out against the accused sufficiently to require them to make their defence on any of the counts and as a result, he did not call upon them to make their defence and acquitted and discharged them.
The Attorney-General of the Republic in exercise of his powers under section 137 of the Criminal Procedure Law, Cap. 155, refused to sanction an appeal; and hence this recourse.
On the question whether the act and/or decision not to sanction an appeal from an acquittal in private criminal proceedings is a unilateral administrative act of an executory character which can be the subject of a recourse under Article 146 of the Constitution:
Held, that the refusal by the Attorney-General the Republic of his sanction for the filing of an appeal by the applicant is so closely related to judicial proceedings as not to fall within the ambit of paragraph 1 of Article 146 of the Constitution enabling this Court to interfere; accordingly the recourse must fail.
Recourse dismissed.
Cases referred to:
Xenophontos v. Republic, 2 R.S.C.C. 89 at pp. 92, 93.
Recourse.
Recourse against the refusal of the respondents to sanction an appeal against the acquittal of the accused in private criminal prosecution No. 20392/83 instituted by the applicant in the District Court of Nicosia.
Applicant appeared in person.
M. Florentzos, Senior Counsel of the Republic, for the respondents.
Cur. adv. vult.
SAVVIDES J. read the following judgment. The present recourse in directed against the refusal of the Attorney- General of the Republic (Respondent 1) to sanction an appeal against the acquittal of the accused in private criminal prosecution No. 20392/83 instituted by the applicant in the District Court of Nicosia.
Applicant who describes himself as the head of the Party of Justice, is a hawker of sweets and ice-cream. On 1.12.83 he instituted private criminal proceedings against one Petros Dikigoropoulos described in the charge as the person in charge of the canteen of the Technical School of Lycavitos, Nicosia, and one Christoforos Antoniades, described as Assistant Head-Master of the same school, by filing a charge against them containing four counts, accusing them of conspiracy to prevent or obstruct him in the free exercise of his trade or occupation, and the free and lawful disposition of his property, contrary to section 373 of the Criminal Code, Cap. 154, and also of conspiracy to provoke him to fight a duel contrary to section 90 of the same law. The trial Court after hearing the evidence of the applicant and that of four witnesses called by applicant, found that a prima facie case had not been made out against the accused sufficiently to require them to make their defence on any of the counts and as a result, he did not call upon them to make their defence and acquitted and discharged them.
Applicant applied to respondent 1 for his sanction, to file an appeal which was refused. Such refusal was communicated to the applicant by letter dated 4.4.84 the contents of which read as follows:
"With reference to your application for the sanction of the Attorney-General of the Republic for the filing of an appeal against the decision of the District Court of Nicosia in Case No. 20392/83 I wish to inform you as follows:
2. After examination of the said judgment and the reasons on which you intend to rely for your said appeal, as they emanate from the relevant notice of appeal you have delivered to us, it has been considered that the said appeal is not justified either from a legal or factual aspect.
3. Therefore, the Attorney-General decided not to grant his sanction, under section 137 of the Criminal Procedure Law, Cap. 155 for the said appeal.
(Sgd) L. G. LOUCAIDES,
Deputy Attorney-General of the Republic."
The application was opposed by the respondents on two grounds:
(a) That the sub judice decision does not amount to an executory administrative act within the ambit of Article 146 of the Constitution and cannot be the subject matter of a recourse as same is closely linked with the exersise of quasi judicial function and/or is merely of informatory character.
(b) Irrespective of the above preliminary legal objection the sub judice act and/or decision was taken by the respondents properly and lawfully in accordance with the provisions of the Constitution and the law and in the proper exercise of their power and after all material facts were taken into consideration, and is duly reasoned.
Applicant both in his written address, most of which is concerned with political principles of himself and his party, the circumstances surrounding the private criminal case filed by him and his complaints against the trial Judge and the outcome of the case, and in his oral address in clarification, contended that, in the circumstances, the failure of the respondents to sanction an appeal as applied for by him amounts to a breach of their duty in violation of Article 112 of the Constitution.
Counsel for the respondents on the other hand expounded on his preliminary objection that the sub judice decision is not an executory administrative act which can be the subject of a recourse and adopted all the grounds of law raised by his opposition. Counsel contended that the exercise of such an authority by the Attorney-General is so closely related to judicial proceedings in criminal cases that it does not come within the ambit of paragraph 1 of Article 146 of the Constitution. He further submitted that the sub judice reply of the respondents is of an informatory character, informing the applicant that there exists no sound legal or factual ground justifying the granting of a sanction for an appeal. In conclusion, counsel argued that irrespective of the preliminary objection raised the respondents had before them all the facts of the case as disclosed from the record of the case and after a due inquiry into such facts and in the exercise of their discretion dismissed his application.
The first issue which poses for consideration before me is whether the act and/or decision of the respondents not to sanction an appeal from an acquittal in private criminal proceedings is a unilateral administrative act of an executory character which can be the subject of a recourse under Article 146 of the Constitution.
The office of the Attorney-General has been established by Article 112 of the Constitution as an independent office and he holds office under the same terms and conditions as a Judge of the Supreme Court. Under Article 113, the Attorney-General of the Republic shall exercise all such powers and shall perform such functions and duties as are conferred or imposed on him by the Constitution or by law, including the power exercisable at his discretion in the public interest to institute, conduct, take over and continue or discontinue any proceedings for an offence against any person in the Republic.
Under the provisions of sub-section (1) of section 137 of the Criminal Procedure Law, Cap. 155, the Attorney- General may—
"(a) appeal or sanction an appeal from any judgment of acquittal by a District Court on any of the following grounds:
(i) that there was no evidence on which the Court could reasonably find a fact or facts necessary to support such judgment;
(ii) that evidence was wrongly admitted or excluded;
(iii) that the law was wrongly applied to the facts:
(iv) that there has been some irregularity of procedure:
(b) appeal or sanction an appeal from any judgment of a District Court on the ground that the sentence was insufficient."
The powers of the Attoney-General under section 137 and the nature of a decision taken by him by virtue thereof, have been the subject of judicial pronouncement by this Court in the early years of independence in Charilaos Xenophontos and The Republic through the Minister of the Interior (1962) 2 R.S.C.C. p. 89 at pp. 92, 93, where it was held that:
"In this Case the subject-matter of the complaint made by exhibit 1 under Article 29 is, in effect, the failure of the Attorney-General of the Republic to institute criminal proceedings in respect of the acts in question against the police constables concerned. In the opinion of the Court the exercise of such an authority by the Attorney-General of the Republic, which in this respect is so closely related to judicial proceedings in criminal cases, is not within the ambit of paragraph 1 of Article 146, and, therefore, this Court has no jurisdiction to entertain the prayer contained in paragraph 3 of the Applicant's motion for relief."
In the circumstances of the present case and bearing in mind the above principles, I find that the refusal by the Attorney-General of the Republic of his sanction for the filing of an appeal by the applicant is so closely related to judicial proceedings as not to fall within the ambit of paragraph 1 of Article 146 of the Constitution enabling this Court to interfere.
In the result this recourse fails and is hereby dismissed with £30.— costs in favour of the respondents.
Recourse dismissed.
Order for costs as above.