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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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(1984) 1 CLR 885
1984 November 6
[A. LOIZIOU, J.]
IN THE MATTER OF AN APPLICATION BY
CHARALAMBOS THEODOROU TTOOULIAS.
Applicant.
and
IN THE MATTER OF THE INSTITUTION OF CRIMINAL
PROCEEDINGS AGAINST HIMBEFORE THE DISTRICT
COURT OF NICOSIA AFTER THE FILING AND/OR
BY THE FILLING OF CHARGE NO. 12972/84,
and
IN THE MATTER OF THE NATIONAL GUARD LAW, 1964
AS SUBSEQUENTLY AMENDED,
and
IN THE MATTER OF THE MILITARY CRIMINAL CODE
AND PROCEDURE LAW, 1964.
(Civil Application No. 63/84).
Attorney-General of the Republic—Exercise of duties retain to criminal prosecutions—Not subject to any judicial control—No jurisdiction to grant order of certiorari against the Attorney General in relation to the exercise by him of such duties—And the same applies to the decision of the Divisional police Commander to relevant investigations that led to the prosecution—Article 155.4 of the Constitution.
Certiorari—Leave to apply for—Jurisdiction—Such leave should be granted whenever an organ is exercising legal authority, in order to determine questions affecting the rights of the citizens, and such organ has a duty to act judicially—Attorney-General—In the exercise of his duties relating to criminal prosecutionsIs not subject to any judicial control—No jurisdiction to grand an order of certiorari against the Attorney-General in relation to the exercise of such duties—And the same applies to the decision of the Divisional Police Commander to prosecute and to the Military Authorities which carried out the relevant investigations that led to the prosecution—Article 155.4 of the Constitution.
The applicant in this case sought leave to apply for an order of certiorari in order to:
(a)quash the charge under No. 12972/84 filed against him in the District Court of Nicosia and still pending, and/or
(b)declare the procedure leading to the filing of the charge and/or all proceedings taking place from the filing of the charge, null and void.
The applicant was a Lieutenant-Colonel in the Cyprus Army and the relevant investigations which led to the filing of the charge were carried out by the Military Authorities.
The charge was filed by the Divisional Police Commander.
Held,(1) that leave to apply for an order of certiorari should be granted whenever an organ is exercising legal authority in order to determine questions affecting the rights of citizens and such organ has a duty to act judicially; that the Attorney-General acts freely and at his discretion in respect of each particular case, and in the exercise of his discretion, though at times he may be considered as exercise quasi-judicial functions, he is not considered as acting in a judicial capacity; that therefore, it is clear that the Attorney-General in the exercise of his duties relating to criminal prosecution is not subject to any judicial control, and that, accordingly, this Court does not possess jurisdiction to grant an order of certiorari against the Attorney-General.
(2) That likewise the decision of the Divisional Police Commander to prosecute has the same legal nature and legal characteristics and cannot be treated differently; that it makes, therefore, no difference whether the decision to prosecute or file the charges against the applicant was that of the Attorney-General or of the Police or of the latter subject to any direction of the Attorney-General; and that, consequently, whoev@@@took the subject decision same cannot be the subject of an does not fall within the ambit of the jurisdiction of this Cou@@@regarding orders of certiorari.
Held, further, that any irregularity in the process during t@@@investigation by the military authorities is not subject to contr@@@under Article 155.4 because the persons investigating we not under a duty to act judicially or to determine question affecting the rights of citizens(see section 118(1) of the Milita@@@Criminal Code and Procedure Law. 1964 (Law 40 of 1964
Application dismissed
Case referred to:
Kyriakides v. Republic, 1 R.S.C.C. 66 at p. 73;
Xenophontos v. Republic, 2 R.S.C.C. 89 at p. 93;
Vassiliou v. Police Disciplinary Committee (1979) 1 C.L.R.4 at app. 54-55.
Attorney-General of the Republic v. Christou. 1962 C.L.1 129 at p. 133;
R. v. Statutory Visitors of St. Lawrence's Hospital Caterha Ex parte Pritchard [1975] 2 All E.R. 766 at pp. 7668-76
R. V. Cain R. v. Schollick [1975] 2 All E.R. 900 at p. 904;
R. v. Comptroller of patents Designs and Trade Marks [1899] 1 Q.B. 909 at pp. 913-914;
Van Gelder's patent [1889] 6 R.P.C. 22;
Police v. Athienitis (1983) 2 C.L.R. 194 at pp.200, 214, 230, 23
Application.
Application for leave to apply for an order of certiorari @@@order to quash the charge under Case No. 12972/84 field against applicant before the District Court of Nicosia and which still pending.
E. Efstathiou, for the applicant.
Cur.adv. vul
A LOIZOU J. read the following decision. By the presentex parte application the applicant seeks leave to apply for an order of certiorari in order to:
A. quash the charge under No. 12972/84 filed against him in the District Court of Nicosia and still pending, and/or
B. declare the procedure leading to the filing of the charge and/or all proceedings taking place from the filing of the charge, null and void.
The facts of this case as they are stated by the applicant in his application and attached affidavit are briefly as follow:
The applicant is a Lieutenant-Colonel in the Cyprus, Army. In or about July 1983, an investigation was carried out by Colonel PantelisPantazis, concerning the possibility of his having committed the offences set out in the charge. The results of this investigation were given to General ParisisSkodras who in or about August 1983, instructed Lieutenant-Colonel GeorghiosTsitsis to carry on an inquiry. The result of this inquiry was submitted to General Skodras who, in turn, submitted this to the Commander in or about September 1983 The Commander, it is claimed contrary to the provisions of section 124 of the Military Criminal Code and Procedure Law, 1964 (Law 40/64) did not consider the case himself i.e. whether there was a case before him of a criminal offence having been committed in which case he ought to have sent the file to the Attorney-General, or if he considered that there was no such case to have sent the file to the Registry. Instead he wrongly it is alleged forwarded the file, to the Minister of Defence, with a recommendation for the case not to proceed against the applicant, where it remained for 8-10 months before being finally sent to the Police. The applicant was formally charged by the Police in June 1984 and the relevant charge sheet was filed on 5th July 1984.
Counsel for the applicant has argued that the whole procedure followed and all acts leading to the applicant being charged are irregular and contrary to Law. Under section 118 of Law 40 of 1964, as interpreted by internal Order No. 4-3/67 (Πάγια διαταγή), there was a duty to hear the applicant; but he was not heard. And under section 124 the Commander had a duty to act in a positive way, and to act judicially, havingthe legal authority to determine questions affecting the rights of subjects". He did not, instead the Minister acted in his place.
Thus, he argued the authority of the Attorney-General under section 119, of the aforesaid Law is also affected since the whole procedure which is prescribed by the Law is under the supervision of the Attorney-General.
In order to grant the leave applied for I have to be satisfied on two points: First that the applicant has made out a prima facie case sufficient to justify the granting of such leave and secondly whether in the circumstances I possess jurisdiction under Article 155.4 of the Constitution to issue the order of certiorari applied for.
Considering first the point of jurisdiction and having concidered the arguments put forward by the applicant, I am not satisfied that I am vested with jurisdiction under Article 155.4.
As regards the filing of the charge, what must be decided is whether acts of the Attorney-General and the Police to such effect are within the ambit of Article 155.4. Both acts of the Attorney-General and of the Police have been considered as not acts in the exercise of executive or administrative power and therefore not within the ambit of Article 146.1, but this does not necessarily mean that they authomatically fall under Article 155.4.
Acts of the Police have been considered as acts manifestly necessary to lead up to the institution of, and closely interwoven with prospective criminal proceedings (see: PhediasKyriakides v. Republic, 1 R.S.C.C. 66 at 73).
Also in CharilaosXenophontos v. Republic, 2 R.S.C.C. 89 at p. 93, acts of the Attorney-General, such as the institution of criminal proceedings, or the non institution of such, have been considered as acts closely connected to judicial proceedings in criminal cases.
Leave for certiorari should be granted whenever an organ is exercising legal authority in order to determine questions affecting the rights of citizens and such organ has a duty to act judicially. (See Vassiliou v. Police Disciplinary committee (1979) 1 C.L.R. 46 at 54-55; The Attorney General of the Republic v. Christou, 1962 C.L.R. 129 at 133). So what I must determine is whether the act of the Police to charge the applicant fails within this above definition.
As stated in the case of R. v. Statutory Visitors to St. Laurence's Hospital Caterham Ex Pane Pritchard [1953] 2 All E.R. 766 at 768-769.
"It will be observed that there must be 'authority to determine', and that the persons must be those who have a duty to act judicially, in which case, their orders, if they act in excess of their authority, can be reviewed by this Court under the order of certiorari which has now taken the place of the writ. It is essential to remember, as we tried to emphasise recently in R. v. Metropolitan Police Comr. Ex p. Parker [1953] 2 All E.R. 717, that there must be something that can be called a determination which will affect the rights of the applicant and a tribunal whose duty it is to act judicially. It is not easy to give an exact definition of what is meant by 'act judicially', but I should say that for this purpose it means a body bound to hear evidence from one side and the other. There need not be anything called strictly a us, but the body would have to hear submissions and evidence by each side and come to a judicial decision approximately in the way that a Court must do. Unless there is an order or a determination by the body to whom it is suggested the order should be directed the order of certiorari will not lie".
Charges for offences triable summarily are filed by the Police (District Divisional Commander of Police) (Police Law, Cap. 285 section 19 as amended by the Police (Amendment) Law, 1964, (Law No. 21 of 1964, section 4) but always under the supervision, instructions and with the approval of the Attorney-General. It reads:-
"Subject to any direction by the Attorney-General of the Republic it shall be lawful for any police officer to make a complaint or charge against any person before the Courts and to apply for a summons, warrant, search warrant or such other leagal process as may by law issue against any person and, to summon before the Courts any person charged with an offence and conduct public prosecutions and preliminary enquiries against any such person".
All offences not triable summarily can only be tried on information filed by the Attorney-General in the Assize Courtin which such person is to be tried (section 107, Criminal Procedure Law, Cap. 155).
Article 113.2 of the Constitution provides: (In Greek):
"O γενικός εισαγγελεύς της Δημοκρατίας έχει εξουσίαν κατά την κρίσιν αυτού προς το δημόσιον συμφέρον να κινή, διεξάγη, επιλαμβάνηται και συνεχίζη ή διακόπτη οιανδήποτε διαδικασίαν ή διατάσση δίωξιν καθ' οιουδήποτε προσώπου εν τη Δημοκρατία δι' οιονδήποτε αδίκημα. Η τοιαύτη εξουσία δύναται να ασκήται υπό του γενικού εισαγγελέως της Δημοκρατίας είτε αυτοπροσώπως είτε δι' υπαλλήλων υπαγομένων εις αυτόν ενεργούντων υπό και συμφώνως προς τας οδηγίας αυτού".
(And in English):
"The Attorney-General of the Republic shall have 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. Such power may be exercised by him in person or by officers subordinate to him acting under and in accordance with his instructions".
As it can be seen from the aforesaid Article the Attorney-General is acting "at his discretion" and freely in respect of each particular instance when he is deciding whether or not to press charges. But he is not determining the outcome of the case—that is the function of the trial Court—, his duty is only to consider whether, in the circumstances, the evidence before him is such as would, in the first place, constitute an offence and secondly whether it would justify the filing of charges against the person investigated. (See on this L. Loucaides' The Institution of the Office of the Attorney General in Cyprus (1974) pp. 50-51)
He is therefore under no duty to hear all sides but he may act on what is before him. It is the duty of the Court to hear all sides and determine. In R. v. Cain, R. v. Schollick [1975] 2 All E.R. 900, a case challenging the validity of the consent of the Attorney-General necessary under the Explosive Substances Act 1883, it is stated at p. 904:
"No doubt in every case of this kind it is open to the defendant to challenge the existence or otherwise of the Attorney-General's consent. it will be sufficient response to such a challenge that the Attorney-General has applied his mind to the facts giving rise to the charge presently before the Court, and, indeed, applied his mind to those facts and gave his consent at whatever stage in those proceedings the relevant statute may require. If a written form of consent is produced it will be presumed in the first instance that in issuing his consent the Attorney-General did apply himself to his duty, considered the relevant facts, and reached a conclusion on them.
Accordingly, our view of the present case can be summarised as follows. First, the purpose of requiring the Attorney-General's consent to prosecution under the 1883 Act is to protect potential defendants from oppressive prosecutions under an Act whose language is necessarily vague and general. Hence it is not necessary that the Attorney-General should have considered and approved every detail of the charge as it ultimately appears in the indictment. His duty is to consider the general circumstances of the case, and to decide whether any, and, if he thinks fit, which, of the provisions of the Act can properly be pursued against the defendant who has been charged before the magistrate with one such offence. If the Attorney-General considers that the prosecutor should be at liberty to pursue any charge under the Act which is justified by the evidence, there is no constitutional objection to his giving consent in the wide terms adopted in the present case. Furthermore, when consent is given in any terms it should be presumed that the Attorney-General has made the necessary and proper enquiries before giving that consent".
Of course-it must be borne in mind at all times when reading the English Authorities that the office of the Attorney-General in England is a political appointment. (See de Smith, Constitutional and Administrative Law (2nd Ed.) pp. 377-378).
As already said above, the Attorney-General acts freely and at his discretion in respect of each particular case, and in the exercise of his discretion, though at times he may be considered as exercising quasi-judicial functions, as regards duties whichare in respect of criminal proceedings, he is not considered as acting in a judicial capacity. Consequently he cannot be subject to (judicial) control by an order of certiorari or otherwise See CharilaosXenophontos v. Republic (supra); PhediasKyriakides v. Republic (supra) Also: R. v. The Comproller-General of Patents, Designs and Trade Marks [1899] 1 Q.B. 909 at 913-914 per Smith L.J.:
"I wish to say a word or two about the position of the Attorney-General, because in my judgment it is of importance in this case, and his position appears likely to be lost sight of. Everybody knows that he is the head of the English Bar. We know that he has had from the earliest times to perform high judicial functions which are left to his discretion to decide. For example, where a man who is tried for his life and convicted alleges that there is error on the record, he cannot take advantage of that error unless he obtains the fiat of the Attorney-General, and no Court in the kingdom has any controlling jurisdiction over him. That perhaps is the strongest case that can be put as to the position of the Attorney-General in exercising judicial functions. Another case in which the Attorney-General is pre-eminent is the power to enter a nolleprosequi in a criminal case. I do not say that when a case is before a judge a prosecutor may not ask the judge to allow the case to be withdrawn, and the judge may do so if he is satisfied that there is no case: but the Attorney-General alone has power to enter a nolle-prosequi, and that power is not subject to any control. Another case is that of a criminal information at the suit of the Attorney-General practice which has, I am sorry to say, fallen into disuse. The issue of such an information is entirely in, the discretion of the Attorney-General, and no one can set such an information aside. There are other cases to which I. could: refer to be fund in old and in recent statutes, but I have said enough to show the high judicial functions which the Attorney-General performs. There is one other matter to which I will refer before I come to the facts of this case. In Van Gelder's Patent [1889] 6 R.P.C. 22 the position of the Attorney-General in these matters is stated in the judgments in the Divisional Court and in the Court of Appeal. I wilt read a passage from thejudgment of Bowen L.J.: 'At common law, the Attorney-General is, when he is exercising his functions as an officer of the Crown, in no case that I know of a Court in the ordinary sense. It follows that his decisions, when exercising such functions, were not subject to review by the Court of Queen's Bench, and are not now subject to review by the Queen's Bench Division of this Court".
In Halsbury's Laws of England, 3rd Edition, volume 7, at p. 381 paragraph 804 it is stated:
"The Attorney-General is primarily an officer of the Crown, and is in that sense an officer of the public. Although he performs to some extent judicial functions, both at common law and by statute, he is, when exercising them in no case a Court in the ordinary sense, so that prohibition will not lie against him".
In L. Loucaides (supra) it is stated at p. 29. (In Greek):
"Παρ' όλον ότι ο Γενικός Εισαγγελεύς εκτελεί εν τινι μέτρω καθήκοντα δικαστικής φύσεως ή ακριβέστερον οιονεί δικαστικά (quasi-judicial), ειδικώς όσον αφορά τον έλεγχο εφαρμογής του ποινικού δικαίου, δεν θεωρείται νομικώς εν τη εκτελέσει των καθηκόντων τούτων ως όργανον δικαστικόν και συνεπώς δεν δύναται να γίνη αντικείμενον των κατά των δικαστικών οργάνων παρεχομένων υπό της νομοθεσίας ενδίκων μέσων ως π.χ. του απαγορευτικού διατάγματος (order of prohibition)".
(In English):
"Even though the Attorney-General exercises to a certain measure duties of a judicial nature or more precisely quasi-judicial as regards in particular the control of the application of the Criminal Law, he is not legally considered in the exercise of these duties, as a judicial organ and consequently he cannot be an object of the legal proceedings provided by the legislature against judicial organs as eg, the order of prohibition (see Re Van Gelders Patent [1889] 6 R.P.C. 22 p. 27)".
(And see also Loucaides at pp. 44-45).
In Police v. StephanosAthienitis (1983) 2 C.L.R. 194 where the power of the Attorney General to enter a nolleprosequiwas challenged, it was stated at p. 200 by Triantafyllides, P.:
"...my opinion is that the power of the Attorney-General to enter a nolleprosequi is not subject to the control of the Courts (see, inter alia, in this respect, Halsbury's Laws of England, 4th ed. vol. 11, p. 137, para. 222, and R. v. The comptroller-General of Patents, Designs and Trade Marks, [1899] 1 Q.B. 909, 914). Thus, the power of the Attorney-General under Article 113.2 of the Constitution to discontinue a criminal proceeding is, likewise, not subject to the control of the Courts".
And at p. 214 per Malachtos, J.:
"This power of the Attorney-General is not subject to any control by the Courts (R. v. comptroller of Patents [1899] 1 Q.B. 909), Turner v. D.P.P. [1978], 68 Cr. App. R., 70 and Gouriet v. Union of Post Office Workers [1977] 3 All E.R. p. 70, but is open to criticism by the legislature and in England its abuse is prevented by the ordinary principle of Ministerial responsibility (Queen v. Allen [1962] 1 B. & S. 850)".
And further, per Stylianides, J., at p. 230:
"The office of the Attorney-General was known to this country from the days of the colonial administration. The Attorney-General of the Republic, unlike England, is an independent officer. He is appointed by the Head of the State. The qualifications for his appointment and the terms and conditions of his office are the same as those of judge of this Court; he is not removable from office except on the like grounds and in like manner as a judge of this Court. The exercise of the authority by the Attorney-General of the Republic is only closely related to judicial proceedings in criminal cases, is not within the ambit of paragraph 1 of Art. 146 and, therefore, this Court has no jurisdiction over it; it is executive in character-(Xenophontos v. Republic, 2 R.S.C.C. p. 89)".
And at p. 231:
"No doubt among the drafters of the Constitution there were persons nurtured in the Common Law Criminal procedure in Cyprus is governed by the relevant law,Cap. 155, that pre-existed the Constitution, having been enacted in 1948. The due process is to consider and interpret the Constitution and then consider if the statutory provisions are consistent with the Constitution. The powers vested by the Constitution in any organ thereof cannot in any way be abridged or modified—(see Police v. EkdotikiEteria, (1982) 2 C.L.R. 63; Police v. Georghiades. (1983) 2 C.L.R. 33). The powers of the Attorney-General are in no way fettered; he is parispatriam.
The exercise of such a power is a matter of his own discretion. The Attorney-General's discretion is absolute and not reviewable it is upon him to institute any proceedings for an. offence against any person. In our legal system the function of the Courts is to stand idly by until their aid is invoked by someone recognized by law as entitled to claim the remedy in justice that he seeks Courts of justice cannot compel anyone to invoke their aid who does not choose to do so; nor can they demand of him an explanation for his abstention. The ordinary way of enforcing criminal law is by punishing the offender after he has acted in breach of it. Commission of the crime precedes the invocation of the aid of a Court of criminal jurisdiction by a prosecutor".
And also see Tornaritis: The Constitutional power of the Attorney-General of the Republic to institute, conduct or discontinue any criminal proceedings (1983) at pp 10-12 and 16.
From the above, authorities it is clear that the Attorney-General in the exercise of his duties related to criminal prosecutions is not subject to any judicial control and therefore I must conclude that I do not possess jurisdiction to grant an order of certiorari against the Attorney-General.
Likewise the decision of the Divisional Police Commander to prosecute has the same legal nature and legal characteristics and cannot be treated differently. It makes therefore no difference whether the decision to prosecute or file the charges against the applicant was that of the Attorney-General or of the Police or of the latter subject to any direction of the Attorney-General.
Consequently whoever took the subject decision same cannot be the subject of and does not fall within the ambit of the jurisdiction of this Court regarding orders of certiorari.
It has been argued that the procedure followed is contrary to sections 118 and 124 of The Military Criminal Code and Procedure Law, 1964 (Law No. 40 of 1964) as amended, but what is material in this case is not how the information was gathered or how the file reached the hands of the Attorney-General, but whether the Attorney-General on what was before him acted reasonably and was justified in deciding to charge the applicant. Moreover any irregularity in the process during the investigation by the military authorities is not subject to control under Article 155.4 because the persons investigating were not under a duty to act judicially or to determine, questions affecting the rights of citizens because, as it is stated in section 118(1) of Law No. 40 of 1964:-
(In Greek):
Σκοπός της στρατιοωτικής ανακρίσεως είναι η συλλογή των αναγκαίων αποδεικτικών στοιχείων, ίνα βεβαιωθή η τέλεσις αδικήματος και αποφασισθή εάν πρέπει να εισαχθή τις εις δίκην επί τούτω".
(In English):
"The purpose of the military investigation is the collection of the necessary evidential facts in order to ascertain the commission of the offence and to decide whether one must be sent for trial for this".
And then, in accordance with section 124 the file of the case is referred to the Attorney-General for prosecution. So in effect, since the Attorney-General is the appropriate authority to decide whether to prosecute or not, the final say does not rest with the military authorities in this instance, they do not "determine" and therefore they have no duty to act judicially. Consequently, an order of certiorari does not lie against the military authorities either.
For all the reasons that I have given, the conclusion is that it is not possible for me to assume jurisdiction in the present case under Article 155.4 in order to grant the applicant the leave applied for, therefore this application must be dismissed.
Application dismissed.