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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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Κυπριακή νομολογία στην οποία κάνει αναφορά η απόφαση αυτή:
REPUBLIC (MINISTER OF FINANCE AND ANOTHER) ν. DEMETRIOS DEMETRIADES (1977) 3 CLR 213
Μεταγενέστερη νομολογία η οποία κάνει αναφορά στην απόφαση αυτή:
Δεν έχει εντοπιστεί απόφαση η οποία να κάνει αναφορά στην απόφαση αυτή
(1986) 2 CLR 216
1986 December 9
[MALACHTOS, SAVVIDES, PIKIS, JJ ]
THRASOS A. GEORGHIADES,
Appellant,
v.
THE DIRECTOR OF SOCIAL INSURANCES SERVICES,
Respondents.
(Criminal Appeal No. 4668).
Constitutional Law—Social Insurance—Conviction for failure to pay contributions as self-employed contrary to sections 3(b), 10, 12(1), 13, 14(2), 21, 73(1) (b) (d) (e) (f) (fi) (g) (ka), 80(1) (2) (4) (5), 81, 84, 90(1) of the Social Insurance Laws 1980-1984 and regulations 9, 18, 19, 21 and 22 of the Social Insurance (Contribution) Regulations, 1980-1984, conviction for failure to pay the additional rates in connection with such contributions, contrary to sections 73(1) (i), 80(1) (2) (4), 81, 84 and 90(1) of the said laws and Regulations 22 and 24 of the said regulations, and conviction for failure to pay contributions for the defence of the Republic contrary to sections 2(1) (b), 3(2) (c), 3(4) (8), 5(1) (2), 13(1) (2) (4) (6), 14, 15 and 16 of the Special Contribution for the Defence of the Republic Law, 1984—Said laws of social insurance and said regulations of social insurance not unconstitutional—Constitution, Articles 9, 24, 25 and 28.
Judicial precedent—Decision of the Full Bench of this Court It is a source of law—This Court as an Appeal Court consisting of three Judges cannot reverse such a decision.
The appellant, who was convicted for the aforesaid offences, submitted that the said Social Insurance Laws and Regulations are unconstitutional, in that they concern a social and not a tax matter and, thus, they are not within the ambit of Article 24, and in that they are repugnant to Articles 9, 25 and 18 of the Constitution.
Held, dismissing the appeal: (1) The matter raised by the appellant has been decided by the Full Bench of this Court in Apostolou and Others v. The Republic (1984)3 C.L.R. 509 against appellant's view.
(2) Judicial precedent is a source of law. This Court is bound to follow the said decision. As an Appeal Court, consisting of three Judges, it cannot reverse it. Even if it could do so, again it would not have done so, as it fully agrees with its reasoning.
Appeal dismissed.
Cases referred to:
Apostolou and Others v. The Republic (1984) 3 C.L.R. 509;
The Republic v. Demetriades (1977) 3 C.L.R. 213;
Ioannides v. The Republic (1979) 3 C.L.R. 295.
Appeal against conviction and sentence.
Appeal against conviction and sentence by Thrasos A. Georghiades who was convicted on the 9th July, 1985 at the District Court of Limassol (Criminal Case No. 4199/85) on three counts of the offence of failing to pay Social Insurance contributions as a self-employed person contrary to sections 3(b), 10, 12(1), 13, 14(2) 21, 73(1) (b) (d) (e) (f) (f 1) (g) (ka), 80(1) (2) (4) (5), 81, 84 and91(1) of the Social Insurance Laws 1980-1984 and regulations 9, 18, 19, 21 and 22 of the Social Insurance(Contributions) Regulations, 1980-1984 and was sentenced by Eleftheriou, D. J. to pay £3.- fine on count 1 with no sentence being passed on the other two counts and was further ordered to pay the contributions to the above fund.
Appellant appeared in person.
A. M. Angelides, Senior Counsel of the Republic, for the respondents.
Cur. adv. vult.
MALACHTOS J. read the following judgment of the Court. The present appeal was filed by the accused in Criminal Case No. 4199/85- of the District- Court of Limassol whereby he was found guilty after a hearing on the following charges.
1. That between the 1.12.84 and 22.12.84, in Limassol he failed to pay his. Social Insurance contributions as self employed, which he was bound to pay for the, period from 3.1.83 to 1.1.84 and 2.4.84 to 30.9.84 amounting to the sum of £377.52 cent, contrary to sections. 3(b), 10, 12(1),13. 14(2),.21, 73(1). (b) (d) (e) (f) (f 1). (g) (ka) 80(1) (2) (4) (5), 81, 84, 90(1) of the Special Insurance Laws 1980- 1984 and regulations 9, 18, 19, 21, and 22 of the Social Insurance (Contributions) Regulations, 1980-1984.
2. That as from 1.12.84 and thereafter in Limassol he 15 failed to pay additional rates in connection with Social Insurance contributions due by him for the period from to 1.1.84 and from- 2.4.84 to 30.9.84 contrary to sections 73(1) (i), 80(1) (2) (4), 81, 84 and 90(1) of the Social Insurance Laws 1980-1984 and Regulations 22 and 24 of the Social Insurance (Contributions) Regulations1980-1984- amounting. to £198.68 cent.
3. That between the 2.4.84 and 30.9.84 in Limassol he failed to pay special contribution for the defence of the Republic, which he was bound to pay for- the months of 25 April to 5.9.84, amounting to £5.72 cent, contrary to sections 2(1) (b), 3.(2) (c) (3). (4) (8), 5(1) (2), 13(1) (2)(4) (6), 14:, 15 and 16 of the Special Contribution for the Defence of the Republic Law of 1984.
The accused, who appeared in person, after the close 30 of the case for the prosecution having been called upon by the Court to make his defence made the following statement:-
"I admit that I owe this money, but it is not a tax matter but a social one. The Law is unconstitutional and I" seek a declaration of the Court to that effect."
As stated earlier on, on the evidence adduced, the trial Judge convicted the accused on all three counts and sentenced him to pay a fine of £3.- for the first charge only and ordered the payment of the amounts as they appear in the charge sheet.
The relevant part of his judgment is as follows:
"The undisputed facts of the present case are the following: The accused at all material times was a physiotherapist by profession and he maintained and maintains premises for that purpose at Gladstone Street in Limassol, The accused for the periods which appear in detail in the charge sheet failed to pay the amount of£377.52 cent as contributions, (b) £198.68 cent as additional charges and (c) £5.72 cent for the defence.
It is the allegation of the accused that the law is un constitutional because it concerns a social and not a tax matter.
I do not intend to do minute research into this matter because it has been the subject of comments and detailed examination by the Supreme Court in the case of Costakis P. Apostolou & Others v. The Republic of Cyprus through The Director of Social Insurance Services (1984) 3 C.L.R. 509. I shall only state that in the said case the Supreme Court decided that the relevant law is of a fiscal nature and falls within the pro visions of Article 24 of the Constitution and consequently the said law and its regulations are not contrary to Articles 9, 25 arid 28 of the Constitution and therefore, they do riot create unequal treatment between self-employed and non self-employed persons, Further- more, the law itself is not contrary to Article 28 of the Constitution, that is to the principle of equality. Neither again the said law is contrary to Article 9 of the Constitution which provides for the right to a decent existence and to social security of the citizen.
I, therefore, find that the said law is in no way contrary to the Constitution but is constitutional and as a result I find that the prosecution has proved its case beyond any reasonable doubt and t find the accused guilty as charged".
The appellant who again appeared before us in person, both in the grounds of appeal and in his written address from what we were able to understand, alleges that the Social Insurance Laws 1980-1984 and the Social Insurance (Contributions) Regulations 1980-1984 are unconstitutional because they are not of a fiscal nature and so they do not fall within the provisions of Article 24 of the Constitution and are also contrary to the provisions of Articles 9, 25 and 28 of the Constitution thus creating unequal treatment between the citizen.
The above, as rightly observed by the trial Judge, were decided by the Full Bench in the case of Costakis P. Apostolou & Others v. The Republic (supra) against the view of the appellant. Despite of this, the appellant actually invited us to reverse the above decision.
We must say that according to the cases of Republic of Cyprus v. Demetriades (1977) 3 C.L.R. 213 and Ioannides v. The Republic (1979) 3 C.L.R. 295, where it was decided that judicial precedent is a source of law, we feel bound to follow the decision in Apostolou (supra), and we cannot as an Appeal Court consisting of three Judges reverse it.
Finally, we must further say that even if we had the power to reverse the said decision, again we would not have done so because we further agree with its reasoning.
For the above reasons, the appeal is dismissed.
Appeal dismissed.