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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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(1985) 3 CLR 1621
1985 July 4
[PIKIS, J.]
IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION
LEADER OF JUSTICE PARTY AS
REPRESENTATIVE OF THE WORKERS,
MEMBERS OF "JUSTICE PARTY",
Applicants,
V.
THE REPUBLIC OF CYPRUS, THROUGH
THE MINISTER OF LABOUR AND
SOCIAL INSURANCE,
Respondent.
(Case No. 513/85).
Administrative Law-Application for provisional order-Article 146 of the Constitution-Criminal proceedings and every matter relevant thereto wholly outside the ambit of said Article.
Constitution, Article 134.2-Confers Jurisdiction to dismiss recourse without full hearing-Such jurisdiction should be exercised with great circumspection-If matter raised by a recourse wholly outside the jurisdiction under Art. 146 of the Constitution, the Court should exercise its jurisdiction under Article 134.2.
By letter dated 26.3.1985 addressed to the respondent Minister applicant complained of failure on the part of the Director of Social Insurance to keep promises allegedly made to the applicant respecting the social insurance contributions of self employed members of applicant's party (The Justice Party). The applicant further complained that despite hierarchical recourses filed by members of his party affected by the pertinent decision of the respondent, criminal proceedings were instituted against them.
The applicant filed the present recourse as representative of the said members of his party. The following are the remedies sought by the applicant: (a) A declaration that the omission of the respondent to reply to his letter dated 26.3.85 is repugnant to Articles 29 and 30 of the Constitution, (b) A mandatory order directing the Minister to observe the provisions of Articles 29 and 30 of the Constitution, and (c), an order suspending the said criminal proceedings.
Following the recourse the applicant applied for a provisional order, requesting under-(A), the Court to direct the respondent to satisfy, preliminary to the hearing of the recourse, the claims of the applicant, and under (B) to direct the suspension of the said criminal proceedings pending the determination of the recourse.
Held, dismissing the application for Provisional Order (1) Criminal Proceedings, their institution, conduct and every matter relevant therewith are not subject to review under Article 146 of the Constitution. They do not qualify either as executive or administrative acts. Criminal proceedings are subject to the control of the Court exercising criminal jurisdiction. Consequently it is beyond the jurisdiction of the Court to review, under any guise, the institution of Criminal proceedings.
(2) The relief sought under (A) above of the application for Provisional Order is untenable; apart from the tack of merits of this relief, as a matter of principle, only in the most exceptional circumstances would the Court grant by way of an interlocutory order a substantive relief.
Held, further, dismissing the prayer in the recourse for suspension the Criminal Proceedings-A recourse raising for review a matter wholly outside the jurisdiction of the Court is frivolous; therefore this is a proper case for the exercise of the jurisdiction conferred in the Court by Article 134.2 of the Constitution to dismiss without a full hearing any proceeding regarded as frivolous.
Application for Provisional order
as well as prayer 3 the recourse
dismissed. By consent no order
as to costs.
Cases referred to:
Charilaos Xenophontos v. The Republic (Minister of Interior, 2 R.S.C.C. 89;
Yialoussa Savings Bank v. The Republic (1977) 3 C.L.R. 25;
Frangos and Others v. The Republic (1982) 3 C.L.R. 53.
Application for a provisional order.
Application by applicant for a provisional order suspending criminal proceedings against self employed members of the Justice Party until the determination of the recourse whereby he complains of the failure on the part of the Director of Social Insurance to keep promises allegedly given to the applicant.
Modestos Pitsillos appearing in his capacity as leader of the "Justice Party".
D. Papadopoulou (Mrs.), for the respondent.
Cur. adv. vult.
PIKIS J. read the following judgment. Modestos Pitsillos, in his capacity as leader of the "Justice Jarty" raised the present recourse on behalf of self employed members of his Party. He challenges the omission of the Minister of Labour and Social Insurance to reply to his letter of 26th March, 1985, wherein he complains of failure on the part of Mr. Pelekanos, the Director of Social Insurance, to keep promises allegedly given to Mr. Pitsillos and through him to self employed members of his party respecting their social insurance contributions. Further, he complains that despite the fact that hierarchical recourses were filed by members of the Party affected by the pertinent decision of the respondent, criminal proceedings were instituted against them, now pending before the District Court.
The first remedy sought by the applicant is a declaration that the omission of respondent to reply to his aforesaid letter, is repugnant to Articles 29 and 30 of the Constitution. A mandatory order is sought under prayer 2, directing the Minister to observe the provisions of Articles 29 and 30 of the Constitution. The last of the three remedies appears to be the one in which the applicant is most interested. The Court is asked to make an order suspending criminal proceedings against self employed members of the Party of the applicant, until the determination of the present recourse.
Following the recourse, application was made for a provisional order, requesting under -
(a) The Court to direct, the respondent' to satisfy, preliminary to the hearing of the recourse, the claims of the applicant and, more consequentially still, under
(b) to direct the suspension of criminal proceedings pending the determination of the recourse.
Arguing the case before me, Mr. Pitsillos relied in support of his application, on the decision of the Full Bench, of the Supreme Court in Angelides And Others v. The Republic, a case irrelevant to the nature and ambit of the jurisdiction of the Supreme Court to make a provisional order. The case concerned the validity of reg. 9 and 18 of the Social Insurance (Contributions) Regulations, 1980, that were, for the reasons indicated by the Court, declared invalid and unenforceable Mr. Pitsillos submitted it is fair the Court should make the interlocutory orders prayed for, particularly that it is just that criminal prosecutions against members of his Party should be suspended.
Counsel for the Republic submitted the Court should not only dismiss the application but the recourse in its, entirety, as manifestly unfounded. Article 29 of the Constitution, she stressed, does not confer an independent jurisdiction upon the Court. Failure to reply under Article 29, she stressed, is only reviewable under Article 146.1 if the request or complaint relates to a matter amenable to the jurisdiction of the Supreme Court under Article 146. Further, the review of criminal process and matters preliminary and incidental thereto, is outside the scope of the jurisdiction of the Court under Article 146.
The revisional jurisdiction of the Supreme Court under Article 146.1 is confined to decisions of the Administration "exercising any executive or administrative authority". Jurisdiction to make a provisional order is incidental to the jurisdiction of the Supreme Court under Article 146 and dependent on amenity to review the act the operation of which is sought to be suspended. Its exercise is regulated by r. 13 of the Supreme Constitutional Court Rules, 1962. On principle and authority, criminal proceedings, their institution, conduct and every matter relevant therewith, are not subject to review under Article 146. They do not qualify either as executive or administrative acts. Their supervision is entrusted to the Attorney-General under Article 113 of the Constitution, and their prosecution constitutes an inseparable aspect of the judicial process. In Charilaos Xenophontos and The Republic (Minister of Interior), the Supreme Court acknowledged the nexus between criminal proceedings and the judicial process and noticed that the foremost connection of criminal proceedings is with the judicial process. As. such, they are not reviewable by the Supreme Court under Article 146.1. Criminal proceedings are subject to the control of the Courts exercising criminal jurisdiction. Consequently, it is beyond my jurisdiction to review, under any guise, the institution of criminal proceedings against anyone of the members of the Party of the applicant.
Under Article 134.2 of the Constitution, jurisdiction is conferred on this Court to dismiss without a full hearing any proceeding regarded as frivolous. And a recourse raising for review, a matter wholly outside the jurisdiction of the Court, cannot be regarded except as frivolous. Of course, the jurisdiction to dismiss summarily a recourse or part of it is one that must be exercised with great circumspection. On the other hand, the Court must not hesitate to do so in a case where the issue raised is wholly outside the jurisdiction of the Court or manifestly unfounded.
The remedy sought by paragraph 3 of the recourse, namely, the prayer for suspension of criminal proceedings, and the interlocutory order sought, incidental thereto, are wholly outside the reviewing powers of the Supreme Court under Article 146 of the Constitution. I shall not, on account of that, confine my order to the dismissal of the application for a provisional order but shall dismiss the prayer in its entirety. And I so direct.
Equally untenable is the relief under paragraph (A) of the application for an order compelling the respondents to do preliminary to the hearing whatever they have omitted to do. In arguing his case before me, Mr. Pitsillos referred, inter alia, to Article 155 of the Constitution and "mandamus". I must explain to him, the jurisdiction of the Court under Article 146 is wholly separate from that under Article 155 of the Constitution for the issue of an order of mandamus. Moreover, quite apart from the lack of merits of paragraph (A) of the application for a provisional order, as a matter of principle, only in the most exceptional circumstances would the Court grant by way of an interlocutory order a substantive relief.
Not only I am not disposed to grant the order sought under paragraph (A) of the interlocutory application but I very much doubt whether the substantive relief upon which it is founded can be entertained at all. Although I am not disposed to dismiss, without a full hearing, the reliefs under prayers 1 and 2 of the recouse, I am certainly not prepared to grant the relief under paragraph (A) of the application for a provisional order.
In the result, the application for provisional order is dismissed, as well prayer 3 of the recourse.
COURT to Counsel for the Republic: Do you claim costs?
Counsel for the Republic: No Your Honour.
COURT: Let there be no order as to costs.
Application for provisional
order and prayer 3 of the
recourse dismissed. No order
as to costs.