Law Reserved No. 187). Constitutional Law-Right to freedom
speech and expression in any form-Article 19
the constitution-Right safeguarded thereunder not limited by reference to the truth or falsity
a statement made in the exercise
such right-And it, therefore, extends to false as well as to true statements. Constitutional Law-Constitutionality
legislation-Section 50
the Criminal Code, Cap.154, as amended by the Criminal Code (Amendment) Law, 1965 (Law 70/65) constitutional, in view
the Constitution, provided the expression "impairing public confidence in the State or its organs" is interpreted as referring to the organs
the State institutions
Government. Criminal Procedure-Question
law arising during the trial-Appropriate stage
reservation for opinion
Supreme Court-Section 148
the Criminal Procedure Law, Cap.155. The accused were charged before the District Court
Nicosia for contravention
the provisions
section 50
theCriminal Code, Cap.154 (as amended by Law 70/65). On the oral application
the defence, made before arraignment, supported by the prosecution, the following questions
Law were reserved under section 148
the Criminal Procedure Law, Cap.155, for the opinion
the Supreme Court: "
s.50
the Criminal Code, as amended by Law 70/65, are contrary to the provisions
the Constitution, and
speech and expression in every way, as entrenched by paras. 1 & 2
the Constitution, extends to the publication
false news and information". Held,
the Constitution is not limited by reference to the truth or falsity
a statement made in the exercise
such right; therefore, it extends to false as well as to true statements.
the Criminal Code, Cap.154, as amended by the Criminal. Code (Amendment) Law, 1965 (Law 70/65), is constitutional, in view
the State as institutions
Government. Observations with regard to the appropriate stage at which questions
law should be reserved under section 148
the Criminal Procedure Law, Cap. 155. Order accordingly. Cases referred to: In re Charalambous
the European Court
Human Rights-Vol. 24, Publications
the European Courts
Human Rights, p. 22; Schenck v. U.S.
Architects and Civil Engineers v. ChristodoulosKyriakides
Nicosia & Others
the European Commission
Human Rights; X v. Federal Republic
Germany-Decisions and Reports
the Commission, Vol. 3, p. 159; X. and Church
Scientology v. Sweeden-Decisions and Reports
the Commission, Vol. 16 at p. 68; X. v. United Kingdom-Decisions and Reports
the Commission, Vol. 16, p. 101. Question
Law Reserved. Question
Law Reserved on 21.9.198 1 by the District Court
Nicosia (Fr. Nicolaides, D.J.) for the opinion
the SupremeCourt under section 148
the criminal Procedure Law, Cap.155, before the entering
a plea by the accused in Criminal Case No. 15071/81 instituted by the Police against the above respondents who were charged for publishing false information in contravention
section 50
the Criminal Code, Cap.154. A. Evangelou, Senior Counsel
the Republic, for the Attorney-General. A. Markides, for the accused. Cur.adv. vult. 1982 March 29. The following judgments were read. TRIANTAFYLLIDES P.: Mr. Justice Pikis will state the unanimous opinion
the Court regarding the two questions
law which have been reserved by the District Court
Nicosia in the present case. PIKIS J.: The right safeguard by Article 19
the Constitution is not limited by reference to the truth or falsity
a statement made in the exercise
such right; therefore it extend to false as well as to true statements. Section 50
the Criminal Code, Cap.154, as amended by the Criminal Code (Amendment) Law, 1965 (Law 70/65), is constitutional, in view
the State as institutions
Government. TRIANTAFYLLIDES P.: Mr. Justice Pikis will deliver the first judgment, giving his reasons for the opinion
the Court, and any one
the other Judges
the Court, including Mr. Justice Hadjianastassiou who is abroad on duty, may give in due course his own reasons for the unanimous opinion
the Court. PIKIS J.: In Criminal Case No. 15071/81, raised before the Nicosia District Court, a number
charges were preferred against a publishing company and Zacharias Papanicolaou for contravention
the provisions
section 50
the Criminal Code whereby it is made a crime to publish under certain circumstances false news and information. On the oral application
the defence made before arraignment, supported by the prosecution, two legal questions were reservedunder s.148
the criminal Procedure Law, for the opinion
the. Supreme Court Section 148
the Supreme Court, at any stage
the proceedings, a question
law arising during, the trial Not every point, emerging can be reserved. The verb "arising" signifies the points
law that may be reserved. Their determination must be crucial, either to the outcome
the case or disposal
an aspect
it that foreshadows such outcome. In conferring on the outcome
the appeal doubts were expressed about the correctness
the procedure followed, particularly the stage at which the questions were raised, as well as the desirability
reserving questions
law before immediate need arises for the solution
a given legal question. Notwithstanding the question marks surrounding the property and timeliness
the reference
the sub-judice question to the Supreme Court, we decided to proceed and deal with the matters raised in view
the absence
any objection to the procedure followed and argument on the subject. However, we must not be taken as sanctioning the procedure adopted. It is pertinent to remind
the observations
Triantafyllides, P., in Re Charalambous
the case. Any lesser standard may result in the Supreme Court delivering opinions on quasi theoretical issue, something impermissible under our system
law. Although we shall proceed to dispose
the case for the reasons indicated, note must be made
the doubts entertained by some members
the Court whether it is at all possible to reserve a question before plea. There is force in the argument that the issue arising in the case are, with few exceptions, defined after plea. Be that as it may we shall proceed to dispose
the issues raised for our opinion. Having expressed these reservations, we shall proceed to deal with the substance
matters in issue, assuming for the purpose
these proceedings, that the questions were properly raised. The questions reserved for the opinion
the Supreme Court are the following:- (Α) Κατά πόσον το Άρθρο 50
s. 50
the Criminal Code, as amended by Law 70/65, are contrary to the provisions
the Constitution), and (Β) Κατά πόσον το δικαίωμα της ελευθερίας του λόγου και της καθ' οιονδήποτε τρόπον έκφρασης όπως κατοχυρώνεται από τα εδάφια 1 και 2 του Άρθρου 19 του Συντάγματος επεκτείνεται και στη δημοσίευση ψευδών ειδήσεων και πληροφορίων. (English translation: Whether the right to freedom
speech and expression in every way, as entrenched by paras. 1 & 2
the Constitution, extends to the publication
false news and information). The first question concerns the constitutionality
s.50
the Criminal Code, as amended by Law 70/65. The second mainly raises a question
interpretation
Logic and convenience dictate consideration
the second question as a prelude to the determination
the first inasmuch as interpretation
THE CONSTITUTION DISTINGUISH BETWEEN TRUE AND FALSE NEWS AND INFORMATION? To answer the question, we must first consult the wording
and ascertain whether the right
freedom
speech and expression is in any way qualified by the content
the expression, particularly its truth and accuracy. The language
warrants no differentiation between a true and a false statement whereas the nature
the right is such as would render obnoxious to its enjoyment even limitations dependent on the need for truth. Freedom
speech and expression is an aspect
freedom
man itself. It should never be subjected to restrictions other than those absolutely necessary for social preservation and harmony. The question was resolved the same way in the U.S.A. and the celebrated dictum
Brandeis, J., "that unless it is free for error, it is not free for truth", serves to define the boundaries
the right (Whitney v. California
speech and expression as the pillar
liberty not to be diminished except for a most compelling cause such as State security. (See Attorney-General v. The B.B.C. [1980] 3 All E.R. 161 (HL) ). The safeguard
freedom
speech and expression is the hallmark
a humane and civilised society. A court
law pronouncing on the fundamental freedoms
the subject, cannot but give full expression to the right, extending it to the limits warranted by the Constitution. OPINION
THE SUPREME COURT ON THE SECOND QUESTION RESERVED: The right safeguarded by. paragraphs 1 and 2
the Constitution is not limited by reference to the truth or falsity
a statement made in exercise
the right; therefore, it extends to false as well as to true statements. False news or information may legitimately be taken into account in discerning whether need arises to legislate for the limitation
the right in the interests
one or more causes for which restrictions may be introduced in accordance with Article 19.3. Truth may be tolerated even where it appears to be damaging to, for example, State security. No justification exists for suffering falsity in similar circumstances. After all, truth is the most lasting material for laying durable social and national foundations. Consequently, intolerance to false news or information, damaging to the causes for which freedom
speech and expression may be limited, is not intrinsically derogatory to the exercise
the right. CONSTITUTIONALITY
SECTION 50
THE CRIMINAL CODE, CAP. 154: The submission made on behalf
the accused is briefly that s. 50
the public in the State or its organs, and (b) publications causing fear or alarm to the public. The unconstitutionality
some
the provisions
a section
the law vitiates, in the submission
Mr. Markides, the constitutional validity
the section in its entirely. Consequently, we were invited to rule that s. 50
freedom
expression for the sustainance
confidence
the public in the State simpliciter or any
its organs. Further, he argued that causing fear and alarm, irrespective
the repercussions
such conduct on State security or public order, is not a cause for which freedom
speech and expression may be legitimately restricted. Extensive reference was made to the provisions
the Indian Constitution, notably Article 19, safeguarding freedom
speech and expression, and Indian case law on its interpretation and the validity
legislative provisions designed to limit the right, notably s. 505
the Indian Penal Code. Less voluminous was the reference to U.S.A. and Greek case law on the subject
freedom
expression. Lastly, brief reference was made to decisions
the European Commission and European Court
Human Rights on the interpretation and ambit
.2
the European Convention on Human Rights, the wording
which is in many respects similar to Article 19
our Constitution. For the Republic the case was again well argued by Mr. Evangelou who, like Mr. Markides, took pains to enlighten us on foreign jurisprudence on the approach to limitations
freedom
expression were constitutionally entrenched. The essence
his submission is that s. 50
its purposes, s. 50
the right under Article 19.3. I examined the rival submissions with keen awareness
the importance
the issue arising for consideration and the mission
the court as the guardian
human rights and fundamental liberties. ARTICLE 19
THE CONSTITUTION: Article 19.1 proclaims the right to freedom
speech and expression in every form. This is the basic norm, establishing the paramountcy
the right signifying the commitment
the State to the fullness
the right. Limitations are the exception and authority for their introduction must be sought in the Constitution itself and from no other source. Article 19.2 .is explanatory
.1, definitive
the breadth
the right.A right not to be interfered with by any public authority and one that should be enjoyed regardless
frontiers, the attribute
a universal right. Article 19.3 defines the causes in the interests
which freedom
speech and expression may be limited and the prerequisites to legislative action. It provides:- "The exercise
the rights provided in paragraphs 1 and 2
this Article may subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary only in the interests
the security
the Republic or the constitutional order or the public safety or the public order or the public health or the public morals .or for the protection
the reputation or rights
others or for preventing the disclosure
information received in confidence or for maintaining the authority and impartiality
the judiciary". The causes in respect
which freedom
speech and expression may be limited can be grouped into three categories:- Category 1-State security, constitutional order and-public order-the integrity
the State. Category 2-Public health, public morals, the protection
the rights
others and preservation
confidential information-Social Harmony. The concept
rights in the sense
It must be stressed that the law acknowledges no right to any citizen for the enjoyment
the confidence
others. A vague attempt was made to pegs.50
.3, an effort that collapses on appreciation
the above reality. Category 3-The authority and impartiality
the judiciary-Justice. In India it was decided that the causes enumerated in Article 19
the Indian Constitution, for which freedom
speech may be limited, are exhaustive. (See Basu's Commentary
the Constitution
India, 5th ed., Vol. 1, p. 550). Any attempt, it was held, to legitimize limitations beyond the scope
the Constitution should be struck down as an infringement
the Constitution. I accept this as a sound proposition
the constitutional law, that is, where a right is defined in absolute terms and the permissible exceptions to it are enumerated in the Constitution the introduction
further exceptions constitutes a violation
the right safeguarded. The constitutional premise is that for the effective exercise
the freedom guaranteed in Article 19 no exceptions are justified other than those in Article 19.3. The decisions
the U.S.A. courts on the legitimacy
limitations to freedom
expression, are
limited assistance because unlike Article 19
our Constitution, the limitations are not ingrained in the Constitution but are the product
case law evolved in the context
the judicial doctrine acknowledging residual powers to the State to legislate "police powers" as a concomitant
sovereignty. Also, decisions
the European Commission and European Court
Human Rights, though instructive,
fer only indirect assistance to the solution
the problem in hand for they concentrate primarily on the definition
the outer limits
State power to enact restrictions not inconsistent with the Convention, leaving a wide margin
appreciation to member States as to need to limit the right guaranteed by Article 10.2
the Convention. (See, inter alia, The Handyside case
the European Court
Human Rights-Vol. 24, Publications
the European Courts
Human Rights, p. 22). In my opinion, Article 19.3 enumerates exhaustively the causes in respect
which freedom
speech and expression may be limited. Next, my task is to examine whether the limitations introduced by s.50
the Constitution. A useful test as to the necessary link between the impugned statute and the permissive clauses
the Constitution is that adopted in India. The relationship between the two must be rational or proximate. (See Basu's Commentary
the Constitution
India, 5th ed., Vol. 1, p. 551). Rationality is a matter
logic; proximity a question
fact and degree within the fabric
the society in which the statute will be applied. This is a salutary approach, necessitating a direct link between the exceptior and the constitutional clause to which it is associated. In my judgment, the relation between the two must be manifest. The limitation must serve exclusively one or more
the purposes for which Article 19.3 permits restrictions
freedom
speech and expression. Any lesser standard would weaken the constitutional guarantee
the right. A study
s.50
the objects and identification
the purposes
the law Section 50
the public in the state or its organs or to cause fear or concern to the public or to disturb in any way public peace and order shall be guilty
an
fence and shall be punishable with imprisonment for a turn not exceeding two years or with a fine not exceeding five hundred pounds or with both such imprisonment and fine: Provided that it shall be a good defence for the accused to prove to the satisfaction
the Court that the publication was made in good faith and on the basis
facts justifying such publication. For the purposes
this sub-section, the provisions
paragraphs (a) and (b)
section 201 in relation to good faith shall apply". A reading
the section as a whole reveals that uppermost in the mind
the legislatute was the protection
State security, constitutional order and public order from the publication
false news and information. The primary purpose
the law is protection
social tranquillity and public order from pernicious falsehood. A more loosely defined purpose is the protection
State authority from the same evils. Prima faciethe legislature purported to limit freedom
expression for legitimate constitutional purposes; whether the actual limitations are justifiable is a subject we shall discuss later. The next question I must grapple with is whether need arose for the limitation
freedom
expression in the interests
public and constitutional order and State security. THE PREREQUISITES FOR THE LIMITATION
THE RIGHT UNDER ARTICLE 19.3: A series
decisions
the European Commission and Court
Human Rights establish that the initial appreciation
the need for legislation rests with the competent State authorities, the House
Representative in Cyprus. (See the case
Handyside, supra, and Fawcett on the Application
the European Convention
Human Rights, p. 215, on the analysis
Case No. 753/60 3 Yearbook, 318). But the final arbiter to pronounce on the existence
the necessity are the courts
each State, the permanent guardians
constitutional order. To ascertain whether it was necessary to introduce permissible limitations regard must be had to the national and social realities at the time
the enactment and subsequent thereto. For arguably limitative laws
fundamental rights are ipso facto
a temporary character. So, if the reason that necessitated the enactment disappear, so must the law enacted in reaction thereto. Regrettably in 1965 and ever since, the State was thereunder with internal and external subversion that threatened they very existence
the State in 1974 with the staging
the treacherous coup d' etat and the catastrophic Turkish invasion that followed. Consequently, the legislature rightly discerned threats to the integrity
the State and sought to shield it from false news and information. It is unnecessary to debate the several tests suggested in the course
argument for the definition
"necessary" or discuss differences between the Cyprus and Indian Constitution as to the prerequisites for valid limitations
freedom
expression. The Constitution
India postulates a less stringent test for the introduction
limitations "in the interests
" as compared to Cyprus. The notion
"necessary" does not import absolute necessity while it requires a lot more than mere desirability. "Necessary", in the context
.3, encompasses legislative action without which there is a serious though not inevitable risk that one or more
the causes defined therein will be imperiled. In my judgment, it was .perfectly legitimate for the House
Representatives, and I So hold, to legislate for the protection
State security, public and constitutional order threatened by subversion from many quarters. The winds
destruction blowing around the island and within it, were too serious to be ignored. In the face
such dangers freedom
expression could be limited in accordance with Article 19.3. IMPAIRING CONFIDENCE
THE PUBLIC IN THE STATE AND ITS ORGANS: Mr. Markides primarily directed his attack on the constitutionality
s. 50
the section that makes it an
fice to impair (κλονίζει) confidence
the public in the State and its organs. The gist
his submission is that the State, its organs in particular, independently
the position they hold in the State hierarchy, have no right to the confidence
the public. Any attempt to acknowledge such right would, in his contention, defeat the democratic principle that freedom
speech aims to uphold. Extending to political figures, functionaries
the State, a right to the confidence
the public, it was submitted, would be antinomous to the basis precepts
democracy. Lengthy reference was made to the definition
"government established by law" in the context
s. 124A
the India Penal Code as a legitimate subject for the restriction
the right to freedom
speech and expression. Government, according to Indian decisions, is a proper subject for protection only if understood in an impersonal sense as the embodiment
State authority and constitutional order. The institution
government is distinguished from the persons holding
fice from time to time, symbolizing the authority but not embodying it. (seeBasu's commentary
Indian Constitution, 5th ed., p. 658, and the decision in Kedermath, cited therein). A clear distinction is made between the institution and its temporary representatives. A similar distinction was made in Greece, in interpreting "authority" in the context
s. 181
the Greek Penal Code, whereby it was made an
fence to insult public authorities. (See Criminal Chronicles 1
the State, in no way synonymous or identifiable with the holder
fice from time to time. So, insult directed against the holder
public
fice,do not necessarily constitute attacks on the authority lie represents unless the authority itself is by necessary implication insulted and the insults are intended to smear the institution. I regard the differentiation between the institution and the persons exercising State power as essential for the effective vindication
freedom
expression and democratic rule. In a democratic society the public has a salient interest in the preservation
State authority and the rule
law. Sustaining confidence in the institution
government, is essential for constitutional order. It is legitimate under Article 19.3 to sustain confidence in the institutions
government. On the other hand, the maintenance
constitutional order is not dependent on the confidence
the public in the holders
State
fices. Any attempt to equate them with the institution they represent would stifle criticism and diminish the democratic principle. "Constitutional order" under Article 19.3 refers to the order established by the Constitution and laws saved or enacted thereunder. The legislature had a right, in the light
the threats to constitutional order earlier outlined, to restrict freedom
speech and expression for the sake
its preservation. Publications tending to undermine the institutions
the State, as the vehicle
government, can be restricted whenever necessary, as earlier expounded. The instruments
government, those representing or symbolizing State authority, such as ministers, are in their personal capacity outside the concept
constitutional order. Freedom
speech and expression cannot be limited for the protection
their personal status or authority, either in the government or society at large. Before I finally pronounce whether impairment
public confidence in the State or its organs, in s.50
.3, it is convenient to deal briefly with the second submission, that is, the constitutionality
the provision "causing fear and alarm". The submission is that stirring fear and alarm per se, poses no threat to State security or public order; therefore, it is incompatible with Article 19.3. Here, again, reference was made to Indian case law and a number
decisions
the U.S.A.Federal Supreme Court on the theme
public order arid the kind
threats from which it may justifiably be protected. In U.S.A. the prevalent trend
judicial opinion is that no limitations are permissible in the name
public order except in the face
a clear and present danger to public order. (See Basu's Commentary, supra, 5th ed., Vol. 1, p. 552). Such a danger arises only where immediate serious violence is either expected or advocated. But it need not actually occur and pre-emptive action is justified for the preservation
public order. Constitutional guarantees
liberty and freedom would be neutralized without public order. The dictum
Holmes, J. that "the most stringent protection
free speech would not protect a man falsely shouting fire in a theatre and causing panic", coupled with his reminder as to the elemental need for order without which the guarantee
civil rights would be a mockery, serves to indicate that public order may be threatened from a wide range
activities, including panic created by a false alarm. (Schenck v. U.S.
public order has led to the prohibition
a multitude
activities inherently liable to disturb public order, such as the use, under certain circumstances,
sound amplifying, instruments, the expulsion
hecklers from meetings and assemblies, as well as utterances tending to incite an immediate breach
the peace. (See Basu's supra, p. 625). In India, a less stringent test was adopted not requiring proof
an imminent danger to public order before limitations are introduced. (See Basu's supra, p. 553). CONSTRUCTION AND INTERPRETATION
STATUTES TO ASCERTAIN THEIR CONSTITUTIONALITY: Every law is presumed to be constitutional unless the contrary is proved, beyond any reasonable doubt. (See The Board for Registration
Architects and Civil Engineers v. ChristodoulosKyriakides
the legislature over the field
legislation and weaken the constitutional principle
separation
powers essential for the vindication
the rule
law. The judges are not the overlords
legislative action. They will not examine a statute minutely but broadly, starting from the premise that the House
Representatives are the arbiters
legislation. Only where they transgress irretrievably the constitutional limitations to their legislative power is the Court entitled to intervene. A safe assumption in examining the constitutionality
a law, is that the legislature intended to legislate within the framework
the Constitution. In deciding upon the constitutionality
a statute it is axiomatic that if susceptible to an interpretation reconcilable with the provisions
the Constitution, a beneficial construction must be adopted saving the enactment. A beneficial construction may be adopted saving the enactment. A beneficial construction may be adopted provided this can be achieved without thwarting the language
the Act. (See Kyriakides, supra; NeophytosSofroniou others v. The Municipality
Nicosia & Others
Statute in Constitutional Law, 1970, pp. 26 and 27). Where the purposes
a section
the law, as they emerge on a consideration
its provisions in their totality, are compatible with constitutional dictates, the Court may justifiably interpret linguistically inadequate provisions as merely falling short
giving effect to the object
the legislature and save the Act. That a section
the law must be evaluated as a whole before pronouncing on its constitutionality as a whole, is clear from the decision
the Supreme Court in Papadopoulos v. The Republic
the Supreme Court had to resolve the constitutionality
s. 51A
the Criminal Code, whereby it is made an
fence to publish material calculated or likely to encourage violence or promote feelings
ill will among citizens
sections
the community. The case
Papadopoulos supra, establishes two propositions relevant to our case: (a) It becomes "necessary" under Article 19.3 and, therefore, permissible for the legislature to limit freedom
speech penalising publications directly antagonistic to one or more
the causes enumerated in Article 19.36 and (b) the cause in the name
which the prohibition is enacted need not be specified in the law so long as the association between the two is manifest. The State as a legal institution is synonymous with constitutional order itself. The maintenance
confidence in the Statetantamounts to supporting the foundations
constitutional order. Consequently, the protection
this institution from publications undermining public confidence in the substratum
constitutional order, the State, is a proper subject for limitation
the freedom guaranteed by Article 19.1. The limitation is directly referable to constitutional order. A more difficult question poses, respecting limitations about the organs
the State. In its literary connotation the wording
the law restricts the right for purposes outside the compass
Organs
the State in the sense
the holders
fice are not under Article 19.3 a legitimate cause for the limitation
the right safeguarded by Article 19.1. Enough was said earlier in the judgment to indicate why constitutional order has to do with the institutions
the State and not those who symbolize it. Can section 50
the rules
construction earlier referred to? Is it susceptible to an interpretation compatible with the provisions
the law, one
them being constitutional order are an additional consideration for a purposive interpretation, in this area, to legislate for the protection
constitutional order. In my judgment, it is possible, without doing violence to the language
the law, to construe "organs
the State" as referring
the institutions
government as district from the persons holding
fice. Consequently, this part
the law cannot be rejected as unconstitutional. Likewise, although engendering a fear and alarm, is not in itself a legitimate subject for limitations under Article 19.3; the context in which it is employed, clearly suggests that what is contemplated is conduct detrimental to State security and public order. And it should be thus construed. Read in this light, an interpretation that
fers itself in view
the wording
the law in its entirety, the law imports legitimate limitations to the right guaranteed by Article 19.1.2. Northing that is said in this judgment should discourage the legislature from finding an early opportunity to streamline the wording
the law, in the interests
clarity and certainty, along the interpretation adopted in this judgment. OPINION
THE SUPREME COURT QUESTION 1: Section 50
the Criminal Code, Cap.154, as amended by Law 70/65, is constitutional in view
the provisions
para 3
provided the expression "impairing public confidence in the State or its organs" is interpreted as referring to the organs
the State as institutions
Government. LORIS J.: I have had the advantage
reading in advance the judgment delivered by Mr. Justice Pikis in which there appear his reasons for the opinion
the Court. I agree with this judgment and have nothing useful to add. April 8, 1982. TRIANTAFYLLIDES P.: On March 29, 1982, the unanimous opinion
the Supreme Court regarding two questions
law which were reserved, under section 148
the Criminal Procedure Law, Cap. 155, by the District Court
Nicosia, was stated to be as follows:- "The right safeguarded by Article 19
the Constitution is not limited by reference to the truth or falsity
a statement made in the exercise
such right; therefore, it extends to false as well as to true statements. Section 50
the Criminal Code, Cap.154, as amended by the Criminal Code (Amendment) Law, 1965 (Law 70/65), is constitutional, in view
the State as institutions
Government". On the same day Mr. Justice Pikis delivered a judgment giving his own reasons for the opinion
the Supreme Court and it was then stated, also, that "anyone
the other Judges
the Court, including Mr. Justice Hadjianastassiou who is abroad on duty, may give, in due course, his own reasons for the unanimous opinion
the Court". So, I shall now proceed to do this: I have had, indeed, the privilege
studying the very erudite judgment
my brother Judge Mr. Justice Pikis and I am giving separately my own reasons, not because I minimize in any way his valuable contribution towards the formulation
the opinionof the Supreme Court on the two questions
law which were reserved, but because, in some respects, my approach to the matter is not exactly the same as his. I would like to begin by stating that I was strongly inclined to find, in view
the very premature, in my opinion, stage at which the two questions
law concerned were reserved for the opinion
the Supreme Court, that the said questions
law are not "questions
law" in the sense
section 148
Cap. 155 and that, therefore, this Court, in the present procee10 dings, could not express its opinion thereon. In Re Charalambous,
section 148
considering the fate
this application, we felt that we had to examine the meaning
the expression 'a question
law arising during the trial' as used in sub section
section 148. As this point was not argued, initially, by either side, we invited counsel to address us in relation thereto and we are, indeed, grateful to them for the assistance they have given us. We have come to the conclusion that subsection
section 148 does not enable either side to a criminal proceeding to raise before the trial Court a question
law at a stage
its own choosing and to apply that such question should be reserved at such stage for our opinion; in our view 'a question
law arising during the trial' means only a question
law arising during the trial at a stage at which it has to be decided in order to enable the trial to proceed further in accordance with the law and rules
practice relating to criminal procedure; and within the ambit
such expression it is not included a question
law which was prematurely raised at a stage
the trial at which it does not have to be decided for the purposes
the trial at that particular stage; because, in our opinion, section 148 does not provide a procedural machinery by means
which a party to a criminal case can seek a ruling on a point
law, from the Supreme Court, in anticipation
the stage
the trial at which the state
the law in relation to such point may or will become actually material and
immediate Importance for the further progress
the case; what is envisaged under the said subsection
law is, so to speak, obtruding itself upon the trial Court and demanding an answer straightway". The Charalambous case, supra, was referred to by this Court with approval in The Republic v. Sampson,
section 148
Cap. 155; "The use
word 'may' in this context signifies the existence
a discretion in such instance.Such, discretion, however, should be exercised judicially and though as it was pointed out in the case
Charalambous (supra) an application should not be refused merely for the sake
avoiding an interruption
the trial yet, under interruptions are not conducive to the good administration
criminal justice. Furthermore the notion
shortening proceedings by securing in advance a statement
the law by the Court that has the final word in the matter, cannot solely be the reason for exercising a Court's discretion in favour
reserving a question
law. It is a discretion to by exercised, when an application at the instance
the defence is made only for the sake
doing justice in a case and particularly for the sake
saving an accused person from embarrassment in the conduct
his defence and from the likelihood
the detrimental consequences which a ruling given against an accused may bring. If anything, it would only be proper that such a question should be reserved after the ruling
a trial Court is given, so that its reasoning, if persuasive enough, may render unnecessary an application for such a reservation or reveal their thinking in case they eventually refuse to reserve. It is in the province
trial Courts to determine points
law, whether novel or not, together with the determination
the factual issues that arise in the course
a criminal trial and if reservations
law are made for the opinion
the Supreme Court without the trial Court's pronouncement on the issue raised, the impression may be formed that for legal points trial Courts should seek in advance, the assistance
this Court. This is not the purpose
section 148
the Criminal Procedure Law, the appellate jurisdiction
the Supreme Court being primarily to review the rulings and judgments for which complaint made by way
appeal or other procedural means". Also, in the same case, I had the opportunity to state the following (at p. 18): "I should point out that it is highly desirable that in all cases in which a trial Court is faced with the possibility
having to resort to the procedure under subsection
section 148, in circumstances in which subsection 3(b)
section 148 would be eventually applicable, the trial Court should express its own opinion on, the particular question f law raised before it, prior to deciding whether or not to actually exercise its discretionary powers under subsection
section 148; because, once the parties to the case know the decision
the trial Court on the question
law raised, they will be enabled to reconsider their position in the light
the reasoning contained in such decision; and, also, the trial Court will be assisted, in exercisingits said discretionary powers, by any comments that may be made, by the parties, in relation to such reasoning. I would not go, however, so far as to say that reserving a question
law under subsection
section 148, without first having expressed its own opinion thereon, is a course which is never open to a trial Court, because, indeed, there do exist precedents when such a course was followed (See, for example, queen v. Erodotou, 19 C.L.R. 144, and The Republic v. Liassis,
trials (see, inter alia, The Republic v. Kalli (No. 1), 1961 C.L.R. 266 and In re Charalambous and another,
the Assize Court was exercised in a manner which was reasonably open to it in the circumstances
this very serious case". The reason for which I have not, in the end, insisted that in the present case the mode in which the questions
law concerned were reserved at a premature stage excluded them from the jurisdiction under section 148
law it is necessary to decide what is the proper construction and application
section 50
the Criminal Code, Cap.154, as amended by the Criminal Code. (Amendment) Law, 1965 (Law 70/65), as well as
paragraphs 1, 2 and 3
the Constitution. Section 50
the public in the state or its organs or to cause. fear or concern to the public or to disturb in any way public peace and order shall be guilty
an
fence and shall be punishable with imprisonment for a term not exceeding two years or with a fine not exceeding five hundred pounds or with both such imprisonment and fine: Provided that it shall be a good defence for the accused to prove to the satisfaction
the Court that the publication was made in good faith and on the basis
facts justifying such publication. For the purposes
this sub-section, the provisions
paragraphs (a) and (b)
section 201 in relation to good faith shall apply".) Paragraphs
Έκαστος έχει το δικαίωμα ελευθερίας του λόγου και της καθ' οιονδήποτε τρόπον εκφράσεως.
speech and expression in any form. 2. This right includes freedom to hold opinions and receive and impart information and ideas without interference by any public authority and regardless
frontiers. 3. The exercise
the rights provided in paragraphs 1 and 2
this Article may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary only in the interests
the security
the Republic or the constitutional order or the publicsafety or the public order or the public health or the public morals or for the protection
the reputation or rights
others or for preventing the disclosure
information received in confidence or for maintaining the authority and impartiality
the judiciary".) Paragraphs
our Constitution correspond to paragraphs
the European Convention on Human Rights,
1950, which read as follows:- "1. Everyone has the right to freedom
expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless
frontiers. This Article shall not prevent States from requiring the licensing
broadcasting, television or cinema enterprises. 2. The exercise
these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests
national security, territorial integrity or public safety, for the prevention
disorder or crime, for the protection
health or morals, for the protection
the reputation or rights
others, for preventing the disclosure
information received in confidence, or for maintaining the authority and impartiality
the judiciary". The aforesaid Convention, due to its ratification by the European Convention on Human Rights (Ratification) Law, 1962 (Law 39/62), and in view
the Constitution, forms part
the law
Cyprus
superior force to other ordinary legislation in Cyprus, such as section 50
Cap.154 (see, in this respect, inter alia, Christou v. Christou, 1964 C.L.R. 336, 346, Kokkinos v. The Police,
course, in the present instance, it has not been argued that section 50
Cap. 154 should be found to be invalid as being in conflict with the provisions
the European Convention on Human Rights and, therefore, we do not have to deal with this issue, but, nevertheless, the way in which Article 10
the Convention has been applied and construed is, indeed, very helpful for determining how our own corresponding Article 19 should be construed and applied. In its judgment in the Handyside case (which was given on December 7, 1976) the European Court
Human Rights stated the following (in paragraphs 48 and 49): "48. The Court points out that the machinery
protection established by the Convention is subsidiary to the national systems safeguarding human rights (judgment
23 July 1968 on the merits
the 'Belgian Linguistic' case, Series A no. 6, p. 35, § 10 in fine). The Convention leaves to each Contracting State, in the first place, the task
securing the rights and freedoms it enshrines. The institutions created by it make their own contribution to this task but they become involved only through contentious proceedings and once all domestic remedies have been exhausted (Article 26). These observations apply, notably, to Article 10 § 2. In particular, it is not possible to find in the domestic law
the various Contracting States a uniform European conception
morals. The view taken by their respective laws
the requirements
morals varies from time to time and from place to place, especially in our era which is characterised by a rapid and far reaching evolution
opinions on the subject. By reason
their direct andcontinuous contact with the vital forces
their countries, State authorities are in principle in a better position than the international judge to give an opinion on the exact content
these requirements as well as on 'necessity'
a 'restriction' or 'penalty' intended to meet them. The Court notes at this juncture that, whilst the adjective 'necessary', within the meaning
§ 2, is not synonymous with 'indispensable' (cf., in Article 2 §2 and 6 § 1, the words 'absolutely necessary' and 'strictly necessary' and, in Article 15 § 1, the phrase 'to the extent strictly required by the exigencies
the situation'), neither has it the flexibility
such expressions as 'admissible', 'ordinary', (cf. Article 4 § 3), 'useful' (cf. the French text
the first paragraph
Protocol No. 1), 'reasonable' (cf. Articles 5 3 and 6 § 1) or 'desirable'. Nevertheless, it is for the national authorities to make the initial assessment
the reality
the pressing social need implied by the notion
'necessity' in this context. Consequently, Article 10 § 2 leaves to the Contracting States a margin
appreciation. This margin is given both to the domestic legislator ('prescribed by law') and to the bodies, judicial amongst others, that are called upon to interpret and apply the law in force. 49. Nevertheless, Article 10 § 2 does not give the Contracting States an unlimited power
appreciation. The Court, which, with the Commission, is responsible for ensuring the observance
those States' engagements (Article 19), is empowered to give the final ruling on whether a 'restriction' or 'penalty' is reconcilable with freedom
expression as protected by Article 10. The domestic margin
appreciation thus goes hand in hand with a European supervision. Such supervision concerns both the aim
the measure challenged and its 'necessity'; it covers not only the basic legislation but also the decision applying it, even one given by an independent court. In this respect, the Court refers to Article 50
the Convention ('decision or measure taken by a legal authority or any other authority') as well as to its own case-law (Engel and others judgment
8 June 1976, Series A no. 22, pp. 41-42, § 100). The Court's supervisory functions oblige it to pay the utmost attention to the principles characterising a 'democratic society'. Freedom
expression constitutes one
the essential foundations
such a society, one
the basic conditions for its progress and for the development
every man. Subject to paragraph 2
, it is applicable not only to 'information' or 'ideas' that are favourably received or regarded as inoffensive or as a matter
indifference, but also to those that
fend, shock or disturb the State or any sector
the population. Such are the demands
that pluralism, tolerance and broadmindedness without which there is no 'democratic society'. This means, amongst other things, that every 'formality', 'condition', 'restriction' or 'penalty' imposed in this sphere must be proportionate to the legitimate aim pursued. From another standpoint, whoever exercises his freedom
expression undertakes 'duties and responsibilities' the scope
which depends on his situation and the technical means he uses. The Court cannot overlook such a person's 'duties' and 'responsibilities' when it enquires, as in this case, whether 'restrictions' or 'penalties' were conducive to the 'protection
morals' which made them 'necessary' in a 'democratic society'." It is useful to refer, too, to the following decisions
the European Commission
Human Rights: In Application No. 6988/75, X v. Federal Republic
Germany (See Decisions and Reports
the Commission, Vol. 3, p. 159), the relevant facts were found to be as follows (at p. 160): "Applicant convicted
defamation by the county court
L. and sentenced to a fine
300DM. He had in fact strongly criticised the Mayor
X. in a press article headed 'Tyranny and Democracy'. In particular, he had accused him
fraud and
handling stolen goods". The Commission in its decision (
September 29, 1975) stated the following (at p. 161): "The applicant finally complains
restrictions imposed on the exercise
his right to freedom
expression as envisaged in Article 10
the Convention. This provision secures to everyone the right to freedom
expression. In the present case the Commission is
the opinion that there has been an interference with the applicant's freedom
expression, in the meaning
It considers however that in the circumstances
the case such an interference was fully justified under the terms
paragraph 2
article 10 as being 'a measure necessary for the protection
the reputation
others'. An examination
this complaint by the Commission leads therefore to the conclusion that Article 10 has not been violated. This part
the application must consequently be declared inadmissible as being also manifestly ill-founded in the meaning
the Convention". In Application No. 7805/77, X. and Church
Scientology v. Sweden (see Decisions and Reports, Vol. 16, p. 68), the relevant facts were found to be as follows (at p. 69): "The application was introduced by the 'Church
Scientology' in Sweden and by X., one
the ministers. In 1973, the applicant church placed an advertisement in its periodical which is circulated amongst its members which read as follows: 'Scientology technology
today demands that you have your own E-meter. The E-meter (Hebbard Electrometer) is an electronic instrument for measuring the mental state
an individual and changes
the state. There exists no way to clear without an E-meter. Price: 850 CR For international members 20% discount: 780CR.' The applicants define the E-meter as follows 'A religious artifact used to measure the state
electrical characteristics
the 'static field' surrounding the body and believed to reflect or indicate whether or not the confessing person has been relieved
the spiritual impediment
his sins'. Having received various complaints, the Consumer Ombudsman (Konsumentombudsmannen), basing himself on the 1970 Marketing Improper Practices Act (Lagenomotillborligmarknadsforing) introduced an action before the Market Court (Marknadsomstolen) requesting an injunction against the applicants prohibiting the use
certain passages in the advertisement for the E-meter. After having heard expert witnesses, the Court granted the injunction. A petition for the re-opening
the case (Resning was rejected by the Supreme Court." The Commission in its decision (
May 5, 1979) stated the following (at p.p. 72-74): "
expression. This right includes freedom to hold opinions and to receive and impart information and ideas without interference by a public authority. In the Commission's view the applicants are not prevented from holding their opinion on the religious character
the E-meter. However, they were imparting ideas about that opinion and the Market Court prohibited them from continuing to use a certain wording. This was an interference with the applicants' freedom to impart ideas under Article 10
these freedoms as are prescribed by law and are necessary in a democratic society, inter alia, for the protection
health or morals and for the protection
the reputation or rights
others. In assessing whether the requirements
Human Rights, 7 December 1977, paras. 42-59). It observes first, therefore, that the basis in law for the injunction issued by the Market Court was the Marketing (Improper Practices) Act 1970. Consequently, the Commission finds that the restriction imposed on the applicants' freedom to impart ideas was prescribed by law within, the meaning
the Convention. The Marketing Act aimed at protecting the rights
consumers. This aim is a legitimate aim under Article 10
the rights
others in a democratic society. The remaining question to be examined concerns the 'necessity'
the measure challenged by the applicants. It emerges from the case law
the Convention organs that the 'necessity' test cannot be applied in absolute terms, but required the assessment
various factors. Such factors include the nature
the right involved, the degree
interference, i.e. whether it was proportionate to the legitimate aim pursued, the nature
the public interest and the degree to which it requires protection in the Circumstances
the case. In considering this question the Commission again attaches significance to the fact that the 'ideas' were expressed in the context
a commercial advertisement. Although the Commission is not
the opinion that commercial 'speech' as such is outside the protection conferred by Article 10
protection must be less than that accorded to the expression
'political' ideas, in the broadest sense, with which the values underpinning the concept
freedom
expression in the Convention are chiefly concerned (see Handyside Case, supra cit, para. 49). Moreover, the Commission has had regard to the fact that most European countries that have ratified the Convention have legislation which restricts the free flow
commercial 'ideas' in the interests
protecting consumers from misleading or deceptive practices. Taking both these observations into account the Commission considers that the test
'necessity' in the second paragraph
should therefore be a less strict one when applied to restraints imposed on commercial 'ideas'. The Commission notes that the applicants' periodical in which the advertisement appeared was circulated in 300 copies to members
the Church. However the Market Court concluded that the advertisements were designed to stimulate the interests both
persons outside the Church as well as its own members in acquiring an E-meter and were thus designed to promote its sales. In arriving at this conclusion the Court had regard to the following factors:
an E-meter to members only or priests only or those studying for the priesthood; 3. in the advertisements readers are encouraged to seek 'international membership' which has the advantage
entitling such members to lower prices for books, tape recordings and E-meters. Such statements were not limited either to priests or those studying for the priesthood. Finally the Market Court deemed that the advertisements were misleading and that it was important to safeguard the interest
consumers in matters
marketing activities by religious communities arid especially in the presentcase where the consumer would be particularly susceptible to selling arguments. The Commission considers that in principle it should attach considerable weight to the above analysis and findings
the Market Court. The Commission further notes that the Market Court did not prohibit the applicants from advertising the E-meter and did not issue the injunction under penalty
a fine. The Court chose what would appear to be the least restrictive measure open to it, namely the prohibition
a certain wording in the advertisements. Consequently, the Commission cannot find that the injunction against the applicants was disproportionate to the aim
consumer protection pursued. Having regard to the above, the Commission therefore accepts that the injunction granted by the Market Court was necessary in a democratic society for the protection
the rights
others, i.e. consumers". In Application No. 8010/77, X. v. United Kingdom (see Decisions and Reports, Vol. 16, p. Viol), the relevant facts were found to be as follows (at pp. 101-102): "From 1971 to 1975 the applicant was a teacher in a public secondary school, in charge
English and mathematics. He received warnings from the headmaster for having given religious education during class hours, having held 'evangelical clubs' on the school premises and for having worn stickers carrying religious and antiabortion slogans on his clothes or brief case. After numerous interviews and exchanges
notes with the headmaster in the course
which the applicant, setting out his strong beliefs, declared himself unwilling to change his behaviour, his dismissal was decided by the competent County authority. The applicant's appeals to the Employment tribunals were unsuccessful". The Commission in its decision (
March 1, 1979) stated the following (at p.p. 102-103): "Nevertheless the Commission note that an important factor in the dispute between the applicant and the head-master concerned the latter's instruction to the applicant not to advertise by posters or stickers on school premises his political, moral or religious beliefs. The Commission considers that this instruction constitutes an interference with the applicant's freedom
expression. However the Commission is
the opinion that school teachers in non-denominational schools should have regard to the rights
parents so as to respect their religious and philosophical convictions in the education
their ,children. This requirement assumes particular importance in a non-denominational school where the governing legislation provides that parents can seek to have their children excused from attendance at religious instruction and further that any religious instruction given shall not include any catechism or formulary which is distinctive
any particular religious denomination (see Education Act 1944, Sections 25 and 26). In the present case the posters and 'stickers' objected to, reflected the applicant's strong Evangelical beliefs and his opposition to abortion. The Commission notes from the observations
the respondent Government that some
the 'stickers' worn on the applicant's lapel and on his briefcase were considered
fensive to female members
staff and disturbing to children. Having regard to the particular circumstances
the case, the Commission considers that the interference with the applicant's freedom
expression is justified as being necessary in a democratic society for the protection
the rights
others within the meaning
, paragraph 2,
the Convention". In the light
all the foregoing, and on the basis
a correct approach to the nature
the right safeguarded by means
paragraphs
our Constitution-and, correspondingly, by paragraph
the European Convention on Human Rights-I have no difficulty in sharing the opinion
the Supreme Court that the right safeguarded by Article 19
possible unconstitutionality
section 50
Cap.154, because it renders criminal, in certain circumstances, specified categories
false statements and if false statements are not protected by Article 19 then a provision such as the said section 50
the Supreme Court that section 50
the State as institutions
Government, I think that the constitutionality
the said section 50
to "the security
the Republic", "the constitutional order" "the public safety" and the "public order", but, also, because
the reference therein to "the public morals" and to "the protection
the reputation or rights
others"; I have formed this view in the light, inter alia,
the judgment
the European Court
Human Rights in the Handyside case, supra, and
the decisions
the European Commission
Human Rights in the cases
X. Federal Republic
Germany, X. and Church
Scientology v. Sweden and X. v. United Kingdom, supra. April 9, 1982. HADJIANASTASSIOU J.: I have had the advantage
reading the draft judgment
Mr. Justice Pikis. As I respectfully agree with the reasons given by him, 1 would only add that our legislature should find the opportunity to streamline the wording
our law in accordance with the interpretation adopted in this judgment. April 26, 1982. A. LOIZOU J.: I have had .the advantage
reading the elaborate judgments
Pikis, J., and Triantafyllides, P., containing their reasons in support
the unanimous opinion
the Supreme Court given on March 29th, 1982,regarding the two questions
law which were reserved by the District Court
Nicosia and I find that the matter has been so adequately dealt with by my two brothers that there is nothing I can usefully add, except for some observations that I regard essential. The first is that in view
the close similarity between paras. 1, 2 and 3
our Constitution and paras. 1 and 2
the European Convention on Human Rights
1950, which is applicable in Cyprus since its ratification by the European Convention on Human Rights (Ratification) Law, 1962 (Law No. 39
1962), it is always advisable in interpreting the provisions
to have regard to the caselaw
the appropriate bodies entrusted with its international application, namely the European Commission and the European Court,
Human Rights, in order to achieve, wherever there is room, the desired uniformity
the law among the European States bound by the said Treaty. Secondly, the expression referring to the organs
the State in section 50
the Code covering the institutions
Government, as found by this Court, may be applicable in an appropriate case whenever an attack is made on the person
a holder
fice tending to undermine or impair, there through, the institution he represents. This must be more so in the case
the Head
State and top functionaries, as it may be difficult or impossible to differentiate between the organ as an institution
Government and the person holding that
fice. Moreover, the permissible restrictions to be found in para. 3
, may also cover cases which come within the ambit
the protection
the reputation or the rights
others. Ending I wish to reiterate that questions
law must be reserved with the utmost care and caution and if absolutely necessary for the determination
material points and at the appropriate stage
a trial. April 26, 1982. STYLIANIDES J.: I have had the advantage
reading in advance the judgment delivered by Mr. Justice Pikis in which there appear his reasons for the opinion
the Court. I agree with this judgment and have nothing useful to add. April 27, 1982; MALACHTOS J.: I agree with the reasons given in the judgment
Pikis, J., in support
the unanimous decision
this Court. I am also in agreement with the observations made by A. Loizou, J., in his judgment and I have nothing else to add. March 29, 1982; TRIANTAFYLLIDES P.: The case is now remitted to the District Court for further proceedings in the light
the opinion
the Court. Order accordingly. cylaw.org: Από το ΚΙΝOΠ/CyLii για τον Παγκύπριο Δικηγορικό Σύλλογο
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