Georghiou, a member of the House of Representatives. The offences in respect of which leave was sought were those of forgery and uttering a forged document and were allegedly committed by the respondent in his professional capacity as an advocate. At the commencement of the hearing of the application Counsel for the respondent raised a preliminary objection that the application was not validly presented because: (a) It has not originated and has not been made by a competent authority i.e. the Attorney-General but by the Deputy Attorney-General whose appointment to this post was invalid as having been made in contravention of Articles 112, 113 and 114 of the Constitution. At the conclusion of his address the Deputy Attorney-General applied for leave to call the investigating officer in this case in order to give evidence orally in rebuttal of the allegation, in the affidavit of the respondent dated 23.12.82, that the police investigation against him was politically motivated; and for leave to cross-examine the respondent regarding his said allegation. Held, (I) on the preliminary objection, Hadjianastassiou and Pikis, JJ. dissenting:
Application granted. Cases referred to: Xenophontos v. Republic, 2 R.S.C.C. 89; Republic v. Rodosthenous, 1961 C.L.R. 152; Attorney-General of the Republic v. Ibrahim, 1964 C.L.R. 195; HjiLiasi v. Pistola and Another, 4 R.S.C.C. 21; Great Northern Rly Co. v. Eastern Countries Rly Co.
Paragraph 2 of the said Article 83 provides, inter alia, that "A Representative cannot, without the leave of the High Court,"-now of the Supreme Court-"be prosecuted, arrested or imprisoned so long as he continues to be a Representative". The present application is signed by Mr. L. Loucaides as Deputy Attorney-General of the Republic; and it has been contended by counsel for the respondent that the appointment of Mr. L. Loucaides to the post of Deputy Attorney-General is invalid as having been made in contravention of Articles 112, 113 and 114 of the Constitution. As it appears from the Official Gazette of the Republic, dated 19th September 1975 (Notification No. 1440), Mr. Loucaides was appointed as from the 10th September 1975, by virtue of Article 112.1 of the Constitution, by the President of the Republic, as Deputy Attorney-General of the Republic (Βοηθός Γενικού Εισαγγελέως της Δημοκρατίας) My brother Judges A. Loizou J., Malachtos J., Loris J., Stylianides J. and myself are of the opinion that: (a) As the appointment by the President of the Republic of Mr. L. Loucaides to the post of Deputy Attorney-General of the Republic appears, on the face of the aforementioned publication in the Official Gazette, to have been made in the exercise of the powers vested in the President of the Republic by virtue of Article 112.1 of the Constitution, and, also, as the said appointment has been made in circumstances, which justify, in our opinion, the making of such appointment on the basis of the "law of necessity" (as expounded in, inter alia, the cases of The Attorney-General of the Republic v. Ibrahim, 1964 C.L.R. 195, Ioannides v. The Police,
of the Constitution, such as the present one, this Court pronounced on the validity of the extension of the services of the Attorney-General by the Council of Ministers,
the provisions of the Pensions Law, Cap. 311, as amended by the Pensions (Amendment) Law, 1967 (Law 9/67), in circumstances not involving at all the application of the "law of necessity". (
the Constitution, it was submitted on behalf of the respondent, the decision to prosecute a member of the House of Representatives vests exclusively in the Attorney-General. B) Neither the Attorney-General can delegate the exercise of this power nor can his assistant, if validly appointed, has any power
the Constitution to act autonomously in the matter. So, the application pending before us does not originate from the authority competent
the Constitution to move the Supreme Court for the removal of the immunity. Hence, it is ill-founded and ought to be dismissed. C) The application is unsustainable because it is signed by an officer unknown to the law-the Assistant Attorney-General. The Constitution provides, it was argued by Mr. Christofides, for the post of Assistant to the Attorney-General, a submission born out by the Greek text of the Constitution (see Articles 112 and 114 of the Constitution). Much of the argument in respect of this submission, turns on semantics and I regard it as inconsequential. Associated with this objection, is the one following, turning on the status of Mr. Loucaides and, the validity of his appointment to the post of Assistant to the Attorney-General to which he was appointed by the President of the Republic on 10.9.1975, gazetted on 19.9.1975
Notification
the Constitution to set in motion the machinery for the removal of the immunity and the prerequisites to it. If the answer is in the negative and, we hold that the application before us is ill-founded, that should be the end of the matter. Otherwise, we shall have to examine a second question,
.2, to initiate "any proceedings for an offence against any person in the Republic". The powers conferred by Article 113.2 vest exclusively in the Attorney-General. No one other than the Attorney-General can assume the powers vested by Article 113.2. His deputy can only assume these powers in his absence or during his temporary incapacitation. It is common ground that the Attorney-General is the authority competent to initiate proceedings for the leave of the Supreme Court to lift the immunity of a Representative. Both, Mr. Loucaides and Mr. Christofides, subscribed to this view. The post of the Attorney-General
the Cyprus Constitution is unique and, in many respects his duties are of a quasi judicial nature. He serves
the same terms and conditions as Judges of the Supreme Court and must have the same qualifications (see Article 112.4 of the Constitution). He has security of tenure
the Constitution, as Judges of the Supreme Court and his position is independent from the executive or any department of State. In exercising his powers to institute a prosecution, as well as in any other matter pertaining to his duties, public interest is the only consideration that should guide him in the discharge of his duties. The quasi judicial nature of his functions was recognised by the Supreme Constitutional Court, as an indisputable fact, in CharilaosXenophontos v. The Republic (Minister of Interior), 2 R.S.C.C.
The pertinent question is, whether the present application originated from the authority entrusted by the Constitution to move the machinery for the lifting of the immunity as a result of a proper exercise of the powers vested thereunder. The application is, on the face of it, inconclusive as to its origin. It is made in the name of the Attorney-General but signed by Mr. Loucaides
the capacity of Assistant Attorney-General. It is clear from the provisions of Article 113.2 that no one can act autonomously thereunder, except for the Attorney-General himself. To resolve doubts as to the origin of the application, Mr. Loucaides considered it necessary to produce the statement of the Attorney-General of 27th December, 1982, to which reference has already been made. Does this statement validate the proceedings? In my judgment the answer is in the negative for the reasons following: The statement of the Attorney-General of 27.12.1982 discloses that the Attorney-General never studied the matter
consideration personally and, rested his decision, as he states, on the assurances of two officers of his Department, Mr. Loucaides and Mr. Evangelou. More significantly still, neither the Attorney-General nor his delegates in the matter have applied their mind to whether it is in the public interest to apply for leave to lift the immunity of the Representative in question. Such a decision, would entail examination, not only of the nature of the offence and the evidence in the hands of the police tending to support it, but also to other considerations equally important, bearing on the safeguard of parliamentary immunity, in the light of what was explained earlier in the judgment. In Greece, the case against a Parliamentarian and its implications on the privileges of the House, is scrutinized, minutely one may say, by the Justice Committee of the House, before reporting to the House for a consideration of the issue. In this case, the only affirmation we have-that it is in the public interest to lift the immunity of the Representative-comes from paragraph 7 of the affidavit of Mr. YiannisAdradjiotis, a police officer, accompanying and supporting the application. In fact, it is explicitly stated, on the face of the application, that the motion for the leave of the Supreme Court to lift the immunity of the Representative, is founded on the facts set out in the aforementioned affidavit of Mr. Adradjiotis. There is no statement before us, from the Attorney-General, that it is in the public interest to lift the immunity of Mr. Georghiou, an indispensable prerequisite for the valid initiation of proceedings for leave to lift the immunity of a Representative. To act on the assertion of anyone other than the Attorney-General, that it is in the public interest to lift the immunity, would constitute a serious deviation from the Constitution and,
mine the effectiveness of the immunity and the purposes for which it was granted, outlined earlier in this judgment. In my judgment, a personal decision by the Attorney-General, that it is in the public interest to lift the immunity of a Representative, is an indispensable prerequisite for the valid initiation of proceedings for the leave of the Supreme Court. Without it, the premises of the application collapse and, in my judgment, no valid application is pending before us. This being my judgment, it becomes unnecessary to go into any other issue or decide about the validity of the appointment of Mr. Loucaides. I entertain serious reservations whether it is at all possible to resolve the issue incidentally in the context of the present proceedings. HADJIANASTASSIOU, J.: The application for the leave of the Supreme Court to withdraw the immunity of Georghios A. Georghiou, a member of the House of Representatives, was in the first place raised by a person other than the Attorney-General of the Republic the only person competent
the Constitution to move the Supreme Court for the purpose. The written statement of the Attorney-General of 27th December, 1982, confirms that he never personally applied his mind to the matter
consideration and never decided that it is in the public interest that proceedings should be taken for the lifting of the immunity. Indeed this is not a matter of formality but one of substance going to the root of the proceedings. Consequently I agree with Pikis J. that no valid application is pending before the Court and associate myself with what is stated in his judgment. I am of the opinion that nothing further may be usefully added. 14th January, 1983. The following rulings were given. Triantafyllides P. At the conclusion of his address the Deputy Attorney-General of the Republic, Mr. Loucaides, applied for leave to call the investigating officer in this case, YiannisAdradjiotis, in order to give evidence orally in rebuttal of the allegation, in the affidavit of the respondent dated 23rd December 1982, that the police investigation against the respondent was politically motivated. Mr. Loucaides applied, also, for leave to cross-examine the respondent regarding his said allegation. Mr. Christophides, on behalf of the respondent, objected to both applications of Mr. Loucaides. At this stage of these proceedings and in view of their nature, as well as in the light of all the material already before us, we are, as at present advised, not inclined to grant the aforesaid applications of Mr. Loucaides. PIKIS, J. The decision of the Supreme Court, I refer to the majority decision of the 13th January, 1983 on the validity of the application, establishes, as I
stand it, that a valid application is pending before the Supreme Court for leave to remove the immunity of the respondent. The majority decision entails that the authority competent
the Constitution i.e. the Attorney-General acting in a quasi-judicial capacity has scrutinized every aspect of the case, including motivations for the prosecution, and concluded that the contemplated prosecution and the application for leave to prosecute is not fraught with anyulterior motive and ought to proceed in the public interest. It is upon this premise that the case must proceed in view of the majority decision despite the judgment of the minority to the effect that the application is invalid. In view of the above it is for the Supreme Court to decide whether immunity should be lifted on a consideration of the nature of the offence and cognate matters and whether the offence or offences were committed directly or indirectly in connection with the duties of the respondent as a member of the House of Representatives. In the light of the majority decision we are bound to presume and hold that the matters in respect of which an application is pending for oral evidence i.e., oral evidence from the investigating officer Mr. Adradjiotis and the cross-examination of the respondent, have been examined by the Attorney-General acting in a quasi-judicial capacity leading to a decision that the application for leave is not attended by any ulterior motives or arbitrariness. Consequently I agree with my brethren that the application must be dismissed. Applications dismissed. 23rd February, 1983. The following judgments were read. TRIANTAFYLLIDES P. By means of the present application, which has been made by the Attorney-General of the Republic, but was signed and argued on his behalf by the Deputy Attorney-General of the Republic Mr. L. Loucaides, there is being sought the leave of this Court,
Georghiou, who is a Member of the House of Representatives for the Larnaca constituency and who belongs to the Democratic Rally party. Article 83 of the Constitution reads as follows: "ΑΡΘΡΟΝ 83
the aforesaid Article 83, is being exercised now by our Supreme Court, by virtue of the provisions of sections 9 and 11 of the Administration of Justice (Miscellaneous Provisions) Law, 1964 (Law 33/64). The present application was filed on 15th December 1982 and an opposition thereto was filed on 23rd December
Count 1 changes the respondent with the offence of forgery, contrary to sections 331 and 335 of the Criminal Code, Cap. 154; and in the particulars in relation to such count it is stated that the respondent, in August 1982, in Larnaca, with intent to defraud, made a document purporting to be a photocopy of a deposit by him to the Popular Bank Ltd. of an amount of C£3,454 to the benefit of a certain Doris Savva, whereas in fact no such deposit was made and the document in question is false because such document was never issued by, or signed on behalf, of the said Bank. Count 2 charges the respondent with uttering, contrary to section 339 of Cap. 154, the document to which count 1 refers. Count 3 charges the respondent with forgery of an official document, contrary to sections 20, 331, 335 and 337 of Cap. 154, and in the particulars in relation to such count it is stated that, between 30th August 1982 and 12th October 1982, in Larnaca,with intent to defraud, the respondent made a document purporting to be a photocopy of a letter of the Central Bank of Cyprus, dated 30th August 1982, addressed to the Popular Bank Ltd. and communicating to it the permission of the Central Bank, in favour of the respondent, to remit abroad, to Birmingham in the United Kingdom, the amount of C£3,705 to Doris Savva, whereas in fact such letter is false because it was never written by, or signed on behalf of, the Central Bank of Cyprus. Count 4 charges the respondent with uttering, contrary to sections 20, 339, 335 and 337 of Cap. 154, the document to which count 3 refers. The aforementioned two affidavits of Adradjiotis and Kalavanas set out facts on which the particulars stated in relation to the counts in the charge are based. In his affidavit the respondent denies having committed the offences with which it is intended to charge him, or any other offence at all. At the commencement, on 28th December 1982, of the hearing of the present application this Court has had to deal with a preliminary issue which was raised by counsel for the respondent regarding the validity of the filing of the present application by the Deputy Attorney-General; and on 13th January 1983 it was decided, by majority, that such application had been properly filed. As it appears from a comparative study of other Constitutions the competence to grant leave of the nature sought in the present case is vested normally in the Legislature and not in the Judiciary, as it has been done by means of Article 83.2, above. The nature of the said competence is described in, inter alia, Sgouritsas on Constitutional Law ("Σγουρίτσα, Συνταγματικόν Δίκαιον"), 3rd ed.
.2 of the Constitution, it might be said that it is obvious from the wording of such provision that an application of this nature is not to be automatically granted in all instances; and, in deciding whether to grant it or refuse it, there must be taken into account the object of the relevant competence as well as the nature of the immunity from prosecution of a Member of the House of Representatives, the requirements of public interest in each particular case, the nature and seriousness of the offence in respect of which leave is sought to prosecute and the particular circumstances of each individual case. Furthermore, it has to be examined whether the prosecution is politically motivated, as this is a ground on which leave to prosecute may be refused. On the other hand, I am of the opinion that, in dealing with an application such as the present one, it is not open to this Court to decide if there exists sufficient evidential material establishing the guilt, in respect of the offences concerned, of the Member of the House of Representatives whom it is intended to prosecute. Consequently, all that this Court can examine in this connection in the present instance is whether, on the basis of the material placed before the Court, the prosecution of the respondent in the present case is prima facie warranted in law and in fact, in the sense that it is not arbitrary, and not whether his conviction on the strength of such material would be warranted prima facie or at all. The offences in respect of which it is sought to prosecute the respondent appear to be offences involving dishonesty and moral turpitude, in the sense of Article 64(c) of the Constitution and, so, if the respondent is convicted of such offences then,
(c) of the Constitution, his seat in the House of Representatives would become vacant. Since, therefore, it is sought to prosecute the respondent in respect of the commission of offences which, if he is found guilty of them, would entail his losing his seat in the House of Representatives, the proper application of Article 71 of the Constitution would be nullified if we refuse, without good justification, leave to prosecute the respondent now and, thus, defer his prosecution until the expiry of his term of office as a Member of the House of Representatives. It seems, indeed, to me that this is one of those cases in which, in view of the provisions of Article 71 of the Constitution, it would, if all the other relevant considerations permit such a course, be in the public interest to grant leave to prosecute the respondent, because the granting of such leave would not serve only the general public interest which requires that persons charged with criminal offences should be tried as soon as possible, but, also, the particular public interest involved in not allowing somebody to continue to be a Member of the House of Representatives if he has committed offences which deprive him of the right to continue to be a Member of the House of Representatives. Of course, in stating the above, I am not at all losing sight of the fact that the respondent is, at this stage, entitled, like any other person, to be presumed innocent until proved guilty according to law. As has been clearly stated by the Deputy Attorney-General it is not to be alleged by the prosecution that the respondent intended to defraud the Central Bank of Cyprus or the Popular Bank Ltd., but that he only intended to defraud his client, Doris Savva, and persons acting on her behalf. Thus, the offences in question were, allegedly, committed by the respondent only in the course of his professional relationship as an advocate with his client, Doris Savva, and are not, in any way, directly or indirectly, connected with his functions as a Member of the House of Representatives or with his status as a politician. In the circumstances, it is not possible to hold that the prosecution of the respondent is politically motivated. The fact that the respondent belongs to a party which is in opposition to the Government and that, as stated by him in his affidavit, he is one of the vociferous spokesmen of such party, do not render politically motivated his prosecution in respect of conduct of his totally unconnected with his political activities. Having given to this case anxious consideration, and having exercised extreme caution, as this Court should always do in carrying out its task
.2 of the Constitution, I have, in the light of all the foregoing considerations, reached the conclusion that this is a proper instance in which to grant leave to prosecute the respondent as applied for. HADJIANASTASSIOU J.: I agree with the judgment of Pikis, J., and share the same reservations about the validity of the proceedings. A. LOIZOU J.: The elaborate judgments of my brother Judges Triantafyllides, P., and Pikis, J., which I have had the advantage of reading in advance, have made my task easier as their extensive reference to the factual basis of the case and the citation of the constitutional provisions relevant to the determination of the issues arising in these proceedings permit me considerable brevity in giving my reasons for arriving at the conclusion that this is a proper case to grant leave
The application to that effect has been made by the Attorney-General of the Republic whose office has been introduced into the legal system of Cyprus soon after it came
British rule and was preserved by the Constitution. By it he is an independent officer and his powers and functions are set out in Articles 112 to 114, both inclusive. In addition to his other duties, the Attorney-General of the Republic has
.2, "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". The qualifications for appointment are the same as those of, and he can be removed only on similar grounds as, a Judge of the Supreme Court. The acts and decisions of the Attorney-General cannot be the subject of judicial control. Whilst on this point it may also be mentioned that the Police, which is responsible for carrying out criminal investigations, is subject to the instructions of the Attorney-General in view of a specific provision in the Police Law and though the Police comes
the Ministry of the Interior, in so far as its activities relate to prosecution, the Attorney-General is the competent authority to give directions. The safeguards to his office enshrined in the Constitution "are conducive to the exercise of his duties excluding the possibility or interference, or influence on behalf of the Executive. This is a reflection of the paramount importance attached in the independence of the Judiciary" (see Loizou and Pikis, Criminal Procedure in Cyprus, p. 4). The reason that the exercise by the Attorney-General of his authority to institute criminal proceedings is not within the ambidof Article 146 of the Constitution, is because they are closely related to judicial proceedings (See Xenophontos, 2 R.S.C.C., 89).
the established tradition and practice followed by, Attorney-Generals holding office and exercising their duties
the Common Law system, the decision to prosecute which is of paramount importance, has always been taken when the person doing so has satisfied himself that the evidence itself can justify proceedings. In such a case the prosecutor, in this case the Attorney-General, must then consider whether the public interest requires a prosecution. The sufficiency of the evidence is one of the factors that have to be born in mind. They are those who feel that where the evidence is sufficient proceedings ought to follow, but the most preferred view is the one expressed in a House of Commons debate by Lord Shawcross when he was Attorney-General, and subsequently endorsed by his successors:- "It has never been the rule in this country-I hope it never will be-that suspected criminal offences must automatically be the subject of prosecution. Indeed the very first Regulations
which the Director of Public Prosecutions worked provided that he should.....prosecute 'wherever it appears that the offence of the circumstances of its commission is or are of such a character that a prosecution in respect thereof is required in the public interest'. That is still the dominant consideration". He continued by saying that regard must be had to "the effect which the prosecution, successful or unsuccessful as the case may be, would have upon public morale and order, and with any other considerations affecting public policy". Public interest in the sense of Article 113.2 of the Constitution is a wide subject to be exhaustively discussed here. Suffice it to say that among its constituent elements are the nature and gravity of the offence including the penalty provided for and likely to attract. Once, therefore, such a decision to prosecute exists, the Court has to decide whether it will exercise its discretion
.2 of the Constitution to grant or refuse leave for the prosecution, arrest, or imprisonment of a representative who continues to be such. I do not intend to attempt a definition of all the possible criteria that should be followed in every conceivable case for the exercise of this Court's discretion in such matters. I shall confine myself to the reasons and the criteria that have influenced my decision in reaching my conclusion in the present case. They are first the nature of the offences which no doubt involve an element of dishonesty and moral turpitude, directly connected with his professional work, and completely outside the sphere of his activities in the House of Representatives. The second factor is the gravity of the offence, as indicated also by the sentence provided by Law. The intended charges are based on section 335, which carries a term of imprisonment for three years and, sections 339 and 337 of the Criminal Code, which carries a term of imprisonment of ten years in respect of official documents and section 39 for uttering the thing in question. Finally and this is connected with the nature of the offences, which involve, as already stated, an element of dishonesty and moral turpitude, in the sense of Articles 64(
one article, the application of the provisions of another article should not really be unduly impeded. For all the above reasons, leave to prosecute the respondent is granted as applied for. MALACHTOS J.: I had the advantage to read in advance the judgment just delivered by the President of the Court and I must say that I agree with the reasons given and the conclusion reached in this judgment, and I have nothing useful to add. LORIS J.: I had the advantage and privilege of reading in advance the judgment of the learned President of the Court and I am in full agreement with it. I have nothing useful to add. STYLIANIDES J.: I had the advantage of reading in advance the judgment of the learned President with which I agree. The parliamentary immunity safeguarded by Article 83 of the Constitution is not for the advantage of individual members but in order to enable the legislative body unhindered to exercise its functions. A decision by the applicant that it is in the public interest that leave be given to prosecute a parliamentarian is not a prerequisite to such an application. The sole arbiter on the matter is the Supreme Court. The power and responsibility for the ultimate decision is on this Court, after consideration of the material before it. Leave to prosecute in no way derogates or affects the power of the criminal court. The laws governing criminal proceedings and the trial that follows such leave, which is in no way dissimilar with any other criminal trial, are applied. I am satisfied that the instant case is not one of political persecution. The application is not politically motivated, notwithstanding any possible repercussions on the political career of the respondent or on his political party-such repercussions, if any, need not concern this Court. I take into consideration the nature of the offences. They are wholly unconnected with respondent's activities as a Member of the legislature. The offences are grave. Indeed, conviction entails unseating the respondent from the House. It is not the object of the constitutional provision of Article 83 to retain in the House of Representatives a person who might not be there had the ordinary course of law been followed. Leave for prosecution of the respondent is granted as applied for. PIKIS J.: We are required to take cognizance of an application of the Attorney-General, for the lifting of the immunity of a Member of the House of Representatives-GeorghiosAfxentiouGeorghiou-a Member for the Larnaca district, hereafter referred to as the Representative. Leave is sought to put him on trial on two counts of forgery and two counts of uttering the same two forged documents. One of the two documents allegedly forged, is said to be an official document proclaimed as a document of the Central Bank of Cyprus, issued
the Exchange Control Law and, the second, a commercial bank deposit receipt. Before embarking upon an examination of the merits of the application, the Supreme Court set down for determination a preliminary issue affecting the validity of the proceedings. After hearing argument, we deliberated on whether we had been properly moved to examine an application for leave to prosecute the Representative. The Court was divided in its view, on the validity of the proceedings. The majority of the Court-brother Judges Triantafyllides, P., A. Loizou, Malachtos, Loris and Stylianides, JJ.-held the application to be valid as a proper emanation from the authority competent
the Constitution to move the Court to withdraw the immunity of a Representative, i.e. the Attorney-General and, as such, the application was cognizable by the Supreme Court. Brother Judge Hadjianastassiou, and myself, were of a contrary opinion for the reasons indicated in my decision of 13th January,
the Constitution to set in motion the process for a criminal prosecution and any matters related thereto; such authority is only the Attorney-General. The submission of Mr. Loucaides on the subject is incompatible with the wording of Article 83, notably the phrase "competent authority", an expression hardly compatible with a right on the part of a complainant in a criminal case to set in motion machinery for the removal of the immunity of a Representative. My reservations must, for the reasons above given, be put on one side. I must heed the majority judgment and, upon that premise, examine the application on its merits, i.e. whether leave should be granted, in the light of the material before the Court, for the prosecution of the Representative. As I indicated in a ruling on 14.1.1983 following the resumption of the hearing after the majority decision, we must proceed on the basis that the Attorney-General, acting in a quasi judicial capacity, has moved the Court to lift, in the public interest, the immunity of the Representative, having first satisfied himself that recourse to criminal process is not fraught with any ulterior motives antagonistic to the institution of the immunity from prosecution of Members of the House of Representatives. Therefore, we must proceed with an examination of the merits of the application and decide whether immunity should be lifted in the light of the material before the Court, consisting of- (
This will induce certainty in the law, on a subject of great constitutional importance. The need for guidance is all the greater because of the uniqueness of the procedure adopted in Cyprus, whereby the exercise of the jurisdiction for the withdrawal of immunity is entrusted to the Courts, as opposed to the House of Representatives, which is the case with every other country, to which reference was made. (See, inter alia, Article 62 of the 1975 Greek Constitution; Article 26 of the French Constitution of 1958 (revised in 1963); Article 46 of the basic law of the Federal Republic of Germany; Article 68 of the Italian Constitution (revised in 1967)). Some juridical guidance may be obtained from the works of Greek authors on constitutional law, postulating the criteria for the exercise of the power by the popular assembly. (See, N. I. Saripolos-Constitutional Law, Vol. 1, 1874, p. 441, para. 524 et seq.; N. I. Saripolos-Constitutional Law, Vol. 4, 1875, p. 291 et seq.; Raikos on Lessons on Constitutional Law, Vol. 1, 1976, p. 193 et seq.; Kyriacopoulos-Greek Constitutional Law, 4thed., p. 289 et seq. and, Sgouritsas on Constitutional Law, Vol. 1,1959, p. 294 et seq.). The subject is also illuminated by debates in the Greek parliament on applications for the removal of the immunity of Representatives. (See, Official Minutes of the Greek Parliament for the Meetings between 10.10.1960 and 16.12.1960 and the Official Minutes for the Sessions of the Greek Parliament between 6.1.1981 and 28.3.1981). There is uniformity of opinion that parliamentary immunity is a privilege of the Representative assembly and only incidentally a privilege of individual Representatives. Being a privilege of the House, it cannot be unilaterally waived by any Member of it. It can only be waived if waiver is in the public interest. The public interest emerges after balancing dangers to the autonomy and sovereignty of the popular assembly, likely to result from the withdrawal, on the one hand and, the vital interest of the public that every alleged offender be brought to justice, on the other. Immunity is lifted with great circumspection, as the practice of the Greek House of Representatives reveals. It is, as a rule, denied for offences that do not compromise the dignity and honour of the House and, for offences that have a political
tone. Counsel for the respondent informed us that, of the 145 applications made to the Greek parliament during its last three sessions, from December, 1974, none was entertained. In Cyprus, by entrusting parliamentary immunity to the judicial authorities of the State, the constitutional legislators intended to remove the exercise of the jurisdiction for the removal of immunity from the spectrum of politics. The discretion vested in the Supreme Court must be exercised judicially. The Court must strive to safeguard the autonomy of the House of Representatives while endeavouring to eliminate abuse of the privilege. Below, we indicate some of the salient considerations that should guide the Court in carrying out this balancing exercise. They relate to:- 1) The nature of the offence: The nature of the offence or offences for which leave to prosecute is sought, is of paramount importance. If the offence is directly or indirectly related with the political activities of a Representative outside the House, leave may be withheld, unless such activities tend to
mine constitutional order. Freedom of expression of Representatives must be safeguarded in the interests of the sovereignty of the people and their right to express their views through their Representatives. If the offence carries no political connotations, its nature must be then examined from a narrower angle, i.e. the calibre of the offence. If the commission of the offence involves an element of dishonesty or moral turpitude, reluctance to accord leave may subside. This approach is consonant with the letter and spirit of Articles 64 and 71 of the Constitution, laying down the qualifications for a Representative and providing for the forfeiture of his seat upon conviction for an offence involving dishonesty or moral turpitude. 2) The gravity of the offence: The offence or offences for which leave is sought to prosecute a Representative, must be grave from the legal and factual point of view. Prosecuting a Representative for a trivial offence, may be properly regarded as unnecessary harassment and an unjustifiable interference with the exercise of his parliamentary duties. The facts founding the prosecution need not be stated in detail. A summary of material facts is sufficient. The review of the investigatory process and the quality of the evidence is a matter for the Attorney-General who must first satisfy himself of its adequacy before moving the Court for leave. Leave, where granted, should be confined to a prosecution properly arising from the facts thus disclosed. 3) Political motivation: The absence of any political motivation for the prosecution, or any ulterior motive connected therewith, is a prerequisite, both for the decision of the Attorney-General as well as the decision of the Court. It would be an abuse to use the judicial process as an instrument for the attainment of political ends and would
mine the autonomy of the House of Representatives. The Court will refrain from pronouncing on the quality of the evidence intended to be adduced, or its implications on the guilt or innocence of the accused. Its task is limited to ascertaining whether the facts disclose an offence or offences known to the law and capable of sustaining the charges in question. The inquiry must be confined to the objective implications of the facts. The Facts: Hereinabove, we have indicated some of the prominent factors that should bear with the exercise of the Courts' discretion. Guided by these considerations, we have examined the facts placed before us. What emerges from this inquiry, is the following: There is evidence in the hands of the prosecuting authority, tending to connect a Representative with the commission of serious offences, involving dishonesty and elements of moral turpitude. The offences were committed in circumstances totally unrelated to the parliamentary duties of the Representative, inside and outside the House. They were allegedly committed in his capacity as a lawyer, in the course of his dealings with clients. Investigation began as a result of a report to the police by an official of the Central Bank of Cyprus, because of irregularities noticed in the course of his duties. Reporting the case to the police, he was, in no way, politically motivated. If excessive zeal was shown thereafter in the investigation of the offences, that is no reason for withholding leave. Every investigation into a crime, must be conducted as speedily as possible. In such circumstances, to withhold leave would put the Representative, be it temporarily during the life of the present House of Representatives, outside the compass of the law. This should not be countenanced in view of the nature and gravity of the offences. Therefore, leave is granted to prosecute Representative GeorghiosAfxentiouGeorghiou, on the basis of the facts disclosed to the Court. Suggestions for the making of rules of Court to regulate proceedings for the leave of the Supreme Court to lift the immunity of a Representative: The Supreme Court is empowered,
of the Constitution, to make rules regulating the practice and procedure of the Supreme Court in any matter triable by the Supreme Court.
, the procedure for the making of an application
The division of opinion at the Supreme Court in this case as to what is the proper procedure to be followed, if nothing else, warrants the making of such rules. It has been said time and again that the effective protection of fundamental freedoms and liberties is directly associated with procedural safeguards. Without attempting to foreclose the jurisdiction of the Supreme Court on the matter, such rules should provide as a necessary safeguard, for the privilege of the House of Representatives, that applications
should be made by the Attorney-General and be accompanied by a statement of the Attorney-General, signifying that he has personally taken cognizance of every aspect of the case and that he is of the opinion that leave to prosecute ought to be given in the public interest. TRIANTAFYLLIDES P.: In the result the present application is granted unanimously. Application granted. cylaw.org: Από το ΚΙΝOΠ/CyLii για τον Παγκύπριο Δικηγορικό Σύλλογο
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