thematter is "original"—Therefore it isexercised
the first
stance by one Judge of the High Court sitting alone—Article 155,paragraph 2—Determination by the High Court dated the 19ίΛ December,' 1960, under paragraph 2 of Article 155, to the effect that "each Judge of the High Court, except the President, shall exercise the original jurisdiction of theHigh Court, sitting alone, subjecttoArticle 159ofthe Consti tution"—There is no ambiguity
theexpression "High Court"
proceedings under Article 83 of the Constitution, it is not within the competenceof the High Court to'decide the question whether by reason of theconviction of a Representative, theseat of such Representativehasbecome vacantundertheprovisions of AHides 64(c) and 71 of the Constitution—The case therefore will pro152 ceedon the assumption that the respondenthas not ceased to be a Representative. The High Court
dealing with applications under Article 83, paragraph 2, of the Constitution has simply to decide whether tograntorrefuseleavefor theimmediate enforcement of asentence of imprisonment, on theassumption that the verdict and sentence of the trial court are correct—Andnot to review the correctness of the verdictor the sentence. Article 83, paragraph 2, of the Constitution provides: "A Representative cannot, without leave of the High Court, be prosecuted, arrested or imprisoned so long as he continues to be a Representative " By Article 155 of the Constitution it is provided: Para graph 1: "The High Court shall be the highest appellate court
the Republic " Paragraph 2: "Sub ject to paragraphs 3 and 4 of this Article the High Court shall have such original andrevisional jurisdiction as is pro vided by this Constitution or as may be provided by a law: Provided that where original jurisdiction is so conferred, such jurisdiction shall, subject to Article 159, be exercised by such judge or judges of the High Court as the High Court shall determine: Provided further that there shall be a right of appeal to the High Court from their decision". It is to be noted that for the expression "revisional jurisdiction"
paragraph 2 of Article 155 the corresponding Greek and Turkish expressions are "δικαιοδοσίαείς δεύτερον βαθμόν" and "istinafen", respectively, which mean
effect "appel late jurisdiction". The High Court, acting under the first proviso to paragraph 2 of Article 155 of the Constitution (supra) determined on the 19th December, 1960 that "each Judge of the High Court, except the President, shall exercise the original jurisdiction of the High Court, sitting alone, subject to Article 159 of the Constitution". Article 159 of the Constitution is not material to this case. Article 144, paragraph 1, of the Constitution provides: "A party to any judicial proceedings,
cluding proceedings on appeal, may at any stage thereof, raise the question of the unconstitutionality of any law or decision or any provision thereof material for the determination of any matter at issue
such proceedings and thereupon the Court before which such question is raised shall reserve the question forthedeci- 153 1961 May 19, 26 T H E REPUBLIC v. LEFKIOS CHRISTODOULOU RODOSTHENOUS 1961 May 19, 26 T H E REPUBLIC v. LEFKIOS CHRISTODOULOU RODOSTHENOUS sion of the Supreme Constitutional Court and stay further proceedings until such question is determined by the Supreme Constitutional Court". Article 149 of the Constitution provides: The Supreme Constitutional Court shall haveexclusivejurisdiction — (a·).. (b) to make
case of ambiguity, any
terpretation of this Constitution, due regard being had to the letter and spirit of the Zurich Agreement dated the 11th February, 1959, and of the London Agreement dated the I9th February, 1959". The respondent, a member of the House of Representatives (i.e. a Representative), was convicted by the Assize Court of Nicosia of a number of offences and sentenced to a term of imprisonment of one year. The Attorney-General applied to the High Court under Article 83,paragraph 2, of the Constitution for leave for the enforcement of the sentence of imprisonment imposed on the respondent. The application came before Josephides, J. Counsel for the respondent raised the preliminary point that a Judge of the High Couit, sitting alone, has no jurisdiction to deal with the application and that, therefore, it must be heard by the Full Bench of the High Court of Justice.
that context, counsel for the respondent argued,
ter alia, that there is an ambiguity
that regard
, paragraph 2, and applied for the matter to be referred to the Supreme Constitutional Court under Article 149 (b) of the Constitution. He further argued that the application of the Attorney-General is unconstitutional and that a question isthus raised
volving the unconstitutionality of "a decision" within the meaning of Article 144, a matter which, under that Article, should be referred for determination to the Supreme Constitutional Court. Counsel for the Republic
the course of his argument at the final stage of these proceedings, submitted that under the provisions of Articles 71 and 64(c) of the Constitution the seat of the respondent as a Representative has become vacant on the ground that the offences of which the latter has been convicted
volve moral turpitude; and he asked the Court to declare the seat vacant. Held : On the preliminary points, overruling theobjections raised on behalfof therespondent:
the matters 154 referred to
the first
stance by a Judge of the High Court, sitting alone,
view of the determination of the 19th December, 1960,by the High Court of Justice (supra).
proceedings under Article 83, paragraph 2, of the Constitution, it is not within the competence of the High Court to decide the question whether by reason of the conviction of a Representative, the seat of such Representative has become vacant under Articles 64(c) and 71of the Constitution.
dealing with applications under Article 83, paragraph 2, of the Constitution, the High Court has simply to decide whether to grant or refuse leave for the immediate enforcement of a sentence of imprisonment, on the assumption that the verdict and sentence of the trial court are correct. And not to review the correctness of the verdict or sentence.
to consideration all the circumstances of the case, leave as applied for, granted. 155 v. LEFKIOS CHRISTODOULOU RODOSTHENOUS iy6 J „, May 19, 26 — Ijeave to enforce the sentence J of imprisonment granted . THE REPUBLIC v. LEFKIOS CHRISTODOULOU Application under Article 83, paragraph 2, of the Constitution. RODOSTHENOUS Application by the Attorney-General of the Republic under the provisions of Article 83.2 of the Constitution, applying for the leave of the High Court for the enforcement of the sentence of imprisonment imposed on the respondent by the Assize Court of Nicosia on the 15th May, 1961. K.C. Talarides for the applicant. St. Pavlides for the respondent. JOSEPHIDES, J., delivered on the 26th May, 1961 (
the House of Representatives, was found guilty of the following offences and was sentenced to one year's imprisonment on each count to run concurrently as from the 15th May, 1961 : - (
itio misconceived should be struck off for want of jurisdiction,
that, whereas Article 83, paragraph 2, of the Constitution is only applicable tocaseswhere the person sentenced isat the time of the taking 1 oftheproceedingsthereunderaRepresentative,
theinstant case theAttorneyGeneral failed to satisfy the High Court that the conviction of Rodosthenous had not theeffect of disqualifying him from being a member of the Houseof Representatives. (Vide:Rodosthenous v.TheRepublic reported
this Volume at p. 382 post). 156 (c) stealing money by
timidation, contrary to sections 255 and 262 of the Criminal Code. 1961 May 19, 26 T H E REPUBLIC Article 83, paragraph 2, so far as material for the purposes of this case, reads as follows: "A Representative cannot, without the leave of the High Court, be prosecuted, arrested or imprisoned so long as he continues to be a Representative". Paragraph 4 of the same Article reads as follows:— "If the High Court refuses to grant leave for the enforcement of a sentence of imprisonment imposed on a Representative by a competent court, the enforcement of such sentence shall be postponed until he ceases to be a Representative". Mr. Pavlides for the respondent has raised the question that a Judge of the High Court of Justice sitting alone has no jurisdiction to deal with an application under Article 83 of the Constitution, and that such an application must be heard by the Full High Court composed of all its members; and he, accordingly, submitted that the matter should be referred to the Supreme Constitutional Court for determination. He based his submission on two alternative grounds: (a) that there is an unconstitutionality of a decision material for determination of the matter at issue
these proceedings, under the provisions of Article 144 of the Constitution; or (b) that there is an ambiguity as to the meaning of the e\pression"High Court"
f the Constitution, which must be
terpreted by the Supreme Constitutional Court under the provisions of Article 149(
these proceedings. If the question of the unconstitutionality of any law or decision or any provision thereof material for the determination of any matter at issue
any judicial proceedings is raised, it is
cumbent on the Court to reserve the question for the decision of theSupreme Constitutional Court 157 v. LEFKIOS CHRISTODOULOU RODOSTHENOUS Josephides, J. 1961 May 19, 26 T H E REPUBLIC v. LEFKIOS CHRISTODOULOU RODOSTHENOUS Josephides, J. and stay further proceedings until such question is determined by that Court. Mr. Pavlides submitted that the decision the constitutionality of which is challenged
these proceedings is the present application by the Attorney-General to this Court for the enforcement of the sentence of imprisonment imposed on the respondent. Mr. Pavlides further submitted that the question of the unconstitutionality of such decision is material for the determination of the matter at issue
these proceedings.
terpreting the expression "decision"
of the Constitution it is helpful to refer to Article 179, paragraphs 1 and 2, which clarify the position as towhat ismeant bythat word. Article 179readsas follows " 1 . This Constitution shall be the supreme law of the Republic. 2. No law or decision of the House of Representatives or of any of the Communal Chambers and no act or decision of any organ, authority, or person
the Republic exercising executive power or any administrative function shall
any way be repugnant to, or
consistent with, any of the provisions of this Constitution". From a perusal of the above Article it becomes apparent that the "decision" referred to
eans a decision of a legislative, executive or administrative organ, authority, or person
the Republic.
the present case it cannot be said that thefilingof the application by the Attorney-General is a legislative, executive or administrative decision. Consequently, as the question raised by Mr. Pavlides does not concern the unconstitutionality of a "decision" within the ambit of Article 144 of the Constitution the question cannot be reserved for the decision of the Supreme Constitutional Court under the provisions of that Article. With regard toground (b)of the respondent's submission, i.e. to the effect that there is an ambiguity as to the meaning of the expression "High Court"
Pavlides argued that the power conferred on the High Court under Article 83 is neither appellate nor original jurisdiction within the meaning of Article 155 of the Constitution. He submitted that this is not original jurisdiction
the sense of jurisdiction as it must have been
tended
full power of adjudication. This power, he said, is "the exercise of a function", and he concluded by 158 submitting that, as there was an ambiguity, the matter should be determined by the Supreme Constitutional Court under Article 149(b) of the Constitution. There is no doubt that if there is an ambiguity the Su preme Constitutional Court is the proper court to make an
terpretation of the Constitution. Consequently, it is neces sary to consider whether there is an ambiguity before the matter can be referred to that Court for
terpretation. Now, Article 83, paragraph 2, confers on the "High Court" the power to grant or refuse leave for the enforcement of a sentence of imprisonment imposed on a Representative by a competent court. Article 155 of the Constitution lays down thejurisdiction conferred on the High Court of Justice. Paragraph 1 of that article provides that the High Court is the highest appellate court
the Republic, and that it has jurisdiction to hear and determine all appeals from any court other than the Supreme Constitutional Court. Paragraph 2 of Article 155, which is material, reads as follows:— "Subject to paragraphs 3 and 4 of this Article the High Court shall have such original and revisional jurisdiction as is provided by this Constitution or as may be provided by law: Provided that where original jurisdiction is so con ferred, such jurisdiction shall, subject to Article 159, be exercised by such judge or judges of the High Court as the High Court shall determine : Provided further that there shall be a right of appeal to the High Court from their decision". On the 19th December, 1960, the High Courtdetermined that "each Judge of the High Court, except the President, shall exercise the original jurisdiction of the High Court, sitting alone, subject to Article 159 of the Constitution". Finally, paragraph 4 of Article 155 provides that the High Court shall have exclusive jurisdiction to issue orders
the nature of habeas corpus, mandamus, prohibition, quo war ranto andcertiorari. It should be observed that for the expression "revisional" jurisdiction
paragraph 2 of Article 155,
the Greek text of the Constitution the words "εϊς δεύτερον βαθμόν" and
the Turkish text of the Constitution the Turkish word 159 1961 May 19, 26 T H E REPUBLIC v. LEFKIOS CHRISTODOULOU RODOSTHENOUS Josephides, J. 1961 May 19, 26 T H E REPUBLIC v. LEFKIOS CHRISTODOULOU RODOSTHENOUS Josephides, J. "istinafen" appear, which are exactly the same words used
paragraph 1of Article 155, which describes the High Court as the highest "appellate" court (To άνώτατονδευτεροβάθ μιουδικαστηρίου). From all these it follQws that only two kinds of juris diction are conferred on the High Court of Justice under the Constitution, i.e. appellate and original. And under para graph 2 of Article 155 the original jurisdiction so conferred shall be exercised by such judge or judges of the High Court as such court shall determine, and it has already been deter mined that onejudge shall exercise such jurisdiction. Un doubtedly thejurisdiction conferred on the High Court under paragraph 2 of Article 83 of the Constitution is original and not appellate ; and on reading Article 155 of the Constitu tion it is quite clear that there cannot be a third kind of jurisdiction as the one submitted by Mr. Pavlides, i.e. "the exercise of a function" other than appellate or original juris diction. Mr. Pavlides's submission is that only the Full High Court has jurisdiction to hear these proceedings
the first
stance. But if thejurisdiction conferred on the High Court under paragraph 2 of Article 83 is original jurisdiction, as it undoubtedly is, then it means that the respondent would have the right of appeal from the single judge to the Full High Court under the provisions of paragraph 2 of Article 155. And this
terpretation would be a more favourable
terpretation for the respondent than the one submitted on his behalf. Where the draftsman of the Constitution
tended that the High Court
the exercise of a jurisdiction conferred on it should be composed of all its members, he provided so expressly
the Constitution, as
proviso to paragraph 3, which lays down expressly that for the hearing of any appeal the High Court shall be composed of all its members. For all these reasons I have no hesitation whatsoever
holding that it is clear and unambiguous that the juris diction conferred on the High Court under Article 83 is original jurisdiction which can be exercised by one judge of this Court, and no question of any ambiguity
the
ter pretation of the Constitution arises. As the matter is clear and there is no ambiguity I am of opinion that no question 160 arises for the
terpretation of the Constitution by the Supreme Constitutional Court under Article 149(b). 1961 May 19, 26 THE REPUBLIC Having held that onejudge of the High Court of Justice has jurisdiction to deal with this application, I now propose to hear the parties on the merits. JOSEPHIDES, J. : This isan application by the AttorneyGeneral of the Republic under the provisions of Article 83, paragraph 2 of the Constitution, applying for leave of the High Court for theenforcement of thesentences of imprisonment imposed ontherespondent bytheAssize Court of Nicosia on the 15th May, 1961. The respondent wasfound guilty ofthe following offences and wassentenced to oneyear's imprisonment on each count to run concurrently :— (a) attempting to extort money by threats, contrary to section 288(a) of the Criminal Code, Cap.154; (b) demanding money with menaces, contrary to section 290 of the Criminal Code; and (c) stealing money by
timidation, contrary to sections 255 and 262of the Criminal Code.
my ruling this morning I have held that onejudge of the High Court hasjurisdiction todeal with thepresent application. The respondent, who is a member of the House of Representatives, was arrested and prosecuted by leave of the High Court, and hewasduly committed to the Assizes. He was tried bythe Nicosia Assizes and convicted and sentenced on the 15th May, 1961. On the 16th May, 1961, the present application was filedby theAttorney-General. Thefirsthearingofthe application washeld onthe 19thMay, 1961,when objection tothe jurisdiction of a judge sitting alone was taken. On the25th May, 1961,thetime limit for thefilingofan appeal against the conviction and/or sentence of the Assize Court expired, and no appeal has been filed by or on behalf of the respondent. Mr. Talarides on behalf of the Attorney-General submitted that under the provisions of Articles 71 and 64(c)of 161 v. LEFKIOS CHRISTODOULOU RODOSTHENOUS Josephides, J. 1961 May 19, 26 T H E REPUBLIC v. LEFKIOS CHRISTODOULOU RODOSTHENOUS Josephides, J. the Constitution the seat of the respondent asa Representative has become vacant. He based that submission on the allegation that the offences of which the respondent has been convicted
volve moral turpitude ; and he asked this Court to declare that the seat of the respondent, as a Representative, has become vacant. Mr. Pavlides opposed that submission. Having considered the matter, I accept Mr. Pavlides's submission that
a proceeding under Article83ofthe Constitution, such as the present application by the AttorneyGeneral, it is not within the competence of this Court to decide the question whether the seat of a Representative has become vacant under the provisions of Articles 71 and 64(c) of the Constitution. The only issue before this Court
the present proceedings is whether the sentence of imprisonment imposed on the respondent by the Assize Court should be enforced forthwith or postponed until the respondent ceases to be a Representative. I shall, therefore, deal with this matter on the assumption that the respondent has not ceased to be a Representative. As I have already
dicated,
the course of the hearing, this Court is not sitting as an appellate court to review the correctness of the verdict or the sentence of the Assize Court, but simply as a Court to decide whether to grant or refuse leavefor the immediateenforcement ofa sentenceof imprisonment, on the assumption that the verdict and sentence of the trial court are correct. Mr. Pavlides, on behalf of the respondent, submitted that it would befair for this Court to adjourn the present application for some time to give an opportunity to the officers of the Republic to take such proceedings, as they may be advised, to have the seat of the respondent declared vacant
the House of Representatives under the provisions of Articles 71 and 64(c) of the Constitution ; and if those proceedings proved successful, then this Court could deal with the present application and order the enforcement of the sentence of imprisonment. I have given careful and anxious consideration to Mr. Pavlides's submission, having especially
mind the capacity of a member of the House of Representatives, but I regret I am unable to accept it. I have read carefully the judgment of the Assize Court of Nicosia consisting of 35 typewritten pages, and I have 162 taken
to consideration the nature of the offences of which the respondent hasbeen convicted, aswellasthe circumstances of the case and the submissions made by learned counsel appearing
the present case, and I am satisfied that this is a proper case
which the sentence of imprisonment imposed on the respondent should be enforced forthwith. I accordingly grant leave for the enforcement of the sentences of imprisonment- imposed on the respondent by the Assize Court of Nicosia on the 15th May, 1961. Leave to enforce the sentence of imprisonmentgranted. 163 1961 May 19, 26 THE REPUBLIC v. LEFKIOS CHRISTODOULOU RODOSTHENOUS Josephides, J.
Επεξήγηση AI βάσει του επίσημου κειμένου του νόμου. Ενδεικτική, δεν υποκαθιστά νομική συμβουλή.