clr/1974/1974_2_67.pdf

1974 June 28 [TRIANTAFYLUDES, P., STAVRINIDES, L. LOIZOU, JJ.] Y1ANGOS CHARALAMBOUS, Appellant, YIANGOS CHARALAMBOUS v. THF POLICE THE POLICE, Respondents. (Criminal Appeal No. 3589) Remand order—Order remanding the suspect (appellant) in police custodyfor eight days—Order made in the absence of the suspect who was then under treatment in the General Hospital and was not representedby counsel—Order quaked on appeal under Article 11.6 of the Constitution—Cf. Article II, paragraphs 5 and 6 of the Constitution. Criminal Procedure—Remand order—See supra. Constitutional Law—Remand order—In the absence of the suspect— Quashed—Article 11.5 and 6 of the Constitution—See further supra. The facts sufficiently appear in the judgment of, the Court quashing on appeal under Article 11.6 of the Constitution the order remanding the suspect (Appellant) in police custody. Appeal against remand order. Appeal by Yiangos Charalambous against the order of the District Court of Larnaca (Artemides, D.J.) made on the 20th June, 1974, whereby Appellant was remanded in Police custody for eight days in relation to the investigation into the commission by him of offences in respect of which he has been arrested as a suspect. Chr. Sozos, for the Appellant. CI. Antoniades, Counsel of the Republic, for the Respon­ dents. 67 ι The judgment of the Court was delivered by:_ YIANGOS CHARALAMBOUS TRIANTAFYLLIDES, P.: This is an appeal against an order for remand in custody for eight days made on June 20, 1974, by a Judge of the District Court of Larnaca. V. THE POLICE The Appellant, according to a medical certificate which was produced before the Judge, was on that date under treatment in the Larnaca Hospital, and, therefore, he was not brought before the Judge; also, as it appears from the record before us, he was not even represented by counsel. In the circumstances, and in view of the explicit wording of paragraphs 5 and 6 of Article 11 of the Constitution, we have no alternative but to quash the remand order for having been made without the Appellant being present. Of course, this does not mean that it was impossible in law to remand the Appellant in custody so long as he was in hospital; undoubtedly, depending on the special circumstances oftheparticular situation, suitable arrangements could have been made for the proceedings concerning the application for a remand order to take place in his presence. We leave open the issue as to whether or not it might be found that the requirements of the aforementioned constitutional provisions were satisfied if the Appellant, though absent, had been represented by counsel at the relevant proceedings before the Judge who granted the remand order. In the result this appeal is allowed; but, before concluding thisjudgment, we feel that the following may be usefully added: Counsel( for the Respondents has informed us that it is intended to apply today, before a Judge of the Nicosia District Court, for a new remand order. In this connection we would like to observe that, as it appears from the record, the Judge in Larnaca, who made the remand order which we have just set aside, directed that the Appellant should not be removed from the Larnaca Hospital until there would be placed before him medical evidence showing that the Appellant could be so removed without his health being endangered; today the Appellant has been brought before us on the strength of a medical certificate, issued this morning and stating that the Appellant was fit to travel from Larnaca to Nicosia; unfortunately, however, this matter was not brought, according to his above direction, to the notice of the Judge in Larnaca; so, though it is in law possible to take the Appellant today before a different Judge for the purpose of applying for a new remand, we think that, in view of the aforementioned direction by the Judge in 68 Larnaca, it is desirable to apply for a new remand before the sameJudgein Larnaca, andnot before another Judge,in Nicosia; if, however, it is not feasible to take the Appellant today to Larnaca then theJudge inNicosia, before whom the application for a new remand is to bemade, should be informed fully of the whole history of the matter of remanding in custody the Appellant, including, of course, the state of the health of the Appellant at all material times. Appeal allowed· 69 1974 June 28 YIANGOS CHARALAMBOUS v. THE POLICF