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1977 Febr. 8 IN RE PANTEUS VRAKAS AND ANOTHER [TRIANTAFYLLIDES, P.] PANTEL1SVRAKASANDANOTHER, Applicants, IN THE MATTER OF APPLICATIONS FOR THE ISSUE OF ORDERS OF HABEAS CORPUS AD SUBJICIENDUM DIRECTED TO THE DIRECTOR OF PRISONS AND THE MINISTER OF JUSTICE OF THE REPUBLIC. (CivilApplications 17/76, 18/76). Remission of sentence—Article53.4 of the Constitution—Setting free applicants, whileservinga lawful sentence of imprisonment,for purposes oftheirsafety, because of heavyfighting in the area of the prisons—No recommendationto thiseffect by the Attorney-Generalunderthe saidArticle and no document 5 evidencinga decision by the then Acting President of the Republic to exerciseonthedateof release thepowerofremission of sentence under the said Article 53.4—-Aremissionofsentence a formal and solemn act which, becauseof its nature, hasto be evidenced by anappropriate documentsigned by the \Q President of the Republic—And there being nothing showing that it was not feasibleon the date of release,or reasonably soon thereafter,toprepare the necessary documentsevidencing the exercise,on thedate of release, of the powerofremission of sentence,if such adecisionhad reallybeen taken then,ap- 15 plicantswere not granted on that day, or later, a remission of sentence—Invalidity of the course of action, relatingto the other prisoners,arising becauseof the provisions of theCoup D' Etat (Special Provisions) Law, 1975 (Law 57/75) of no availto theapplicants. 20 Habeas corpus—Normally not possibleto grantan orderofhabeas corpus in relationtopersonsservinga lawfulsentence of imprisonment after conviction—It is up to applicants to show thattheirdetentionis illegal. Remission of sentence—Article 53.4of the Constitution—Court no: 25 entitled,on an application for habeascorpus, to examine the sufficiency of the grounds in relationtowhich the powersunder the saidArticle wereor werenot exercised, or the validity otherwiseofthe exercise of such powers. 70 Equality—Principleof equality—There exists no entitlement to equal treatment on an illegal basis. 5 10 15 20 25 30 35 1977 Febr. 8 IN R E Administrative Law—Formalitiesin writing—Need for—Rule that ΡANTELIS the acts of the Administration shouldbe set out in appropriate VRAKAS documents—Whether it can be relaxed in timesof exceptional AND ANOTHER circumstances. Equality—Principle of equality—Article 28.1 of the Constitution— Remission of sentence of all convicts—Except those recently convictedof premeditatedmurder—Amply obvious cause for whichto differentiate betweenapplicants who have beencon­ victed of premeditated murder and any other prisoner who has not been so convicted—Principle of equality notcontra­ vened. Both the applicants were convicted by an Assize Court on April 14, 1973, of premeditated murder and sentenced to death; eventually, the death sentences were commuted to life imprisonment by the President of the Republic, under Article 53 of the Constitution, on September 25,

  1. As a result of the first stage of the Turkish invasion which commencedon July 20, 1974 the applicants, together with the other convicts who were detained at the Central Prisons were released; but the applicants were again detained on August 4,
  2. Following the bombing of the buildings of the Prisons by theTurkish Air Force,in the course of thesecond stage of the Turkish invasion, which commenced on August 14, 1974, all those detained at the Prisons, including the applicants, were set free on August 16,
  3. Both applicants were arrested afresh on August 27, 1974 andbrought to theprisons in order toserve their sentence. On August 20, 1974, a letter* was addressed to the Attor­ ney-General of the Republic, by a certain person (O. Antoniou) who was purporting to act, at the time, as the "Director of Prisons" having been so "appointed" by the"Government" which was set up as a result of the Coup d'etat of July
  4. 1974, wherein he stated, interalia, that for purposes of safety all the Greek convicts were set free and he recommended that "all of themshould he granted an amnesty". On this letter there * Sec the whole text of the letter at pp. 83 -84 post. 71 1977 Febr. S IN RE PANTELIS VRAKAS \ND ANOTHER appeared an endorsement in the handwriting of the AttorneyGeneral, dated August 23, 1974 and signed by him which reads as follows: "I agree to the remission of the sentences of the above Greek convicts in accordance with article 53.4 of the Constitution, except regarding the convictswho have been lately convicted of premeditated murder". 5 Underneath the above minute there was written the word "approved" and such approval was signed by Mr. Xanthos Clerides, who was at the time acting pro tempore as President ]0 of the Republic, in view of the simultaneous absence from Cyprus of both the President of the Republic Archbishop Makarios and of the President of the House of Representatives Mr. Glafkos Clerides, who had been acting as President of the Republic. 15 On November 13, 1974, both applicants applied for orders of habeascorpusad subjiciendumbut they withdrew their applications on November 2, 1974; and after their efforts and those of their relatives to secure remission of their sentences failed they applied again, bymeans of the present applications. 20 for orders of habeascorpus. Counsel for the applicants contended: (a) That the applicants were granted remission of sentenceon August 16,1974; (b) that the applicants were granted remission of sen- 25 tence by the, at the time. Acting President of the Republic, Mr. Xanthos Clerides, on August 23, 1974; (c) that the applicants were the victims of unequal treatment; (d) that the exception made in the decision of August 23, 1974, regarding prisoners lately convicted of premeditated murder—namely the applicants—was invalidly made because it was not duly reasoned; (e) that on August 23, 1974 there were not before the 35 Attorney-General and the Acting President of the Republic certain certificates praising the conduct of the applicants while resisting, together with others, the Turkish invasion. 72 30 Counsel further argued by way of a submission in the alternative that on August 23, 1974, Mr. Xanthos Clerides war not acting lawfully as President of the Republic. 5 10 15 20 It was common ground that in relation to the action taken on August 16, 1974, the Attorney-General of the Republic was not consulted in any way and, consequently, he did not make any recommendation in this respect. Counsel for the applicants contended, in this connection, that in view of the then prevailing exceptional circumstances the need for a favourable recommendation of the Attorney-General could be dispensed with. There was nothing before the Court, however, to show that because of such circumstances the Attorney-General could not have been contacted in order to be consulted. Moreover, there existed no document evidencing a decision, by the then Acting President of the Republic, Mr. Glafkos Clerides, to exercise on August 16, 1974, the powers under Article 53.
  5. It was, also, common ground that on August 23, 1974, the applicant Vrakas went through certain formalities which would . have been necessary had he been released due to a remission of his sentence; the same did not happen in relation to applicant Tryphonos. Held, (I) on the question whether the applicants were grantedaremission on August 16,1974: 25 30 35 40

(1)That normally it is not possible to grant an order of habeascorpusin relation to a person who is serving a lawful sentence of imprisonment after conviction on indictments; and that in a situation such as that in the present case it would be up to theapplicants to show that their detention is prima facie illegal, in other words to show, at least primafacie, that their sentenceshave been remitted.
(2)That a remission of sentence under Article 53.4 of the Constitution is a formal and solemn act which, because of its nature, has to be evidenced by an appropriate document signed by the President of the Republic; that the need for a process in writing becomes even more apparent in view of the fact that the decision of the President of the Republic has to be preceded by a recommendation, to that effect, by the AttorneyGeneral; that though the fact that the rule requiring that acts of the administration should be set-out in appropriate documents has to be relaxed in times of exceptional circumstances is not overlooked, there is nothing showing that it was not 73 1977 Febr. 8 IN RE PANTELIS VRAKAS AND ANOTHER 1977 Febr. 8 IN RE PANTELIS VRAKAS AND ANOTHER feasible on August 16, 1974, or reasonably soon thereafter, to prepare the necessary documents evidencing the exercise, on the said date, of the power of remission of sentence under Article 53.4, if such a decision had really been taken then.
(3)That what did, in fact, happen on August 16, 1974, 5 was that the applicants and other prisoners were temporarily set free because there was heavy fighting going on, at the time, in the area of the Central Prisons; and that anything that was done, a few days later, by the prison authorities, inrelation to what seemed to be a discharge from the Central Prisons of 10 applicants Vrakas, is of no legal effect whatsoever, because it wasdone without lawful authority and due to mistaken impressions attributable to the then prevailing confusion. Held, (II) on the question whether the applicantswere granted remission of sentenceby the, at the time, Acting President of the Republic, Mr. Xanthos Clerides,on August 23, 1974: \$
(1)That it is clear from the relevant documents that on August 23, 1974, it was decided to remit the sentences of all those Greek Cypriot prisoners who were set free temporarily 20 on August 16, 1974, but that this measure was not applied to those who had been convicted lately of premeditated murder; that the applicants were the persons who were most recently, prior to August 23, 1974, convicted of premeditated murder, and since then, and until the said date, no other persons were 25 so convicted; that, therefore, there can be no doubt at all that the two applicants were excepted from the benefit of the decision taken on August 23, 1974; and that since the applicants were not granted remission of sentence either on August 16, 1974, or. later, on August 23, 1974. it follows that they are 30 stil!being detained lawfully.
(2)That even if the alternative submission that on August 23, 1974. Mr. Xanthos Clerides was not acting lawfully as President of the Republic were to be found to be correct this would not help the applicants in the least, because, then, in 35 any event, it could not be found that their sentences were validly remitted, asthey allege.
(3)That since the applicants were not included in the beneficial effect of the decision of August 23. 1974 and continued to be detained in prison on the strength of their con- 40 victions for premeditated murder, the invalidity of the course 74 of action taken on the said date, which arises because, inter alia,of theprovisions of the Coup D' Etat (Special Provisions) Law, 1975 (Law 57/75), could be of no avail tothem. 5 10 15 20 25
(4)That the contention of the applicants that they are the victims of unequal treatment is unfounded because there was amply obvious cause for which to differentiate between the applicants and any other prisoner who had not been convicted of theheinous crime of premeditated murder; and that assum­ ing, in the alternative, that the remission granted to the others was granted invalidly for any reason, the principle of equality did not entitle the applicants to be granted, too, in an invalid manner, remission of sentence, because there exists no entitle­ menttoequal treatmenton an illegal basis.
(5)That the exception from the remission of those lately convicted of premeditated murder, as framed, contains suffi­ ciently the very obvious reason for which it has been made; and that, in any event, this Court is not entitled, on an appli­ cation for habeas corpus, to examine the sufficiency of the grounds in relation to which the powers under Article 53.4 of tne Constitution were or were not exercised, or the validity otherwise of the exercise of such powers.
(6)That the presence of the certificates praising the con­ duct of the applicants could not have made the slightest dif­ ference in relation to the decision to except, from the remission of sentence granted on August 23, 1974, persons who had been lately convicted of premeditated murder, such as - - the applicants because this exception,was made in view of the nature of the crime, and not in the light of the personal cir­ cumstances or conduct of any particular prisoner. 30 Applications dismissed. Cases referred to: Re Featherstone, 37 Cr.App. R. 146 at p. 147; 35 Re Wring and Another [19601 I All E.R. 536 at p. 537; Schmuel v. The Officer in Command, Illegal Jewish Immigrants'Camp,Karaolos, 18 C.L.R. 158; Voyiazianos v. The Republic
(1967)3 C.L.R. 239; R. v. Leeds Prison (Governor), Ex parteStafford [Ί964] 1 All E.R. 610 at p.612; Demetriou and Another v. The Republic,3 R.S.C.C.
  1. 75 1977 Febr. 8 IN RE PANTELIS ' VRAKAS AND ANOTHER 1977 Febr. 8 IN RE PANTELIS VRAKAS AND ANOTHER Applications. Applications for orders directed totheDirector of Pri­ sons and the Minister of Justice to show cause why an order or a writ of habeascorpusad subjiciendumshould not be issued. A. Pandelides, for theapplicants. CI. Antoniades, Counsel of the Republic, for the respondents. Cur. adv. vult. Thefollowingjudgment was delivered by:- 10 TRIANTAFYLL1DES,P.:By thepresent two applications, which were heard together in view of their being closely related to each other, the applicants are seeking orders of habeas corpus adsubjiciendum. It is common ground that—(as it appears, also, from 15 the file of the proceedings)—both the applicants, namely Pantelis Vrakas and Elias Tryphonos, were convicted by anAssizeCourt inKyrenia on April 14, 1973, ίηcriminal case No. 1404/72, of the premeditated murder of Paradissa Panteli Vraka, the wife of applicant Vrakas, and 20 they were consequently sentenced to death;eventually, the death sentences were commuted to life imprisonment by the President of the Republic, under Article 53 of the Constitution,onSeptember 25,
  2. On November 13, 1974, both the applicants applied 25 (see Civil Applications Nos. 15/74, 16/74) for the first time, for orders of habeascorpusadsubjiciendum, through counsel other than the one who appeared for them onthe present occasion; such applications were withdrawn on November 22, 1974, when counsel appearing then for 30 them madethefollowingstatement:"I had the opportunity to study the cases in thelight of the material filed on behalf of the"'respondents"— the respondents being the Minister of Justice, The Attorney-General and the Directorof Prisons—"and 35 on thebasis of the information at present in my pos­ session I seek leave to withdraw these applications". 76 The present new applications for orders of habeas cor­ pus were filed on June 22,
  3. 5 10 15 Normally, it is not possible to grant an order of habeas corpus in relation to a person who is serving a lawful sentence of imprisonment after conviction on indictment (see Halsbury's Laws of England, 4th ed., vol. 11, p. 781, para. 1472); in Re Featherstone, 37 Cr. App. R. 146, Lord GoddardC.J. said (atp. 147):"The court does not grant, and cannot grant, writs of habeas corpus to persons who are in execution, that is to say, persons who are serving sentences pass­ ed by courts of competent jurisdiction. Probably the only case inwhich the court would grant habeas cor­ pus would be if it were satisfied that the prisoner was being held after the term of the sentence passed on him had expired". The above view was adopted, also, by Lord Parker C.J. in Re Wring and Another [1960] 1 All E.R. 536,
  4. 20 25 30 35 Thus, thepresent applications could not have been proceeded with had it not been for the contention of the ap­ plicants that their sentences of life imprisonment have, in effect, expired, because, subsequently, they have been granted remission of sentence under Article 53.4 of the Constitution. The relevant facts, which are relied upon in this respect by applicant Vrakas (in case 17/76), are set out in an affi­ davit of his dated June 21, 1976, paragraphs 5 to 13 and 15 of which read as follows:"
  5. Την 20.7.74 καιώραν6.30 π.μ. με απέλυσαν όμοϋ μείΚ όλων των εις τάς Κεντρικάςφύλακας κρατουμένων καταδίκων.
  6. 'Αμέσως μετέβην και κατετάγην εις τηνμονάδα μου και υπηρέτησα από 20.7.74 μέχρι 4.8.74 λαβών μέρος εις τάς μάχας Καραβα-Λαπήθου και ΣυσκλήπουΆγριδακίου. Σχετικόνπιστοποιήτικόν επισυνάπτεται.
  7. Τήν 4.8.74 εΐδοποιήθην να προσέλθω εις Κεν­ τρικάς Φύλακας δια να παραλάβω τά προσωπικάμου αντικείμενα αλλάμε έκράτησαν. 77 1977 l"ebr. 8 IN RE ΡΑNTΙϊLIS VRAKAS AND ANOTHER 1977 Fcbr. 8 IN RE PANTELIS VRAKAS AND ANOTHER
  8. Την ΰ.8.74, κατόπιν εντολής της διευθύνσεως των φυλακών έστάλην και έπήνδρωσα φυλάκια πλησίον της Βρεττανικής 'Τπάτης 'Αρμοστείας.
  9. Την 16.8.74, λόγω τοϋ βομβαρδισμού της περιο­ χής των Κεντρικών, ό τότε διοικών τάς Κεντρικάς Φυ- 5 λακάς αξιωματικός Παρασκευάς Κυρου (απουσιάζον­ τος τοΰ διευθυντού) έκρινε σκόπιμον την άπόλυσιν όλων των κρατουμένων έπι ιδίαευθύνη.
  10. Μετ' ολίγον εκλήθη όκ. ΠαρασκευάςΚύρου εις το Προεδρικόν Μέγαρον ένθα εξήγησε προς τον Προ- 10 εδρεύοντα της Δημοκρατίας κ. Γλαΰκον Κληρίδην και το έκεΐ συγκεντρωμένον "Γπουργικόν Συμβούλιον τάς περιστάσεις ύπό τάς οποίας έλαβε την άπόφασιν του, ή δε άπόφασις αΰτη ενεκρίθη και/ή έπεκυρωθη ύπό τοΰ Προεδρεύοντος και τοϋ 'Τπουργικοΰ Συμβουλίου, άπε- 15 φασίσθη δε όπως χορηγηθή είς απαντάς τους κατάδι­ κους χάρις και/η ούτοι απολυθούν έπι σκοπώ απονομής χάριτος.
  11. Έγώ παρέμεινα έπανδρώνων τά φυλάκια μέχρι της 17.8.
  12. 20
  13. Διά την δλην δρασιν μου και διαγωγήν μουκα­ τά την διάρκειαν τών μαχών εις τάς Κεντρικάς Φύλα­ κας ομιλεί το έπίσυναπτόμενον πιστοποιήτικόν τών διοι­ κητών μου τοΰ λόχου καιτοϋφυλακίου.
  14. Την 23.8.74 και συμφώνως της ληφθείσης ήδη 25 αποφάσεως άπελύθην επισήμους έκ τών φυλακών, άφοΰ υπέγραψα εις διάφορα βιβλία και έλαβα τά χρήματα μου τά όποια είχα. τά ρούχα μου καθώς και το πιστο­ ποιήτικόν τών κοιναινικών ασφαλίσεων το όποιον λαμβάνει όφυλακισμένο; όταναπολύεται 30
  15. Την 27.8.74 επέστρεψα εις Κεντρικάς Φύλα­ κα; διά νά λάβω τύ άπολυτήριον μου τού στρατοΰ το οποίον έλησμόνησα εκεί και με έκράτησαν". ("
  16. On 20.7.74 and at 6.30 a.m. I was released together with all other convicts who were detained at the Central Prisons.
  17. I went at once and enlisted at my unit and I 78 35 served from 20.7.74 till 4.8.74, having taken part in the battles of Karavas-Lapithos and of SiskliposAgridaki. A relevant certificate is attached. 5
  18. On 4.8.74 1 was notified to go to the Central Prisons in order to collect my personal belongings, butthey detained me there.
  19. On 5.8.74 on the instructions of the prison authorities I was sent to man military outposts near theBritish High Commission. 10
  20. On 16.8.74 because of the bombing of the area of the Central Prisons, the then officer in charge of the Central Prisons, Paraskevas Kyrou (the Director being away) deemed expedient the release of all the prisoners, on his own responsibility. 15
  21. After a while Mr. Paraskevas Kyrou was called to the Presidential Office where he explained to the Acting President of the Republic Mr. Glafkos Clerides and to the Council of Ministers, who were gathered there, the circumstances in which he took his decision, and such decision was approved and/or ratified by the Acting President and by the Council of Ministers, and it wasdecided to grant remission of sentence to all the convicts and/or that they should be released with a view to being granted remission of sentence. 20 25
  22. I remained manning the military outposts till the 17.8.
  23. 30 35
  24. The attached certificate of the commanding officers of my company and of my outpost describes my actions and conduct during the fighting at the Central Prisons.
  25. On 23.8.74, and in pursuance to the already taken decision, I was formally released from the prison and, having signed in various books, I received my money, my clothes as well as the social insurance certificate, which a prisoner receives on his release.
  26. On 27.8.74 I returned to the Central Prisons 79 1977 'c^_ s 1N RE PANTELIS VRAKAS AND ANOTHER ,1977, ^_ s in order to collect my army discharge certificate. which I had forgotten there, and I was detained".). PANTELIS VRAKAS AND ANOTHER The corresponding paragraphs of an affidavit sworn by applicant Tryphonos (in case 18/76) on June 21, 1976, are paragraphs 5 to 10, and they read as follows:5 icb ("
  27. Την 20.7.74 και ώραν 6.30 π.μ. με απέλυσαν όμοϋ μεθ' ό'λων τών εις τάς Κεντρικάς Φύλακαςκρα­ τουμένωνκαταδίκων.
  28. Μετάτην άπόλυσιν μου έπανήρχισατην έργασίαν μου. 10
  29. Την 4.8.74 είδοποιήθην νά επιστρέψω εις τάς Κεντρικάς Φύλακας ένθα και παρέμεινα μέχρι τήν 16.8.
  31. Τήν 16.8.74 λόγω τοϋ βομβαρδισμού της περιο­ χής τών Κεντρικών Φυλακών, ό τότε διοικών τάς Κεν- 15 τρικάς Φύλακας αξιωματικός Παρασκευάς Κύρου (α­ πουσιάζοντος τοϋ διευθυντού) εκρινεν σκόπιμον τήν ά­ πόλυσιν όλων τών κρατουμένων έπι Ίδια ευθύνη.
  32. Μετ' ολίγον εκλήθη ό Παρασκευάς Κύρου εις το Προεδρικόν Μέγαρον ένθα εξήγησε προς τον Προε- 20 δρεύοντα της Δημοκρατίας κ. Γλαϋκον Κληρίδην καιτο έκεϊ συγκεντρωμένον 'Τπουργικόν Συμβούλιον τάς πε­ ριστάσεις υπό τάς όποιας έλαβε τήν άπόφασιντου, ή δε άπόφασις αύτηενεκρίθη καί/ήέπεκυρώθη ύπότοϋΠρο­ εδρεύοντος και τοΰ 'Τπουργικοϋ Συμβουλίου, άπεφα- 25 σίσθη δε δπως χορηγηθη εις απαντάς τους κατάδικους χάρις καί/ή ούτοι απολυθούν επί σκοπώ χάριτος.
  33. Τήν 26.8.74 προσηλθον εις τάς ΚεντρικάςΦύ­ λακας διά νά παραλάβωτά προσωπικά μου αντικείμενα άλλα μέ έκράτησανμέχρι σήμερον".). 30 ("
  34. On 20.7.74 and at 6.30 a.m. I was released together with all other convicts who were detained at the Central Prisons.
  35. After my release I resumed my work.
  36. On 4.8.74 I was notified to return to the Cen­ tral Prisons where I stayed till the 16.8.
  37. 80 . 35 5 10 15
  38. On 16.8.74 because of the bombing of the area of theCentralPrisons, the thenofficer in charge of the Central Prisons, Paraskevas Kyrou (the Director being away) deemed expedient the release of all prisoners onhis own responsibility.
  39. After a while Mr. Paraskevas Kyrou was call­ ed to the Presidential Office where he explained to the Acting Piesident of the Republic Mr. Glafkos Clerides and to the Council of Ministers, who were gathered there, the circumstances in which he took his decision, and such decision was approved and/or ratified by the Acting President of the Republic and by the Council of Ministers, and it was decided to grant remission of sentence to all convicts and/or that they should be released with a view to being granted remission of sentence.
  40. On 26.8.74 I went to the Central Prisons to collect my personal belongings but I am being de­ tained thereuntiltoday".). 20 By means of affidavits filed in opposition to the present applications it is denied thatthesentences of life imprison­ ment, which are being served by the applicants, were re­ mitted as it is being alleged by them, and it is contended that they are being lawfully detained in execution of such 25 sentences. The said affidavits are sworn by counsel for the . Republic Mr. A. Evangelou, the Director of the Central Prisons Mr. C. Christou, and Chief Superintendentof-Prisons Charalambos Spyrou. Itis useful to quote paragraphs 1 to 4 of the affidavit of Chief Superintendent Spyrou 30 (datedJuly 23, 1976, and filed in case 17/76) which read as follows:" 1 . Είμαι υπεύθυνοςδιάτήν ασφαλήφύλαξινκαιμεταχείρισιν απάντων τών εις τάς Φύλακαςκρατουμένων συμπεριλαμβανομένουκαιτοΰ α'ιτητοϋ. 35
  41. Τήν 4.8,1974 ό αίτητής, όσας ώςπληροφοροϋμαι, είχεν άφεθη ελεύθερος τήν 20.7.1974, έπανεσυνελήφθη και μετεφέρθηκατά την 'ιδίαν ήμερομηνίαν είς τάς Φύλακας ινα έκτιση τήν νομίμως έπιβληθεϊσαν είς αυτόνποινήν. 40
  42. Τήν 16.8.1974 τάκτίριατών Φυλακών έβομβαρ81 1977 c ' ^_ lN RE PANTELIS VRAKAS AND ANOTHER 1977 Fehr. 8 IN RE PANTEL1S VRAKAS AND ANOTHER δίσθησαν ανηλεώς υπότης Τουρκικής Αεροπορίας και ώς εκ τούτου έθεωρήθη σκόπιμον δπως άπαντες οί εις τάς Φύλακας κρατούμενοι, συμπεριλαμβανομένουκαι τοϋ αίτητοΰ, άφεθώσι ελεύθεροι διά λόγουςασφαλείας τώνιδίωνκαιούτωέγένετο. 5
  43. Τήν 27.8.1974 όαΐτητήςσυνελήφθηεκνέου και μετεφέρθη είς τάς φύλακαςένθακρατείταιμέχρι σήμε­ ρονπροςεκτισιντηςποινής του". ("
  44. I am responsible for thesafe custody andtreat­ ment of all those who are detained at thePrisons,in- 10 eluding the applicant.
  45. On 4.8.1974 the applicant, who, as I am in­ formed, had been set free on 20.7.1974, was re-ar­ rested and brought on the same date to the Prisons in order to serve thesentencewhich was lawfully im- 15 posed onhirn.
  46. On 16.8.1974 the buildings of the Prisons were mercilessly bombed by the Turkish Air Force and as a result it was deemed expedient to set free, for their safety, all those detained at the Prisons, in- 20 eluding the applicant, and it was done so.
  47. On27.8.1974 theapplicantwas arrested afresh and brought to the Prisons where he is being detain­ ed till today in order toservehis sentence".). The corresponding paragraphs of an affidavit sworn by 25 the same affiant on the same date and filed in case 18/76 are practically identical and need not be quoted in this judgment. It is common ground that on August 23, 1974, appli­ cant Vrakas went through certain formalities which would 30 have been necessary had he been released due to a remis­ sion of his sentence; the same did not happen in relation to applicant Tryphonos. It is thecontention of therespon­ dents that what took place, as aforesaid, in relation toap­ plicant Vrakas, was not in consequence of a remission of 35 the remainder of his sentence of life imprisonment, but was the result of the confusion prevailing in Cyprus atthe time due to the tragic events of July and August 1974, namely the abortive coupd' etatof July 15, 1974, andthe Turkish invasion of Cyprus, which took place in two 40 82 stages, commencing on July 20, 1974, and August 14, 1974, respectively. 5 10 On August 20, 1974, a letter was addressed to the Attorney-General of the Republic, by a certain person (O. Antoniou) who was purporting to act, at the time, as the "Director of Prisons", having been so "appointed" by the "Government" which was set up as a result of the coup d' etat. The lawfully in office Director of Prisons, Mr. C. Christou,-had been removed illegally from his post after the coup d' etat, and he did not resume his duties till Sep­ tember 10,
  48. The said letter of August 20, 1974 (exhibit 1) reads as follows:- 15 20 25 30 35 'Τενικόν Εισαγγελέα Της Δημοκρατίας. Ώ ς γνωρίζετε αϊ επιθέσεις τών Τούρκων εναντίον τών Φυλακών έπανελήφθησαν με σφοδρότητα τήν 14.
  49. 1974 και έκορυφώθησαν την 16.8.1974 με βομβαρδι­ σμούς και πυροβολισμούς άπό αέρος, προξενήσαντες σοβαροτάταςκαταστροφάς. Χάριν ασφαλείας δλοι οί Έλληνες κατάδικοι και υ­ πόδικοι αφέθησαν ελεύθεροι, σχεδόν όλοι δε έθελοντικώς έχρησιμοποιήθησαν είς προκεχωρημένα φυλάκια διά τήν άπόκρουσιν τών Τουρκικών επιθέσεων δι' όλμων και άλλων όπλων άπό τοΰ εδάφους. "Αλλοι έχρησιμο­ ποιήθησαν διά τήν μεταφοράν τραυματιών, τήν τροφοδοσίανκλπ. Μερικοί έκ τών τροφίμων επέδειξαν άπαράμιλλον θάρρος και τόλμην όλοι δε απόλυτονπειθαρχίαν. Είμαι βέβαιος ότι θα συμφωνήσητε όπως όλοι τύχουν αμνηστίας. Δεν νομίζω ότι είναι ορθόν όπως ούτοι ανα­ κληθούν είς τάς Φύλακας.Μερικοί υπηρετούν ακόμη είς τά φυλάκια τών Φυλακών πολλοί δε απέστειλαν βεβαι­ ώσεις ότι ύπηρετοϋν είς διάφοραΤάγματατης 'Εθνικής Φρουράς. Είς τάς Φύλακαςυπάρχουν σήμερον
(3)τρείς Τούρ­ κοι κατάδικοι έκ τών οποίων ό είς, ανκαι απολυθείς δεν ηθέλησε νά μεταβή είς τόν Τουρκικόν Τομέα,
(5)πέντε κρατούμενοι συλληφθέντες ύπό της 'Αστυνομίας ώς ύ­ ποπτοικαιδύο
(2)αιχμάλωτοι. 83 1977 r-'ebr. S IN RE PANTELIS VRAKAS < AND ANOTHER •977 'ebr. 8 IN RE PANTEL1S VRAKAS NO ANOTHER Οί άποδράσαντες κατά τήν ήμέραν τοΰ πραξικοπή­ ματος 19 Τούρκοι κατάδικοι παραμένουν βεβαίωςασύλ­ ληπτοι'. ("Attorney-General of the Republic. 5 As you know the attacks by the Turks against the Prisons were resumed with severity on 14.8.1974 and reached their climax on 16.8.1974 with bombings and macmnegunning by planes, causing extensive damage. 10 For purposes of safety all the Greek convicts and those awaiting trial were set free, and almost all of them were used with their consent at forward out­ posts in order to repulse Turkish attacks with mor­ tars and other ground weapons. Others were used for 15 the transportation of the wounded, of food supplies etc. Some of the detainees showed incomparable courage and daring and all of them behaved in an absolutely disciplined manner. I am certain that you will agree that all of them 20 should be granted an amnesty. I do not think that it is right to re-call them to the Prisons. Some of them are still serving at the outposts of the Prisons and many of them have sent in certificates that they are serving at various Battalions of the National Guard. 25 At the Prisons there are to be found today
(3)three Turkish convicts, one of whom, though releas­ ed, did not choose to go to the Turkish sector,
(5)five detainees arrested by the Police as suspected persons, and two
(2)prisoners of war. 30 The 19 Turkish convicts who escaped on the date of the coup d' etat continue, of course, to remain un­ apprehended".). On this letter there appears an endorsement in thehand­ writing of the Attorney-General, dated August
  1. 1974, and signed by him; it reads as follows:"Συμφο>νώ διάμείωσιν τής ποινήςτών ανωτέρω Ελλή­ νων καταδίκων συμφώνως προς το άρθρον 53.4 τοϋ 84 35 Συντάγματος πλην τών καταδίκων διάφόνον έκπρομε­ λέτης εσχάτωςκαταδικασθέντων". 5 ("I agree to the remission of the sentences of the above Greek convicts in accordance with article 53.4 of the Constitution, except regarding the convicts who have been lately convicted of premeditated mur­ der".). Underneath there is written the word "εγκρίνεται" ("ap­ proved"), and, such approval is signed by Mr. Xanthos 10 Clerides, who was, at the time, acting pro tempore as Pre­ sident of the Republic, inview of thesimultaneous absence from Cyprus of both His Beatitude the President of the Republic Archbishop Makarios and of the President of the House of Representatives Mr. Glafkos Clerides, who, 15 * as already stated, had been acting as President of the Re­ public. On August 23, 1974, the Attorney-General replied as follows to theletter of August 20,1974:"Διευθυντήν Φυλακών, 20 25 Είς άπάντησινεπιστολής σας ύπ' αριθμόν307/3 της 20 Αυγούστου 1974 σαςπληροφορώότι κατόπιν συνεν­ νοήσεως μετά τοϋ 'Τπουργοϋ Δικαιοσύνης συνέστησα δυνάμει τοϋ άρθρου53.4 τοϋ Συντάγματος τήνμείωσιν της επιβληθείσης ποινής εις τους εν τη επιστολή σαςά- ναφερομένουςκατάδικους και όΠροεδρεύωντηςΔημοτ κρατίας απεδέχθητήν σύστασιν μου ταύτην ώστε ούτοι νά θεωρώνται ώς άποφυλακισθέντες της 16 Αυγούστου
  2. 1 30 Νοείται ότι ειςτους κατάδικους τούτους δεν περιλαμβάνονταιοι εσχάτωςκαταδικασθέντες διάφόνονέκπρο­ μελέτης και έκτίοντες ποινήνφυλακίσεως". 35 ("Director of Prisons, Tn reply to your letter No. 307/3 of August 20, 1974, I inform you that in consultation with theMinister of Justice I recommended under Article 53.4 of theConstitution the remission of the sentences im­ posed on those convicts referred to in your letter and the Acting President of the Republic accepted this recommendation of mine, so that they can be consi85 1977 Febr. 8 IN RE PANTELIS VRAKAS AND ANOTHER 1977 Febr. 8 dered as released from prison as from August 16,
  3. IN RE PANTEL1S VRAKAS MMD ANOTHER It is to beunderstood that in such convicts arenot included thosewhohavebeenlatelyconvicted ofpremeditated murder and are serving sentences of imprisonment".). 5 It may be added, at this stage, that, as it appears from the material before me, applicant Vrakas applied onFebruary 28, 1976, for remission of sentence; and earlier on his mother had made similar applications on September 10 28, 1974, and October 7,
  4. Likewise applicant Tryphonos applied on March 1, 1976, for remission of sentence; and earlier on his daughter had made similar applications on October 14, 1974, and October 25,
  5. All these applications were refused. It appears that after 15 the above efforts of the applicants, and of their relatives, to secure remission of their sentences failed, they applied againtothisCourtfor ordersofhabeascorpus. In both the present cases there have been filed formal returns to the applications for habeascorpus,stating the 20 reasons for which the continued detention in prison of the applicants is regarded as lawful; and, normally, these being instances in which the returns establish that the applicants are being held in prison in execution of sentences of imprisonment, after conviction on indictment, it would 25 not have been open to the applicants to controvert thereturns (see Halsbury's, supra,p. 794, para. 1499); but, as already mentioned, on the present occasion the Court is faced with arather specialproblem inasmuch astheapplicants contend that their sentenceshave been remitted. 30 I am of the view that in a situation such as that in the present cases (and see, in this respect, interalia, Schmuel v. The Officer in Command, IllegalJewish Immigrants' Camp, Karaolos,18 C.L.R. 158, 164) it would be up to the applicants to show that their detention is prima facie 35 illegal, in other words to show, at least primafacie, that their sentences have been remitted. Having said this—by way of a statement of what I regard to be a relevant principle—I should add that in the circumstances of the present cases I did not have to make anyfinding against the 40 applicants merely because I was not satisfied that they 86 1977 havefailed todischarge anyonuscast onthem,and allmy Fe 8 conclusions, which follow hereinafter in the present judg^; ment, have been reached with certainty, beyond any rea1N Rli sonabledoubt,on thebasis of all thematerial, as awhole, PANTELIS 5 whichhasbeenplacedbeforeme. VRAKAS AND ANOTHER I shalldealfirst with theissueofwhether onAugust 16, 1974, theapplicants weregranted, together with theother prisoners whoweresetfree on that date,remission of sentenceunder Article 53.4 of the Constitution; and it isnot 10 in dispute that such remission could not havebeen validly granted except under the said constitutional provision. 15 Article53.4readsasfollows:"The President and theVice-President of theRepublic shall, on the unanimous recommendation of the Attorney-General and the Deputy Attorney-General of theRepublic,remit, suspend, orcommuteanysentence passed by a court in the Republic in all other cases". "Other cases" in the above provision means all cases 20 other than those in which there arises the question of the exerciseof theprerogativeof mercywith regard topersons condemned to death. Due to constitutional difficulties which have been prevailingin Cyprus since 1963,ithasturned outthat Article 25 53.4had tobe applied, at the time,in a manner rendering it inoperative in so far as were concerned any references therein to the "Vice-President of the Republic" and the "DeputyAttorney-General of theRepublic". Itiscommonground that in relation to theaction taken 30 on August 16, 1974, the Attorney-General of theRepublic was not consulted in any way and. consequently, he did not make any recommendation whatsoever in this respect. It has been contended, indeed, that in view of the then prevailing exceptional circumstances the need for a 35 favourable recommendationoftheAttorney-General could be dispensed with, but there isnothing before meto show that because of such circumstances he could not have beencontactedinorder tobeconsulted. Furthermore, there does not exist any document evi87 1977 e 8 _^ IN RE PANTELIS VRAKAS AND ANOTHER dencing a decision, by the then Acting President of the Republic, Mr. Glafkos Clerides, to exercise, on August **>, 1974, thepowers underArticle 53.
  6. A remission of sentence under the said Article is a formal and solemn act which, because of its nature, has to 5 be evidenced by an appropriate document signed by the President of the Republic; and the need for a process in writing becomes even more apparent in view of the fact that the decision of the President of the Republic has to be preceded by a recommendation, to that effect, by the 10 Attorney-General. I do not overlook the fact that the rule requiring that acts of the administration should be set out in appropriate documents has to be relaxed in times of exceptional circumstances, but there is nothing showing that it was not feasible on August 16, 1974, or reasonably 15 soon thereafter, to prepare the necessary documents evi­ dencing the exercise, on the said date, of the power of re­ mission of sentence under Article 53.4, if such a decision had really been taken then—(regarding, generally, the need for formalities in writing see, inter alia, Στασινοπού- 20 λου ΔίκαιονΔιοικητικώνΠράξεων
(1951)p. 210, and Κυ­ ριακοπούλου ΈλληνικόνΔιοικητικόνΔίκαιον. 4th ed.,vol. Β, pp. 380, 381). I have no doubt, whatsoever, that what did, in fact, happen on August 16, 1974, was that the applicants and 25 other prisoners were temporarily set free because there was heavy fighting going on, at the time, in thearea of the Central Prisons; and that anything that was done, on a few days later, by the prison authorities, in relation to what seemed to be a discharge from the Central Prisons 30 of applicant Vrakas, is of no legal effect whatsoever, be­ cause it was done without lawful authority and due to mis­ taken impressions attributable to the then prevailing con­ fusion. There remains to be examined, next, the contention 35 that the applicants were granted remission of sentence by the, at the time. Acting President of the Republic. Mr. Xanthos Clerides, onAugust 23,
  1. It is clear from the relevant document, exhibit
  2. that on August 23, 1974, it was decided to remit the sentences 40 of all those Greek Cypriot prisoners who were set free 88 1977 temporarily on August 16, 1974, but that this measure Feb was not applied to those who had been convicted lately of ^_ 8 premeditated murder; and, as it appears from the material INRE before me (see, inter alia, the affidavits filed in these cases PANTELIS 5 by Mr. Christou, the Director of Prisons) the applicants VRAKAS were the persons who were most recently, prior to August A N D ANOTHER 23, 1974, convicted of premeditated murder, and since then, and until the said date, no other persons were so convicted. Thus, there can be no doubt at all that the two 10 applicants were excepted from the benefit of the decision taken onAugust 23,
  3. As I have not found that the applicants were granted remission of sentence either on August 16, 1974, or, later, on August 23, 1974, it follows that they are still beingde15 tained lawfully. It has been argued by counsel for theapplicants, by way of a submission in the alternative, that on August 23, 1974, Mr. Xanthos Clerides was not acting lawfully as President of the Republic. It suffices to say that even if 20 this contention were to be found to be correct this would not help the applicatnts in the least, because, then, in any event, it could not be found that their sentences were validly remitted, as they allege. In this respect it must not be lost sight of that they are not being detained merely be25 cause they were excluded from the ambit of the decision taken under Article 53.4 of the Constitution by Mr. Xanthos Clerides on August 23, 1974, but because of their " ' convictions'of the offence of premeditated murder, as already explained earlier on in this judgment. 30 Also, I do not see how it can be of any relevance to the claim of the applicants the fact that the action taken on August 23,
  4. in relation to other prisoners, was initiated and implemented, by way of execution (and without, of course, the exercise of any discretionary power on 35 his part) by the aforementioned O. Antoniou, who was purporting to act. at the time, as Director of Prisons, having been so "appointed" by the "Government" which resulted from the coup d' etat, and whose actions are definitely of no legal consequence whatsoever, because, inter 40 alia, of the provisions of the Coup D' Etat (Special Provisions) Law. 1975 (Law 57/75). Since the applicants were not included in the beneficial effect of the decision of 89 -- 1977 Febr.8 ^ RE PANTELIS VRAKAS VND ANOTHER August 23, 1974, and,therefore, continuedtobedetained m prison o n t n e strength of their convictions for premeditated murder, I fail to see how any invalidity of the course of action taken on the said date could be of any avail to them. The further contention of the applicants that they are victims of unequal treatmentis, in my opinion,unfounded because there was amply obvious cause for which todif­ ferentiate between the applicants and any other prisoner who had not been convicted of the heinous crime of pre- 10 meditated murder. Assuming, in the alternative, that the remission granted to the others was granted invalidly, for any reason, the principle of equality did not entitle the applicants to be granted, too, in an invalid manner, re­ mission of sentence, because thereexists no entitlementto 15 equal treatmenton an illegal basis (see, inter alia, Voyiazianosv. TheRepublic,
(1967)3C.L.R. 239). It has been submitted, also, on behalf of theapplicants, that the exception made in the decision of August 23, 1974, regarding prisoners lately convicted of premeditated 20 murder—namely the applicants—was invalidly made be­ cause it is not duly reasoned. I do think that such excep­ tion, as framed, contains sufficiently thevery obvious rea­ son for which it has been made.But, in any case, I amof the view that I am not entitled, on an application for 25 habeas corpus,to examine the sufficiency of the grounds in relation to which the powers under Article 53.4 of the Constitution were or were not exercised, or the validity otherwise of the exercise of such powers (see, interalia, Basil's Commentaryon the Constitutionof India,5th ed., 30 vol. 2 p. 409, R. v. Leeds Prison(Governor),Ex parte Stafford, Γ1964] 1 All E.R. 610, 612, and, by analogy, our own case of Demetriou andAnother v. TheRepublic, 3 R.S.C.C. 121). Lastly it has been submitted, that on August 23, 1974, 35 therewerenotbefore theAttorney-General andthe Acting President of the Republic certain certificates praising the conduct of the applicants while resisting, together with others, the Turkish invasion. I do not think that such a consideration could have made the slightest difference in 40 relation to the decision to except, from the remission of sentence granted on August 23, 1974, persons who had 90 5 been lately convictedof premeditated murder, such as the applicants; this exception was madein view of the nature of the crime, and not in the light of the personal circumstances or conduct of any particular prisoner. But, in any 5 case, in the letter of August 20, 1974 (exhibit 1) it was stated in respect of all temporarily released prisoners, including obviously the applicants, that they had rendered valuable servicesby fighting against theTurkish invaders. For all the foregoing reasons I find no merit in these 10 twoapplicationsfor ordersofhabeascorpus. Before concluding this judgment I should add that in view of my already stated conclusions I have not proceeded to determine any other issues raised in the present proceedings, because even if they had been decided in 15 favour of the applicants there could not have been changed the outcome of such proceedings; likewise, I did not find it necessary to decide on the preliminary objection, of counsel for the respondents, that once the applicants had applied earlier for orders of habeascorpusand they 20. had withdrawn such applications, they could not now apply,again,for suchorders. 25 In the result theseapplications are dismissed, but withoutanyorder astocosts. Applicationsdismissed. No orderas tocosts. 91 1977 Febr. 8 IN RE PANTEL1S VRAKAS AND ANOTHER

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AI explanation based on the official legal text. Indicative, not a substitute for legal advice.