(1)of the Criminal Code Cap. 154, casting onus of proof on accused, not contrary to the above Article. Constitutional Law—Presumption of innocence—Right to a fair hearing—Articles 12.4 and 30-2 of the Constitution—Proxiso to section 51

(1)of the Criminal Code, Cap. 154 not contrary to the above Articles. Constitutional Law—Right tofreedom of speech and expression under Article 19 of the Constitution—Not absolute but is subject to the 30 restrictions set out in paragraph 3 of this Article—Section 51

(1)of the Criminal Code, Cap. 154 not unconstitutional as being contrary to the above Article. 35 Constitutional Law—Constitutionality of legislation—Section 51

(1)of the Criminal Code, Cap. 154 not contrary to Articles 19 and 12.

(1980)will, seditious conspiracy, holdinganoffice orposition inan unlawful association, preparing war orwarlike undertaking, using armed force against theGovernment,possessingfirearmsandammunition and possessing a wirelessapparatus—Sentences ranging from twelve months to life imprisonment—Offences arising out of 5 participation ofappellant intheactivities of theunlawfulorganization "EOKA B" and inthe coupd'etat of July 15, 1974 against the Government of the Republic—Circumstances and tragic consequences resulting therefrom—Sentences not manifestly excessiveor wrong inlaw. 10 The appellant was convicted by the Assize Court of Nicosia on nine counts of the offences of: (a) Encouraging violence and promoting ill-will, contrary to section 51

(1)oftheCriminal Code,Cap. 154(hereinafter to bereferred to as "the Code") (count 1); 15 (

1. b)Seditious conspiracy, contrary to sections 47(a), 48, 20 and 21 of the Code (count 2); (
2. c)Holdingan office or position intheunlawful association of "EOKA B" or "EOKA" and for acting in such office or position, contrary to sections 56

(2), 62, 63, 20 20 and 21 of the Code (count 3); (

1. d)Preparing of war or warlike undertaking, contrary to sections 40, 20, and 21 of the Code (count 4); (
2. e)Using ofarmed force againsttheGovernment, contrary to sections 41,20and 21 of the Code (count 5); 25 (
3. f)Possessing explosive substances, contrary to sections 4

(4)(d), 5(

1. a)and (
2. b)of the Explosive Substances Law, Cap. 54 (as amended by Law 21 of 1970), possessing firearms the importation of which is prohibited, contrary to section 3(l)(b)(c),

(2)(b), of the Firearms 35 Law, Cap. 57 (asamended by Laws 11of 1959 and 20 of 1970) and possessing pistols and revolvers, contrary to section 4

(1)2(b), of the Firearms Law, Cap. 57, as above amended (counts 6, 7 and 8); and (g) Possessing a wireless apparatus, contrary to sections 35 3

(1)and 11(a) of the Wireless Telegraphy Law, Cap. 307 (count 9), and was sentenced to twelve months* 12 2 C.L.R. imprisonment on count 1, five years' imprisonment on count 2, three years' imprisonment on count 3, imprisonment for life on counts 4 to 5, ten years' imprisonment on each of counts 6 to 8, and to one year's imprisonment on count 9, all sentences to run concurrently. 5 The offences in question, with the exception of the offence in count 1, arose out of the participation and the role of the appel­ lant in the unlawful organization "EOKA B" and in the coup d'etat of the 15th July, 1974 against the lawful government of the Republic. 10 15 20 25 30 Papadopoullos τ. Republic The particulars of the offence of encouraging violence (count 1) were that the appellant, between August and the 16th December, 1976, in Nicosia, edited and published a text* under the title "Political Documents 1971-1974" containing comments of him which were likely to encourage recourse to violence on the part of any of the inhabitants of the Republic or to promote feelings of ill-will between different classes cf persons in the Republic; and it was the case for the prosecution that in the - circumstances and at thevery period at which they were published with so many persons mourning their dead, with the existence of thousands of persons displaced from their homes, the desperate situation of the relathes of missing persons, the fact that the misfortunes that befell this country were attributed to the Coup d'etat which opened the door to the Turkish invasion, the faith and love of the people to its leadership and to the work of His Beatitude the Archbishop Makarios, his go\eminent and his collaborators and supporters, they were likely to encourage recourse to violence and to promote feelings of ill-will as set out in this count. The prosecution evidence with regard to counts 2, 3, 4. and 5 consisted of the oral testimony of 33 prosecution witnesses, which remained uncontradicted and was believed by the Assize Court, and of documentary evidence. With regard to counts 6 to 9, which referred to arms, explosive substances and a wireless set, all found in the course of a search by the police in flat No. 20 in "Gardenia" block of flats, Nicosia, the main prosecution evidence came from police officer, Ioannis Ktoridcs, 35 * See extracts of this text at p. 45 post. 13 Papadopoullos τ. Republic

(1980)fingerprint and photography expert, who found fingerprints of the appellant on a number of items seized from the said flat and his evidence remained throughout uncontradicted. The Assize Court in its judgment, relating to counts 6 to 9, said that even only from the evidence of Ktorides it would be sufficient for it 5 to come to the conclusion beyond reasonable doubt that the appellant was at the time inthesaid flat, knew about the existence of the objects, subject-matter of the above counts, otherwise the existence of his finger prints on such items as the coffee glass jar and a bottle of brandy could not be justified. 10 Upon appeal against conviction and sentence counsel for the appellant contended: (i) That, with regard to the conviction on counts 2-5, the evidence of all prosecution witnesses should not have been accepted because they all had lied. 15

(2)That, with regard to the conviction on counts 6-9, the Assize Court made a wrong evaluation of the evidence or misdirected itself on the factual aspect of the case. 13) That the trial Court wrongly dismissed the objections of the defence to the effect that in cases where accused 20 persons are charged in several counts setting out the completed offences, the addition of a charge of conspiracy (count 2) in respect of the same circumstances was undesirable.

(4)That the inclusion of counts 6-9 on the information was 25 wrongly made because they related to offences of a different type than the rest of the offences contained in the other counts and therefore the cross-examination of witnesses on these counts might adversely affect the defence of the appellant with regard to the other counts. 30

(5)That the Assize Court wrongly admitted as evidence the documents, exhibits 12 to 32 and 41 and 42, which were only copies and not the originals, because it had not been sufficiently and beyond reasonable doubt established that the production of the originals was not possible.

(6)That, taking into consideration the evidence adduced, the trial Court wrongly found the appellant guilty on the first count because: (

1. a)The verdict was unreasonable; 14 35 2 C.L.R. Papadopoullos v. Republic (
2. b)It wrongly decided that the appellant was not entitled to invoke the defences which are provided by section 51

(1)* of the Code; 5 (c) It wrongly decided that the defences which are set out in section 51

(1)of the Code could only be invoked by the appellant if the text in question was published exclusively for the purpose of achieving any of the objects provided therein; (d) The aforesaid construction was unconstitutional. 10 ]5 20 25 3Q 35 (?) That the sentences were manifestly excessive and wrong in law. With regard to contention 5 above the trial Court found that the originals of the documents in question were no longer in the possession or control of the prosecution; and in view of the fact that the photocopies produced were made by the witness who produced them from the originals, they were admissible and could be produced unless on other grounds they were not admissible. Held, per A. Loizou J., Triantafyllides P., L. Loizou, Hadjianastassiou and Malachtos, JJ. concurring,

(1)that no persuasive reasons were given that the testimony of the prosecution witnesses, with regard to counts 2-5, should not have been accepted and the perusal of the record shows nothing in their testimony that would cast any shadow on their veracity; that, on the contrary, on the totality of the testimony of all these witnesses, and the documents and other material, including the evidence connected with counts 6-9, which cannot be isolated or viewed separately from the rest of the evidence, the appellant was rightly. found guilty on counts 2 to 5; and that, accordingly, contention No.

(1), relating to counts 2 to 5, must be dismissed.

(2)That there is no reason to interfere with the findings and conclusions of the Assize Court, with regard to counts 6 to 9, based as they are on the credibility of witnesses, whose demeanour in the witness-box it had the opportunity to watch; that, in fact, apart from the mere denial of the appellant of certain parts of the evidence, the long arguments of his counsel, Section 51

(1)is quoted in full at pp. 41-42 post. 15 Papadopoullos ?. Republic

(1980)both in this Court and the Assize Court, there was nothing to suggest that the Assize Court in any way made a wrong evaluation of the evidence or misdirected itself on any factual aspect of the casejustifying interference on appeal, with suchfindings and conclusions so as to entitle this Court now to arrive at the 5 conclusion that the conviction on all these counts or in respect of anyone of them should be set aside on the ground that same was having regard to the evidence adduced unreasonable; that there does not exist any "lurking doubt" which renders the conviction on all or anyone of them unsafe or unsatisfactory 10 so as to be treated as being unreasonable having regard to the evidence adduced or as entailing a substantial miscarriage of justice inthe senseofsection 145(l)(b) ofthe Criminal Procedure Law, Cap. 155(see, interalia, Zisimides v. The Republic

(1978)2 C.L.R. p. 382 at p. 432); and that, accordingly, contention 15

(2), relating to counts 6to 9,must be dismissed.

(3)(a)(Afterstatingtheprinciplesgoverningjoinderofoffences— videpp.36-7post)thatthoughthejoiningof acountof conspiracy with a count or counts for substantive offences isan undesirable practice and can in some cases work hardship on the accused, 20 the inclusion of such a count in an indictment charging the accused with other counts cannot by itself lead to unfairness, because the circumstances of a case may be such as to warrant the inclusion of such a count and to call for it in the public interest for the due administration of justice; and that the 25 question whether a conspiracy count is properly included in an indictment cannot be answered by the application of any rigid rules and each case must be considered on its own facts (see, also, Loizou and Pikis, Criminal Procedure in Cyprus, 1975, p. 58).

(3)(b) That there was no irregularity in thejoinder of all these counts in the information, nor any injustice or unfairness in the conduct oftheproceedings,orthat anyprejudice hasbeencaused to the appellant on account of suchjoinder; that on the totalily of the evidence adduced and the conduct of the proceedings this 35 was not a case where a separate trial should have been ordered for any of thecounts or that anyoneor more of them should not have been included on the same information; and that, accordingly, contentions

(3)and

(4)above must fail.

(4)That the rule requiring the production of the original of a 40 16 30 2 C.L.R. 5 10 15 20 25 30 35 40 Papadopoullos?.Republic document is subject to exceptions, one of them being the case where the original has been lost or destroyed or that it is in the possession of the opposite party, or its production cannot be enforced (see R. v. Nawaz, The Times April, 17, 1976 C.A.); that in such a case the prosecution must prove the existence of the original, its destruction positively or presumptively or establish its loss by some way or other and in any event, prove that it cannot be found after diligent search, in other words the non-production of the original must be duly accounted for; that the secondary evidence so admitted—may take any form either byproducing a photocopy or true copy or parol evidence of the contents of the original; that the sufficiency of the search necessary to let in secondary evidence is a preliminary question for theJudge,andwillvarywiththeimportance ofthe document and the circumstances of the case (see Phipson on Evidence, 12th ed. p. 760, para. 1820); that in the present case there was clear and unambiguous evidence that the originals were lost or destroyed and that in any event they were not in the possession of the prosecution; that, furthermore, the sufficiency of the search necessary toletin secondaryevidencewasalso established to the satisfaction of the Assize Court; that, therefore, itrightly admittedtheproduction of thephotocopiesaboutwhosegenuinenesstherewastheevidenceofSgt.Kazaphaniotis, whohad made these photocopies from the originals, then in hispossession; and that, accordingly, contention

(5)above must fail. 5(a)(With regardto theconviction onthecount ofencouraging violence andpromotingill-will contrary to section51

(1)of the Code) that the test is not either the truth of the language or the innocence ofthe motive with which it waspublished but the test isthis:wasthelanguageusedcalculated,orwasitnot,to promote publicdisorder or physical force or violencein a matter of state? (see Rex v. Aldred, 22Cox's Criminal Cases, p. 1at p. 3); that, no doubt, the contents of certain passages in the book were of a seditious nature in the sense of section 51

(1)of the Code; that mens rea could clearly be inferred and the verdict of the Court wasduly warranted bytheevidenceadduced;that, furthermore,theAssizeCourt rightlyconcluded that theappellant could not invoke the defences set out in the proviso to the section, oncehehad failed todischargetheonuscast upon him under the said proviso and provethat thesaid publication wasmade solely for anyone or moreof thesaid purposes and doneingood faith; 17 Papadopoullos v. Republic

(1980)that the defences set out in the proviso are indeed exhaustive, and they come into play after the elements of the main part of the section are established and which would have amounted to an offence but for these defences. 5(b) That there is nothing unconstitutional in this section or 5 in its construction by the Court; that the exercise of the right of freedom of speech and expression, which is safeguarded by Article 19.1 of the Constitution is not an absolute one but it is obviously restricted in so far as it is necessary to preserve the values protected byparagraph 3ofthisArticle,whichwerefound 10 necessary in order to protect the State and its Constitutional order, to prevent seditious, libellous, blasphemous and obscene publications and to ensure the proper administration of justice etc.; that, no doubt, thesevalues on theone hand and theliberty of the subject on the other, are antagonistic extremes; that 15 neither is absolute and in a democratic society the problem is one of striking a proper balance between them; that to the enforcement, however, of such laws which are justified only by the restrictions provided in para. 3, Courts should exhibit the utmost caution (see HjiNicolaouv. The Police

(1976)2 20 C.L.R. 63). 5(c) That the fact that the defences opened to an accused person after proof of the seditious nature of a publication, are limited to those set out in the proviso to section 51, does not offend any other Article of the Constitution neither the right to 25 a fair hearing etc.;that thepresumption of innocence has always been a fundamental principle of our Criminal Law; that it is now safeguarded alsoby para.

(6)That in view ofthe facts ofthe case,the tragic consequences that resulted therefrom and the price paid by so many people, the sentences imposed are not manifestly excessive or wrong in law; that the totality of the circumstances relevant to the offence and the involvement of the appellant left no room for leniency; that the approach of the Assize Court does not call for interference with their decision on this point of the appeal; and that, accordingly, the appeal against sentence must be dismissed. Per Triantafyllides P. (on the aspect of the constitutionality of the conviction of the appellant on count 1 of the offence of encouraging violence and promoting ill-will, contrary to section 51

(1)of the Code):

(1)That though there can be no doubt that section 51

(1)restricts the right to freedom of speech and expression which is safeguarded by Article 19of the Constitution, when such section is read as a whole, and there are taken into account the defences afforded to an accused person by means of paragraphs (

1. a)to (
2. d)in the proviso to this section, it has to be held that the restriction, which is imposed by means of it, is necessary in the interests of the security of the Republic and the constitutional order, as wellasof thepublicorder and for the protection ofthe reputation and rights of others; and that, consequently, it is a constitutionally permissible restriction, which comes within the ambit of paragraph 3 of Article 19 above.

(2)That, of course, there is room in a democratic society, such as>the one set up by the Constitution of the Republic, for amending section 51

(1)of Cap. 154 in order to make it more liberal, but the mere fact that there is room for improvement, in this respect, does not render it, as it stands today, an unconstitutional provision; that, also, for the same reasons, it cannot be regarded as offending against Article 10of the European Convention on Human Rights; and that, therefore, the conviction of the appellant in relation to an offence committed contrary to it cannot be treated as unconstitutional. Per Hadjianastassiou J. (on the question whether section 51 of the Criminal Code, Cap. 154 was properly construed by the 19 Papadopoullos τ.Republic (1980 Assize Court and whetherthe appellantwas entitledto invoke the defencesset out in thissection):

(1)That a prosecution for seditious libel is a necessary oneto every civilized Government; it is liable to be abused, and if it is abused, the complainantcan turn to theCourtsof thiscountry for protection. 5

(2)That it is equally important to state that every person in Cyprus has a constitutional right to express and/or to publish his opinion on any public matter, however distasteful, however repugnant to others, if of course he avoids defamatory matter; 10 that matters of state,mattersof policy,matterseven of morals— all these are open to him; that hemay state his opinions freely and he may try to persuade others to share his views.

(3)Thattheliberty of thepress is indeed essential tothenature of a free state,but this consists, as theauthorities show, in laying 15 no previous restraints upon publications, and not in freedom from censure for seditious matterwhen published; that, certainly, every man in Cyprus has an undoubted right to lay what senti­ ments he pleases before the public; that to forbid this, is to destroy the freedom of the press, but if he publishes what is 20 improper, mischievous, illegal or seditious, he must take the consequences of his own acts.

(4)That it is also recognized in all civilized countries that punishment for the abuse of the liberty accorded to the press is essential to the protection of the public, and that the common 25 law rules that subject the libeller to responsibility for the public offence, as well as for the private injury, are notabolished by the protection extended in the Constitution of the Republic.

(5)That the trial Court rightly came to the conclusion that certain passages of the book in question were of a seditious 30 nature, and that the publications were outside the provisions of the proviso of the said section 51

(1); that once the appellant has failed to discharge the onus cast upon him, viz., that the publication was made in good faith, the contentions of counsel, including the contention of unconstitutionality, must fail. 35 Appeal against convictionand sentence dismissed. Cases referred to: Shioukiouroglou v. Police

(1966)2 C.L.R. 39 at p. 42; 20 2 C.L.R. Papadopoullos v. Republic HjiSavva alias Koutras v. The Republic

(1976)2 C.L.R. 13 at pp. 22-28, 40-45, 57-58; Foumarts v. The Republic

(1978)2 C.L.R. 20 at p. 23; Zisimides v. TheRepublic

(1978)2 C.L.R. 382 at p. 432; 5 R. v. Assim, 50 Cr. App. R. 224; Akritas v. i?., 20 C.L.R. (Part I) p. 110; R. v. Oinwo/i, Λ. v. Wentock [1960] 1 All E.R. 558; R. v. Gr#/fo [1965] 2 All E.R. 448; Λ. v. Meyrick, 21 Cr. App. R. 94; 10 Λ.-ν. Z,»6e/#,19 Cr. App. R. 133 at p. 137; Constantinides v. Republic

(1978)2 C.L.R. 337 at pp. 359-360; R. v. Jones and Others, 59 Cr. App. R. 120; Tattaris v. The Queen, 24 C.L.R. 250; R. v. AWflz, The Times April 17, 1976 C.A.; 15 R. v. Burns & Others, 16 Cox's Criminal Law Cases, 355 at p. 360; Rex v. Aldred,22 Cox's CriminalLaw Cases 1at p. 3; HjiNicolaou v. Police

(1976)2 C.L.R. 63 at pp. 68, 69; R. v. Carr—Briant, 29 Cr. App. R. 76; 20 Gendarmerie v. Zavoj, 4 R.S.C.C. 63; Kouppis v. The Republic

(1977)11 J.S.C. 1860 at p. 1897 (to be reported in

(1977)2 C.L.R.); 25 30 De Becker v. Belgium (E.C.H.R. Series B, 1962 at p. 126); X and The German Association of Z. v. The Federal Republic of Germany ((Application No. 1167/61), Yearbook of the European Convention on Human Rights, 1963, Vol. 6, p. 204, at p. 218); Handyside v. 77ie United Kingdom (Decision of the European Court of Human Rights—Series A: Judgments and Decisions, Vol. 24 at pp. 22-23); Geerk v. Switzerland ((ApplicationNo. 7640/76) Decisionof the European Commission of Human Rights—See Decisions and Reportsof the Commission, Vol. 12,p. 103,at p. 109); Fox v. Washington, 59 Law. Ed. 573 at pp. 575-576; 35 Dennis v. United States, 95 Law. Ed. 1137 at pp. 1147, 1148, 1149; New York Times Co. v. United States, 29 Law. Ed. 2d. 822 at P. 828; 21 Papadopoullos τ. Republic

(1980)Near v. Minnesota ex Rel.Olson, 75 Law. Ed. 1357 at pp. 13661367. Appeal against conviction and sentence. Appeal against conviction and sentence by Eleftherios K. Papadopoullos who was convicted on the 10th August, 1977 5 at the Assize Court of Nicosia (Criminal Case No. 1680/77) on, inter alia, one count of the offence of using armed force against the Government contrary to sections 41, 20 and 21 of the Criminal Code, Cap. 154 and on one count of the offence of seditious conspiracy contrary to sections 47(a), 48, 20 and 21 10 of the Criminal Code, Cap. 154 and was sentenced by Demctriades, P.D.C., Papadopoullos, S.D.J, and Nikitas, D.J. to life imprisonment of the use of armed force count and tofive years' imprisonment on the seditious conspiracy count. A. Eftychiou, for the appellant. 15 C. Kypridemos, Counsel of the Republic, for therespondent. Cur. adv. vult. TRIANTAFYLLIDES P.: The first judgment will be delivered by Mr. Justice A. Loizou. A. Loizou J.: The appellant was found guilty and sentenced by the Nicosia Assize Court on the following nine counts: 20 Count 1—For encouraging violence and promoting ill-will contraty to section 51

(1)of the Criminal Code, Cap. 154 (hereinafter to be referred to as "the Code"), to 12 months imprisonment. 25 Count 2—For seditious conspiracy contrary to sections 47(a), 48, 20 and 21 of the Code, tofiveyears imprisonment. Count 3—For holding an office or position in the unlawful association of "EOKA B" or "EOKA" and for acting in such office or position, contrary to sections 56

(2), 62, 63, 20 and 21 of the Code,to threeyears imprison­ ment. Count 4—For preparation of war or warlike undertaking, contrary to sections 40, 20, and 21 of the Code, to imprisonment for life. Count 5—For the use of armed force against the Government, 22 39 35 2 C.L.R. Papadopoullos τ. Republic A. Loizou J. contrary to sections 41, 20 and 21 of the Code, to imprisonment for life. 5 ]0 )5 Counts 6, 7 and 8—For possession of explosive substances, contrary to sections 4

(4)(d), 5(

1. a)and (
2. b)of the Explosive Substances Law, Cap. 54 as amended by Law21of 1970,possession offirearms theimportation of which is prohibited, contrary to section 3(l)(
3. b)(c),

(2)(b),of the Firearms Law, Cap. 57,as amended by Laws 11 of 1959 and 20 of 1970,and possession of Pistols and Revolvers, contrary to section 4

(1)2(b), of the Firearms Law, Cap. 57,as above amended;on each of them to ten years imprisonment; and Count9—For possession of a wireless apparatus, contrary to sections 3

(1)and 11(

1. a)of the Wireless Telegraphy Law, Cap. 307, to one year's imprisonment. All the aforesaid sentences were ordered to run concurrently. The present appeal is against both the conviction and the sentence in respect of all counts. I need notrepeat hereverbatim thenumerous grounds of law 20 set out inthenoticeof appeal,suffice it to say thatas eventually argued before us thoseagainst conviction may begroupedunder three main headings, namely; (
2. a)that there have been procedural irregularities at the trial; 25 0>) that theconviction onall countswas, having regard to the evidence adduced, unreasonable; and (
3. c)with regard to count 1, the appellant was entitled to invoke the defences which are set out in section 51

(1)of theCode,otherwise thesection wasunconstitutional. 30 With regard tothesentencesimposed theground was thatthey were manifestly excessive and wrong in law. The facts as found by the trial Court may be summed up as follows:- In September 1971, the late General Georghios Grivas 35 Dhigenis came ashore at an isolated cove, near Pissouri village and was received by a group of persons, which included the 23 A. Loizou J. Papadopoullos v. Republic

(1980)appellant, Stelios Stylianou, Philippos Ioannides Pippou, advocates, and Costas Papastavrou, a school-master. Grivas, upon his arrival set up the association then known as "EOKA" of which the appellant, as admitted by him in evidence, became a member. This association identified itself some time later as 5 "EOKA B", obviously in order to distinguish itself from the fighters organization that waged the liberation struggle that preceded independence. In order to avoid therefore any confusion I shall be referring to the new association only as "EOKA B", although some of the leaflets and documents 10 circulated were signed at times by "EOKA" only. This "EOKA B"madeitsdebut onthe 16thNovember, 1972, by means of a leaflet which was circulated in Cyprus. It was addressed to the Cypriot Greek youth. It was insulting to the then President of the Republic, the late Archbishop Makarios, 15 whom it described as the new tyrant. Five more leaflets were circulated up to the 20th November, 1973, in similar tenor, threatening alsojudicial officers, educationalists and policemen. At the same time through its armed bands it attacked Police Stations, it seized arms, it blew up Police Stations and other 20 Government property and also stole a great quantity of arms from The Recruits Training Centre of the National Guard at Yeroskipou. It also assumed by its leaflet of the 2nd Aigust, 1973, responsibility for the abduction of the then Minister of Justice, Mr. Christos Vakis. 25 Theauthorities of theRepublichad a list ofonehundred and fifty-fourpersonswanted for interrogation inrespect ofpossible participation inoffences for theoverthrow ofthelawful Governmentand offences against theStateingeneral,and policecarried out operations for thepurpose of bringing theculpritstojustice 30 and preserving Law and order. On the 9th August, 1973,in the course of a police operation inLimassoltown,twowantedpersons,D.SpourgitisandStavros Georghiou Stavrou "SYROS", were arrested and among the documents seized there wasa scorched typed document marked 35 "TopSecret"appearingtohavebeencirculatedinfivecopiesand thatbeingCopyNumber Onewasaddressed tosomeonereferred to therein by the codename "Ouranos". There was attached thereto an annex entitled again "Top Secret". Bothweredated 25th February,

1. It was entitled "OPERATION 40 24 2 C.L.R. Papadopoullos τ. Republic A. Loizou J; APOLLON" and it contained details for the overthrow of the lawful Governmentof the Republic and the taking of power by "EOKA B" by theuse of armedforce. {Exhibits 41 and42). On the 18thJune, 1974,theNicosiaPoliceacting oninforma5 tion searched flat No. 20 in the block of flats "Gardenia", situate at Poulliou and Kapota Street No.6, Nicosia, in which they found various documents (exhibits12-27). On the 11th July, 1974, at Dasoupolis, at the house of a certain Mitsingas, the Police arrested the appellant, advocate Saveriades, Captain 10 Papapetrou of the National Guard, Aris Georghiou and the owner of the house. In the brief-case found in the possession of theappellant,therewerearms aswell as various "EOKA B" documents. (Exhibits 28-32). All these documents(exhibits 12-32),containedamong othermatters,instructions tomembers 15 or section leaders of theassociation andalso dealt with matters relating to itsfinancialadministration. Count 2 relates to happenings between the arrival here of Grivas and the20th July, 1974 thedate of theTurkish invasion of Cyprus. In this respect the particulars for this countgiven 20 in the information are that the appellant under code-name "Thysefs" "Myron" and "Keravnos",—which he admitted to have been used by him between the monthsof September 1971 and the 20th July, 1974, in Nicosia, and elsewhere in the Republic, conspired with other persons having thecode-names 25 "Enias" and "Navaronts" as well as with persons unknown, to do acts in furtherance of a commonseditiousintention. Theparticulars ofcounts 3,4,and 5, cover theperiodbetween the 16th November 1972 and the 20th July,
2. Regarding count 3, the particulars are that the appellant held an office in 30 the "EOKA B" or "EOKA", unlawful organization. For count 4 they were that between the aforesaid dates he made preparations,for carrying on,or aided in,or advised theprepa­ ration for war or warlike undertaking, namely the unlawful undertaking and actions of "EOKA B" and the coup d'etat 35 operations which commenced on the 15th July, 1974 with, in favour of, or by the forces of the coup d'etat against thethen lawful President of the Republic,Archbishop Makarios and his guardthelawful Governmentandor theresistingSecurityForces of theRepublic and or theloyal members of theSecurityForces 40 and other citizens supporting the lawful Government in the Republic. 25 ' A. Loizou J. Papadopoullos τ. Republic

(1980)The particulars of count5 also relate to the same period and refer to the preparation, or attempts, or endeavours, by the use of or the show of armed force, namely theacts referred toin the particulars of count 4, and the undertakings and acfions of "EOKA B" and the coup d'etat undertakings,'" which 5 commenced on the 15th July, 1974, to procure an alteration in theGovernmentof the Republic,or to resist theexecution ofthe laws by the lawful Security Forces of the Republic resisting the coup d'etat, or to compel thelawful President of the Republic, the members of theCouncil of Ministers andotherorgans of the 10 State to abstain from performing their public duties, or aided to the preparation or attempt to do them. Thetrial Court thoughtitconvenient toleavetheexamination of thefirst count last, in view of the chronological sequence of events and I intend to follow that course. 15 With regard to counts2-5,theevidence adducedby theprose­ cution related to the aims and activities of "EOKA B" during the material period, the coup d'etat and the activities of the persons that took part in it between the 15th and the 20th July, 1974, and in particular to theroleand participation of theappel- 20 Iant in it. I need not describe in detail the various incidents related by the various witnesses for the prosecution and whose testimony was uncontradicted. They covered a wide range of raids of police stations stealing therefrom arms, blowing up of such stations as well as blowing up other government establish- 25 ments. In the course of such raids several policemen,national guardsmen and civilians were wounded. Moreover evidence was adduced about the stealing of a large quantity of arms from the Recruits Training Centre of the National Guard, at Yeroskipou. From the testimony of the various witnesses which theCourt accepted as true,andfrom thecontents of the several documents produced, theAssizeCourt cameto theconclusion that "EOKA B" was unquestionably a conspiratorial association set up for the purpose of achieving anunlawful aim,namely thetaking over 35 of power and the destruction of the State. The shroud of secrecy that characterised its mode of operation, by the use of emissaries for communicationbetween its officials and members, of code-names, of masks for concealing the identity of its members when engaged in their criminal activities, would not 40 26 30 2 C.L.R, Papadopoullos v. Republic A. Loizou J. be necessary if the purpose of this organization was the one alleged bytheappellant, namelytheprevention oftheimposition of an unpatriotic solution to the Cyprus problem and a matter of self-defence of those members of thepublic favouring union 5 with Greece or the bringing about of a conciliation between the late President Makarios and George Grivas for the purpose of forming a united internal front. The very contents of "OPERATION APOLLON"reveal interaliathereal purpose of "EOKA B"whichwastheonefound bytheAssizeCourt tobe. 10 Furthermore from the contents of exhibits12to 32, the trial Court concluded that the person appearing therein under the code-names of "Myron", "Thysefs" and "Keravnos", held an office in the said unlawful association by acting asfinancial administrator approving the estimates of the various sectors, 15 the payment of money to sector leaders, to wanted and other persons to cover their needs and the payment of money for the manufacture of bombs. Also that person appeared therein to have the authority to give orders, to reprimand other persons in charge of sectors, who seemed bound to give to him the 20 necessary explanations. Moreover the said person was also responsible for part of the armoury of "EOKA B"and had the authority to name emissaries and change code-names of members. Theappellant admitted, in evidencethat hewasa member of 25 "EOKAB"acloseassociateandpersonalcollaborator ofGrivas and that inthe organization heused at different timesthecodenamesof"Myron", "Thysefs"and "Keravnos". Theappellant, wasfound and rightly soinour view,to beaperson actinginan office and exercising substantial authority in this conspiratorial 30 association by handling such matters asfinance,equipment and for being responsible for political briefing. In one of the documents, exhibit 20, which the appellant under the code-name of "Thysefs" addressed to the sectorleader of "EOKA B", under the code-name of "Skypion" he 35 said: "I remind you, from theposition ofthefirstcollaborator ofthe Leader,inthesector,thatyouareobligedtotakeseriously intoconsideration and respectmyopinionwhich isthe outcome of His orders." The allegation of the appellant that he wrote certain documents on instructions, doing mere clerical work in 40 this association was dismissed by the trial Court as naive» in 27 A. Loizou J. Papadopoullos τ. Republic

(1980)view of the contents of all those documents from which the leading position held by himin thisunlawful association became clear and apparent. The denial by the appellant that he held an office or position in "EOKA B", or that heperformed theduties of such office or 5 position, was pursued on appeal also, a ground which Ihave no difficulty in dismissing in view of the totality of the circum­ stances, thecontents of all these documents,and theconductof the appellant, both before and during the coup d'etat. His freedom of movement, escorted by other officers obviously 10 obeying to his commands, at the Central Prisons and at the Headquarters of the National Guard, where he was also seen armed with a "Kalasnikof" machine-gun,as well as his associa­ tionswith other leading members of "EOKA B" at thetime,are further proof of his holding an office in the said association. 15 His leading role will be also seen when I shall be dealing with other parts of the evidence when examining othergrounds. I turn now to the count of seditious conspiracy. It has already been seen thattheappellant was holding anoffice in this unlawful association,thathehadadmittedlyusedthecode-names 20 of "Myron", "Thysefs" and "Keravnos" and thathe communi­ catedwith othersector leaders who were also using code-names. Among thecode-names thatappearinexhibits 12-32are those of "Navaronis", "Enias", and "Kadmos". The trial Court identified "Navaronis" as the code-name of a certainVitzileos, 25 who was a member of the Greek Central Information Service and who was at the time attached to the Greek Embassy in Nicosia. Nicos Varnavides, a major in the National Guard was atthetimeof thecoupd'etat attached tothe Reserve Force of the Police. Hewas arrested and kept in custody at the cells 30 of the Military Police near "Hilton". He was interrogated by the aforesaid Vitzileos who boastfully disclosed to him that he was the person with the code-name of "Navaronis". The code-name of "Enias"was found to have beenused by a certain Major Athanassios Sklavenitis from Greece. Chr. 35 Tsangaris, a major in the National Guard,attached also at the Reserve Force of the Police at the time when arrested in the evening of the 15thJuly, was led to theoffice of thecommander of the National Guard. There he met besides an unknown to 28 2 C.L.R. Papadopoullos τ. Republic A. Loizou J. him colonel, major Athanassios Sklavenitis whom he knew as Sklavenitis had served in Cyprus as an A.D.C. to Grivas when the latter was Chief of the National Guard. There he said to him "Are you surprised? Did you know that I was 'Enias* 5 of ΈΟΚΑ B', whom you were trying to arrest in Cyprus? You should have known that ΈΟΚΑ B'was directed fromGreece." Hefurther mentionedto thewitness thathehad cometo Cyprus to organize the coup d* etat. Therewas no evidence before thetrialCourtas to theidentity 10 of the person with the code-name "Kadmos", but from the contents of exhibit12, in which repeated reference is made[to the National Centre and which was written after the death of Grivas, it was deduced that that person lived in Greece,thathe held a high post in the Junta hierarchy and that he had under15 taken the obligation to cover theneeds of "EOKA B" inequip­ ment, money and suitable command. This exhibit 12, though typed and signed by "Thysefs" was denied to have been written by the appellant, but the Assize Court found that he was its author, bearing also corrections in his own hand-writing. 20 From the evidence of these two witnesses and the contents of exhibits12, 27, and 31 the charge of conspiracy was proved and that its purpose was the promotion of a common seditious intention, that is to bring into hatred, contempt and to excite disaffection against the lawful Government of the Republic and 25 to raise anarchy in the Republic. .The testimony of the aforesaid two witnesses was among that of numerous others, which counsel for the appellant has asked this Court to find that it was wrongly accepted by the Assize Court, being as he argued insufficient, contradictory and not 30 credible. I do not subscribe to this view. Ifindthatthere was nothing in the testimony of these witnesses that had shaken their credibility and nothing has been shown entitling me on appeal to interfere with thefindingsof theAssize Court on this issue either. 35 Theprosecution, in thedischarge of its duty to prove beyond reasonable doubt other ingredients of the offences with which theappellant was charged, called evidence and established tothe satisfaction of the Assize Court the warlike operations of those taking part in the coup d'etat against the State, the resistance 29 A. Loizou J. Papadopoullos v. Republic

(1980)which the lawful forces put up and the conduct of the participants in the coup d'etat as from the 15th July, until the Turkish invasion. Thiscamefrom thetestimony of33witnesses including senior police officers and members of the Reserve Force of the Police. 5 In the morning of the 15th July, 1974, the coup d'etat commenced in a violent manner against the lawful Government. Its immediate target wastheextermination of the then President of the Republic Archbishop Makarios. TheAssize Court came to this conclusion from two sets of facts. The indiscriminate 10 bombardment of the Presidential Palace with heavy arms from tanks and armoured cars,whilsttotheir knowledgethePresident of the Republic wastherein,havingbeen seentoreturn from his Troodos summer residence where he had spent the week-end, and from the very fact that they announced his death soon 15 after it caught fire, obviously believing that he could not have survived the attack against the Presidential Palace with such force of fire with which they hit it. It was a well organized operation. A simultaneous action started in all the towns and manyvillages. The Cyprus Broad- 20 casting station was immediately captured and placed under their control and all announcements had to be approved by a Greek Officer who assumed the role of its overlord; the camp oftheReserveForcesofthePolice,theArchbishopric, thePolice Headquarters, the Cyprus Telecommunication Authority and 25 the Central Prisons were also attacked. The Police Headquarters weretakenoverandtheChiefofthePolicewasreplaced by another officer; ambushes were laid to the security forces. All these activities were carried out either exclusively by known members of"EOKA B"ormixedgroupsof Greekofficers serving 30 in the National Guard, national guardsmen and members of "EOKA B". As a result, considerable damage to property was caused and many lives were lost. The defence denied anyconnectionbetween "EOKA B"and Grivas on the one hand and the military Junta of Anthens, on 35 the otherhand, but thetrial Court rightly rejected theallegation. There was such close cooperation between disciplined units of the National Guard and ELDYK—the Greek Contingent stationed in Cyprus since Independence under the Treaty of Alliance and the Additional Protocol No. 1annexed thereto— 40 30 2 C.L.R. Papadopoullos v. Republic A. Loizou J. and known members of "EOKA B" that left nodoubt for such cooperation. There was further the evidence of Varnavides and Tsangaris and the contents of exhibits 12 and 31 which sealed the conclusion on this point. 5 The prosecution established the participation of "EOKA B" in the coup d'etat of the 15th July. The appellant took an active part in it. As it was seen he had been arrested on the 11th July, 1974 at Dasoupolis and he was in custody at the Central Prisons whenthe coup d'etat started. Hewasreleased 10 from custody together with all other detainees and convictsand he immediately started his unlawful activities. He was seen and therewasclearevidenceonthispoint,visitingarrestedpolice officers, detained at the Central Prisons and talking to them, armed and escorted by other armed persons including a certain 15 Crysos Christodoulou who assumed a responsible position in the administration of the Central Prisons at the coup d'etat and by a Greek Officer named Souli. Among those police officers that he met whilst they were in custody, was police sergeant Nikos Kazaphaniotis. The appellant reminded tohim 20 the occasion when he was in custody and hisfingerprintswere takenbythispolice sergeant and that sincethen things hadbeen reversed. Another one was Christakis Ioannou, the Police ConstableintheReserveForce,whomtheappellant interrogated regarding arms and the set up of the Police Reserve Force and 25 the armed groups of Dr. Lyssarides and Stavros Kornilios. This witness, was on instructions from the appellant illtreated byan unknown person when he said that hehad no knowledge ofthemattershewasbeinginterrogatedabout. Alsotwoprison warders, Charalambos Loizou and Charalambos Theodorou, 30 sawtheappellant in theafternoon of the 15thJulymovearound in the area of the Central Prisons armed and carrying out a *search in the stores in order to discover weapons. Furthermore the activities of the appellant in the afternoon of the 17th July, were described by witnesses Zavros, Mavrides 35 and Kourtellas. Zavros had his house searched by a group of armed persons headed by and obeying to the commands of, the appellant, who before leaving the house asked the witness to convey a message to doctor Lyssarides that the latter should deliver hisarms to theauthorities and that theappellant himself 40 would undertake the safety of his life. Being as he said, a leading member with influence he could see that such promise 31 A. Loizou J. Papadopoullos τ. Republic

(1980)for the safety of the life of the doctor would be kept. Also Kourtellas, a taxi driver and Mavrides described how they were arrested in the afternoon of the 17th July in Nicosia by a band of armed persons whose leader was the appellant. The line of thedefence was thatonaccountof theilltreatment 5 the appellant received upon his arrest and whilst in custody, he was unable to move and so uponhis release from custodyhe stayed in bed in the house of a friend. He did not, however, deny that he visited the National Guard Headquarters as well as the Presidential Palace a day or two after the coup d'etat. 10 His explanation, however, was that he was searching for his personal belongings that were taken from his whilst in custody at theCentralPrisons. Itwas indeedaflimsyattempttoexplain away the intense activity on which he embarked soon upon his release from prison, an activity which was suggestive, not only 15 of an active participation in the coup d'etat and the use of the armed force against the Government,but also his leading posi­ tion in "EOKA B". The two doctors,whom theappellant called in support of his version as to his condition, that is, Dr. HadjiCostas and Dr. 20 Argyropoullos, couldnothelpthe appellant. Dr. Argyropoullos who X-rayed theappellant could not remember if theappellant had suffered a fracture of the ribs. On the other hand, the testimony of Dr. HadjiCostas to the effect that he had found bruises and lacerations on several parts of his body when he 25 examined him on the 14th July and on account of them he could nothave moved for a period of tendays, was defeated by the very admission of theappellant thathe did, in fact, visitthe National Guard Headquarters and the Presidential Palace, as already stated. Thetrial Courtfurther inferred from thecontentsof oneof the documents, i.e. exhibit28 thatthe appellant also knew the date the coup' d'etat was to take place. Exhibit 28 was addressed by the appellant under the code-name "Keravnos" to "Poseidon", it was written on the 9th July, 1974, at 21 hrs. and 35 it contained, inter alia,the following:"

1. Pay great attention to what I am writing to you. You will not submit resignation before the 15th instantunder any circumstances 32 30 2 CX.R. 5 Papadopoullos τ. Republic A. Loizou J.
2. You cannot write that you resign for family reasons, they will all spit on you, be careful, not include such reasons. Listentomeandyouwillnotsuffer anydamage and as I stressed to you, until the 15th only, not before that; I request you warmly, I insist on this." From the totality of theevidence before it, the AssizeCourt came to theconclusion that theprosecution proved beyond any reasonable doubt counts 2, 3,4 and 5,and found theappellant guilty thereon. 10 The appellant by the present appeal asked the Court, as he did at the trial, that the testimony of all witnesses should not have been accepted that all had lied. No persuasive reasons were,however, givenandtheperusal oftherecordshowsnothing in their testimony that would cast any shadow on the veracity 15 of all thesewitnesses. On thecontrary,Ifindthaton thetota­ lity of the testimony of all these witnesses, and thedocuments and other material,including, of course, theevidenceconnected with counts 6, 7, 8, and 9, with which Ishall be shortly dealing but which cannot be isolated or viewed separately from the 20 rest of the evidence, the appellant was rightly found guilty on counts 2 to 5 and I dismiss the grounds of appeal relating to these counts. Counts 6to9refer to thearms,explosivesubstances,ammuni­ tion and a wireless set found in the course of a search by the 25 police inflatNo. 20 in "Gardenia"block of flats at Pouliosand Kapotas street No. 6, Nicosia. A number of policemen and police experts infingerprintsand in firearms andammunition gave evidence with regard to these counts. Among them was police officer Ioannis Ktorides, fingerprint and photography 30 expert, who examined the various exhibits and found on a number of these items seized from the saidflat,fingerprintsof the appellant. His evidence remained throughout uncontra­ dicted. Police officer Christoforos Georghiou a hand-writing expert found in the documents, exhibits 12 to 32 handwriting 35 of the appellant. The findings of this witness have not been disputed by the appellant. TheAssizeCourtinitsjudgment said thateven only from the evidence of Ktorides it would be sufficient for it to cometo the conclusion beyond reasonable doubt that the appellant was at 33 A. Loizou J. Papadopoullos v. Republic

(1980)the time in the said flat, knew about the existenceof the aforesaid objects and possessed same, otherwise the existence of his fingerprints on such items as the coffee-glass jar, the bottle of brandy and gymnastic apparatus which were articles of daily usecould not bejustified. Theappellant gaveno evidencehow 5 thesefingerprintswere found on these articles. The evidence, however, ofKtoridesis supported alsoby theevidenceofpolice officer Kazafaniotis who testified about his encounter with the appellant on the 17th July at the Central Prisons, to which evidenceIhavealready referred in moredetailswhenexamining 10 the leading role of the appellant in "EOKA B". I seenoreason to interferewith thesefindingsandconclusions of the Assize Court, based as they are on the credibility of witnesseswhose demeanour in thewitness-box ithad the opportunity to watch. In fact, apart from the mere denial of the 15 appellant of certain parts of theevidence, the longargumentsof his counsel, both in this Court and the Assize Court, there was nothing to suggest that the Assize Court in any way made a wrong evaluation of the evidence or misdirected itself on any factual aspect of the casejustifying interference on appeal with 20 suchfindingsand conclusions so as to entitle me now to arrive at the conclusion that the conviction on all these counts or in respectof anyoneofthem shouldbesetasideon theground that same was having regard to the evidence adduced unreasonable. Nor there exists any"lurking doubt"which renderstheconvicti- 25 on on all oranyone ofthem unsafe or unsatisfactory soastobe treated as being unreasonable having regard to the evidence adduced oras entailinga substantialmiscarriage ofjustice inthe sence of section 145(l)(b) of the Criminal Procedure Law Cap. 155. See Shioukiouroghuv. ThePolice

(1966)2 C.L.R. 39 at 30 p. 42; HjiSavvaalias Koutrasv. TheRepublic

(1976)2 C.L.R. p. 13 at pp. 22-28, 40-45, 57-58; Foumartsv. The Republic

(1978)2C.L.R. p.20at p.23;Zisimides v. The Republic

(1978)2 C.L.R. p. 382 at p.432. Theevidenceuponwhich theAssizeCourt madetheir findings 35 on all issues was overwhelming and indeed it could make no other findings having accepted such evidence as true and substantially correct. Oneofthelegal objections raised at theoutset ofthetrial and whichwaspursued in thisCourt as oneof thegroundsof appeal 40 34 2 C.L.R. Papadopoullos v. Republic A. Loizou J. coming under the heading of procedural irregularities at the trial, hereinabove referred to, is that the trial Court wrongly dismissed the objections of the defence, that in cases where accused personsarecharged withseveral offences setting outthe 5 completed offences, the addition of a charge of conspiracy in respect of the same circumstances is undesirable. This objection referred to the inclusion on the information of count 2, the charge of seditious conspiracy, contrary to sections 47(a) and 48 of the Code. 10 It wasargued that the circumstances relating to count 2were substantially contained in count 4 by which the accused was charged to have committed the completed offences relating to the coup d'etat warlike operations, and in count 5 for the use of armed force against the Government and consequently its 15 inclusion would only embarrass the defence. Moreover, objection was taken to the inclusion of counts 6 to 9on theinformation as they related to offences of a different type than the rest of the offences contained in the other counts and therefore the cross-examination of witnesses on these 20 counts might adversely affect the defence of the appellant with regard to the other counts. The Assize Court was invited to exercise its power by, either striking out these counts so that the appellant would not be prejudiced inhisdefence or to order a separate trial for them, 25 30 The ruling of the trial Court was as follows: " Weagain seeno merit in the objection taken by Counsel for thedefence. Counts

(2),

(4)and

(5)chargetheaccused withspecificoffences that arecreated bytheCriminal Code, Cap. 154and they do not generally charge theaccused with conspiracy. Counts 6 to 9 are serious offences that are connected withtheothercounts. Therefore thesubmissionofCounsel cannot stand and we overrule it. 35 Counsel for the accused has submitted that the accused by having to face counts 6-9 may be prejudiced in his defence. We shall watch out and if necessary exclude evidence that may prejudice the accused, in his defence. 35 A. Loizou J. Papadopoullos τ. Republic

(1980)Accused is therefore called upon to plead on all counts on the information." Thejoining of several offences inthesame charge or informa­ tion against the same person is permitted by our section 40 of the Criminal Procedure Law, Cap. 155. In such a case the 5 Court may either convict or acquit the accused generally upon the whole charge, or convict him upon one or some and acquit him upon other counts. If, however, different counts relate to different facts and if theCourtthinksit conducive totheneed ofjustice to do so it may,at any stage of the proceedings, direct 10 that the accused shall be tried separately upon anyone or more of such counts. The factors to be taken into consideration in deciding whether the interest of justice requires a separate trial or not, arewhether suchjoinder of offences would beoppressive for the accused to defend himself as he would be prejudiced 15 therebyin thatinadmissible evidenceinrespect of onecount may be admitted in relation to another and so embarass him in the conduct of his defence. This latter ground of course is one of the dangers that should not be exaggerated as Judges more so than Juries can be expected to approach the evidence in the 20 proper manner. Matters relating to such joinder of offences or offenders are matters of practice on which the Court has, unless restrained by Statute,inherent power both to formulate its own rules and to vary them in the light of current experience andtheneedsof 25 justice. (See R. v. Assim50,Cr. App. R. 224). In thecase of Akritasv. R.20 (PartI)C.L.R. 110 the follow­ ing was stated regarding theneedtoavoid causing embarassment to the accused by joining in one charge an unreasonably big number of counts: " The Court has onmany occasions pointed out howunde" sirable it is that a large number of counts should be contained in one indictment. Where prisoners are on trial and have a variety of offences alleged against them, the prosecution ought to be put to their electionand compelled 35 to proceed on a certain number only. Quite reasonably a number of counts can be proceeded on, say, three, four, five or six andthenif thereis noconvictiononany ofthose, counsel for the prosecution can consider whether he will proceed with any other counts in the indictment. If there 40 36 30 2 CX.R. 5 Papadopoullosτ. Republic A.Lotzou J. is a conviction, the othercounts can remain in thefileand need not necessarily be dealt with, unless the Courtshould, for any reasons, quash theconviction and order theothers to be tried, but it is undesirable that as many counts as weretried togetherinthiscase,shouldbe tried together." That was of course a case where the prosecution had joined inoneinformation 20 counts of conspiracy, a conductnaturally deprecated by the Supreme Court. Also the joining of a count of conspiracy with a count or 10 counts for substantive offences is an undesirable practice and can in some cases work hardship on the defendant. (See R. v. Dawson, R. v. Wenlock[1960] 1 All E.R. 558, R. v. Griffiths andOthers [1965]2 All E.R. 448). The inclusion, however, of a count for conspiracy in an indictment charging the accused 15 with other coimts as well cannot by itself lead to unfairness. The circumstances of a case may be such as to warrant the inclusion of such a countand tocall for it in the public interest for the due administration of justice. (See R. v. Meyrick, 21 Cr. App. R. 94at p. 103 and also the dictum of Sankey J. from 20 R. v. Luberg,19 Cr.App. R. 133 where at p. 137 it reads: 25 " It is a perfectly admissible and proper course to pursue, and a course which is often pursued but we think that if that course is pursued, great care and great caution is necessary during the hearing of the evidence to be quite sure that no evidence is given which is inadmissible and great care is required in the summing-up to keep all the several issues perfectly clear." In the case of Constantinides v. The Republic

(1978)2 C.L.R. p. 337at pp. 359-360theposition of the Law ontheinclusionof 30 a count of conspiracy in an information containing counts for related substantive offences was examined. Reference was madethereintotheprinciplesonthesubject statedin Archbold's Pleading, Evidence and Practice in Criminal Cases, 39th ed., pp. 1686-1687,para.4073andthecaseof R. v.JonesandOthers, 35 59Cr.App. R. 120,andtheguiding principlesas statedby James L.J. at p. 124 thereof which I need not repeat here. Suffice ittogiveheretheopening sentenceof that passage,namelythat "the question whether a conspiracy charge is properly included in an indictmentcannot be answered by the application of any 40 rigid rules. Each case must be considered on its own facts." 37 A. Loizou J. Papadopoullos v. Republic

(1980)If no doubt thejoining of a conspiracy countwith counts for specific offences is a legitimate course for a trial by Jury, "afortiori itmay beadoptedwithmoreimmunitybefore a Judge orJudgessittingwithout aJuryasitcanbeconfidently expected, given their training and experience, to be in a position to draw 5 the line, where such a line should be drawn, in the interests of justice." (SeeLoizou and Pikis,Criminal Procedure inCyprus, 1975, p. 58). Inany event thejoinder ofsuchcounts,even where improper, will be no ground for quashing a convictionwhere suchjoinder 10 has caused no prejudice to the accused. (SozosPanai Tattaris v. The Queen, 24 C.L.R. 250). In the present case I find no irregularity in thejoinder of all thesecountsontheinformation. Noranyinjustice or unfairness intheconduct oftheproceedings, orthat any prejudice hasbeen 15 caused to the appellant on account of such joinder. Having examined the totality of theevidenceadduced and the conduct oftheproceedingsI unhesitatinglyagreewiththeAssize Court that thiswasnot a casewherea separate trial should have been ordered for any of the counts or that anyone or more of 20 them should not have been included on the same information. Considering the situation nowin retrospect, Ifindhowjustified the Assize Court was to pursue the course it did. Had it adopted any other course, that would only have brought about an undesirable multiplicity of proceedings. 25 Thenext ground ofappeal which comesalso under thisheading of procedural irregularities is that the Assize Court wrongly admitted asevidencethedocuments exhibits 12to32and41and 42, being only copies and not the originals, inasmuch as it had not been sufficiently and beyond reasonable doubt established 35 that theproduction of theoriginalswasnot possible. When prosecution witness Kazafaniotis wasabout to produce photocopies of two sets of documents, an objection was taken by the defence to their production. A trial within trial was directed in order to ascertain certain factual aspects which in 35 Law are prerequisites to the production of copies instead of the originals. In that respect the prosecution called Georghia Antoniadou, acting police sergeant who justified as to how a bundle of documents that had been found inflatNo. 20 of the 38 2 C.L.R. Papadopoullos v. Republic A. Loizou J. "Gardenia" block offlatsweredelivered to her bypolice officer Kazafaniotis and which she kept in a "roneo" filing cabinet, herself being responsible for their safe keeping. Shestated how she took them on the morning of the coup d'etat and together 5 with police woman Zertali placed them in envelopes and took them to a houseat Ayios Pavlosquarter for safe keeping. She further related how police officer Rigas, who on the morning of the coup d'etat assumed the post of Divisional Commander of Police for Nicosia, interrogated herabout the disappearance 10 of the documents in question and that eventually escorted by Police Inspector Andreas HadjiSavvas and two armed soldiers, she went with her colleague Zertali to the place where they had hidden these documents retrieved them and delivered them to the said HadjiSavvas. These documents according to Police 15 Officer Rigas were on instructions from the Commander of Police handed over by him to the already mentioned in this judgment Vitzileos of the Greek Central Information Service. The Court in the light of the evidence adduced concluded that the originalsof thesedocuments werenot any longer in the 20 possession or the control of the prosecution and in view of the fact that witness Kazaphaniotis had himself made the photocopies of these documents from the originals found by him, they were admissible as evidence and could be produced unless on other grounds they were not admissible. 25 The rule requiring the production of the original of a document is subject to exceptions, one of them being the casewhere theoriginal hasbeen lost or destroyed or that it isin thepossession of theopposite party, or its production cannot be enforced (see R. v. Nowaz, The Times April, 17, 1976 C.A.). In such a 30 case the prosecution must prove the existence of the original, its destruction positively or presumptively or establish its loss by someway or other and in any event, prove that it cannot be found after diligent search, in other words the non-production of the original must be duly accounted for. 35 The secondary evidencesoadmitted maytakeany form either by producing a photocopy or true copy or parol evidence of the contents of the original. Furthermore as stated in Phipson on Evidence, 12th Edition, p. 760,para 1820,"The sufficiency of the search necessary to let 39 A. Loizou J. Papadopoullos τ. Republic"

(1980)in secondary evidence is a preliminary question for the Judge, and will vary with the importance of the document and the circumstances of the case". In thepresent case therewas clear andunambiguous evidence that the originals were lost or destroyed and that in any event 5 they were not in the possession of the prosecution. Further­ more, the sufficiency of thesearch necessary to let in secondary evidence was also established to the satisfaction of the Assize Court. In my view it rightly admitted the production of the photocopies about whose genuineness therewas theevidenceof 10 Sgt. Kazaphaniotis, who had made these photocopies from the originals, then in his possession. This ground therefore also fails. It remainsnow to examine the questions raised in thisappeal regarding count 1. The appellant was thereby charged that 15 between August and the 16th December, 1976, in Nicosia, he edited and published a text under thetitle "PoliticalDocuments 1971-1974" which contained comments of him which were likely to encourage recourse to violence on the part of any of the inhabitants of theRepublic or to promotefeelings of ill-will 20 between different classes or persons in the Republic, contrary to section 51

(1)of the Code. The appellant admitted editing and publishing this book (exhibit43) as well as the authorship of its foreword, the intro­ duction, part of thecommentsto theparagraphs and theintro- 25 ductory notes to the various texts as well as the epilogue. In fact, he admitted having written thepassages in pages 9, 11,13, 14, 17, 37, 38, 89, 119, 120, 121, 145 and 206 of thisexhibit. Almost all thetexts inthispublicationareeitherpronouncements and writings of Grivas or leaflets which were circulated by 30 EOKA Β from time to time. It was the case for the prosecution that in thecircumstances and at the very period at which they were published with so many persons mourning their dead, with the existence of thousands of persons displaced from their homes,the desperate 35 situation of the relatives of missing persons, the fact thatthe misfortunes that befell this country were attributed to the coup d'etat which opened the door to the Turkish invasion, the faith and love of the people to its leadership and to thework of His Beatitude the Archbishop Makarios, his government and his 40 40 2 C.L.R. Papadopoullos v. Republic A. Loizou J. collaborators and supporters, they were likely to encourage recourse to violence and to promote feelings of ill-will as set out in this count. The grounds of appeal as set out in the notice thereof, are 5 the following:" The trial Judge taking into consideration the evidence adduced, wrongly found the appellant guilty on the first count because: 10 (a) Taking into consideration the evidence adduced, the verdict of the trial Court is unreasonable. (b) It wrongly decided that the appellant was not entitled to invoke the defences which are provided by section 51

(1)of the Code. 15 (c) The trial Court wrongly decided that the defences which are set out in section 51

(1)of the Code could onlybeinvoked by theappellant ifthe text in question was published exclusively for the purpose of achieving any of the objects provided therein. (

1. d)That the aforesaid construction is unconstitutional. 20 (
2. e)It wrongly decided that from the contents ofexhibit 43 mens rea is established. (
3. f)It wrongly decided that the contents of exhibit 43 are of seditious nature in the sense of section 51

(1)of the Code". 25 Section 51

(1)reads as follows:" Any person who prints, publishes, or to any assembly makes any statement calculated or likely to— (

1. i)encourage recourse to violence on the part of any of the inhabitants of the Republic; or 30 (
2. u)promote feelings of ill will between different classes or communities or persons in the Republic, is guilty of misdemeanour and is liable to imprisonment for twelve months: Provided that noperson shall beguilty ofan offence under 41. A.Loizou J. Papadopoullosv.Republic

(1980)the provisions of this section if such statement was printed, published or made solely for any one or more of the following purposes, the proof whereof shall lie upon him, that is to say:(

1. a)to endeavour in good faith to show that the Government of the Republic has been misled or mistaken in any of its measures; or 5 (
2. b)to point out in good faith errors or defects in the Government, or the policies thereof, or constitution of the Republic as bylawestablished, or any legislation, 10 or in the administration of justice, with a view to the remedying of such errors or defects; or (
3. c)to persuade in good faith any inhabitants of the Republic to attempt to procure by lawful means the alteration of any matter in the Republic as by law 15 established other than that referred to in paragraph (
4. b)of section 48; or (
5. d)to point out in good faith with a view to their removal, any matters which are producing or have a tendency to produce discontent amongst any of the inhabitants 20 of the Republic or feelings of illwilland enmity between different communities or classes of persons in the Republic". The Assize Court compared theaforesaid section to the offence of Common Law sedition as stated in Archbold, 39th Edition, 25 para. 3147, and came to the conclusion that the two offences correspond to each other and that the purposes which constitute a defence to a charge of sedition set out in the proviso to section 51

(1)of the Code correspond also to the defences available in England to a person accused of sedition as set out in the case of 30 R. v. Burns & Others, 16 Cox"s Criminal Law Cases, p. 355 where Justice Cave at p. 360 adopted the statement of the Law on the subject by Stephen J., in the Digest of the Criminal Law, p. 56 Article 93. " An intention to show that Her Majesty has been misled 35 or mistaken in her measures, or to point out errors or defects in the government or constitution as by law established, with a view to their reformation, or to excite 42 2 C.L.R. 5 Papadopoullos v. Republic A. Loizou J. Her Majesty's subjects to attempt by lawful means the alteration of any matter in Church or State by law established or to point out, in order to their removal, matters which are producing or have a tendency to produce, feelings of hatred and ill will between classes of Her Majesty's subjects, is not a seditious intention." The Assize Court went on to point out that the words "solely for anyone or more ofthefollowing purposes" to befound in the opening paragraph of the said proviso do not allow the author 10 of a seditious publication to prove that he had other purposes except those referred to in the said proviso. It also pointed out, for the purpose of this defence to be successfully raised it must be established that the seditious publication or statement was done in good faith. 15 20 25 30 35 40 The test applied as to whether the language used was calculated to produce the results imputed was the one given by Coleridge, J., in the case of Rex v. Aldred, 22 Cox's Criminal LawCases, p. 1at p. 3 where he said: " The word 'sedition' in its ordinary natural signification denotes a tumult, an insurrection, a popular commotion. or an uproar; it implies violence or lawlessness in some form; but the man who is accused may not plead the truth of the statements that he makes as a defence to the charge, nor may he plead the innocence of his motive; that is not a defence to the charge. The test is not either the truth of the language or the innocence of the motive with which he published it, but the test is this: was the language used calculated, or was it not, to promote public disorder or physical force or violence in a matter of State?—and 1 need hardly say that anything in the way of assassination would be comprehended in the definition. That is the test; and that test is not for me or for the prosecution; it is for you, the jury, to decide, having heard all the circumstances connected with the case. In arriving at a decision of this test you are entitled to look at all the circumstances surrounding the publication with the view of seeing whether the language used is calculated to produce the results imputed; that is to say, you are entitled to look at the audience addressed, because language which would be innocuous, practically speaking, if used to an assembly of 43 A. Loizou J. PepadopouDos τ. Republic

(1980)professors or divines, might produce a different result if used before an excited audience of young and uneducated men. You are entitled also to take into account the state of public feeling. ^Of course there are times when a spark willexplode a powder magazine; theeffect of language may 5 be very different at one time from what it would be at another. You are entitled also to take into account the place and the mode of publication. All these matters are surrounding circumstances which a jury may take into account in solving the test which is for them, whether the JQ language used is calculated to produce the disorder or crimes or violence imputed." The explanation of theappellant for the said publication is to be found in the foreword tothisbook, exhibit 3, which reads as follows: " First out of respect tothehistorical truth andfor immense love to the deceased leader of EOKA the protagonist of the pannational idea of 'Enosis*. Secondly for enlighten­ ment of the panhellenic public opinion which still remains uninformed on account of the non-publication of this text 20 in Greeceonaccountof the thenexisting preventive censor­ ship on behalf of the dictatorial regime in power which as it is known was friendly to the regime of Makarios and hostile to the struggle for union by Dighenis. Thirdly, for the sake of the new generations as all who were engaged in 25 relating the Cyprus events of the years 1971-1974belongingto various parties and fractions wrote adversely and some of them with evident enmity and with intention to defame General Grivas. But also others engaged in the aforesaid period more or less dependent or wishing to serve party ^0 views, aims and sympathies, but foremostly and mainly relying on newspapers of the politico-economic interest of the publishing groups of Cyprus and Athens, wrote adversely and with lightness. Finally, the collection and publication of the political texts of Dighenis in a volume 35 is intendedtohelp abonafideand insearch of the historical truth historian of the future. In any event the texts set out in the present volume are scattered in the newspapers of the period andbecomeinaccessible,whereas most of them are completely unknown even to his collaborators that they ^Q were written by the hand of Dighenis." 44 15 2 CL.R. Papadopoullos τ. Republic A. Loizou J. The Assize Court then referred to extracts from some of the pages of thebook which it thought established the case for the prosecution regarding the seditious nature of the publication and which in English read as follows: 5 10 " A sadistic orgy on behalf of certain policemen and other organs, gave the impression of a new Bastile, whilst the reserve force, without a shred of respect for the law, the human rights and in general the human dignity, behaved likeanoccupationarmy. TheMinisters of Makarios knew all this and approved them and silently tolerated them, whilst in certain cases encouraged by their conduct the continuation of this orgy against those loyal to Greece and opponents of the Cyprus government". Page 145: 15 "Dighenis's counter-attacking uncovered Makarios ;as wellashisrottenfriends andsupporters,revealing the guilty role of each one of them against Greek Cyprus." Page209: 20 25 "The insults, oppressions and the persecution of the spirit yielded nothing. They simply make eternal the existing gap in the soul of the people and they show the existence and mentality of a totalitarian state and persons. All who in any case loved freedom and fought for it know that it is not an ordinary tree. In order to extend its roots and yield a crop, it needs suitable soil. It needs to be watered with much sweat and more blood. And this holy pray, the unionists of Cyprus expect who have notspared sweatorblood. And theywillhave it. Because theyareready for everysacrifice for thereturnof freedom.". 30 The Assize Court bearing in mind the contents of the comments of the appellant, the descriptions which he used for thethenPresident of the Republic,his Government,theSecurity Forces of the State and the prevailing conditions at the time of the publication of this book, as described by the prosecution 35 and of which theCourttookjudicial notice,cameto theconclu­ sion that the prosecution proved beyond reasonable doubt this count also and found theappellant guilty thereon. No doubt thecontents of certain passages in exhibit13 were 45 A. Loizou J. Papadopoullos v. Republic

(1980)of a seditious nature in the sense of section 51

(1)of the Code. Mens rea could clearly be inferred and the verdict of the Court was duly warranted by the evidence adduced. Furthermore the Assize Court rightly concluded that the appellant could not invoke the defences set out inthe proviso to the section, oncehe 5 had failed to discharge the onus cast upon him under the said proviso and prove that the said publication was made solely for anyone or more of the said purposes and done in good faith. The defences, set out in the proviso are indeed exhaustive, and they come into play after the elements of the main part of the 10 section are established and which would have amounted to an an offence but for these defences. There is nothing unconstitutional in this section or in its construction by the Court. The exercise of the right to freedom of speech and expression in any form, which is safeguarded by 15 Article 19paragraph 1 of theConstitution issubject, by paragraph 3thereof "to such formalities, conditions, restrictions or penalties as arc prescribed by law and are necessary only in the interests of the security of the Republic or the constitutional order or the public safety or the public order or the public health or the 20 public morals or for the protection of the reputation or rights of others or for preventing the disclosure of information received in confidence or for maintaining the authority and impartiality of the judiciary." ._ This safeguarded freedom of speech and expression is not an 25 absolute one. It isobviously restricted in sofar as it is necessary for preserving the values protected inpara. 3of Article 19hereinabove set out, which were found necessary in order to protect the State and its constitutional order, to prevent seditious, libellous, blasphemous and obscene publications and to ensure 30 the proper administration ofjustice etc. No doubt these values on the one hand and the liberty of the subject on the other, are antagonistic extremes. Neither is absolute and in a democratic society the problem is one of striking a proper balance between them. To the enforcement, however, of such laws which are 35 justified only by the restrictions provided in para. 3, Courts should exhibit the utmost caution. In the case of Georghios HjiNicolaou v. The Police

(1976)2 C.L.R., 63, L. Loizou, J., in delivering the judgment of the Supreme Court stressed the special importance which this Court 40 46 2 C.L.R. Papadopoullos ν, Republic A. Loizou J. attaches to cases concerning the right of freedom of expression, one of the fundamental rights of the subject recognized and safeguarded by our Constitution,but pointed out also that such right is subject to the restrictions already mentioned in this 5 judgment which could not be disregarded and this, as he said at p. 68, "for the purpose of preservation of a fair balance between the right of freedom of expression and the resulting duties and responsibilities of the citizen". In conclusion, I would say that the fact that the defences 10 opened to an accused person after proof of the seditious nature of a publication, are limited to those set out in the proviso to section 51,does not offend any other Article of theConstitution neither the right to a fair hearing etc., nor the presumption of innocence is violated by placing on the accused the burden of 15 proving that theseditious publication was made solely for anyone or more of the purposes set out in the said proviso. Needless to say that when the onus of proof of a particular element in a criminal trial is cast upon an accused person, same may be discharged by mere preponderance of evidence and not beyond 20 reasonable doubt. Such onus of proof is less heavy than that required at the hands of the prosecution in proving its case beyond reasonable doubt and may be discharged by evidence satisfying the Jury of the probability of that which the defendant is called on to establish (see R.v. Carr-Briant [1943]29Cr. App. 25 R., 76). The presumption of innocencehas always been a fundamental principle of our Criminal Law. It is now safeguarded also by para.

(3)of the Antiquities Law, Cap. 31, to the effect that the offence of unlawfully possessing antiquities shall not be deemed to have been committed if the person concerned 35 satisfies theCourt that he has acquired the antiquities in question lawfully, does not contravene para.

(1980)tionof the European Convention of HumanRights by J. E. S. Fawcett, 1969, at p. 161: "From this itwould follow thatit is only someactor omission by the Court itself, which can operate as a failure of presumption of innocence. Here it may be remarked that 5 in general the presumption of innocence is a formula to indicate where lies the main burden of proof at the trial of thecharge,that isto say,upontheprosecution toprovethe guilt of the accused beyond a reasonable doubt. But the presumption of innocence does not necessarily have this 10 function." For all these reasons this ground of appeal also fails and in the result I would dismiss the appeal against conviction. It remains, however, and it only needs to say a few words about theappeal against thesentences imposed. Ihavealready 15 outlined the facts and reference has been made to the tragic consequences resulting therefrom and thepricepaid by somany people. Having gone through the record and having listened carefully to what counsel for the appellant has had to say on this ground, I have not been persuaded that the sentences 20 imposed are either manifestly excessive or wrong in law. The totality of the circumstances relevant to the offence and the involvement of the appellant left no room for leniency; the approach of the Assize Court does not call for interference with their decision on this point of the appeal. 25 I would, therefore, dismisstheappeal against sentencealso. TRIANTAFYLLIDES P.: I agree with my learned brother Judge Mr. Justice A. Loizou that this appeal should be dismissed as regards both the conviction of the appellant and the sentence passed upon him. I would like,however, to deal myself, also,with theaspect of the constitutionality of theconviction of theappellant, on count No. 1,of the offence of encouraging violence and promoting ill will, contrary to section 51

(1)of the Criminal Code, Cap. 154. The said provision, modified in the light of Article 188of the 35 Constitution, reads as follows:"51.

(1)Any person who prints, publishes, or to any assembly makes any statement calculated or likely to— 48 30 2 C.L.R. Papadopoullos v. Republic TrlautafyUides P. (

1. i)encourage recourse to violence on the part of any of the inhabitants of the Republic; or 5 10 (
2. ii)promote feelings of ill will between different classes or communities or persons in the Republic, is guilty of misdemeanour and is liable to imprisonment for twelve months: Provided that no person shall be guilty of an offence under the provisions of this section if such statement was printed, published or made solely for any one or more of the following purposes, the proof whereof shall lie upon him, that is to say:(
3. a)to endeavour in good faith to show that the Government of the Republic has been misled or mistaken in any of its measures; or 15 (
4. b)to point out in good faith errors or defects in the Government, or the policies thereof, or constitution ofthe Republicasbylawestablished,oranylegislation, or in the administration ofjustice, with a view to the remedying of such errors or defects; or 20 (
5. c)to persuade in good faith any inhabitants of the Republic to attempt to procure by lawful means the alteration of any matter in the Republic as by law established other than that referred to in paragraph (
6. b)of section 48; or 25 (
7. d)topoint out ingood faith witha viewto their removal, any matters which are producing or have a tendency to produce discontent amongst any of the inhabitants of the Republic or feelings of ill will and enmity between different communities or classes of persons in the Republic". 30 There can be no doubt that section 51

(1)above restricts the rightto freedom of speech and expression which is safeguarded by Article 19 of our Constitution; the said Article reads as follows:35 "ARTICLE 19

1. Every person has the right to freedom of speech and expression in any form. 49 Triantafyilides P.
2. Papadopoullos τ. Republic

(1980)This right includes freedom to hold opinions and receive and impart information and ideas without interference by any public authority and regardless of frontiers.

1. The exercise of the rights provided in paragraphs 1and 2 of this Article may be subject to such formalities, condi- 5 tions, restrictions or penalties as are prescribed by law and are necessary only in the interests of the security of the Republic or the constitutional order or the public safety or the public order or the public health or the public morals or for the protection of the reputation or 10 rights of others or for preventing the disclosure of infor­ mation received in confidence or for maintaining the authority and impartiality of the judiciary.
2. Seizure of newspapers or other printed matter is not allowed without the written permission of the Attorney- 15 General of the Republic, which must be confirmed by the decision of a competent Court within a period not exceeding seventy-two hours, failing which the seizure shall be lifted.
3. Nothing in this Article contained shall prevent the 20 Republic from requiring the licensing of sound and vision broadcasting or cinema enterprises." It is appropriate, at this stage, to quote the following relevant passage from the judgment of Mr. Justice L. Loizou in Hji­ Nicolaou v. The Police,

(1976)2 C.L.R. 63 (at pp. 68, 69):25 " It should be stressed that this Court attaches special importance to the present case because it concerns the right of freedom of expression, one of the fundamental rights of the subject which are recognized and safeguarded by article 19 of the Constitutionas well as by the European 30 Convention for the protection of Human Rights, which is effective in Cyprus by virtue of the provisions of article 169 of the Constitution, after the enactment, by the House of Representatives, of the EuropeanConventionfor the protec­ tion of Human Rights (Ratification) Law, 1962 (Law 39/62)". 35 But even in the provisions of the Constitution and the Convention, there are certain formalities, conditions and restrictions and very rightly so, in our view, because although nobody can doubt that the right of expression is, 50 2 C.L.R. Papadopoullos v. Republic Triantafyilides P. we should say, a blessing, and a characteristic of every civilized community and democratic country the reasons for which this right may be placed, by law, under certain restrictions and penalties constituting necessary measures for the protection of the reputation or rights of the citizen, the national security, the promotionof order and prevention of crime, the prevention of the disclosure of information received in confidence and the maintenance of the authority and impartiality of the judiciary should, nevertheless, be not disregarded, and this for the purpose of preservation of a fair balance between the right of freedom of expression and the resulting duties and responsibilities of the citizen. 5 10 15 The relevant provision of the law on which the charge was based in on the one hand restrictive of the right of freedom of expression, but there is, however, on the other hand, no submission or contention that it does not fall within the permitted restrictions." 20 In the HjiNicolaou case, supra,there was involved an offence committed against section 51A

(1)of Cap. 154, as amended by the Criminal Code (Amendment) Law, 1974 (Law 59/74); the said section 51A(l) is, too,like section 51

(1),a provision limiting the right to freedom of expression. 25 30 In the present case counsel for the appellant has submitted that the provisions of section 51

(1), above, are unconstitutional, because they contravene Article 19 of the Constitution, which has already been quoted in this judgment. The said Article 19 is modelled, to a great extent, on Article 10 of the European Convention on Human Rights, of 1950, which is applicable in the Republic of Cyprus (see, the HjiNicolaou case, supra, at p. 68, and, also, inter alia, Kouppis ν The Republic,

(1977)* 11 J.S.C. 1860, at p. 1879). Article 10 reads as follows:"Article 10 1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without inter- 35 * To be reported in

(1977)2 C.L.R. 51 Triantafyilides P. Papadopoullosτ.Republic

(1980)ference by public authority and regardless of frontiers. This Aiticle shall not prevent States from requiring the licensing of broadcasting, television or cinemaenterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such forma- 5 lities, conditions,restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for theprevention of disorder or crime, for the protection of health or morals, for the protection of 10 the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judi­ ciary." It should be pointed out that there exists close similarity between paragraphs 1, 2 and 3 of Article 19 of ourConstitution and paragraphs 1and 2 of Article 10, above. It is, therefore, useful to rely on the interpretation and mode of the application of the said Article 10 in construing and apply­ ing our own Article 19: 15 20 In its report in the case of De Becker v. Belgium (E.C.H.R. Series B, 1962, at p. 126) the European Commission of Human Rights has stated:" Since these provisions of the Belgian law are incompatible with the right to freedom of expression guaranteed in paragraph 1 of Article 10, their justification, if any, has to be found in one of the exceptions to the right of freedom of expression which are stated in paragraph 2 of that Article. 25 The authors of this paragraph no doubt had in mind 30 primarily the conditions, restrictions and penalties to which freedom of expression is commonly subject in a democratic society as being necessary to prevent seditious, libellous, blasphemous and obscene publications, to ensure the proper administration of justice, to protect the secrecy 35 of confidential information etc.". In its decision in the case of X. and the GermanAssociation 52 2 CX.R. Papadopoullos v. Republic Triantafyilides P. of Z. v. The Federal Republic of Germany (Application No. 1167/61, Yearbook of the European Convention on Human Rights, 1963, vol.6,p.204,at p.218)theaforementioned Commision pointed out that "...a.State is given a certain margin of 5 appreciation in determining the limits that may be placed on freedom of expression;". InitsjudgmentinthecaseofHandysidev. The UnitedKingdom (Series A: Judgments and Decisions, vol. 24) the European Court of Human Rights stated the following (at pp. 22-23):10 15 20 25 30 35 " The Court notesat thisjuncture that, whilst the adjective 'necessary', within the meaning of Article 10 §2, is not synonymous with 'indispensable' (cf, in Articles 2 §2 and 6 §1, the words 'absolutely necessary' and 'strictly necessary' and, in Article 15 §1, the phrase 'to the extent strict required by the exigencies of the situation'), neither has it the flexibility of such expressions as 'admissible', 'ordinary* (cf. Article 4 §3), 'useful' (cf. the French text of the first paragraph of Article 1 of Protocol No. 1), 'reasonable* (cf. Articles 5 §3 and 6 §1) or 'desirable'. Nevertheless, it is for the national authorities to make the initial assessment of the reality of the pressing social need implied by the notion of 'necessity' in this context. Consequently, Article 10 §2 leaves to the Contracting States a margin of appreciation. This margin is given both to the domestic legislator ('prescribed by law*) and to the bodies,judicial amongst others, that are called upon to interpret and apply the laws in force The Court's supervisory functions oblige it to pay the utmost attention to the principles characterising a 'dernocratic society'. Freedom of expression constitutes one of theessential foundations of sucha society, one of the basic conditions for its progress and for the development of every man. Subject to paragraph 2 of Article 10, it is applicable not only to 'information' or 'ideas' that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population. Such are the demands of that pluralism, tolerance and broad53 Triantafyilides P. Papadopoullosτ.Republic

(1980)mindedness without which there is no 'democratic society'. This means, amongst other things, that every 'formality', 'condition', 'restriction' or 'penalty' imposed in this sphere must be proportionate to the legitimate aim pursued. From another standpoint, whoever exercises his freedom of expression undertakes 'duties and responsibilities' the scope of which depends on his situation and the technical means he uses. The Court cannot overlook such a person's 'duties' and 'responsibilities' when it enquires, as in this case, whether 'restrictions' or 'penalties' were conducive to the 'protection of morals' which made them 'necessary' in a 'democratic society' " . 5 10 In its decision in the case of Geerk v. Switzerland (Application No. 7640/76) the European Commission of Human Rights (see Decisions and Reports of the Commission, vol. 12, p. 103, 15 at p. 109) has stated the following :" Paragraph I of Article 10 secures the right to freedom of expression, which comprises freedom to communicate ideas without the possibility of interference by the public authorities. Paragraph 2 of this provision places an obligation on the High Contracting Parties to restrict any interference by the authorities with the exercise of freedom of expression to measures which can be defined as 'formalities, conditions, restrictions or penalties' which are 'prescribed by law' and 'are necessary in a democratic society' for certain purposes specified in the text, regard being had to the 'duties and responsibilities' entailed by the exercise of freedom of expression in a society of this kind." In the light of the foregoing I revert now to the issue of the 30 constitutionality of the provisions of section 51(i) of Cap. 154: As already stated by means of the said section there is restricted the right to freedom of speech and expression, which is safeguarded under Article 19 o f our Constitution; but when such section is read as a whole, and there are taken into account 35 the defences afforded to an accused person by means of para­ graphs (a) to (a) in the proviso to this section, it has to be held that the restriction, which is imposed by means of it, is necessary 54 20 25 \ ' 2 C.L.R, \ ' Papadopoullos v. Republic Triantafyilides P. in the interests of the security of the Republic and the constitutional order, as wellas of the public order and for the protection of the reputation and rights of others; consequently, it is a constitutionally permissible restriction, which comes within 5 the ambit of paragraph 3 of Article 19 above. Having said this I may add that, of course, there is room in a democratic society, such as the one set up by the Constitution ofour Republic, for amending section 51

(1)of Cap. 154in order to make it more liberal, but the mere fact that there is room for 10 improvement, in this respect, does not render it, as it stands today, an unconstitutional provision; therefore, the conviction of the appellant in relation to an offence committed contrary to it cannot be treated as unconstitutional. Also, for the same reasons, it cannot be regarded as offending 15 against Article 10 of the European Convention on Human Rights. L. Loizou J.: I have had the opportunity of reading in draft the judgment just delivered by my brother A. Loizou J. and as I am in agreement with the result reached by him that 20 this appeal must be dismissed there isnothing that Iwish to add. HADJIANASTASSIOU J.: The appellant, Eleftherios K. Papadopoullos, was convicted at Nicosia Assize Court on each count of an indictment which consisted of 9 counts, viz.,

(1)for encouraging violence and promoting ill will contrary to s. 51

(1)25 of the Criminal Code Cap. 154;

(2)for seditious conspiracy contrary to ss. 47(A) and 48 of the Criminal Code;

(3)for holding an office or position in an unlawful association contrary to ss. 56

(2), 62and 63 of the Criminal Code;

(4)for preparation ofwar and warlike undertaking, contrary to s.40 of the Criminal 30 Code;

(5)for the use of armed force against the Government, contrary to s. 41 of the Criminal Code;

(6)for possession of explosive substances without a licence contrary to s. 4

(4)(d), 5(

1. a)and (
2. b)of the Explosive Substances Law Cap. 54 (as amended by Law 21/70); for possessing firearms contrary to 35 s. 3(l)(b)(c), 2(b), of the Firearms Law Cap. 57 (as amended); and for possession of a wireless apparatus without a licence contrary to ss. 3

(1)and 11(a) of the Wireless Telegraphy Law Cap. 307. The sentence imposed on the appellant was, for counts

(4)55 Hadjiauastasstou J. Papadopoullos τ. Republic

(1980)and

(5), "Imprisonment for life"; for count

(1)one year; for count

(2), 5 years; for count

(3), 3 years; for counts

(6),

(7)and

(8), 10 years; and for count

(9)one year's imprisonment. The aforesaid sentences were to run concurrently.. The appeal is against both the conviction and the sentence in respect of 5 each count on which the appellant was found guilty. Having had the advantage of reading the draft judgment of mybrotherA. Loizou, Ineednotrepeatthefacts of this case as they have already been fully set out in hisjudgment with whose reasoning and conclusions Iagree, that theacts or deeds of the 10 appellant, having regard to the totality of evidence, proved beyond reasonable doubt his guilt on counts 2-9. The only question with which I feel I ought to deal with in this appeal is whether s. 51 of the Criminal Code Cap. 154, was properly construed by the Assize Court and whether the 15 appellant was entitled to invoke the defences which are set out in this section, Section 51

(1)is in these terms:" Any person who prints, publishes, or to any assembly makes any statement calculated or likely to— 20 (

1. i)encourage recourse to violence on the part of any of the inhabitants of the Republic; or (
2. ii)promote feelings of ill will between different classes or communities or persons in the Republic, is guilty of misdemeanour and is liable to imprisonment for twelve months: 25 Provided thatno person shall be guilty of an offence under the provisions of this section if such statementwas printed, published, or made solely for any one or more of the following purposes, the proof whereof shall lie upon him, 30 that is to say:(
3. a)to endeavour in good faith to show that theGovern­ ment of the Republic has been misled or mistaken in any of its measures; or (
4. b)to point out in good faith errors or defects in the 35 Government, or the policies thereof, or constitution 56 \ 2C.L.R. Papadopoullosv.Republic Hadjianastasslon J. oftheRepublicasbylawestablished,oranylegislation, or in the administration ofjustice, with a view to the remedying of such errors or defects; or 5 10 (
5. c)to persuade in good faith any inhabitants of the Republic to attempt to procure by lawful means the alteration of any matter in the Republic as by law established other than that referred to in paragraph (
6. b)of section 48; or (
7. d)to point out ingood faith witha viewto their removal, any matters which are producing or have a tendency to produce discontent amongst any of the inhabitants oftheRepublicorfeelingsofillwillandenmitybetween different communities or classes of persons in the Republic." 15 It appears from the evidence before the trial Court that the appellant wasa member ofEOKA;hewas charged bythepolice that by thepublication ofa text under the title "Political Documents 1971-1974", he encouraged violence and promoted ill will among the citizens of the Republic contrary to section 51 20 of the Criminal Code. The appellant stated that the material inthebooklet consists of textswritten by General Grivas. He admitted editingandpublishing itand that hewastheauthor of the Foreword, the Introduction, the Epilogue and part of the comments to the photographs and the introductory notes tothe 25 various texts. He stated that these introductory noteswerenot comments but writing, giving the picture in a general frame of thetextthatwillfollow andunderwhatcircumstancesandwithin which frame is to be found. He further added that these introductions give simply a picture of the situation to which 30 the author of the text that follows depicts. Going through that book, it appears to me that all the texts are those ofGeneralGrivas andtheleaflets circulated byEOKA B. The reasons given by the appellant in the foreword to the book are these:35 " Firstout ofrespecttothehistorical truth andfor immense love to the deceased leader of EOKA the protagonist of thepannational ideaof'Enosis*. Secondlyfor enlightenment of the panhellenic public opinion which still remains uninformed on account of the non-publication of this text 57 Hadjianastassiou J. Papadopoullos τ. Republic

(1980)in Greeceonaccountof thethenexistingpreventive censor­ ship on behalf of thedictatorial regime in power which as it is known was friendly to the regime of Makarios and hostile to the stiuggle for union by Dighenis. Thirdly, for thesake of thenewgenerations as all who were engaged 5 inrelating theCyprusevents of theyears 1971-1974belong­ ing to various parties and fractions wrote adversely and some of them with evident enmity and with intention to defame General Grivas. But also others engaged in the aforesaid period more or less dependent or wishing to 10 serve party views, aims and sympathies, but foremostly and mainly relying onnewspapers of thepolitico-economic interest of the publishing groups of Cyprus and Athens, wrote adversely and with lightness. Finally, thecollection andpublicationof thepolitical texts of Dighenisinavolume 15 is intended to help the bona fide and in search of the historical truth historian of the future. In any event the texts set out in the present volume are scattered in the newspapers of theperiod and become inaccessible, whereas most of them are completely unknown even to his colla- 20 borators that they were written by the hand of Dighenis." Counsel for the respondent, in a strong and able argument contended thatthepublication of that text during thatperiod of crisis of Cyprus added to the misfortunes of our country and particularly was likelyto promotefeelings of ill will between the 25 various classes of people or persons and to encourage acts of violence: (a) because of thousands of displaced persons; (b) the desperate situation of the relatives of missing persons; and because the misfortunes of this country were attributed to the coup d'etat, which opened the door to the Turkish invasion; 30 and (c) that the publication was considered as an insult to the people who believed in and loved his Beatitude Archbishop Makarios who was their leader,andwas likely to encourageacts of violence among the people of ourcountry. Finally,counselargued thatoncetheintentionof theappellant 35 was seditious, and had a tendency to producefeelings of hatred and ill will between different classes of our people,hecouldnot invoke the defences appearing in the proviso to s. 51

(1)of our Criminal Code, once he has failed to discharge the onus cast upon him undertheproviso toprove thatwhat hedid was done 40 in good faith. 58 2 C.L.R. Papadopoullos v. Republic Hadjianastassiou J. On the contrary, counsel for the appellant tried to show that the publication of the book in question did not constitute the offence of sedition and was not made to encourage recourse to violence on the part of any of the inhabitants of the country, 5 because the publication was made in good faith for the purpose of showing that the Government of the country has been misled or mistaken in any of the measures and pointed out errors or defects in the Government regarding its political stand. .Finally, counsel aigued that the applicant brought himself within the 10 protection of the proviso to s. 51

(1)once his intention was to inform the people of what was going on. The Assize Court, being faced with the same contentions and arguments regarding the defence put forward as in this Court, and having addressed their minds to a number of authorities 15 regarding sedition, and fully aware of the warning given by Coleridge, J. in the case of R. v. Aldred,22 Cox's Criminal Law cases, looked into all the circumstances surrounding the publication of that book with a view of seeing whether the language used was calculated to produce the results imputed to the appel20 lant and reached the conclusion that from the declared intentions of the appellant, the latter could not invoke any of the defences set out in s. 51

(1)of the Criminal Code and was satisfied that from the comments of the appellant, the descriptions which he used for the President of the Republic, his Government, and 25 security forces, during the prevailing situation in the Republic, the prosecution proved beyond reasonable doubt that the appellant was guilty on this count. Turning now to section 51

(1), and comparing that section with the offence of sedition, the trial Court concluded that the 30 two offences correspond to each other. According to Kenny's outlines of Criminal Law, 18th edn., under the heading "Stephen's Definition of Sedition", p. 397, para. 426, it is stated that:35 " The law of sedition relates to the uttering of seditious words, the publication of seditious libels and conspiracies to do an act for the furtherance of a seditious intention.Sedition, whether by words spoken or written, or by conduct, is a misdemeanour at common law punishable by fine and imprisonment. Sir James Stephen (Digest of 59 Hadjianastassion J. Papadopoullos v. Republic

(1980)Criminal Law, 8thed.art. 114)defined a seditiousintention as 'an intention to bring into hatred or contempt, or to excite disaffection against the person of, His Majesty, his heirs or successors, or the government and constitution of the United Kingdom by law established, or either House 5 of Parliament, or the administration ofjustice, or to excite his Majesty's subjects to attempt otherwise than by lawful means, the alteration of any matter in Church or State by law established, ... or to raise discontent or disaffection amongst His Majesty's subjects, or to promote feelings of 10 ill-will and hostility between different classes of such subjects'. But 'an intention1 to show that His Majesty has been misled or mistakeninhismeasures,topoint out errors or defects in the government or constitution, as by law established, with a view to their reformation, or to excite 15 His Majesty's subjects to attempt by lawful means the alteration of any matter in Church or State by law established, or to point out in order to their removal, matterswhichareproducing,orhaveatendencytoproduce, feelings of hatred and ill will between. classes of His 20 Majesty's subjects, is not a seditious intention*. It is the right of every citizen to discuss public affairs fully and freely, but such discussions must not be directed to the incitement of unlawful acts orcalculated to excite disaffection2". It appears that a seditious intention is of the essence of the offence and if the acts done or words used were not done or usedwith such an intention, theoffence of seditionhasnot been committed howeverdefamatory thewordsmaybe. In Reg. v. Burns and Another, Cox's Criminal Law cases, 30 Vol. XVI 355, Cave, J., dealing with the question of whether or not sedition was proved, said at p. 360:" The next question that one asks is this: There are two offences, oneisthe offence of speakingseditiouswords,and the other offence is the publication of a seditious libel. 35 It is obviously important to know what is meant by the word sedition, and Stephen, J. proceeds in a subsequent

1. Ibid. art.
3. For illustrations of sedition, see Arch. ch. 13,sect. 7 Russl 229 et seq. R. v. Burns [1886] 16 Cox
4. 60 25 2 C.L.R. 5 10 15 20 25 30 35 Papadopoullos τ. Republic Hadjianastassiou J. article to give a definition of it. He says Ά seditious intention is an intentionto bring into hatred orcontempt, or to excite disaffection against theperson of Her Majesty, her heirs,or successors, or thegovernmentand constitution of the United Kingdom, as by law established, or either House of Parliament, or the administration of justice, or to excite Her Majesty's subjects to attempt otherwise than by lawful means thealteration of any matter in Churchor State by law established, or to raise discontent or disaffection amongst Her Majesty's subjects, or to promote feelings of ill-will and hostility between different classes of such subjects, (a) Stephen,J. is a Judge of very great accuracy and for every proposition there laid down there is to be found undoubted authority. Hegoes on topoint out what sort of intention is not seditious. It is also important to consider that, because there we get a light thrown uponthe subject from anotherside. 'Anintention to show that Her Majesty has been misled or mistaken in her measures, or to point out errors or defects in the government or constitution as by law established, with a view to their reformation, or to excite Her Majesty's sub­ jects to attempt by lawful means the alteration of any matter in Churchor State by law established, or to point out, in orderto theirremoval, matterswhich areproducing or have a tendency to produce, feelings of hatred and ill-will between classes of Her Majesty's subjects, is not a seditious intention, (b) So there he gives in these two classes whatisandwhatisnotsedition. Now,theseditious intentions which it is alleged existed in the minds of the prisoners in this case are: first, an intention to excite Her Majesty's subjects to attemptotherwise thanby lawful means the alteration of some matters in Church or State by law established; and, secondly, to promote feelings of hostility betwen different classes of Her Majesty's subjects. Thisis necessarily somewhatvague andgeneral,particularly the secondportion, which says it is a seditious intention to intend to promotefeelings of ill-will and hostility between different classes of HerMajesty's subjects. I shouldrather prefer to say that the intention to promote feelings of (a) Digest of the Criminal Law, p. 56, art.
5. 61 Hadjianastassiou J. Papadopoullos v. Republic

(1980)ill-will and hostility between different classes of Her Majesty's subjects may be a seditious intention according to circumstances, and of those circumstances the jury are theJudges—and I put this question to the Attorney-General in the course of the case: 'Suppose a man were to write 5 a letter to the papers attacking bakers or butchers generally with reference to the high prices of bread or meat, and imputing to them that they were in a conspiracy to keep up the high prices, would that be a seditious libel-being written and not spoken?' To which the Attorney-General 10 gave me the only answer, which it was clearly possible to giveunder the circumstances: 'That must depend upon the circumstances'. I, sitting here as a Judge, cannot go nearer than that. Any intention to excite ill-will and hostility between different classes of Her Majesty's subjects may be 15 a seditious intention; whether in a particular case this is a seditious intention or not, you must Judge and decide in your own minds, taking into consideration the whole of the circumstances of the case. You may not unnaturally say that that is a somewhat vague statement of the law, by 20 what principle shall we be governed in deciding when an intention to excite ill-willand hostility isseditiousand when it is not. For your guidance, I will read to you what was said by Fitzgerald, J. in the case of Reg.v.Sullivan (11Cox C.C. 44), which was a prosecution for a seditious libel, the 25 only difference between the two cases being of course that while seditious speeches are spoken, a seditious libel is written, but in each of them the adjective 'seditious' occurs, and what isa seditious intention in the one case will equally be a seditious intention in the other, he said: 'As such 30 prosecutions are unusual, I think it necessary in the first instance to define sedition, and point out what isa seditious libel. Sedition is a crime against society, nearly allied to that of treason, and it frequently precedes treason by a short interval.' It has been said very truly that there is 35 no such offence as sedition itself, but it takes the form of seditious language either written or spoken, and it is in that sense of course that the learned Judge's words are intended to be understood. 'Sedition in itself is a comprehensive term, and it embraces all those practices, whether 40 by word, deed, or writing, which are calculated to disturb the tranquillity of the state, and lead ignorant persons to 62 2C.L.R. 5 10 15 20 25 30 35 40 Papadopoullos τ. Republic Hadjianastassiou J. endeavour to subvert the government and the laws of the Empire. The objects of sedition generally are to induce discontent and insurrection and stir up opposition'to the Government, and bring the administration of justice into contempt;and the very tendency of sedition is to incite the people to insurrection and rebellion. Sedition has been described as disloyalty in action, and the law considers as seditious all those practices which have for their object to excite discontent or disaffection, to create public disturbances, or to lead to civil war; to bring into hatred or contempt the Sovereign or the Government, the laws or constitution of the Realm, and generally all endeavours to promote public disorder.' Then a little further on he says (p. 46): 'Words may be of a seditious character, but they might arise from sudden heat, be heard only by a few, create no lasting impression, and differ in malignity and permanent effect from writings; Sir Michael Foster said of the latter: 'Seditious writings are permanent things, and if published they scatter the poison far and wide. They are acts of deliberation, capable of satisfactory proof, and not ordinarily liable to misconstruction; at least they are submitted to the judgment of the Court