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clr/1980/1980_2_118.pdf

(1980) 1980 May 27 [TRIANTAFYLLIDES, P., L. LOIZOU A N D HADJIANASTASSIOU, JJ.] MAMAS ELIA, Appellant, THE POLICE, Respondents. {Criminal Appeal No. 4136). Constitutional Law—Right to movefreely throu

Article 13.1 of the Constitution. 15 On August 24, 1979, the Council of Ministers made an Order ("Order 190/79") under Defence Regulations 55(l)(b) and 60

(1)by virtue of which there was prohibited, subject to certain exceptions of a limited nature, the circulation on alternate week-ends of private motor vehicles depending on whether their registration 20 numbers were even or odd, respectively. The appellant who owns a car with an odd registration number, drove such car on September 8, 1979 which was part of a week-end on which only cars with even registration numbers were allowed to circulate; and following his conviction of the offence constituted under 25 Order 190/79 was sentenced to pay a fine of £100. 118 2 C.L.R. Elia v. Police Upon appeal counsel for the appellant contended that Order 190/79 was

Article 13.1* of the Constitution.

5 10 15 20 25 Held, that this Court takes judicial notice of the fact that in Cyprus during week-ends there does not function to an adequate extent a system of public transportation, except in certain urban areas, where it exists at only a rudimentary level; that, therefore, the use of a private motor car is normally indispensable if a citizen is not, in effect, to be restrained physically from moving freely from one area of the Republic to another, or from one area of a town to another, in so far as distances which cannot be reasonably expected to be covered on foot, or by other means of private conveyance, are concerned; that, in this respect, this Court takes into account the situation in which the average citizen finds himself as a result of the operation of Order 190/79; that the average citizen cannot afford financially to have two private motor cars, one with an even registration number and one with an odd registration number, or to use, except in cases of urgent need, a taxi for the purpose of moving from one area of the country to another; that, therefore, the operation of Order 190/79 involves a restriction of the right to move freely throughout the territory of the Republic, which is safeguarded by Article 13 of the Constitution; that such a restriction cannot be treated, in the circumstances in which it has been imposed, as being necessary for the purposes of defence or of public health or as a punishment passed by a competent Court, so that its validity could conceivably be covered by any of the exceptions provided in the said Article 13; and that, accordingly, Order 190/79 is

Article 13.1 of the Constitution.

30 Appeal allowed. Cases referred to: Williams v. Fears, 45 L. Ed. 186 at p. 188; Kent v. Dulles, 2 L. Ed. 2d 1204 at p. 1210; Shapiro v. Thompson, 22 L. Ed. 2d 600 at pp. 612-613. * Article 13.1 of the Constitution provides as follows: "Every person has the right to move freely throughout the territory of the Republic and to reside in any part thereof subject to any restrictions imposed by law and which are necessary only for the purposes of defence or public health or provided as punishment to be passed by a competent court". 119 Elia v. Police

(1980)Appeal against conviction and sentence. Appeal against conviction and sentence by Mamas Elia who was convicted on the 19th April, 1980 at the District Court of Nicosia (Criminal Case No. 19421/79) on one count of the offence of driving a private motor vehicle during 5 the restricted hours of a weekend, contrary to sections 3, 4 and 6
(3)of the Supplies and Services (Transitional Powers) (Continuation) Law, Cap. 175A and sections 2, 3, 4 and 7 of the Supplies and Services (Petroleum Control) (Restrictions and Control of Driving of Private Motor Vehicles) P.I. 10 190/79 as amended by P.I. 211/79 and regulations 55(l)(b), 60
(1)and 94 of the Defence Regulations 1940-1946, as amended by Law 4/74, and was sentenced by Stavrinides, D.J. to pay £100.-fine A. Triantafyllides with M. Cleopa for the appellant. 15 A. M. Angelides, Counsel of the Republic, for the respondents. Cur. adv. vult. TRIANTAFYLLIDESP. read the following judgment of the Court. The appellant in this case was convicted by the District Court 20 of Nicosia, on April 19,1980, of the offence ofdrivinghis private motor car on September 8, 1979, contrary to an Order of the Council of Ministers, made on August 24, 1979, under Defence Regulations 55(l)(b) and 60
(1)(No. 190, Third Supplement, Part I, to the Official Gazette of the Republic) and amended on 25 September 7, 1979 (No. 211,Third Supplement, Part I, to the Official Gazette of the Republic); a later amendment of the said Order effected on December 21, 1979 (No. 302, Third Supplement, Part I, to the Official Gazette of the Republic) is not relevant for the putposes of the present case. 30 The aforementioned Order of the Council of Ministers will be referred to hereinafter in this judgment as "Order 190/79". Bymeans of Order 190/79thereisprohibited, subject to certain exceptions of a limited nature, the circulation on alternate weekends of private motor vehicles depending on whether their 35 registation numbers are even or odd, respectively. September 8, 1979, when the appellant drove his car with an odd registration number was part of a week-end on which only cars with even registration numbers were allowed to circulate; 120 2 C.L.R. Elia v. Police Triantafyllides P. and the prohibition in question extended from 17.00 hours Saturday till 05.00 hours on Monday next. The validity of Order 190/79, under which the appellant was charged and convicted, has been challenged on a number of 5 grounds, but we have decided that it is not necessary to deal with all of them since we have reached the conclusion that the said Order is

Article 13.1 of the Constitution, which reads as follows:10 15 20 " 1 .

"Εκσσ-ros έχει τό δικαίωμα ελευθέρας μετακινήσεως εντός τοϋ εδάφους της Δημοκρατίας καΐ διαμονήςείςοιονδή­ ποτε τμήμα αϋτης υποκείμενοςείς τους ΰττο τοϋ νόμου επι­ βαλλόμενους, αναγκαίους δέκρινόμενουςμόνονδιατήν άμυναν ή τήν δημοσίαν ύγείον περιορισμούς ή οΟςπροβλέπονται ώς ποινή επιβαλλομένη Οπό τοΰ αρμοδίου δικαστηρίου." ("I. Every person has the right to move freely throughout the territory of the Republic and to reside in any part theieof subject to any restrictions imposed by law and which are necessary only for the purposes of defence or public health or provided as punishment to be passed by a competent Court.") A similar provision is to be found in Article 19(l)(d) of the Constitution of India, which provides that: "19

(1)All citizens shall have the r i g h t id) to move freely throughout the territory of India; 25 30 Clause
(5)of Article 19, above, provides that: "
(5)Nothing in sub-clauses (d), (
  1. e)and (
  2. f)of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, reasonable restrictions on the exercise of any of the rights conferred by the said sub-clauses either in the interests of the general public or for the protection of the interests of any Scheduled Tribe." (See Basu's Commentary on the Constitution of India, 5th ed., vol. 1, pp. 543, 544). 35 The "liberty of movement" is safeguarded, also, by means 121 Triantafyllides P. Elia v. Police
(1980)of Article 2 of the Fourth Protocol to the European Convention for the Protection of Human Rights and Fundamental Freedoms, which reads as follows:"Article 2
  1. Everyone lawfully within the territory of a State shall, within that territory have theright to liberty of movement and freedom to choose his residence.
  2. 5 Everyone shall be free to leave any country, including his own.
  3. No restrictions shall be placed on the exercise of these 10 rights othei than such as are in accordance with law and are necessary in a democratic society in the interests of national security or public safety, for the maintenance of 'ordre public*, for the prevention of crime, for the protection of health or morals, or for the protection of the 15 rights and freedoms of others.
  4. The rights set forth in paragraph 1may also be subject, in particular areas, to restrictions imposed in accordance with law and justified by the public interest in a democratic society." 20 In the United States of America the freedom of movement is considered to be one of the basic human rights: In Williams v. Fears, 45 L. Ed. 186, Chief Justice Fuller stated (at p. 188):"Undoubtedly the right of locomotion, the right to remove 25 from one place to another according to inclination, is an attribute of personal liberty, and the right, ordinarily, of free transit from or through the territory of any state is a right secured by the 14th Amendment and by other provisions of the Constitution." 30 In Kent v. Dulles, 2 L. Ed. 2d 1204, Mr. Justice Douglas said (at p. 1210):"The right to tiavel is a part of the 'liberty' of which the citizen cannot be deprived without due process of law under the Fifth Amendment. So much is conceded by the 35 Solicitor General. In Angle-Saxon law that right was emerging at least as early as the Magna Carta. Chafee, 122 2 C.L.R. 5 10 15 Elia v. Police Triantafyllides P. Three Human Rights in the Constitution of 1787
(1956), 171-181, 187 et seq., shows how deeply engrained in our history this freedom of movement is. Freedom of movement across frontiers in either direction, and inside frontiers as well, was a part of our heritage. Travel abroad, like travel within the country, may be necessary for a livelihood. It may beas close to the heart of the individual as the choice of what he eats, or wears, or reads. Freedom of movement is basic in our scheme of values. See Crandallv. Nevada (US) 6Wall 35,44, 18L ed 745,747; Williams v. Fears,179 US 270, 274, 45 L ed 186, 188, 21 S Ct 128; Edwards v. California, 314 US 160, 86 L ed 119, 62 S Ct
  1. O u r nation', wrote Chafee, 'has thrived on the principle that, outside areas of plainly harmful conduct, every American is left to shape his own life as he thinks best, do what he pleases, go where he pleases.1 Id., at
  2. Freedom of movement also has large social values." In Shapirov. Thompson,22L. Ed. 2d 600, Mr. Justice Brennan said (at pp. 612-613):- 20 25 30 35 "This Court long ago recognized that the nature of our Federal Union and our constitutional concepts of personal liberty unite to require that all citizens be free to travel throughout the length and breadth of our land uninhibited by statutes, rules, or regulations which unreasonably burden or restrict this movement. That proposition was early stated by Chief Justice Taney in the Passenger Cases, 7 How 283, 492, 12 L Ed 702, 790
(1849): 'For all the great purposes for which the Federal government was formed, we are one people, with one common country. We are all citizens of the United States; and, as members of the same community, must have the right to pass and repass through every part of it without interruption, as freely as in our own States.' We have no occasion to ascribe the source of this right to travel interstate to a particular constitutional provision. It suffices that, as Mi. Justice Stewart said for the Court in United States v. Guest,383 US 745, 757-758, 16L Ed 2d 239, 249, 86 S Ct 1170
(1966): 'The constitutional right to travel from one State 123 Triantafyllides P. Elia v. Police
(1980)to another occupies a position fundamental to the concept of our Federal Union. It is a right that has been firmly established and repeatedly recognized. (The) right finds no explicit mention in the Constitution. The reason, it has been suggested, is 5 that a right so elementary was conceived from the beginning to bea necessary concomitant of the stronger Union the Constitution created. Inany event, freedom to travel throughout the United States has long been recognized as a basic right under the Constitution.' " 10 The above quotations show the fundamental and vital nature of the right to move freely throughout theterritory ofa Republic, such as our own. It is correct that a legislative provision constitutes a restriction upon the freedom of movement only if it imposes restrictions upon the right of locomotion of a person physically (see Basu's Commentary, supra, p. 715); and we have not lost sight of this essential characteristic of the freedom of movement in deciding that it is being unconstitutionally infringed in the present case by Order 190/
  1. In reaching the above conclusion we have judicially taken notice of the fact that in Cyprus during week-ends there does not function to an adequate extent a system of public transportation, except in certain urban areas, where it exists at only a rudimentary level; therefore, the use of a private motor car is 25 normally indispensable if a citizen is not, in effect, to be restrained physically from moving freely from one area of the Republic to another, or from one area of a town to another, in so far as distances which cannot be reasonably expected to be covered on foot, or by other means of private 30 conveyance, are concerned. In this respect we have taken into account the situation in which theaveragecitizenfindshimselfas a result of the operation of Order 190/79;and the average citizen cannot afford financially to have two private motor cars, one with an even registration 35 number and one with an odd registration number, or to use, except in cases of urgent need, a taxi for the purpose of moving from one area of the country to another; because, had we taken into account not the average citizen,but those citizens belonging 124 15 20 2 C.L.R. Elia v. Police Triantafyllides P. to the more well off financial classes of society, then we would have, inevitably, to reach the conclusion that the application of Order 190/79 entails a discrimination between the fairly rich and all the others, contrary to Article 28 of the Constitution. 5 In the light of the above consequences of the application of Order 190/79 for the average citizen we have reached, as already stated, the conclusion that its operation involves a restriction of the right to move freely throughout the territory of the Republic,which issafeguarded byArticle 13 of our Constitution; 10 and such a restriction can not be treated, in the circumstances in which it hasbeen imposed, asbeingnecessary for the purposes of defence or of public health or as a punishment passed by a competent Court, so that its validity could conceivably be covered byany of the exceptions provided in the said Article
  2. 15 20 For all the foregoing reasons we find that the appellant in the present case was convicted on the basis of legislation, namely Order 190/79, which is unconstitutional and, therefore, his conviction, and the sentence which was imposed upon him, have to be set aside; and this appeal is allowed accordingly. Appeal allowed. Conviction and sentence set aside. 125

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