CYPRUS ON APPEAL AND IN ITS ORIGINAL JURISDICTION Cyprus Law Reports Volume 2 (Criminal) 1982 January 29 [Lows, STYLIANIDES AND PIKIS, JJ.] SAVVAS RAFTIS & CO. LTD. AND ANOTHER, Appellants. MUNICIPALITY
PAPHOS, Respondents. (Criminal Appeals Nos. 4271-4272}. Constitutional Law*—Constitutionality
legislation—A statute is presumed to be constitutional until the contrary is proved beyond all reasonable doubt—Provisions
section 20
the Streets and Buildings Regulation Law, Cap. 96 for the suspension
demolition order for a period
two months—Not contrary to Article 12.3
the Constitution—Because suspension
the enforcement
a demolition order is not a punishment. Sentence—Orders
a Court which qualify as a sentence—Those which have the effect
depriving thefundamental rights
the accused,such as the right tofreedom
movement andassociation and rights to ownership and possession. The appellants were found guilty on a charge
commencing 1 Raftis &Co. v. M/t> Paphos
a building without a building permit and were fined £70 each and ordered to demolish everything referred to in the charges unless a permit was secured within two months in respect thereof. The demolition order was made under section 20
the Streets and Buildings Regulation Law, Cap. 96 which reads as follows: 5 "In addition to any other penalty prescribed by this section, the Court, before which a person is convicted for any
fence under subsection
which the
fence has been committed shall be pulled down or removed withm such time as shaU be specified in such order, but inno case exceeding two months, unless a permit is obtained in respect 15 thereof in the meantime from the appropriate authority". Upon appeal against sentence it was mainly contended that the period
two months provided in section 20
Cap 96 was unconstitutional, as repugnant to Article 12.3*
the 20 Constitution, because (a) it fetters the discretion
the Court and (b) it may not be possible for the examination
an application for a permit within two months by the appropriate authority due to inherent difficulties. Held, that the period
two months during which the enforce- 25 ment
a demolition order may be suspended is not part
the sentence and therefore it is not unconstitutional as being contrary to Article 123
the Constitution Per Styhamdes J, tons J concutring: That a statute is presumed to be constitutional until the contrary is proved beyond all reasonable doubt, that this Court has not been satisfied beyond reasonable doubt, that the provision "but in no case exceeding two months"
the statute is unconstitutional as being contrary to Artic'e 12.3
the Constitution, Article 12 3
the Constitution reads as follows"Mo law shall provide for a punishment which isdisproportionate to the gravity
the
fence" 2 30 2 C.L.R. 5 10 Raftis & Co. v. M/ty Paphos that the punishment, the sanction for transgressing the Law, is the order to pull down or remove the building or any part thereof in respect
which the
fence was committed; that the period specified in the order, which in no case should exceed two months, is not a period meant to enable the
fender to obtain a building permit; that a building permit is a prerequisite to any building operation; that the two-monthly period is a period
grace afforded for the execution
the punishment and if within the period appointed by the Court a building permit is obtained, then the accused is absolved from the obligation to comply with the order. Per Pikis J., Loris J. concurring: 15 20 25 That for an order
the Court to qualify as a sentence it must have the effect
depriving, in one or more respects, the fundamental rights
the accused, such as the right to freedom
movement and association and the rights to ownership and possession; that it is impossible to fit in the power to suspend a demolition order into the concept
sentence;that the suspension
the enforcement
a demolition order is manifestly not a punishment; that far from depriving the accused
any
his rights, the extension
the period
enforcement absolves him
the obligation to comply with the order as soon as possible, that he would otherwise have to and, to that extent, mitigates his burden; and that, therefore, the regulation
the exercise
the power by law, that is fixing the maximum period
extension, does not
fend in any way the provisions
.3
the Constitution the application
which is limited to penal statutes. Appeal dismissed. 30 35 Cases referred to: Stylianou v. Police, 1962 C.L.R. 152; Zavos v. Police
the Republic v. Ibrahim, 1964 C.L.R. 195 at p. 232; Boardfor Registration
Architects and CivilEngineers v. Kyriakides
ficer
Nicosia v. HjiYianni, 1 R.S.C.C. 79; Amand v. Secretary
State for Home Affairs [1942] 2 All E.R. 381 at p. 385; 3 Raftis &Co.τ.M/tyPaphos (1WD R. v. O w n Court [1980] 1 All E.R. 445; R. v. tfrogan [1975] 1 All E.R. 879; R. v. Menocai [1979] 2 All E.R. 510; R. v. Cuthbertson [1980] 1 All E.R. 401; Improvement Boardof Kaimakli v. Sevastides
Famagusta
Famagusta
Nicosiav. Pierides
the
fence
commencing the erecion
a building contrary to sections 3(l)(bXf)
the Street? and Buildings Regulation Law, Cap. 96, (as amended) and section 20
the Criminal Code, Cap. 154 and ,vere sentenced by Laoutas, Ag. S.D.J, to pay £70.-fineeach 20 and £70.- costs and a demolition order was issued ordering Them io pull down everything referred lo inthecharges unless a permit was secured within two months. 1. Xythreotis, for the appellant. K. Chrysostomides, for the respondent. 25 R. Gavrielides, Senior Counsel
the Republic, as amicus curiae. Cur. adv. v«/r, The following judgments were rsad: LORIS J : i had ths opportunity
reading the judgments uboui LObe dcl-'vcred by Slyliam'des, J. and Pikis, J. I agree With both judgments and have nothing ussful to add. 30 The first judgment
this Court will be delivered by Styliarddes, J., and the judgment
Pikis, J., will follow. STYLIANIDES J.: The appellants—a company and its Mana- 35 -zing Director—were found guilty by the District Court
Paphos 4 2 C.L.R. Raftls & Co. v. M/ty Paphos Styllanides J . (Laoutas, Ag.S.D.J.) on a charge
commencing the erection
a building contrary to sections 30XbXf)
the Streets and Buildings Regulation Law, Cap.
the hearing
the appeal learned counsel for the appellants rightly conceded that the appropriate authority for the issue
a building permit is the Municipal Corporation
Paphos and, as they did not obtain a building permit as prescribed by Law, Cap. 96, he abandoned the appeal against 15 conviction. Furthermore he did not pursue ihe appeal directed against ihe monetary part
the sentence tmpo3ed by the trial Court. A simple question remained for consideration, that is to say, th; consliluiionality
the rel.vant provisions
Cap. 96, notably s. 20
the constitutionality is upheld, a second question arises, i.e. the exercice
this Court's discretion in the circumstances
the case. Learned counsel for, the appellants argued that the period 25
two months provided ins.20
the Streets and Buildings Regulation Law, Cap. 96, is unconstitutional as repugnant to Article 12.3
the Constitution, which reads:"No law shall provide for a punishment which is disproportionate to the gravity
the
fence". 30 35 This statutory provision was preserved by Article 188
the Constitution, being enacted prior to the establishment
the Republic. it is perfectly clear from paragraphs
that the Courts
the Republic, in discharging their function
applying the Law, have to construe and apply all Laws preserved in force by Article 188, with such modification as may benecessaryto bring them into conformity with the Consti5 Stylianidcs J. Raftis &Co. v. M/ty Paphos
the same Article as including "amendment, adaptation and repeal". (Stylianou v. The Police, 1962 C.L.R. 152; Michael Demetriou Zavos v. The Police,
TheAttorney-General
theRepublic v. Ibrahim, 1964 C.L.R. 195, at p. 232, "it is a basic principle
Constitutional Law that the utmost restraint should be exeicised by Courts in approaching theissueof the alleged unconstitutionality
astatute and that, incase
doubt, a Court should 10 lean in favour
the validity
such statute, because a statute is presumed to be constitutional until the contrary is proved beyond all reasonable doubt". (See also The Board for Registration
Architects & Civil Engineers v. Kyriakides,
Cap.96amounts to "punishment" within the meaning
that termin paragraph
. This view is, inter aha, supported by the opening words
subsection
s.20of Cap.96which clearly provide that such a demolition order shallbe madein "addition 20 to any other penalty prescribed by" that section. (The District
ficerof Nicosia v. GeorghiosHji-Yianni,
Akaki, 1R.S.C.C. 79). The provisions
the Law for a demolition order were peremptory until 1963, when it was amended (by Law No. 25 67
1963) so as to bring the statute in conformity with the Constitution, as interpreted in proceedings
such a nature, and was, made discretionary. Section 20
fence under subsection
which the
fence has been committed shall be pulled down or removed within such time 35 as shall be specified in such order, but in no case exceeding two months, unless a permit is obtained 6 2 C .L.R. Raftis & Co. v. M/ty Paphos Stylianides J. inrespect thereof inthe meantime from the appropriate authority". It was submitted by Mr. Kythreotis for the appellants that the time
two months within which a demolition order must 5 be enforced is unconstitutional in that (a)it fetters the discretion
the Court and (b) it may.not be possible for the examination
an application for a permit within two months by the appiopriate authority due to inherent difficulties. We have not been satisfied beyond reasonable doubt, which 10 is the relevant criterion, that the provision "but in no case exceeding two months"
the statute is unconstitutional as being contrary to Article 12.3
the Constitution. The punishment, the sanction for transgressing the Law, is the order to pull down or remove the building or any part thereof in respect 15
which the
fence was committed. The period specified in the order, which in no case should exceed two months, is not a period meant to enable the
fender to obtain a building permit; a building permit is a prerequisite to any building operation. The two-month period is a period
grace afforded 20 for the execution
the punishment and if within the period appointed by the Court a building permit is obtained, then the accused is absolved from the obligation to comply with the order. Inview
our opinion as to the constitutionality
the slatu25 tory provision challenged and as the trial Judge gave Ihj maximum period provided by Law, this appeal fails and is dismissed accordingly. PIKIS J.: I agree with Stylianides, J., that the period during which the enforcement
a demolition order may be suspended 30 isnot part
thesentenceand,therefore, the provisions
.3
the Constitution are inapplicable. What 1wish to add mainly pertains to the definition
sentence in the context
criminal law. Sentence is that part
the criminal process, usually the end 35 point, that involves the imposition
sanctions for the infraction
one or more penal laws or regulation<. AND criminal, is every proceeding that may result in the punishment
the accused by a court
law claiming jurisdiction over the matter. 7 Pifcis J. Raftis & Co. v. M/ty Paphos
State for Home Affairs [1942] 2 All E.R. 381,385, and R. v. Crown Court [1980] 1AH E.R. 445). Normally, there is no difficulty in identifying what part
the judgment
the Court constitutes the sentence. However, 5 need arises in this case to delve into the definition
sentence, in the field
criminal law, somewhat deeper and explorejuridically to the degree necessary what constitutes sentence, in order to determine whether the suspension
a demolition order, in contrast to the ordsr itself, amounts to punishment, either 10 on its own or as an inextricable part
the demolition order. The question must be examined in an abstract perspective for we are concerned with a question
constitutionality that must be resolved from the angle
the implications
a demolition ordsr, as may to envisaged from a reading
the law, and its 15 conceivable application in diverse circumstances, indipendently
the facts
the case. Nicolaou, D.J., in a judgment extensively cited before us, notably in The District
ficer
Nicosia v. Them. Nicolaou & Bros. Ltd. & Another, Case No. 21345/79, delivered on 20 18.9.1980, concluded that the suspension
a demolition order forms part
the sentence and, inasmuch as the period
suspension is pre-determined and not related to the circumstances
individual cases, it
fends the provisions
.3 that require mandatorily, that no punishment shall be 25 disproportionate to the gravity
the
fence. The learned Judge was impressed by the degree to which a demolition order is interwoven with the period set down for itsenforcement as tojustify theview that thetwo are inseparable and, therefore, the law in question
fensive to the dictates 30
In so holding, he took stock
the implications
suspension and the purpose it is, in his view, designed to s;rve in practice, thai is, mainly to afford a last opportunity to the applicant to secure a permit. It is, as indicated, upon the reasoning
the aforementioned judgment that counsel 35 for the applicants founded his arguments on appeal, a reasoning which was largely adopted by counsel for the other parties. The underlying assumption that suspension is aimed to afford a breathing space for securing a permit, isvulnerable to criticism 8 2 C.L.R. Raftis A Co. v. M/ty Papbos Pikfs J. and it is not, inevitably, warranted by the law. The most obvious justification for extension, on a review
the objects
the law as a whole, is to afford a degree
latitude to the accused in complying with the order; and if he secures a permit, 5 so much the better for him. By empowering the Court to put-
f the enforcement
the order, it is not intended to whittle down the effect
the basic provisions
the law that require that no building should be erected without prior approval
the appropriate authority 10 evidenced by a permit. In the course
arguments, I inquired on counsel what would be the position in law from the angle
constitutionality if s.20
the Streets and Buildings Law, Cap. 96, merely provided for the imposition
a demolition order subject to 15 the discretion
the Court, without vesting any additional powers on the Court to suspend its enforcement. To that, we received no clear answer; the question is pertinent because, if the relevant section stripped
f the power to suspend the order is constitutionally.unobjectionable, it would be contradi20 ctory to suggest that the addition
a provision, designed to obviouoly mitigate some
the effects
a demolition order, is liable to scrutiny under Article 12.3
the Constitution. The validity
the submission
unconstitutionality largely depends on the definition
sentence, particularly whether 25 the power to suspend a demolition order is in itself a species
punishment. Some English decisions I traced, shed light on the constituent elements
sentence but none supplies a comprehensive answer. (See, inter alia, R. v. Brogan [1975] 1 All E.R. 879 (C.A.); R. v. Menocal [1979] 2 AH E.R. 510 30 (H.L.); R. v. Cuthbertson [1980] 1 All E.R. 401 (H.L.) ). Sentence, in the context
criminal law, is the punishment that acompetent court may impose,as indicated, for the infringement
penal laws and regulations. For an order
the court to qualify as a sentence, it must have the effect
depriving, 35 in one or more respects, the fundamental rights
the accused, such as the right to freedom
movement and association and the rights to ownership and possession. Because
their limiting effects on the rights
the person affected thereby, a demolition as well as a forfeiture order, have been held to 9 Pikis J. Raftis & Co. v. M/ty Paphos
the provisions
.3
the Constitution. (See, inter alia, The District
ficer
Nicosia,v. Georghios Hadji YiatmisofAkaki, Vol. 1,R.S C C , p. 79; Improvement Board
Kaimakli v. Pelopidas Sevastides
Famagusta
Famagusta
Nicosia V. Pierides
the accused, in this respect, must be broadly considered and includerights incidental to ownership 10 and possession. So, a demolition order may be said to deprive the citi7en
the right to put his immovable property to uses
his choice, whereas a forfeiture order deprives the accused
the right to deal, as he chooses, with articles in his possession. A fine has, likewise, disposcessory effects. 15 It is impossible to fit in the power to suspend a demolition order into theconcept
sentence. Thesuspension
the enforcement
a demolition order is manifestly not a punishment. Far from depriving the accusedof any
hisrights, the extension
the period
enforcement absolves him
the obhgation to 20 comply with the order as soon as possible, that he would otherwise have to and, to that extent, mitigates his burden. It is for similar reasons that the power to suspend a sentence
imprisonment under the Suspension
Imprisonment Law, 1972 (Law 95/72) is constitutionally unobjectionable notwithstanding 25 the pre-determination by law
the period
suspension. In my judgment, the power vested in the Court to suspend a demolition ordei is not a penal provision; consequently, any order founded thereon is not a sentence in any sense
the word. Therefore, the regulation
the exercise
the power 30 by law, that is fixing the maximum period
extension, does not
fend in any way the provisions
.3
the Constitution the application
which islimited topenal statutes. The brevity
the period
extension serves to remind everyone that he should not embark upon the erection
a building 35 unless he first secures a permit, as required by law. The appeal is dismissed. Appeal dismissed. 10
AI explanation based on the official legal text. Indicative, not a substitute for legal advice.