clr/1983/1983_1_575.pdf

(2)of the Election of Members of the House of Representatives Law, 1979 (Law 72/79)—Convict serving a sentence of imprisonment for commissionof acriminaloffence—Not inscribedintheelectoral roll and had not taken any step to secure his inscription on such roll—No attempt by anybody on his behalf to nominate him as a candidate—And no complaint by him to the Chief Returning Officer before the expiration of the time for nominations—Not entitled to vote at the election in view of section 6(a) of Law 72/79—And, therefore, he cannot be treated as being, in the sense of the above section 57

(2)either an elector inscribed on the relevant electoral roll or a person claiming to have had the right to vote at the election concerned—Notion of "a person alleging himself to have been a candidate at the election" in the said section 57

(2)—Applicant not coming within the ambit of such notion in view of theparticular circumstances of this case— Section 57

(2)not contrary to Articles 28and 30.2 of the Constitution—Article 6 of the European Convention on Human Rights. Constitutional Law—Election of the House of Representatives Law, 1979 (Law 72/79), section 57

(2)not contrary to Articles 28 and 30.2 of the Constitution. The applicant, by means of an election petition, sought to declare invalid the election on 24th May, 1981 of the respondents as Members of the House of Representatives for the electoral district of Nicosia, on the ground that, while he was a convict 575 Demetriades v. Dinglis

(1983)serving a sentence of imprisonment at the Central Prisons, he was not allowed to enter his candidature in respect of the said election. At the commencement of the hearing of this petition Counsel for therespondents raisedthepreliminary issuethat theapplicant was not, in the light of the provisions of section 57

(2)* of the Election of Members of theHouse of Representatives Law, 1979 (Law 72/79), entitled to file the present petition. 5 Counsel for the applicant conceded that his client was not i.iscribed on the electoral roll; nor had he taken any step to 10 secure his inscription on such roll by applying for the purpose to the District Officer of Nicosia either under section 10 of Law 72/79 or by objecting, under section 12 of Law 72/79, to the omission of his name from the said roll. It wasnot in dispute that at no material timewas there made 15 any attempt by anybody onbehalf of the applicant to nominate him as a candidate under section 19 of Law 72/

1. In anoticepublished bytheReturningOfficer for theelectoral district of Nicosia, in the Official Gazette, on 17th April 1981 it was stated that the 30thApril 1981had beenfixedas the date 20 for receiving nominations in respect of the election to be held for the said electoral district on 24th May
2. On2ndMay 1981theapplicant,whilebeinginprison,addressed a letter to the Chief Returning Officer by means of which he was complaining that on 30th April 1981 he requested the 25 competent authorities—presumably the prison authorities— to take the necessary steps to transport him to the place where he could submit his nomination as a candidate for election as a Member of the House of Representatives in respect of the electoral district of Nicosia and that the competent authorities 30 refused to escort him out of prison for such a purpose or to facilitate him accordingly, with the result that the time for submitting his candidature expired without any fault on his part. Section 57

(2)reads as follows: "The reference to the Election Court is made by means of an Election Petition filed by the Attorney-General of the Republic or by an elector inscribed on the electoral roll relevant to the election or by a person claimingtohavehadarighttovoteattheelection orbya person alleging himself to have been a candidate at the election". 576 1 C.L.R. Demetriades τ. Dinglls By means of the same letter the applicant objected, also, against all thealready submitted candidaturesof othercandidates in respect of the electoral district of Nicosia. 5 He was informed by a letter of the Chief Returning Officer dated4th May 1981 thathis objection ought tohave beenmade, under section 21

(2)of Law 72/79, to the Returning Officer for the electoral district of Nicosia. On the preliminary objection: 10 15 Held,that since at all material times, the applicant was in prison serving a sentence of imprisonment after he had been convicted of a criminal offence and it would, therefore, appear in view of the provisions of section 6(a) of Law 72/79, that he was not entitled to vote at the election in question he cannot be treated as being, in the sense of section 57

(2), above, either an elector inscribed on the relevant electoral roll or a person claiming tohave had the right to vote at the electionconcerned. On the question whether the applicant was a person alleging himself to havebeena candidate at suchelection, in thesense of section57

(2): 20 25 30 35 That even assuming that the applicant in the present case couldbenefit from awideconstructionof thenotionof somebody alleging himself to have been a candidate, which was adopted inEnglandinview of thedefinition of"candidate"intherelevant English legislative provisions, he could still not come within the ambit of such notion, which is found in section 57

(2)of our Law 72/79, in view of the particular circumstances of the present case and, especially, because of the fact that he did not complain to the Chief Returning Officer until after the time for nominationshadexpired andthathedidnotpursue his objection against the nominations of the respondents either under the relevant provisions of Law 72/79 or by means of any other remedy thatmighthave beenavailabletohim(pp.580-585 post). On the submission of Counselfor applicant that incase appli­ cantisfoundnot to come within theambit of the saidsection 57

(2)thensuchsection is unconstitutionalas beingcontraryto Article 30.3 and, also,Article 28 of the Constitution; ,That there is no merit in the submission of counsel for the applicant,because the provisions of section 57

(2)of Law 72/79 577 Demetriades v. Dinglis

(1983)are provisions regulating, in a reasonable manner and in the interests of the administration of justice, access to the election court by way of an election petition, and, also, they do not involve any unequal treatment or discrimination, because they are based on reasonable and just classifications. 5 Held, further, that itisexpresslyenvisaged bythe Constitution, in its Article 145,that an election petition is to be made under the provisions of the Electoral Law, such as Law 72/79. The Constitution, therefore, provides by clear implication about therightto regulate bylaw accessto theelectioncourt by means 10 of an election petition (see, also, Article 6 of the European Convention on Human Rights (which corresponds to Article 30.2 of the Constitution and is, itself, now, part of the law of Cyprus, after its ratification by means of the European Convention on Human Rights (Ratification) Law, 1962 (Law 15 39/62)). Held,in the result, that the preliminary objection raised by counsel for the respondents should be sustained and that, consequently, as the appl'cant does not come within the ambit of any of the classes of persons provided for in section 57

(2)of 20 Law 72/79 this election petition could not have been filed by him and has to be dismissed accordingly. Petition dismissed. Cases referred to: Harford v. Linskey [1899] 1 Q.B. 852 at pp. 859-862; 25 Fordham v. Webber[1925] 2 K.B. 740; X., Y. and Z. v. Switzerland(Decisions and Reports of the European Commission of Human Rights Vol. 6 p. 107). Election petition. Election petition by Soteris Demetriades against the election on the 24th May, 1981 of the Members of the House of Representatives for the electoral district of Nicosia. 30 A. Eftychiou with G. Yiallouros, for the applicant. M. Papapetrou, for respondents 1, 4, 10 and

1. A. Ladas, for respondents 5 and
2. 578 35 1 C.L.R. Demetriades v. Dinglis M. Christophides appears in person as respondent 12and for respondents 2, 3, 8 and
3. Z. Katsouris with E. Polydorou, for respondent
4. Cur. adv. vult. 5 TRIANTAFYLLIDES P. read the followingjudgment of the Court. The applicant, by means of thepresent electionpetition, seeks to declare invalid the election on 24th May 1981 of the respondents as Members of the House of Representatives for the electoral district of Nicosia, on the ground that, while he was a convict 10 serving a sentence of imprisonment at the Central Prisons, he was not allowed to enter his candidature in respect of the said election. At the commencement of the hearing of this petition counsel for the respondents raised the preliminary issue that the appli15 cantwas not,in the light of theprovisions of section 57

(2)of the Election of Members of the House of Representatives Law, 1979 (Law 72/79), entitled to file the present petition. The said subsection

(2)of section 57 reads as follows: 20 25 30 35 "

(2)ΊΗπρος το Έκλογοδικεϊον αναφορά γίνεται δι' Έκλογικής Αΐτήοεως καταχωριζομένης Οπό τοΰ Γενικού Εισαγ­ γελέως της Δημοκρατίας ή Οπό ίκλογέως εγγεγραμμένου είς τον έκλογικόν κατάλογον άφορώντος els την έκλογήν, ή Οπό προσώπου άξιοΰνιος ότι εϊχε δικαίωμα να έκλέξη κατά την έκλογήν ή Οπό προσώπου Ισχυριζόμενου οτι Οπηρξεν υποψήφιος κατά την έκλογήν". ("The reference to the Election Court is made by means of an Election Petition filed by the Attorney-General of the Republic or by an elector inscribed on the electoral roll relevant to the election or by a person claiming to have had a right to vote at the election or by a person alleging him­ self to have been a candidate at the election.") It has been conceded by counsel for the applicant that his client was not inscribed on the electoral roll; nor had he taken any step to secure his inscription on such roll by applying for the purpose to the District Officer of Nicosia either under section 10 of Law 72/79 or by objecting, under section 12 of Law 72/79, to the omission of his name from the said roll. 579 TriantafyUldes P. Demetriades v. Dinglis

(1983)Moreover, itiscommonground that,atallmaterial times,the applicant was in prison serving a sentence of imprisonment after he had been convicted of a criminal offence and it would, therefore,appear,inviewoftheprovisionsofsection6(a)cfLaw 72/79,thathewasnot entitled tovoteattheelectioninquestion. 5 It may be observed, at this stage, that the disqualification in section 6(a), above, could validly be included in Law 72/79 in view of the provision in Article 63.2 of the Constitution that "no person shall be qualified to be registered as an elector who is disqualified for such registration by virtue of the Electoral Law." 10 Becauseoftheforegoing itisclearthat theapplicant cannotbe treated as being, in the sense of section 57

(2), above, either an elector inscribed on the relevant electoral roll or a person claiming tohavehad theright to voteat theelectionconcerned. 15 There remains to be examined whether the applicant is a personalleginghimselftohavebeenacandidateatsuchelection, in the sense of section 57

(2), above: It is not in dispute that at no material time was there made any attempt byanybody on behalf ofthe applicant to nominate 20 him as a candidate under section 19 of Law 72/

1. Inanoticepublished bytheReturningOfficer for theelectoral district of Nicosia, in the Official Gazette, on 17th April 1981 (No. 327,Third Supplement, Part II) it wasstated that the30th April 1981had been fixed asthedate for receivingnominations 25 in respect oftheelection to beheld for the said electoral district on 24th May
2. On 2nd May 1981theapplicant,whilebeinginprison,addressed a letterto theChief Returning Officer bymeansof whichhe wascomplaining that on 30thApril 1981he requested thecom- 30 petent authorities - presumably the prison authorities - to take thenecessary steps to transport him totheplacewherehecould submit hisnomination as a candidate for election as a Member of the House of Representatives in respect of the electoral district of Nicosia and that the competent authorities refused to 35 escort him out of prison for such a purpose or to facilitate him accordingly, with the result that the time for submitting his candidature expired without any fault on his part. 580 1 C.L.R. Demetriades v. Dinglis TriantaFyllides P- By means of the same letter the applicant objected, also, against all thealready submitted candidaturesof othercandidates in respect of the electoral district of Nicosia. He was informed by a letter of the Chief Returning Officer 5 dated 4th May 1981 thathis objection ought tohave beenmade, undersection 21

(2)of Law 72/79,totheReturningOfficer for the • electoral district of Nicosia; and the matter was, apparently, left at that without any further steps having been taken on the part of the applicant. 10 The notion of somebody alleging himself to have been acan­ didate for an election has been taken from similar provisions in England which go, at least, as far back as section 5 of thePar­ liamentary Elections Act, 1868, and such notion is to be found in, inter alia, section 108

(1)of the Representation of the People 15 Act, 1949, in England (see Halsbury's Statutes of England, 3rd ed., vol. 11, p.645). The said notion of a person alleging himself to have been a candidate is, also, to be found in section 63(c) of the Elections (House of Representatives and Communal Chambers) Law, 20 1959 (Law 47/59). Of course the term "candidate" ("υποψήφιος") in sectioo 57

(2),above, of Law 72/79has to be read in conjunction with thedefinition of such terminsection2of Law 72/79 which read» " 'υποψήφιος' σημαίνει πρόσωπον το οποίον άνεκηρύχθη ως 25 υποψήφιος δυνάμει ιοΰ παρόντος Νόμου". ("'candidate'meansapersonwhohasbeendeclared ascandidate under this Law"). We must bear in mind, on the other hand, that the term "candidate" in section 108

(1)of the Representation of the 30 People Act, 1949, in England must be read in conjunction with the definition of "candidate" in section 163 of the same Act, which reads as follows: 35 '"'candidate' (a)inrelation toaparliamentary election,meansaperson who is elected to serve in Parliament at the election or a person who is nominated as a candidate at the election, or is declared by himself or by others to be a candidate on or aifter theday of the issueof thewritfor theelection,or after 581 Triantafyllides P. Demetriades v. Dinglis

(1983)the dissolution or vacancy in consequence of which the writ was issued;" In England the expression "a person alleging himself to have beena candidate" as found in section 88of the Municipal Corporations Act, 1882,has been considered inHarford v.Linskey, 5 [1899] 1Q.B. 852, where Wright J. stated the following (at pp. 859-862): "The question which wehave now to decide depends primarily on the construction of s.

1. The words 'a person alleginghimself to havebeena candidate' cannot of course 10 mean that a mere allegation without any colour of foundation in fact would suffice. Such a merely false allegation would beproperly dealt with in a summary way. But the words used seem designed to express something wider than absolutely valid candidature, and they are at any rate con- 15 sistentwiththeviewthatanyperson whowasinfact acandidatemay present and maintain a petition,just as persons whovoted infact maydowhetherornot theyhadarightto vote. Nor doesthere seemto beany sufficient reason why thewords should be limited evento persons whohavebeen 20 infact nominated in dueform. It isquitepossible that an intendednomination ofapersonmayhavefallen throughor have been prevented in such a way that the election of another person may have been invalid - as, for instance,if the town clerk refused to supply a nomination paper, or if, 25 by design or negligence, he, in exercising his important duty under Sched. III., Part II., r. 6, filled up a nomination paper soimperfectly asto avoid the nomination, or if, asinHowesv.Turner,heissuedabadnoticeofelection,and inany suchcaseitcanhardlyhavebeenintended todeprive 30 the aggrieved person of the right to petition. Such a construction is,further, the only one which will fit the interpretation of 'candidate' in s.
2. Possibly that interpretation was inserted for a different purpose, namely, to define the limits of time within which a person should be 35 affected by the enactments relating to corrupt or illegal practices. But there isnothing which expressly limits s.77 to that purpose, and there seems to be no reason why it should not be, 582 1 C.L.R. Demetriades v. Dlnglls Triantafyllides P. But then it is said that, assuming the prima facie meaning of s.88 to be in favour of the petitioner, such a construction ought to be rejected because it may produce inconvenient or unreasonable consequences. 5 10 Such an argument ab inconveniente oughtnottobe allowed to override the proper construction of the language of the Act unless the inconvenience is clear and great. The same result might havefollowed ifvotershad been the petitioners. An election petition is not simply a matter between the parties,*:but is of public concern. But it is contended that the case of Monks v. Jackson, decided in 1876 on the repealed Municipal Elections Act, 1875 (38 & 39 Vict. c. 40), is inconsistent with this view. 15 20 25 30 Weare unable todiscover anymaterial difference between the language of the Acts on which Monks v. Jackson was decided, and the language of the Act of 1882 on which this case depends, and although the considerations which have led to a conclusion in favour of the present petitioner's right to maintain his petition were not presented to the Court in Monks v.Jackson, we ought to follow the decision in that case, if it can be supported since the Bangor Case and if it isin point. We think, though not without doubt, that it is not in point. The decision was that the petitioner had not been nominated in fact, and therefore was not qualified to petition. Here the petitioner was nominated in fact, his nomination was in form regular, and he was therefore a candidate, and in our opinion qualified to maintain this petition (not of course for the purpose of claiming the seat, but for the purpose of shewing that there was no valid election), as any of the persons who voted at the election might have done, whether they had a right to vote or not." It is to be noted that the definition of "candidate" in section 77 of the Municipal Corporations Act, 1882, which is referred 35 in the above passage from the judgment of Wright J. was as follows: 583 Triantafyllides P. Demetriades v. Dinglis

(1983)"A person elected, or having been nominated, or having declared himself a candidate for election". ThecaseofHarford, above,wasreferred towithapprovaland was followed in Fordham v. Webber, [1925J 2 K.B. 740. That case was decided, also, in relation to sections 77 and 88of the 5 Municipal Corporations Act, 1882, and it is sufficient to quote the following part of the headnote of its report which reads as follows: "An election for the office of county aldermen took place at a meeting of a county council, and voting papers were 10 signed andpersonally delivered totherespondent, whowas chairman ofthecountycouncilandofthemeeting,andwere openly produced and read by him. Amongst the voting papers was one containing a vote for the petitioner by writing his name and address on the voting paper, as a 15 county alderman. Forty-four voting papers contained votes for the respondent as a county alderman. Neither the petitioner nor the respondent had before the election declared himself to be acandidate at theelection of county aldermen. The respondent declared himself to be elected 20 amongst others a county alderman, and the petitioner was not elected. Thepetitioner, alleginghimself tohavebeena candidate at the election, presented a petition against the election of the respondent. The Municipal Corporations Act, 1882, contains no provision requiring the nomination 25 of persons for the office of aldermen, and does contain a code of rules dealingwith the nomination ofcandidates for the office of a councillor:Held, that thepetitioner wasnot right in alleginghimself tohavebeenacandidateattheelectionforcountyaldermen, 30 as he had not been elected and had not declared himself before the election as a candidate for election, and the writingbythevoterofthepetitioner'snameandaddresson thevotingpaper did not amount to a nomination ofhim as candidate within s.77, and that therefore hewasnot, under 35 s.88, entitled to present a petition for the purpose of questioning the election of the respondent." In the light of all the foregoing we are of the view that even assuming that the applicant in the present case could benefit from a wide construction of the notion of somebody alleging 40 584 1 C.L.R. Demetriades v. Dioglis Triantafyllides P. himself tohavebeenacandidate,whichwasadopted in England in view of the definition of "candidate" in the aforementioned English legislative provisions, hecould still notcome within the ambit ofsuchnotion, whichisfound insection57

(2)ofourLaw 5 72/79,inviewoftheparticularcircumstances ofthepresentcase and, especially, because of the fact that he did not complain to the Chief Returning Officer until after the timefor nominations had expired and that hedid notpursuehisobjection against the nominations of the respondents either under the relevant pro10 visionsofLaw72/79orbymeansofanyotherremedythatmight have been available to him. During the course of the hearing of arguments in relation to theissueofwhether theapplicant comeswithintheambit of the provisions of section 57

(2), above, counsel appearing for him 15 submitted that,incasetheapplicantisfound nottocomewithin such ambit, then section 57

(2)is unconstitutional as being contrary to Article 30.2 and, also, Article 28 of our Constitution. The said Article 30.2 provides that in the determination of, inter alia,hiscivilrights and obligations everyperson isentitled 20 to a hearing by a Court established by law and Article28safeguards the right of equality of all persons before the law, the administration and justice and protects against discrimination. Wefind nomeritintheaforementioned submissionofcounsel for theapplicant, becausetheprovisions of section 57

(2)ofLaw 25 72/79are, in our opinion, provisions regulating,in a reasonable manner and in the interests of the administration of justice, accessto the election Court bywayof an electionpetition, and, also, they do not involve any unequal treatment or discrimination, because they are based on reasonable and just classifi30 cations. Moreover, it isexpressly envisaged by the Constitution, in its Article 145, that an election petition is to be made under the provisions of the Electoral Law, suchas Law 72/79. The Constitution,therefore, providesbyclearimplication about theright 35 to regulate by law access to the election court by means of an election petition. In any event, it is, also, useful to point out that Article 30.2 of our Constitution corresponds to Article 6 of the European Convention on Human Rights(which is,itself,now,part of the 585 Triantafyllides P. Demetriades v. DingUs

(1983)law of Cyprus, after its ratification by means of the European Convention on Human Rights (Ratification) Law, 1962 (Law 39/62)). in relation to the aforesaid Article 6of the Convention there were stated by the European Commission of Human Rights in 5 application No. 727/60 (see the Yearbook of the European Convention on Human Rights, 1960, vol. 3, p. 302) the following (at p. 308): "Whereas, insofar as the Applicant complains of the obligationtoberepresented bycounselbefore theFederalCourt 10 ofJusticeandofthefact that,owingtohisfailure tocomply with that obligation, theFederal Court ofJustice dismissed hisappeal inajudgmentgivenbydefault, itshouldbenoted that the right to a fair hearing guaranteed byArticle6

(1)of the Convention does not imply an obligation on the Con- 15 tracting Party to allow litigants free access to the Court of last resort; whereas, inother words,Article 6

(1)does not debar Contracting Parties from making regulations governing the access of litigants to the said Court, provided that such regulations do not deviate from their exclusive 20 purpose of assuringjustice according to law; whereas the afore-mentioned condition has been complied with in full, since the regulations governing accessto the Federal Court ofJusticewereintroduced for that verypurpose ofassuring justice according to law;" 25 The above decision of the Commission was referred to and reaffirmed bytheCommissioninitsdecisioninrelationtoapplication No. 6919/75,X., Y.andZ. v.Switzerland, (Decisionsand Reports, vol. 6, p.107), where the following werestated (at pp. 111-112): "After examining the judgment of 31 January 1975 the Commission finds that the court dismissed the applicants' claim for damages on the ground that - X., being under guardianship, was incapable of taking part in theproceedings, and that hewasacting without the 35 consentofhisguardian orthatoftheguardianshipauthority contrary to the provisions of the Civil Code; - Y., wasnot entitled to bring an action because inview of the nature of the proceedings she was bound to be re586 30 1 C.L.R. Demetriades v. Dinglis Triantafyllides P. presented by her husband (Article 168

(2)of the Civil Code) who was himself incapable. 5 10 15 It thus appears that the action was in fact declared, inadmissible on procedural grounds and that the Federal Court wasunable to decide on the merits. It was therefore not required to 'decide' an issue relating to the civil rights obligations of the applicant so that it follows that Article 6 of the Convention doesnot apply to the proceedings leading to the judgment of 31 January 1975. To the extent that might raise the question whether, when acting without the authorisation of his guardian or the guardianship authority, X. might have not been refused access to a court for the purpose of raising an issue relating to his civil rights obligations, the Commission refers to its previous decisions according to which Article 6

(1)of the Convention does not prevent the contracting parties from regulating the manner in which the public shall have access to ensure the proper administration of justice (No. 727/60, Coll. 4, Yearbook 3, p. 302)." 20 In the light of all the foregoing we find that the preliminary objection raised by counsel for the respondents should be sustained and that, consequently, as the applicant does not come within the ambit of any of the classes of persons provided for in section 57

(2)of Law 72/79 this election petition could not have 25 been filed by him and has to be dismissed accordingly. Petition dismissed. I. 587