CASES D E C I D E D BY THE SUPREME COURT OF CYPRUS ON APPEAL AND IN ITS ORIGINAL JURISDICTION Cyprus Law Reports \ ; o l u m e 2 (Criminal) 1983 January 13, 14, Feb-.-iuiry 23 [TRIANIAFYLLIMS, P., HAD

Auicle 83 2* ot the Constitution, to piosecute Gcorglnos A Georghiou, a member of the House of Representatives The offence·. in le^pect of which leave was sought were those of forgeiy and 10 utte-ing a forged document and were allegedly committed b> ihe iespondent in his professional capacity as u n advocate At the commencement of the heaimg oi the application Counsel lor the lespondent raided a pielnninary objection that the application wa^ not validly piesented because (

1. a)It has not ongmated and has not been made by a competent authority ι e the Attorney-Genera! but by the Deputy Attorney-General vvhose appointment to this post was invalid as having been made in contravention of Articles 112. 113 and 114 of the Consti­ tution At the conclusion of his address the Deputy Attorney-GeneraI applied for leave to cutl the investigating officer m this case in order to give evidence orally in rebuttal of the allegation, in the affidavit of the respondent dated 23.12.82, that the police in­ vestigation agamst him was politically motivated; and for leave to cross-examine the respondent regaidmg his said alle­ gation Held, (
2. i)on the prelinnnaty Pikis, JJ. dissenting: objection Hadjianastassiou 15 20 25 and

Article 83.2 of the Constitution to prosecute the respondent as applied for.

Application granted. 25 Cases referred to: Xenophontos v. Republic, 2 R.S.C.C. 89; Republic v. Rodosthenous. 1961 C.L.R. 152; Attorney-General of the Republic v, Ibrahim, 1964 C.L.R. 195; HjiLiasi v. Pistola and Another, 4 R.S.C.C. 21; 30 35 Great Northern Rly Co. v. Eastern Countries Rly Co.

Article 83of the Constitution.

Paragraph 2 of the said Article 83 provides, inter alia, that "A Representative cannot,without theleave of the High Court," - now of the Supreme Court - "be prosecuted, arrested or irnpri- 25 soned so long as he continues to be a Representative". The present application is signed by Mr. L. Loucaides as Deputy Attorney-General of the Republic; and it has been contended by counsel for the respondent that the appointment of Mr. L. Loucaides to the post of Deputy Attorney-General is 30 invalid as having been made in contravention of Articles 112, 113 and 114 of the Constitution. As it appears from the Official Gazette of the Republic, dated 19th September 1975 (Notification No. 1440), Mr. Lou­ caides was appointed as from the 10th Seplember 1975, by 35 virtue of Article 112.1 of the Constitution, by the President of the Republic, as Deputy Attorney-General of the Republic (Βοηθός Γενικού ΕΙσαγγελέως της Δημοκρατία?). 4 2 C.L.R. In re Georghiou Trkmtafyllidcs 1*. My brother Judges A. Loizou J.. Malachtos .1.. Loris J.. Stylianides J. and myself are of the opinion that: (a) As the appointment by the President of the Republic of Mr. L. Loucaides to the post of Deputy Attorney-GeneraI of 5 the Republic appears, on the face of the aforementioned publication in the Official Gazetfe, to have been made in the exercise of the powers vesicd in the President of the Republic by virtue of Article 112.1 of the Constitulion, and, also, as the said appointment has been made in circumstances, which justify, in i(> our opinion, the making of such appointment on the basis of ihe "law of necessiiy" (as expounded in, inter alia, the cases of The Attorney-General of the Republic v. Ibrahim, 1964 C.L.R. 195,loannidesv.ThePolice,

Article 83of the

Constitution, suchasthepresent one,thisCourt pronounced on the validity of the extension of the services of the AttorneyGeneral by the Council of Ministers,

the provisions of the 25 Pensions Law, Cap. 311,as amended by the Pensions (Amendment) Law, 1967 (Law 9/67), in circumstances not involving at all the application of the "law of necessity". (

1. b)Since the present application appears to have been made ' by the Attorney-General of the Republic, and was signed by the 30 Deptuty Attorney-General of the Republic undoubtedly on his behalf,ithasbeen properlyfiled and itis,therefore, duly pending before us for determination on its merits.' In delivering judgment at the conclusion of the proceedings in the present application any one of us may, if he deems such a 35 course necessary, expand further" on thereasons for reaching our above conclusions (
2. a)and (b). Our brother Judges Hadjianastassiou J. and Pikis J. will give separate decisions. 5 In re Georghiou

the Constitution, it was submitted on behalf of the respondent, the decision to prosecute a member of the House of Representatives vests exclusively in the Attorney-General. B) Neither the Attorney-General can delegate the exercise of this power nor can his assistant, if validly appointed, has 10 any power

the Constitution to act autonomously in the matter. So, the application pending before us does not originate from the authority competent

the Constitution to move the Supreme Court for the removal of the immunity. Hence, it is ill-founded and ought to be dismissed. J5 Q I h e application is unsustainable because it is signed by an officer unknown to the law—the Assistant Attorney-General. The Constitution provides, it was argued by Mr. Christofidcs, for the post of Assistant to the Attorney-General, a submission " born out by the Greek text of the Constitution (see Articles 20 112 and 114 of the Constitution). Much of the argument in respect of this submission, turns on semantics and 1 regard it as inconsequential. Associated with this objection, is the.one following, turning on the status of Mr. Loucaides and, the validity of his appointment to the post of Assistant to the 25 Attorney-Geneial to which he was appointed by the President of the Republic on 10.9.1975, gazetted on 19.9.1975

Notification

1. D) Mr. Loucaides is not the holder of the post of Assistant Attorney-General or Assistant to the Attorney-General— 30 whatever the correct title of the post may be—for his appoint­ ment to the post was made without necessity arising to fill the gap left by the voluntary departure of Turkish officers of the State at the end of
2. If necessity compelled thefilling of the post, in accordance with the principles laid down by 35 the Supreme Court, in the case of The Attorney-General of the Republic y. Mustafa Ibrahim and Others, 1964 C.L.R. 195, the Judges of the existence of necessity, as well as the arbiters of filling the gap, were the Members of the House of Represent- 7 1'ikis J. In re Georghiou 0983) atives and nobody else. In the submission of Mr. Christofides, the legal service of the Republic functioned without hindrance adequately, notwithstanding the absence of a deputy to the Attorney-General, a fact suggestive in itself of the absence of any compelling need to fill the post. 5 Mr. Loucaides argued the case personally, notwithstanding the assault on his status for, he explained, he was relieved of embarrassment for the views he conveyed on the subject of the legality of his appointment, were those of the AttorneyGeneral, expressed in Recourse No. 197/75, where the validity 1> of the appointment of Mr. Loucaides was challenged. In a written statement to the Court in the aforementioned recourse, Mr. Tornaritis supported the view that the appointment of Mr. Loucaides was madenecessary, onaccountof thecontinuous absence from his duties of Mr. Feridoun, since 1963, in the 15 interests of the proper functioning of the legal service of the Republic. Recourse No. 197/75 was not pursued to conclusion. It was withdrawn, so, there is no decision of the Supreme Court to guide us on the validity of the submission of the lespondent in relation to ihe appointment of Mr. Loucaides. 2') Mr. Loucaides countered the argument that he acted without authority, by producing the written statement of Mr. Tornaritis of 27th December, 1982 and, argued that omission or failure to signify the fact that the application was raised on behalf of the Attorney-General, did not detract from its validity. 25 Both counsel were ad idem in submitting that it is open to the Supreme Courtin these proceedings topronounceon the validity of the appointment of Mr. Loucaides, notwithstanding the fact that the issue only arises in an indirect way. They both sub­ mitted that it is open to the Court to examine the validity of 30 this appointment in order to determine whether Mr. Loucaides is usurping the position he presently holds. In my judgment, the issues arising for decision are, in order of logical priorities, the following :

the Constitution to set in motion the machinery for the removal of the immunity and the prerequisites to it. If the answer is in the negative and, we hold that the application before us is illfounded, that should be the end of the matter. Olheiwise, we shall have to examine a second question,

Article 113

.2, to initiate "any proceedings for an offence against any person in the Republic". The powers conferred by Article 113.2 vest exclusively in the Attorney-General. No one other than the Attorney-General can assume the poweis vested by Article 113.2. Hisdeputy can only assume these powers in his absence or during his temporary incapacitation. It is common ground that the Attorney-General is the authority competent to initiate proceedings for the leave of the Supreme Court to lift the immunity ofa Representative. Both, Mi. Loucaidesand Mr. Christofides, subscribed tothis view. Thepost of the Attorney-General

the Cyprus Constitution is unique and, in many respects his duties are of a quasi judicial nature. He serves

the same terms and conditions as Judges of the Supreme Court and must have the same qualifications (see Article 112.4 of the Constitution). Hehassecurity of tenureunder the Constitution, as Judges of the Supreme Court and his position is independent from the executive or any department of State. In exercising his powers to institute a prosecution, as well as in any other matter pertaining to his duties, public interest is the only consideration that should guide him in the discharge of his duties. The quasijudicial natuie of hisfunctions wasrecognised by the Supreme Constitutional Court, as an indisputable fact, in CharilaosXenophontosv. The Republic{Minister of Interior), 2 R.S.C.C.

1. In another case, the Supreme Constitutional Court laid stress on the provisions of Article 113.2, that his duties thereunder are exclusively exercisable in the public interest, of which the Attorney-General is, in the first place, thesolejudge—Annetta N. HjiLiasiv. AlecosPistolaandAnother, 4 R.S.C.C.
2. Discretionary powers, vested by statute and afortiori by 35 the Constitution, cannot be delegated. The rule is one of considerable antiquity, signified by the Latin terminology that adonis it, delegatus non potest delegare. The rule is strictly applied in the interests of legality and proper constitutional order. (See, Halsbury's Laws of England, 4th eci, Vol. 1, para. 40 32 and. Great Northern Rlv Co. v. Eastern Counties Rly Co.

the capacity of Assistant Attorney-General. It is clear from the provisions of Article 113.2 that no one can act autonomously thereunder, except 30 for the Attorney-General himself. To resolve doubts as to the origin of the application, Mr. Loucaides considered it necessary to produce the statement of the Attorney-General of 27th December, 1982, to which reference has already been made. Does this statement validate 35 the proceedings? In myjudgment the answer is in the negative for the reasons following: The statement of the Attorney-General of 27.12.1982 dis12 2 C.L.R. In re Georghiou Pikis J. closes that the Attorney-General never studied the matter

consideration personally and, rested his decision, as he states, on the assurances of two officers of his Department, Mr. Loucaides and Mr. Evangelou. More significantly still, 5 neither the Attorney-General nor his delegates in the matter have applied their mind to whether it is in the public interest to apply for leave to lift the immunity of the Representative in question. Such a decision, would entail examination, not only of the nature of the offence and the evidence in the hands 10 of the police tending to support it, but also to other considerationsequally important, bearing onthe safeguard ofparliamentary immunity, in the light of what was explained earlier in the judgment. In Greece, the case against a Parliamentarian and itsimplications on theprivileges of the House, is scrutinized, 15 minutely one may say, by the Justice Committee of the House, before reporting to the House for a consideration of the issue. In this case, the only affirmation we have—that it is in the public interest to lift the immunity of the Representative—• comes from paragraph 7 of the affidavit of Mr. Yiannis 20 Adradjiotis, a police officer, accompanying and supporting the application. in fact, it is explicitly stated, on the face of the application, that the motion for the leave of the Supreme Court to lift the immunity of the Representative, is founded on the facts set 25 out in tha aforementioned affidavit of Mr. Adradjiotis. There is no statement before us, from the Atiorney-Gencial, that it isin the public interest to lift the immunity of Mr. Georghiou, an indispensable prerequisite for the valid initiation of proceedings for leave to lift the immunity of a Representative. To 30 act on the assertion of anyone other than the Attorney-General, that itisin thepublic interest to lift the immunity, would constitute a serious deviation from the Constitution and,

mine the effectiveness of the immunity and the purposes for which it was granted, outlined earlier in this judgment. 35 Inmyjudgment, a personal decision bythe Attorney-General, that itisinthepublicinterest to lift theimmunity ofa Representative, is an indispensable prerequisite for the valid initiation of proceedings for the leave of the Supreme Court. Without it, the premises of the application collapse and, in myjudgment, 40 no valid application is pending before us. 13 Pikis J . In re Georghiou

the 10 Constitution to move the Supreme Court for the purpose. The written statement of the Attorney-General of 27th December, 1982, confirms that he never personally applied his mind to the matter

consideration and never decided that it is in the public interest that proceedings should be taken for 15 the lifting of the immunity. Indeed this is not a matter of formality but one of substance going to the root of the proceedings. Consequently I agree with Pikis J. that no valid application is pending before the Court and associate myself with what is stated inhisjudgment. I am oftheopinion that nothing 20 furthei may be usefully added. 14lh January, 1983. The following rulings were given. TRIANTAFYLLIDES P. At the conclusion of his address the Deputy AUorney-General of the Republic, Mr. Loucaides, 25 applied for leave to call the investigating officer in this case, Yiannis Adradjiotis, in order to give evidence orally in rebuttal of the allegation, in the affidavit of the respondent dated 23rd December 1982,that thepoliceinvestigation against the respondent was politically motivated. 30 Mr. Loucaides applied, also, for leave to cross-examine the respondent regarding his said allegation. Mr. Christophides, on behalf of the respondent, objected to both applications of Mr. Loucaides. At this stage of these proceedings and in view of their nature, 35 as well as in the light of all the material already before us, weare, as at present advised, not inclined to grant the aforesaid applications of Mr. Loucaides. 14 2 C.I R. Γη re Georghiou PIKIS, J. The decision of the Supreme Court, I refer to the majority decision of the 13th January, 1983 on the validity of the application, establishes, as I

stand it, that a valid application is pending before the Supreme Court for leave to 5 remove the immunity of the respondent. The majority decision entails that the authority competent

the Constitution i.e. the Attorney-General acting in a quasi-judicial capacity has sciutinized every aspect of the case, including motivations for the prosecution, and concluded that 10 the contemplated prosecution and the application for leave to prosecute is not fraught with any ulterior motive and ought to proceed in the public interest. It is upon this premise that the case must proceed in view of the majority decision despite the judgment of the minority to the effect that the application 15 is invalid. In view of The above it is for the Supreme Court to decide whether immunity should be lifted on a consideration of the nature of the offence and cognate matters and whether the offence or offences were committed directly or indirectly in 20 connectionwith theduties of therespondent as a memberof the House of Representatives. In the light of the majority decision we are bound to presume and hold that the matters in respect of which an application is pending for oral evidence i.e., oral evidence from the investigating officer Mr. Adradjiotis and 25 the cross;-examination of the respondent, have been examined by the Attorney-General acting in a quasi-judicial capacity leading toa decision thattheapplication for leave isnotattended by any ulterior motives or arbitrariness. Consequently I agree with my brethren that the application 30 must be dismissed. Applications dismissed, 23rd February, 1983. The following judgments were read. TRIANTAFYLLIDES P. By means of the present application, 35 which has been made by the Attorney-General of t h ; Republic, but was signed and argued on his behalf by the Deputy Attorney -General of the Republic Mr. L. Loucaides,thereis being sought the leave of this Court,

Article 83.2 of theConstitution, to prosecute Georghios A. Georghiou, who is a Member of 15 Triantafyllides P. In re Georghiou

theaforesaid Article 83,is being exercised now by our Supreme Court, by virtue of the provisions of sections 9 and 11 of the Admi20 nistration of Justice (Miscellaneous Provisions) Law, 1964 (Law 33/64). The present application was filed on 15th December 1982 and an opposition thereto was filed on 23rd December

1. The application is supported by an affidavit sworn on 15th 25 December 1982 by Yiannis Adradjiotis, who is the policeinvestigating officer in relation to offences allegedly committed by the respondent, and by an affidavit swoin by Yiannis Kalavanas on 20th December 1982, who is an officer of the Central Bank of the Republic. 30 The opposition issupported byan affidavit which wassworn by the respondent on 23rd December
2. There has, also, been filed, as an appendix to the affidavit of Adradjiotis, the proposed charge containing four counts inwhich there are setout the offences in respect ofwhichleave 35 is sought from this'Court,

Article 83.2, above, of the Constitution, to prosecute the respondent. 17 * Trlantafyllides P. In re Georghiou

Article 83

.2 of the Constitution, it might be said that it is obvious from the wording of such provision that an application of this nature 20 is not to be automatically granted in all instances; and, in deciding whether to grant it or refuse it, there must be taken into account the object of the relevant competence as well as the nature of the immunity from prosecution of a Member of the Houseof Representatives, the requirements of public interest 25 in each particular case, the natureand seriousness of the offence in respect of which leaveissought toprosecuteand theparticular circumstances of each individual case. Furthermore, it has to be examined whether the prosecution is politically motivated, as this is a ground on which leave to prosecute may be refused. 30 On the other hand, I am of the opinion that, in dealing with an application such as the present one, it is not open to this Court to decide if there exists sufficient evidential material establishing the guilt, in respect of the offences concerned, of the Member of the Houseof Representatives whom it isintended 35 to prosecute. Consequently, all that this Court can examine in thisconnect­ ion inthepresentinstanceis whethei, on thebasisof thematerial placed before the Court, the prosecution of the respondent 19 Triontafyllides P. In re Georghiou

Article 71

(c) of the Constitution, his seal in the House of Representatives would become vacant. 10 Since, therefore, it is sought to prosecute the respondent in respect of the commission of offences which, if he is found guilty of them, would entail his losing his seat in the House of Representatives, the proper application of Article 71 of the Constitution would be nullified if we refuse, without good 15 justification, leave to prosecute the respondent now and, thus, defer his prosecution until the expiry of his term of office as a Member of the House of Representatives. It seems,indeed, tome that this isone of thosecasesin which, in view of the provisions of Article 71 of the Constitution, it would, if all the other relevant considerations permit such a course, be in the public interest to grant leave to prosecute the respondent, because the granting of such leave would not serveonly the geneial publicinterest whichrequires that persons charged with criminal offences should be tried as soon as possible, but, also, the particular public interest involved in not allowing somebody to continue to be a Member of the House of Representatives if he has committed offences which deprive hirn of the right to continue to be a Member of the House of Representatives. 20 25 30 Of course, in stating the above, I am not at all losing sight of the fact that the respondent is, at this stage, entitled, like any other person, to be presumed innocent until proved guilty according to law. As has been clearly stated by the Deputy Attorney-General / it is not to be alleged by the prosecution that the respondent intended to defraud the Central Bank of Cyprus or the Popular Bank Ltd., but that he only intended to defraud his client, 20 35 2 C.L.R. In re Georghiou Triantafyllides P. Doris Sawa, and persons acting on her behalf. Thus, the offences inquestion were,allegedly,committed bythe respondent onlyin thecourse of hisprofessional relationship asan advocate with his client, Doris Sawa, and are not, in any way, directly 5 or indirectly, connected with his functions as a Member of the House of Representatives or with his status as a politician. In the circumstances, it is not possible to hold that the prosecution of the respondent is politically motivated. The fact that the respondent belongs to a party which is in 10 opposition to the Government and that, as stated by him in hisaffidavit, he isone of the vociferous spokesmen of such party. do not render politically motivated his prosecution in respect of conduct of his totally unconnected with his political activities. Having given to this case anxious consideration, and having 15 exercised extreme caution, as this Court should always do in carrying out its task

Article 83

.2 of the Constitution, I have, in the light of all the foregoing considerations, reached the conclusion that this is a proper instance in which to grant leave to prosecute the respondent as applied for. 20 HADJIANASTASSIOU J.: I agree with the judgment of Pikis, J., and share the same reservations about the validity of the proceedings. A. Loizou J.: The elaborate judgments of my brother Judges Triantafyllides, P., and Pikis, J., which I have had the 25 advantage of reading in advance, have'made my task easier as their extensive reference to the factual basis of the case and the citation of the constitutional provisions relevant to the determination of the issues arising in these proceedings permit me considerable brevity in giving my reasons for arriving at 30 the conclusion that this is a proper case to grant leave

Article 83.2 of the Constitution to prosecute the respondent as applied for.

The application to that effect has been made by the AttorneyGeneral of the Republic whose office has been introduced 35 into the legal system of Cyprus soon after it came

British rule and waspreserved by the Constitution. Byit he isan independent officer and his powers and functions are set out in Articles 112 to 1*14, both inclusive. 21 ? Λ. Loizou J. In re Georghiou

Article 113

.2, "power exercisable at his discretion in the public interest to institute, conduct, take over and continue or discontinue any proceedings for an offence against any person in the Republic". 5 The qualifications for appointment are the same as those of, and he can be removed only on similar grounds as, a Judge of the Supreme Court. The acts and decisions of the Attorney-General cannot be the subject of judicial control. Whilst on this point it 10 may also be mentioned that the Police, which is responsible for carrying outcriminalinvestigations, is subject totheinstruct­ ions of the Attorney-General in view of a specific provision in the Police Law and though the Police comes

the Ministry of the Interior, inso far as itsactivitiesrelatetoprose- 15 cution, the Attorney-General is the competent authority to give directions. The safeguards to his office enshrined in the Constitution "are conducive to the exercise of his duties excluding the possibility or interference, or influence on behalf of ihe Executive. This is a reflection of theparamountimport- 20 anceattached in theindependenceof theJudiciary" (see Loizou and Pikis, Criminal Procedure in Cyprus, p. 4). The reason that the exercise by the Attorney-General of his authority to institute criminal proceedings is not within theambid of Article 146 of the Constitution, is because they are closely related to 25 judicial proceedings (See Xenophontos, 2 R.S.C.C-, 89).

the established tradition and practice followed by, Attorney-Generals holding office and exercising their duties

the Common Law system, the decision to prosecute which is of paramountimportance, hasalwaysbeentaken when 30 the person doing so has satisfied himself that the evidence itself canjustify proceedings. In such a case the prosecutor, in this case the Attorney-General, must then consider whether the public interest requires a prosecution. The sufficiency of the evidence is one of the factors that have to be born in mind. 35 They are those who feel that where the evidence is sufficient proceedings ought to follow, but the most preferred view is the one expressed in a House of Commons debate by Lord 22 2 C.L.R. In re Georghiou A. Loizou J. Shawcross when he was Attorney-General, and subsequently endorsed by his successors:- 5 10 **Ithasnever beentheruleinthiscountry—I hopeitnever willbe—thatsuspectedcriminaloffencesmustautomatically be the subject of prosecution. Indeed the veryfirstRegulations

which the Director of Public Prosecutions worked provided that he should prosecute 'wherever it appears that the offence 01 the circumstances of its commission isor areof suchacharacter that a prosecution in respect thereof is required in the public interest'. That is still the dominant consideration". He continued by saying that regard must be had to "the effect which the prosecution, successful or unsuccessful as the case may be, would have upon public morale and order, 15 and with any other considerations affecting public policy". PublicinterestinthesenseofArticle 113.2oftheConstitution is a wide subject to be exhaustively discussed here. Suffice it to say that among its constituent elements are the nature and gravity of the offence including the penalty provided for 20 and likely to attract. Once, therefore, such a decision to prosecute exists, the Court has to decide whether it will exercise its discretion

Article 83

.2 of the Constitution to grant or refuse leave for the prosecution, arrest, or imprisonment of a representative 25 whocontinues tobesuch. I donot intend to attempt a definition of all the possiblecriteria that should befollowed inevery conceivable case for the exercise of this Court's discretion in such matters. I shall confine myself to the reasons and the criteria that haveinfluenced mydecision in reachingmyconclu30 sioninthepresentcase. Theyarefirstthenatureofthe offences which no doubt involve an element of dishonesty and moral turpitude, directly connected with his professional work, and completely outside the sphere of his activities in the House of Representatives. 35 The second factor is the gravity of the offence, as indicated also by the sentence provided by Law. The intended charges are based on section 335,whichcarries a term of imprisonment for three years and.sections 339and 337of the Criminal Code, 23 Λ. Loizou J. Iu re Georghiou

one article, the application of the provisions of another article should not really be unduly impeded. For all the above reasons,leave to prosecute therespondent is granted as applied for. MALACHTOS J.: I had the advantage to read in advance the judgment just delivered by the President of the Court and I mustsay thatIagree with thereasonsgiven andtheconclusion reached in this judgment, and I have nothing useful to add. Lows J.: I had the advantage and privilege of reading in 35 advance the judgment of the learned President of the Court and Iam infull agreemem with it. Ihavenothinguseful toadd. 24 30 2 C.L.R. In re Georghiou STYLIANIDES J.: 1had the advantage of reading in advance the judgment of the learned President with which I agree. The parliamentary immunity safeguarded by Article 83 of the Constitution is not for the advantage of individual 5 members but in order to enable the legislative body unhindered to exercise its functions. A decision by the applicant that it is in the public interest that leave be given to prosecute a parliamentarian is not a prerequisite to such an application. The sole arbitei on the 10 matter is the Supreme Court. The power and responsibility for the ultimate decision is on this Court, after consideration of the material before it. Leave to prosecute in no way derogates or affects the powei of the criminal court. The laws governing criminal proceedings and the .trial that follows 15 such leave, which isinno waydissimilar with any other criminal trial, are applied. 1 am satisfied that the instant case is not one of political persecution. The application is not . politically motivated, notwithstanding any possible repercussions on the political 20 career of therespondent or on hispolitical party—such repercussions,if any,need not concern this Court. 1 takeinto consideration the nature of the offences. They are wholly unconnected with respondent's activities as a Member of the legislature. The offences are grave. Indeed, conviction entails unseating 25 the respondent from the House. It is not the object of the constitutional provision of Article 83 to retain in the House of Representatives a person who might not be there had the ordinary course of law been followed. Leave for prosecution of the respondent is granted as applied 30 for. PIKISJ.: Wearerequired totakecognizanceofan application of the Attorney-General, for the lifting of the immunity of a Member of the House of Representatives—Georghios Afxentiou Georghiou—a Member for the Larnaca district, hereafter 35 referred to as the Repiesentative. Leave is sought to put him on trial on two counts of forgery and two counts of uttering the same two forged documents. One of the two documents allegedly forged, is said to be an official document proclaimed 25 Pikis J. ID re Georghiou

the Exchange Control Law and, the second, a commercial bank deposit receipt. Before embarking upon an examination of the merits of the application, the^Supreme Court set down for determination 5 a preliminary issue affecting the validity of the proceedings. After hearing argument, we deliberated on whether we had been properly moVed to examine an application for leave to prosecute the Representative. The Court was divided in its view, on the validity of the proceedings. The majority of 10 the Court—brother Judges Triantafyllides, P., A. Loizou, Malachtos, Loris and Stylianides, JJ.—held the application tobevalid asaproper emanation from theauthority competent

the Constitution to move the Court to withdraw the immunity of a Representative, i.e. the Attorney-General and, 15 as such, the application wascognizable by the Supreme Court. Brother Judge Hadjianastassiou, and myself, wereof a contrary opinionfor thereasonsindicatedinmydecisionof 13thJanuary,

1. Inoui judgment, theapplication wasnot avalid smanation from the authority tiusted by the Constitution to move 20 theSupreme Court for theremovaloftheimmunity ofaRepresentative. In viewofthemajority decision,settlingthevalidity ot theapplication,weproceededincoram todealwiththemerits of the application. The coram of the Court cannot be altered according to the outcome of preliminary objections; once 25 seized of a matter the Court remains unified to the end. My dissentingjudgment as to the validity of the proceedings, does not absolve me of responsibility to pronounce on the merits, in view of the majority judgment. Any such abdication of responsibility on my part, would antagonise the right of the 30 Court to settle by majority, in cases of division of opinion, the litigable issues. Once the proceedings were held to be valid and the Court properly moved to take cognizance of the application, I was dutybound to examine the merits of the application, notwithstanding my reservations on the subject, 35 expressed in my judgment of 13.1.
2. Nothing I heard since delivery of my iuling of 13thJanuary, persuades me that I should review my opinion on <hevalidity of the proceedings. Onthecontrary, Iremain unshakeninmyviews. Thesuggestion of Mr. Loucaides that, anyone with a complaint against 40 a Representative may move the machinery for the withdrawal 26 2 CUR. In re Georghiou Pikis .Ι­ οί theimmunity of a representative, is untenable. The expres­ sion "competent authority",in Article 83 of the Constitution, connotes an authority competent

the Constitution to sel in motion the process for a criminal prosecution and any 5 matters related thereto; such authority is only the AttorneyGeneral. The submission of Mr. Loucaides on the subject is incompatible with the wording of Article 83, notably the phrase "competent authority", an expression hardly compatible with a right on the part of a complainant in a criminal case 10 to set in motion machinery for the removal of the immunity of a Representative. My reservations must, for the reasons above given, be put on one side. I must heed the majority judgment and, upon that premise, examine the application on its merits,i.e. whether 15 leave should be granted, in the light of the material before the Court, for the prosecution of the Representative. As 1 indicated in a ruling on 14.1.1983 following the resumption of the hearing after the majority decision, we must proceed on the basis that the Attorney-General, acting in a 20 quasijudicial capacity, hasmoved theCourttolift» inthepublic interest,theimmunity of theRepresentative,havingfirstsatisfied himself that recourse to criminal process is not fraught with any ulterior motives antagonistic to theinstitution of theimmu­ nity from prosecution of Members of the Houseof Representa25 tives. Therefore, we must proceed with an examination of the merits of the application and decide whether immunity should be lifted in the light of the material before the Court, consisting of— 30 (a) An affidavit by Mr. Kalavanas, the official of the Central Bank of Cyprus, who reported the case to the police, (b) an affidavit of theinvestigating officer, Mr.Adradjiotis» as well as (c) an affidavit of the respondent himself. 35 This is the first application of its kind to come before the Full Bench of the Supreme Courtfor adjudication. Therecord of theonly otherapplication,madeinthehistory of the Cyprus Republic, before the High Court, for the withdrawal of the 27 Pikis J. In re Georghiou

Article 83of the Constitution.

This will induce certainty in the law, on a subject of great constitutional importance. The need for guidance is all the greater because of the uniqueness of the procedure adopted in Cyprus, whereby the exercise of the jurisdiction 30 for the withdrawal of immunity is entrusted to the Courts, as opposed to the House of Representatives, which is the case with every other country, to which reference was made. (See, inter alia, Article 62 of the 1975 Greek Constitution', Article 26 of the French Constitution of 1958 {revisedin 1963); Article 35 46 of the basiclaw of the Federal Republicof Germany, Article 68 of the Italian Constitution {revised in 1967)). Some juridical guidance may be obtained from the works of Greek authors on constitutional law, postulating the criteria for the exercise of the power by the popular assembly. (See, 40 N. I. Saripolos—ConstitutionalLaw, Vol. 1, 1874, p. 441, para. 28 2 C.L.R. In re Georghiou Pikis J. 524 et seq.; N. I. Saripolos—Constitutional Law, Vol.4, 1875, p. 291 et seq.; Raikos on Lessons on Constitutional Law, Vol. 1, 1976, p. 193 et seq.; Kyriacopoulos—GreekConstitutional Law, 4th ed., p. 289 et seq. and, Sgouritsas on Constitutional 5 Law, Vol.1,1959,p. 294etseq). Thesubject isalso illuminated by debates in the Greek parliament on applications for the removal of the immunity of Representatives. (See, Official Minutes of the Greek Parliament for the Meetings between 10.10.1960 and 16.12.1960 and the Official Minutes for the 10 Sessionsof theGreekParliamentbetween6.1.1981 and28.3.1981). There is uniformity of opinion that parliamentary immunity isaprivilege ofthe Representative assemblyand only incidentally a privilege of individual Representatives. Being a privilege of the House, it cannot be unilaterally waived by any Member 15 of it. It can only be waived if waiver is in the public interest. The public interest emerges after balancing dangers to the autonomy and sovereignty of the popular assembly, likely to result from the withdrawal, on the one hand and, the vital interist of the public that every alleged offender be brought 20 to justice, on the other. Immunity is lifted with great circumspection, as the practice of the Greek House of Representatives reveals. It is, as a rule, denied for offences that do not compromise the dignity and honour of the House and, for offences that have a political 25

tone. Counsel for the respondent informed us that, of the 145 applications made to the Greek parliament during its last three sessions, from December, 1974, none was entertained. In Cyprus, by entrusting parliamentary immunity to the 30 judicial authorities of the State, the constitutional legislators intended to remove the exercise of the jurisdiction for the removal of immunity from the spectrum of politics. The discretion vested in the Supreme Court must be exercised judicially. The Court must strive to safeguard the autonomy 35 of the House of Representatives while endeavouring to eliminate abuse of the privilege. Below, we indicate some of the 29 Pikis J. f Ια re Georgbioti

mine constitutional order. Freedom of expression of Representatives must be safeguarded in the interests of the sovereignty of thepeople and their right 10 to express their views through their Representatives. If the offence carries no political connotations, its nature must be then examined from a narrower angle, i.e. the calibre of the offence. If the commission of the offence involves an element of dishonesty or moral turpitude,reluctance to accord 15 leave may subside. This approach is consonant with theletter and spirit of Articles 64and71 of the Constitution,layingdown the qualifications for a Representative and providing for the forfeiture of his seat upon conviction for an offence involving dishonesty or moral turpitude. 20 2) The gravity of the offence: The offence or offences for which leave is sought toprosecute a Representative, must be grave from the legal and factual point of view. Prosecuting a Representative for a trivial offence, may be properly regarded as unnecessary harassment 25 and an unjustifiable interference with the exercise of his parlia­ mentary duties. The facts founding the prosecution need not be stated in detail. A summary of materialfacts is sufficient. Thereview of the investigatory process and thequality of theevidence is a 30 matter for the Attorney-General who must first satisfy himself of its adequacy before moving the Court for leave. Leave, where granted, should be confined to a prosecution properly arising from the facts thus disclosed. 3) Political motivation: 35 The absence of any political motivation for theprosecution, or any ulterior motive connected therewith, is a prerequisite, 30 2 C.L.R. In re Georghiou Pikis J. both for the decision of the Attorney-General as well as the decision of the Court. It would bean abuse to use thejudicial processasan instrument for theattainment ofpolitical endsand wouldunderminetheautonomyoftheHouseofRepresentatives. 5 The Court will refrain from pronouncing on the quality of the evidence intended to be adduced, or its implications on the guilt or innocence of the accused. Its task islimited to ascertaining whether the facts disclose an offence or offences known to the law and capable of sustaining the charges in question. 10 Theinquirymust beconfined totheobjectiveimplications ofthe facts. The Facts: Hereinabove, we have indicated some of the prominent factors that should bear with the exercise of the Courts' discretion. Guided by these considerations, we have 15 examined the facts placed before us. What emerges from this inquiry, is the following: There is evidence in the hands of the prosecuting authority, tending to connect a Representative with the commission of serious offences, involving dishonesty and elements of moral 20 turpitude. The offences were committed in circumstances totally unrelated to the parliamentary duties of the Representative, inside and outside the House. They were allegedly committed in his capacity as a lawyer, in the course of his dealings with clients. Investigation began as a result of a 25 reporttothepolicebyanofficial oftheCentral BankofCyprus, because of irregularities noticed in the course of his duties. Reporting the case to the police, he was, in no way, politically motivated. If excessive zeal was shown thereafter in the investigation of the offences, that is no reason for withholding 30 leave. Every investigation into a crime, must be conducted as speedily as possible. In such circumstances, to withhold leave would put the Representative, be it temporarily during the lifeofthepresentHouseofRepresentatives,outsidethecompass of the law. This should not be countenanced in view of the 35 nature and gravity of the offences. Therefore, leave is granted to prosecute Representative Georghios Afxentiou Georghiou, on the basis of the facts disclosed to the Court. Suggestionsfor themakingof rules of Court to regulatepro31 Pikis J. In re Georghiou

Article 163o

fthe Constitution, to make rules regulating the practice and procedure of the Supreme Court in anymatter triable by the Su- 5 premeCourt.

Article 163

,theprocedureforthemaking of an application

Article 83, as well as the procedure before the Supreme Court, mayberegulated.

Thedivision of opinion at the Supreme Court in this case as to what is the proper procedure to be followed, if nothing else, warrants the 10 making of such rules. It has been said time and again that theeffective protection of fundamental freedoms and liberties is directly associated with procedural safeguards. Without attempting to foreclose the jurisdiction of the Supreme Court on the matter, such rules 15 shouldprovide asanecessary safeguard, fortheprivilege ofthe House of Representatives, that applications

Article 83should be made by the Attorney-General and be accompanied by a statement of the

Attorney-General, signifying that hehas personally takencognizanceofeveryaspectofthecaseandthat 20 heisofthe opinion that leavetoprosecute ought tobegivenin the public interest. TRIANTAFYLLIDES P.: In the result the present application is granted unanimously. Application granted. 25 32