clr/1984/1984_1_885.pdf

(1984)is not subject to any judicial control—No jurisdiction to grant an order of certiorari against the Attorney-General in relation to the exercise of Mich duties—And the same applies to the decision of the Divisional Police Commander to prosecute ami to the Military Authorities which carried out the relevant investigations that led to the prosecution—Article 155.4 of the Constitution. 5 The applicant in this case sought leave to ?pply for an order of certiorari in order to: (

1. a)quash the charge under No. 12972/84 filed against him in the District Court of Nicosia and still pending. and/or [0 (
2. b)declare the procedure leading to the filing of the charge and/or all proceedings taking place from the filiiig of the charge, null and void. The applicant was a Lieutenant-Colonel in the Cyprus Army and the relevant investigations which led to the filing of the charge were carried out by the Military Authorities. The charge was filed by the Divisional Police Commander. Held,(I) that leave to apply for an order of certiorari should 20 be granted whenever an organ is exercising legal authority in order to determine questions affecting the rights of citizens and such organ has a duty to act judicially; that the AttorneyGeneral acts freely and at his discretion in respect of each particular case, and in the exercise of his discretion, though at 25 times he may beconsidered as exercising quasi-judicial functions, as regards duties which arc in respect of criminal proceedings, he is not considered as acting in a judicial capacity; that therefore. it is clear that the Attorney-General in the exercise of his duties relating to criminal prosecutians is not subject to 30 any judicial control, and that, accordingly, this Court does not possess jurisdiction to grant an order of certiorari against the Attorney-General.

(2)That likewise the decision of the Divisional Police Commander to prosecute has the same legal natuie and legal cha- 35 racteristics and cannot be treated differently; that ii makes, therefore, no diffeience whether the decision to prosecute or file the charges agains* the applicant was that of the Attorney886 15 1 CI.κ. 5 10 In re TtiHnilias General or of the Police or of the lauer subject to any directiο of the Attorney-General: and that, consequently, who^i took the subject decision same cannot be the subject of an does not fall within the ambit of the jurisdiction of this C.ou regarding orders of certiorari. Held, further, that any irregularity in the process during tl investigation by the military authorities is not subject to contrunder Article 155.4 because the persons investigating we not under a duty to act judicially or to determine questioi affecting the rights of citizens (see section l l 8 ( i ) o f t h e Milita; Criminal Code and Procedure Law. 1964 (Law 40 of 1964 Application dismisse Cases referred to: Kyriakkks v. Republic. I R.S.C.C, 66 at p. 73: 15 Xenopiwiuos v. Republic, 2 R.S.C.C. 89 at p. 93: Vassi/ioir v. Police Disciplinary Committee

(1979)! C.L.R. ' at pp. 54-55.: Attorney-Gi'tieidl of tin- Republic v. Christott. 1962 C.L.I 129 at p. 133: 20 R. v. Statutory Visitors of St. Lawrence's Hospital Caterhu Ex parte Pritchdrd [1953] 2 All E.R. 766 at pp. 768-76 R. v. Cain, R. v. Sclmllick [1975] 2 All E.R. 900 at p. 904: R. v. Comptroller of Patents Designs and Trade Marks [189 1 Q.B. 909 in pp. 913-914: 25 Van Gelder's Patent [1889] 6 R.P.C. 22: Policev. Athienitis

(1983)2 C.L.R. 194 at pp.

3. 23 Application. 30 Application for leave to apply for an order of certiorari i order to quash the charge under Case N o . 12972/84 filed again? applicant before the District Court of Nicosia and which still pending. E. Efstathiou, for the applicant. Cur. adv. vul A. Loizou J. read the following decision. 887 By the presei Λ. Loizou .?. In re TtOTOiuas

(1984)ex parte application the applicant seeks leave to apply for an order of certiorari in order to: A. quash the charge under No. 12972/84 filed against him in the District Court of Nicosia and still pending, and/or 5

1. declare the procedure leading to thefilingof the charge and/or a!t proceedings taking place from the filing of the charge, null and void. The facts of this case as thuy are stated by the applicant in his application and attached affidavit arc briefly as follow: 10 The applicant is a Lieutenant-Colonel in the Cyprus Army. In or about July 19S3, an investigation was carried out. by Colonel Pantelis Paa'azis, concerning the possibility of his having committed the offences set out in the charge. The results of this investigation were given to General Parisis Skodras 15 who in or about August 1983, instructed Lieutenant-Colonel Georghios Tsitsis to carry on an inquiry. The result of this inquiry was submitted to General Sfcodras who. in turn, sub­ mitted this to the Commander in or about September
2. The Commander, it is claimed contrary to the provisions of 20 section 124 of the Military Criminal Code and Procedure Law, 1964 (Law 40/64) did not consider the case himself i.e. whether there was a case before him of a criminal οHence having been committed in which case he ought to have sent the file to the Attorney-General, or if he considered that there was 25 no such case to have sent the file to the Registry. Instead he wrongly—it is alleged- -forwarded the file to the Minister of Defence, with a recommendation for the case not to proceed against the applicant, where it remained for 8-10 months before being finally sent to the Police. The applicant was formally 30 charged by the Police in June 1984 and the relevant charge sheet was filed on 5th July
3. Counsel for the applicant has argued thatthe whole procedure followed and all acts leading to the applicant being charged are irregular and contrary to Law. Under section 118 of 35 Law 40 of 1964, as interpreted by Internal Order No. Φ-3/67 (Πάγια διαταγή), there was a duty to hear the applicant; but he was not heard. And under section 124 theCommander had a duty to act in a positive way, and to act "judicially, having 888 1 C.L.ii In re Tloouiias Λ. Loiiuu J . the legal authority to determine questions affecting the rights of subjects". Hedidnot,insteadthe Ministeracted in his place. Thus, lie argued the authority of the Attorney-General under section 119, of the aforesaid Law is also affected since the whole 5 procedure which is prescribed by the Law is under the super­ vision of the Auorney-Gcneral. In order to grant the le;ive applied for I have to be satisfied on two points: First that the applicant has made out a prima facie case sufficient to justify the granting of such leave and 10 secondly whether in the circumstances I possess jurisdiction under Article 155.4 of the Constitution to issue the order of certiorari applied for. Considering first the point of jurisdiction and having concidered the arguments put forward by the applicant, I am not 15 satisfied that 1am vested with jurisdiction under Article 155.
4. 20 25 As regards the filing of the charge, what must be decided is whether acts of the Attorney-General and the Police to such effect are within the ambit of Article 155.
5. Both acts of the Attorney-General and of the Police have been considered as not acts in the exercise of executive or administrative power and therefore not within the ambit of Article 146.1, but this does noi necessarily moan that they automatically fall under Article 155.
6. Acts of the Police nave been considered as acts manifestly necessary to lead up to the institution of, and closely inter­ woven with prospective criminal proceedings (see: PUcdias Kyriakides v. Republic, 1 R.S.C.C. 66 at 73). Also in Charilaos Xenophontos v. Republic, 2 R.S.C.C. 89 at p. 93, acts of the Attorney-General, such as the institution of 30 criminal proceedings, or the non institution of such, have been considered as acts closely connected to judicial proceedings in criminal cases. Leave for certiorari should be granted whenever an organ is exercising legal authority in order to determine questions 35 affecting the rights of citizens and such organ has a duty to act judicially. (See Vassiliouv. Police Disciplinary Committee

(1979)1 C.L.R. 46 at 54^55; The Attorney General of the Republic v. Chrisiou, 1962 C.L.R. .129 at 133). So what 1 must determine is whether the act of the Police to charge the 40 applicant falls within this above definition. 889 Λ. Loi/ou J- in re Ttooulias

(1984)As stated in the case of R. v. Statutory Visitors to St. Lau­ rence's Hospital Caterham Ex Parte Pritchard[1953] 2 All E.R. 766 at 768-

1. "It will be observed that there must be 'authority to deter­ mine', and that the persons must be those who have a duly 5 to act judicially, in which case, their orders, if they act in excess of their authority, can be reviewed by this Court under the order of certiorari which has now taken the place of the writ. It is essentia! to remember, as we tried to emphasise recently in R. v. Metropolitan Police Comr. 10 Ex p. Parker [1953] 2 All E.R.
2. that there must be something that can be called a determination which will affect the rights of the applicant and a tribunal whose duty it is to act judicially. It is not easy to give an exact defi­ nition of what is meant by 'act judicially", but I should say 15 that for this purpose it means a body bound to hear evidence from one side and the olher. There need not be anything called strictly a lis, but the body would have to hear sub­ missions and evidence by each side and come to a judicial decision approximately in the way that a Court must do. 20 Unless there is an order or a determination by the body to whom it is suggested the order should be directed the order of certiorari will not lie". Charges for offences triable summarily are filed by the Police (District Divisional Commander of Police) (Police Law; Cap. 285 section 19 as amended by the Police (Amendment) Law; 1964, (Law No. 21 of 1964, section 4) but always under the supervision, instructions and with the approval of the AttorneyGeneral. It reads:- 25 "Subject to any direction by the Attorney-General of the 30 Republic it shall be lawful for any police .officer to make a complaint or charge against any person before the Courts and to apply for a summons, warrant, search warrant or such other leagal process as may by law issue against any person and, to summon before the Courts any person 35 charged with an offence and conduct public prosecutions and preliminary enquiries against any such person". All offences not triable summarily can only be tried on in­ formation filed by the Attorney-General in the Assize Court 890 1 C.L.R. In re Ttoouli;ts A. Loi/υιι J. in which such person is to be tried (section 107, Criminal Pro­ cedure Law, Cap. 155). Article 113.2 of the Constitution provides: 5 10 (In Greek): * Ό γενικός εισαγγελέας της Δημοκρατίας έχει εξουσίαυ κατά την κρίσιν αυτού προς το δημόσιου συμφέρον υα κινή, διεξάγη, Ετπλαμβάυηται και συνεχίζη ή διακόπτη οιανδήποτε διαδικασίαν ή διατάσση δίωξιν καθ' οιουδήποτε προσώπου εν τη Δημοκρατία δι' οιουδήποτε αδίκημα. Η τοιαύτη εξουσία δύναται υα ασκήται υπό του γευικού εισαγγελέως της Δημοκρατίας είτε αυτοπροσώπως είτε δι* υπαλλήλων υπαγομένων εις αυτόν ευεργούντωυ υπό και συμφώυως προς τας οδηγίας αυτού". (And in English): 15 20 25 30 35 "The Attorney-General of the Republic shall have 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. Such power may be exercised by him in person or by officers subordinate to him acting under and in accordance with his instructions". As it can be seen from the aforesaid Article the AttorneyGeneral is acting " a t his discretion" and freely in respect of each particular instance when he is deciding whether or not to press charges. But he is not determining the outcome of the case—that is the function of the trial Court—, his duty is only to consider whether, in the circumstances, the evidence before him is such as would, in the first place, constitute an offence and secondly whether it would justify the filing of charges against the person investigated. (See on this L. Loucaides' The Institution of the Office of the Attorney General in Cyprus

(1974)pp. 50-51) He is therefore under n o duty to hear all sides but he may act on what is before him. It is the duty of the Court to hear all sides and determine. In R. v. Cain, R. v. Schollick [1975] 2 All E.R. 900, a case challenging the validity of the consent of the Attorney-General necessary under the Explosive Substances Act 1883, it is stated at p. 904: 891 Λ. loizou J. In re Tlooulias

(1984)" N o doubt in every case of this kind it is open to the defen­ dant tochallenge theexistence or otherwise of the AttorneyGeneral's consent. It will be sufficient response to such a challenge that the Attorney-General has applied his mind to the facts giving rise to the charge presently before 5 the Court, and, indeed, applied his mind to those facts and gave his consent at whatever stage in those proceedings the relevant statute may require. If a written form of consent is produced it wili be presumed in the first instance that in issuing his consent the Attorney-General did apply 10 himself to his duty, considered the relevant facts, and reached a conclusion on them. Accordingly, our view of the present case can besummar­ ised as follows. First,thepurpose of requiring theAttorney -General's consent to prosecution under the 1883 Act 15 is to protect potential defendants from oppressive prosecu­ tions under an Act whose language is necessarily vague and general. Hence it is not necessary that the AttorneyGeneral should have considered and approved every detail of the charge as it ultimately appears in the indictment. 20 His duty is to consider the genera! circumstances of the case, and to decide whether any, and, if hethinks fil, which. of the provisions of theAct can properly be pursued against the defendant who has been charged before the magistrate with one such offence. If the Attorney-General considers 25 that the prosecutor should be at liberty to pursue any charge under the Act which is justified by the evidence, there is no constitutional objection to his giving consent in the wide terms adopted in the present case. Further­ more, when consent is given in any terms it should be 30 presumed that the Attorney-General has made the neces­ sary and proper enquiries before giving that consent". Of course it must be borne in mind at all times when reading the English Authorities that the office of the Attorney-General in England is a poiiiical appointment. (See de Smith, Consti- 35 tutional and Administrative Law (2nd Ed.) pp. 377-378). As already said above, the Attorney-General acts freely and at his discretion in respect of each particular case, and in the exercise of his discretion, though at times he may be considered as exercising quasi-judicial fimctions, as regards duties which 892 40 1 C.L.R. 5 10 15 20 25 30 35 40 In re Ttooutias Λ. Loizou J. are in respect of criminal proceedings, he is not considered as acting in a judicial capacity. Consequently he cannot be subject to (judicial) control by an order of certiorari or other­ wise. See Charilaos Xenophontos v. Republic (supra); Phedias Kyriakides v. Republic(supra). Also: R. v. The ComprollerGeneralof Patents, Designs and Trade Marks [1899] ! Q.B. 909 at 913-914 per Smith L.J.: "1 wish to say a word or two about the position of the Attorney-General, because in my judgment it is of importance in this case, and his position appears likely to be lost sight of. Everybody knows that he is the head of the English Bar. We know that he has had from the earliest times to perform high judicial functions which are left to his discretion to decide. For example, where a man who is tried for his life and convicted alleges that there is error on the record, he cannot take advantage of that error unless he obtains the fiat of the Attorney-Genera!. and no Court in the kingdom has any controlling juris­ diction over him. That perhaps is the strongest case that can be put as to the position of the Attorney-General in exercising judicial functions. Another case in which rho Attorney-General is pre-eminent is the power to enter a nolle prosequi in a criminal case. I do not say that when a case is before a judge a prosecutor may not ask the judge to allow the case to be withdrawn, and the judge may do so if he is satisfied that there is no case: but the Attorney-General alone has power to enter a nolle prosequi, and that power is not subject to any control. Another case is that of a criminal information at the suit of the Attorney-General practice which has, I am sorry to say, fallen into disuse. The issueof such an information is entirely in the discretion of the Attorney-General, and no one can set such an information aside. There arc other cases to which Icould refer to be found in old and in recent statutes, but I have said enough to show the high judicial functions which the Attorney-General performs. There is one other matterto which Iwill refer before Icometo the facts of this case. In Van Getter's Patent [1889] 6 R.P.C. 22 the position of the Attorney-General in these matters is stated in the judgments in the Divisional Court and in the Court of Appeal. I will read a passage from the 893 A. Loi/ou J. In rt· Ttooulias

(1984)judgment of Bowen L.J.: 'At common law. the AttorneyGeneral is, when he is exercising his functions as an officer of the Crown, in no case that I know of a Court in the ordinary sense. It follows that his decisions, when exer­ cising such functions, were not subject to review by the Court of Queen's Bench, and are not now subject to review by the Queen's Bench Division of this Court". la Halsbury's Laws of England, 3rd Edition, volume 7, at p. 381 paragraph 804 it is stated: "The Attorney-General is primarily an officer of the Crown, and is in that sense an officer of the public. Al­ though he performs to some extent judicial functions, both at common law and by statute, he is. when exercising them. in no case a Court in the ordinary sense, so that prohibition will not lie against him". In L. Loucaides (supra) it is stated at p. 29. (In Greek): "Παρ' όλου ότι ο Γενικός Εισαγγελεύς εκτελεί ευ τιυι μέτρω καθήκοντα δικαστικής φύσεως ή ακριβέστερου οιονεί δικα­ στικά (quasi-judicial), ειδικώς όσον αφορά του έλεγχο εφαρμογής του ττοιυικού δικαίου, δεν θεωρείται υομικώς ευ τη εκτελέσει των καθηκόυτωυ τούτων ως όργαυου δικα­ στικού και συυεττώς δευ δύναται υα γίυη αυτικείμευου τωυ κατά τωυ δικαστικών οργάνων παρεχομένων υπό της νομο­ θεσίαςευδίκωυ μέσωυωςπ.χ. τουαπαγορευτικού διατάγματος (order of prohibition)". (!n English): "Even though the Attorney-General exercises to a certain measure duties of a judicial nature or more precisely quasijudicial as regards in particular the control of the appli­ cation of theCriminal Law, he is not legally considered in the exercise of these duties, as a judicial organ and con­ sequently he cannot be an object of the legal proceedings provided by the legislature against judicial organs as eg. the order of prohibition (see Re Van Gelders Patent [1889] 6 R.P.C. 22 p. 27)". (And see also Loucaides at pp. 44-45). In Police v. Stephanos Athienitis

(1983)2 C.L.R. 194 where the power of the Attorney General to enter a nolle prosequi 894 1 C.L.R. In re Ttoouliai A. Loizou J. was challenged, it was stated at p. 200 by Triantafyllides, P.: 5 10 " my opinion is that the power of the AttorneyGeneral to enter a nolle prosequi is not subject to the control of the Courts (see, inter alia, in this respect, Halsbury's Laws of England, 4th ed. vol. 11,p. 137,para. 222, and R. v. The Comptroller-General of Patents, Designs and Trade Marks. [1899] 1 Q.B. 909, 914). Thus, the power of the Attorney-General under Article 113.2 of the Constitution to discontinue a criminal proceeding is, likewise, not subject to the control of the Courts ". And at p. 214 per Malachtos, J.: 15 20 25 30 35 "This power of the Attorney-General is not subject to any control by the Courts (R. v. Comptroller of Patents [1899] I Q.B. 909). Turner v. D.P.P. [1978], 68 Cr. App. R., 70 and Gourietv. Unionof Post Office Workers [1977] 3 All E.R. p. 70, but is open to criticism by the legislature and in England its abuse is prevented by the ordinary principle of Ministerial responsibility (Queen v. Allen [1962] 1 B. & S. 850)". And further, per Stylianidcs, J., at p. 230: "The office of the Attorney-General was known to this country from the days of the colonial administration. The Attorney-General of the Republic, unlike England, is an independent officer. He is appointed by the Head of the State. The qualifications for his appointment and the terms and conditions of his office are the same as those of judge of this Court; he is not removable from office except on the like grounds and in like manner as a judge ofthis Court. The exercise oftheauthority bythe Attorney —'General of the Republic is only closely related to judicial proceedings in criminal cases, is not within the ambit of paragraph 1of Art. 146 and, therefore, this Court has no jurisdiction over it; it is executive in character—{Xenophontos v. Republic, 2 R.S.C.C. p. 89)". And at p. 231: "No doubt among the drafters of the Constitution there were persons nurtured in the Common Law. Criminal procedure in Cyprus is governed by the relevant law, 895 A. Loizou J. In re Ttooulias

(1984)Cap. 155, that pre-existed the Constitution, having been enacted in 1948. The due process is to consider and interpret the Constitution and then consider if the statutory provisions are consistent with the Constitution. The powers vested by the Constitution in any organ thereof 5 cannot in any way be abridged or modified—(see Police v.Ekdotiki Eteria,

(1982)2C.L.R. 63;Policev. Georghiades.

(1983)2 C.L.R. 33). The powers of the Attorney-General are in no way fettered; he is paris patriam. The exercise of such a power is a matter of his own 10 discretion. The Attorney-General's discretion is absolute and not reviewable. It is upon him to institute any proceedings for an offence against any person. In our legal system the function of the Courts is to stand idly by until their aid is invoked by someone recognized by law as 15 entitled to claim the remedyinjusticethat heseeks. Courts of justice cannot compel anyone to invoke their aid who does not choose to do so; nor can they demand of him an explanation for his abstention. The ordinary way of enforcing criminal law is by punishing the offender after 20 he has acted in breach of it. Commission of the crime precedes the invocation of the aid of a Court of criminal jurisdiction by a prosecutor**. And also see Tornaritis : The Constitutional power of the Attorney-General of the Republic to institute, conduct or 25 discontinueany criminal proceedings

(1983)at pp. 10-12and 16. From the above authorities it is clear that the AttorneyGeneral in the exercise of hisduties related to criminal prosecutions is not subject to any judicial control and therefore I must conclude that I do not possess jurisdiction to grant an order 30 of certiorari against the Attorney-General. Likewise the decision of the Divisional Police Commander to prosecute has the same legal nature and legal characteristics and cannot be treated differently. It makes therefore no difference whether the decision to prosecute orfilethe charges against 35 the applicant was that of the Attorney-General or of the Police or of the latter subject to·any direction of the Attorney-General. 896 I C.L.R. In re Ttooulias A. Loizou J. Consequently whoever took the subject decision same cannot be the subject of and does not fall within the ambit of the juris­ diction of this Court regarding orders of certiorari. It has been argued that the procedure followed is contrary to 5 sections 118 and 124 of The Military Criminal Code and Pro­ cedure Law, 1964 (Law No.40 of 1964) as amended, but what is material in this case is not how the information was gathered or how the file reached the hands of the Attorney-General, but whether the Attorney-General on what was before him 10 acted reasonably and was justified in deciding to charge the applicant. Moreover any irregularity in the process during the investigation by the military authorities is not subject to control under Article 155.4 because the persons investigating were not under a duty to act judicially or to determine, questions 15 affecting the rights of citizens because, as it is stated in section 118

(1)of Law No. 40 of 1964:(In Greek): 20 Σκοπός της στρατιωτικής ανακρίσεως είναι η συλλογή των αναγκαίων αποδεικτικών στοιχείων, ίνα βεβαιωΟή η τέλεσις αδικήματος και σποφασισθή εάν πρέπει να εισαχθή τις εις δίκην επί τούτω". (In English): 25 "The purpose of the military investigation is the collection of the necessary evidential facts in order to ascertain the commission of the offence and to decide whether one must be sent for trial for this". And then, in accordance with section 124 the file of the case is referred to the Attorney-General for prosecution. So in effect, since the Attorney-General is the appropriate authority 30 to decide whether to prosecute or not, the final say does not rest with the military authorities in this instance, they do not "determine" and therefore they have no duty to act judicially. Consequently, an order of certiorari does not lie against the military authorities either. 35 For all the reasons that 1 have given, the conclusion is that it is not possible for me to assume jurisdiction in the present case under Article 155.4 in order to grant the applicant the leave applied for, therefore this application must be dismissed. Application dismissed. 897