(1984)1984 February 13 [A. Loizou, MALACHTOS AND SAWIDES, JJ.J THE ATTORNEY-GENERAL O F THE REPUBLIC, Appellant, v. ANDREAS NICOLA MAKRi, Respondent. {Criminal Appeal No. 4487). Motor Vehicles and Road Traffic Law, 1972 {Law &6f72)~Section 6
(4)of the Law does not create an irrebuttable presumption to the effect that any speed in excess of the speed limit is deemed to be dangerous—Not contrary to Article 30
(2)
(3)(ί0(ί·) and I2(I)
(4)
(5)of the Constitution—Observations with regard to the 5 need of amendment of the above sectionsCriminal Law—Burden of proof—When shifted on the accused the standard of proof is on the preponderance or balance of probabi lity. Constitutional Law—-Presumption of innocence—Section 6
(4)of the Motor Vehicles and Road Traffic Law, 1972 (Law 86/72) does not create an irrebuttable presumption—Not contrary to Article 30
(2)
(3)
(6)(c) and 12
(1)
(4)of the Constitution. The respondent was charged with the offence of driving a motor vehicle at a speed which was likely to endanger human life contrary to sections 6* and 19 of the Motor Vehicles and Road Traffic Law, 1972 (Law No. 86 of 1972). J0 15 The trial Judge came to the conclusion that section 6
(4)of the Law purported to introduce an irrebuttablepresumption to the effect that any speedin excess of the speedlimitwas deemed 20 to be dangerous and was thus in conflict with Article 30
(2)of the Constitution. The trial Judge, also, held that s. 6
(4)* Section 6(1X2) and
(4)is quoted at pp. 342-343post. 332 2 C.L.R. Attorney-General v. Makri was inconsistent with Articles 30
(3)(b)(c), 12(l)
(4)and 5(
- d)of the Constitution. Upon appeal by the Attorney-General: 5 10 15 20 25 30 Held, (
- i)that section 6
(4)of the Law does not create an irrebuttable presumption;that the acceptedmeaningof theword "deemed"insection 6
(4)isthatinLawitintroducedarebuttable presumption, an assumption or legal fiction which may be dispelled by evidence; that this evidence may come out from the witnesses for the prosecution in cross-examination or by evidence adduced by the accused person; but that where the burden of proof is shifted on the accused same is discharged by a standard of proof as that required for civil proceedings i.e. a preponderance or balance of probability.
(2)That what is happening under section 6
(1)and
(4)is that all the elements of the offence under subsection
(1)have to be proved in the normal way by the prosecution except that a rebuttable presumption is created in the sense that any speed inexcessofthelimit prescribed bythe Law isdeemedto belikelytoendanger humanlifeorcauseharmor injury toanyperson or property within the meaning of subsection 1,which may be dispelled bythe accused;that the shifting oftheburden ofproof • of such issues to the defence in no way means that the accused has to prove his innocence as he can only be considered as innocent if he has not committed the offence created by section 6
(1)that is to say if he has not committed the acts which constitute the elements of such offence.
(3)That section 6
(4)does not introduce a legalfictionin the form of irrebuttable presumption precluding the investigation intothecircumstances ofthespeed;thatwhat it doesistointroduce a defence, a legal technique to cover, the exculpating element.
(4)That the presumption introduced by section 6
(4)is not inconflict with other articles of the Constitution,suchasArticle 30, paragraphs 2, 3(b) and (c) or Article 12
(1),
(4)
(5). 35
(5)That the appeal as such has to be dismissed as this Court is not prepared to interfere with the factual aspect of this case and the conclusions drawn on theevidence adduced by the trial Judge on the strength of which he in any event found that the 333 Attorne}-General τ. MaVri
(1984)accused's speed, in the light of all the circumstances particularly the nature, condition and use of the road in question as well as the amount of traffic that existed or might reasonably be expected to exist at the time on the road in question, was not dangerous and that on the totality of theevidence theprosecution had failed to prove its case beyond reasonable doubt. 5 Appeal dismissed. Observations: Before concluding we would like to point out that in England there exist two distinct offences in relation to speed the one under section 2 of the Road Traffic 10 Act 1972 now under section 50 of the Criminal Law Act 1977, which corresponds to section 6
(1)of our Law and the other driving at a speed which is in excess of the speed limit section 203 of the Road Traffic Act 1972, which has no corresponding provision in 15 Cyprus and which is a less serious offence than that of driving at a speed likely to endanger human life or cause damage to any person or property. The offence of speeding is constituted by driving in excess of the speed limit regardless of whether the speed is 20 dangerous or not. The introduction of such an offence would simplify matters and could serve admirably the purpose of controlling driving at excessive speed, particularly in built up areas. We trust that theappro priate authorities will take note of this observation. 25 Cases referred t o : Mayor of Nicosia v. Cyprus Oil Industries Ltd., 2 R.S.C.C. 107; Gendarmerie v. Zavos, 4 R.S.C.C. 63; Papadopoulos v. Republic
(1980)2 C.L.R. 10; R. v. Carr-Briant, 29 Cr. App. R. 76 at p. 87; 30 Pitsilhu v. Police
(1969)2 C.L.R. 168; Lingens & Leitgeb v. Austria (Decisions and Reports of Human Rights Vol. 26 p. 171). Appeal against acquittal. Appeal by the Atiorney-General of the Republic against the judgment of the District Court of Limassol (Hadjihambis, 334 35 2 C.L.R. Attorney-General v. Makri D.J.) given on the 12th November, 1983 (Criminal Case No. 14662/83) whcieby the respondent wasacquitted of the offence ofdriving a motor vehicleat a speedwhichwaslikelytoendanger human life contrary to sections6 and 19 of the Motor Vehicles 5 and Road Traffic Law, 1972 (Law No. 86 of 1972). A. M. Angelides, Senior Counsel of the Republic, for the appellant. 5/. McBride with G. Christodoulou, for the respondent. A. Loizou J. gave the following judgment of the Court. 10 The appellant was charged with the offence of driving a motor vehicle at a speed which was likely to endanger human life contrary to sections 6 and 19of the Motor Vehicles and Road Tiaffic Law, 1972 (Law No. 86 of 1972). The particulars of the offence were that on the 11th day of 15 July, 1983, at P. Ysrmasoyia in the distiict of Limassol, the respondent did drive motor-car PE.733 on a toad, to wit, on Georghios A' Street, within the built-up area of P. Yermasoyia, at a speed which was likely to endanger human life, to wit, at a speed of 43 m.p.h. 20 25 30 35 The learned trial Judge in an elaboiatejudgment after reviewing all the authorities relating to the determination of matters of constitutionality of Laws and the position regarding irrebuttable presumptions created by Laws in respect of criminal offences, ruled that section 6
(4)of the Law is unconstitutional, having dealt with it in the following way: "Reverting to s.6
(4), I should, of course, observe that the mere use of the term 'logizetae' does not necessarily establish that an irrebuttable presumption is created, nor is the interpretation of its equivalent English teim 'shall be deemed to" (which also appears in its predecessor, s.4
(2)of the Motor Vehicles and Road Traffic Law, Cap. 332) in The Mayor of Nicosia v. The Cyprus Oil Industries Ltd.,
(1961)2 R.S.C.C. 107, binding as to the meaning of the term in any other law. Rather, I should say, the matter is a matter of interpretation of the term 'logizetae' in its context in the light of a broad approach to s.6 as a whole bearing in mind that the presumption of constitutionality obligates the Court to strive towards a construction that 335 A. Loizou J. Attorney-General v. Makri
(1984)would result in the law at issue being held constitutional. Even so,however, Ihave,after much thought and reflection, come to the definite conclusion that s.6
(4)does purport, without any doubt, to introduce an irrebuttable presumption to the effect that any speed in excess of the speed limit 5 is deemed to be dangerous. The language of s.6
(4)is not only clear and unambiguous but also unqualified, and its reference to speed in excess of the speed limit being deemed to be dangerous in the sense, of s.6(l) equally direct and absolute. And, I, at least, bearing in mind the 10 approach of the Supreme Constitutional Court in The Mayor of Nicosia v. The Cyprus Oil Industries
(1961)2 R.S.C.C. 107, cannot read it as intended to create only a rebuttable piesumption to that effect, however conscious 1 may be of the presumption of constitutionality. It 15 seems to me clear that what s.6
(4)purports to do is to introduce a legal fiction in the form of an irrebuttable prosumption precluding the investigation into the circumstances ofthespeed provided bys.6(l). I am not concerned with whether this presumption, like that in The Mayor 20 of Nicosia v. The Cyprus Oil Industries Ltd.., is aimed at avoiding the necessity for having to ascertain, in each particular case, whether any particular speed above the speed limit is in fact dangerous so long as speeds in excess of the speed limit may generally be regarded as dangcious, 25 or whether it isaimed atfillingthe gap that existsin Cyprus law by the absence of the offence of speeding as such. In the first instance, it is clear that a general assumption that all speeds in excess of the speed limit are dangeious simply cannot stand as inconsistent with the fact that a speed 30 may not be dangerous in the circumstances though in excess of the speed limit (and, vice versa, that a speed may be dangerous in the circumstances though not in excess of the speed Irmit). The absurdity of an irrebuttable presumption is demonstrated if it is supposed that the speed 35 limit in question was not 50 m.p.h. but, e.g. 30 m.p.h. or 70 m.p.h., for it would, indeed, be absurd to assert that the essential quality of the speed as dangerous or not depended on an extraneous circumstance like that. A speed limit is, at best, a general and a priori expression of a level of 40 speed considered to be the limit of safety genetally speak- 336 2 C.L.R. 5 10 15 20 25 30 35 40 Attorney-General v. Makri A. l-oizou J. ing. But, safety and danger being always relative terms it can never be the case that the general assumption will correspond to the reality of any particular case. Furthermoie,theimpositionof a speed limit maynotbeexclusively based on considerations of safety but may extend, e.g., intoconsiderationsof petroleconomy,entirely unconnected with the safety of speed. Particularly in view of the fact that theadoption of the speed limit of 50 m.p.h. was done under s.6
(3)which refers to speed limits in relationto types of vehicles and not unders.6
(2)which refers to speed limits in relationto roads, Icannotassume that theonly purpose of the speed limit in question was to regulate speed safety limits, so that the presumption of s.6
(4)would be even further removed from reality. Jn the second instance, I should obseive that the gap existing in Cyprus law by the absence of the offence of speeding as such can hardly be filled by means of s.6
(4)and, if sufficiently fell to exist, should be provided for bymeans of legislation aimed directly at it. The introduction of the presumption of s.6
(4)intothe offence of dangerous speed, if aimed at prohibiting speeding in excess of the speed limit as such, is as ineffective in that respect as it is inconsistent with the offence of dangerous speed as defined in s.6(l). ί should also observe that s.6
(4)effectively reproduces,itspredecessor s.4
(2)of the Motor Vehicles and Road Traffic Law, Cap. 332, in force before theCon stitutioncameintoeffect, subject totheprovisions of which it should now be read. I neednotdwell muchmoie on thereasons why theirrebuttablepresumptionthusintroducedby s.6
(4)is in conflict with Article 30.2 of the Constitution, in so far as such presumption excludes a consideration of the question whether the accused's speed is or is not dangerous in all the circumstances for the purposes of determining whether the essential elements constituting the offence as defined by s.6(l)are presentand,consequently, whether the offence has been committed or not, it deprives the accused of the fair hearing guaranteed by Article 30.2 and is thus in vio lation of it. It also seems to methat s.6
(4)would be inconsistent with Article 30.3 (b)(c) (which really refers to 337 Λ. I.oizou J. Attorney-General v.Makri
(1984)more specific aspects of the concept of fair hearing) in that the irrebuttable presumption provided effectively denies the accused the right to put forward his defence and to produce or cause the production of means of proof and examine witnesses on matters relevant to the offence. 5 1 am further of the opinion that s.6
(4)offends against Article 12.1 of the Constitution in that the iirebuttable presumption it establishes may lead to the conviction of the accused when his speed is not in fact dangeious in the circumstances and does not, consequently, constitute 10 an offence according tos.6(l)as the applicable law. Equal ly, s.6
(4)is in conflict with Aiticle 12.4 in that the accused is deemed to be guilty without being proved to be so accord ing to law, that is, it presumes precisely that which Article 12.4 requires to be proved. Finally, s.6
(4)seems to violate 15 Article 12.5(d) in that it renders valueless the accused's right to examine or cause the examination of prosecution witnesses and produce and examine defence witnesses on matters relevant to the offence. As for Article 28, learned counsel for the accused did not really pursue his sub- 20 mission and I do not feel the issue of the constitutionality of Article 28 has been sufficiently raised and propeily formulated to render it necessary for me to decide it or express an opinion upon it. Learned counsel for the accused further submitted 25 that, even if 1 were to hold that s.6
(4)creates not an irre buttable but a rebuttable presumption, the same would still offend against Article 12.4 in so far as itwould purport to presume the accused to be guilty unless proved innocent and place the burden of disproving the accused's guilt 30 (or the burden of proving the accused's innocence) on the accused, when the accused is considered innocentuntil proved guilty, the burden of proving his guilt being placed on the Prosecution in ail cases. The Prosecuting Officer argued that s.6
(4)does, indeed, create a rebuttable pre- 35 sumption but that such rebuttable presumption is not in conflict with Article 12.4. In case I am wrong as to the view that s.6
(4)creates an irrebuttable presumption, I propose to deal with this submission also, and 1 would 338 2 C.L.R. Attorney-General v. Makri A. Loizou J. again refer to the view which 1adopted in my earlier judg ment to which 1referred and which Istill hold in this case. and 1 quote from- page 18 of that judgment: 5 10 15 20 25 30 35 40 Ί would start from the fundamental rule of our Criminal Law embodied in the Constitution as much as in the European Convention of Human Rights (Article 6 para. 2) that an accused person is.presumed innocent unless proved guilty as charged, the burden of proving his guilt being thus placed on the Prosecution. Now, the offence with which the accused is chaiged in the instant case is defined by s.6(!) as driving at a speed which, in the light of all thecircum stances, is dangerous. Consequently, the Prosecution. to obtain a conviction,,has·a constitutional obligation to prove theconstituentelements of theoffence, that is. that the speed,of any particular person charged under s.6(l) was dangerous in the light of all the circum stances. What, then, is the effect of s,6
(4)? It seems to me that,in so far as s.6
(4)may be considered to involve a rebuttable presumption, this presumption is to theeffect that,upon proof by the Prosecution that the accused was driving at a speed in excess of the speed limit, the accused is presumed to have been driving at a speed which is dangerous in.the ciicumstances in the sense,· as s.6
(4)says,, of s.6(l),. unless the accused pioves otherwise. In so far, however, as speed in itself is not sufficient to constitute danger. and therefore to substantiate the offence under s.6(l). s.6
(4)then seems to presume precisely that which it is the duty of the Prosecution to prove and, thereby to transform the presumption of innocence into a presumption of guilt and shift the consequent burden of proof from the Prosecution to the Defence. As such, I have no doubt that s.6
(4)would be unconstitutional as in conflict with Article 12.4. Indeed, I would point out that the presumption of innocence and the consequent burden of proof of the accused's guilt on the Prosecution is not only a fundamental but also an absolute and unqualified constitutional principle reflecting a long-established approach of 339 Λ. Loizou J. Attorney-General v. Makri
(1984)our criminal law stemming from its jealous safeguard of liberty and due process. Thus, unlike other consti tutional rights which are qualified interms of the public interest, no limitations areplaced uponthepresumption of innocence and no inroads into it should be allowed. 5 Consequently, I find it less difficult to hold that, with out any doubt, s.6
(4)is unconstitutional, than if I was dealing with a constitutional right which is sub ject to restrictions and qualifications allowing a greater latitude to legislative power, and it is not without signi- 10 ficance that the presumption of constitutionality has mostly been demonstrated in cases involving consti tutional rights subject to such restrictions and qualifi cations. In any case, try as I may to maintain the presumption of constitutionality in this case, Τcannot 15 escape the conclusion that it can be of no avail. This view of s.6
(4)is, I conceive, consistent with such cases as Gendarmerie v. Zavos (1962-1963) 4 R.S.C.C. 63 and Papadopoulos v. The Republic
(1980)2 C.L.R. 10. InGendarmeriev. Zavos itwas held 20 by the Supreme Constitutional Court that the provi sions of s.33
(3)of the Antiquities Law, Cap.61,tothe effect that a person should not be guilty of the offence of being in possession of antiquities if he satisfied the Court that the antiquities in question had been law- 25 fully acquired by him, did not contravene Article 12.4 because, as Forsthoff, P., giving the judgment of the Court, put it at p. 65: " it isnotaimedatdefeating thepresumption of innocencebut only makes available totheperson 30 concerned a defence based on circumstances within his own special knowledge". Following Gendarmerie v. Zavos the Supreme Court in Papadopoulosv. The Republic held that the proviso to s.15 of the Criminal Code which placed upon the 35 accused the burden of proof of certain specified de fences to the offence of seditious publication once the seditious publication is established, did not offend against Article 12.4. Stressing, at p. 47, that "The 340 Attorney-General v. Makri A. Loizou J. presumption of innocence has always been a fundamental principle of our Criminal Law now safeguarded also by para. 4 of Article 12of the Constitution which corresponds to Article 6, para. 2, of the European Convention of Human Rights", A. Loizou, J., in whose judgment Triantafyllides, P., L. Loizou, J., Hadjianastassiou, J., and Malachtos, J., concurred on this matter, cited Gendarmerie v. Zavos in support of the view that defences, the burden of proof of which liesontheaccused,do notconflict withthe presumption ofinnocence, consistently with the traditional approach of the criminal law. In the instant case, however, 1am not faced with a defence, particularly a defence based on circumstances within the accused's own special knowledge, made available by s.6
(4)to a person charged with the offence of dangerous speed once the dangerous speed is established, but with a presumption affecting the very establishment of the offence, the constituent elements of which are based on outwatd facts. A defence, properly speaking, the burden of proof of which lies on the accused, only becomes relevant once the constituent elements of the offence have been established by the Prosecution which has the burden of proof of the accused's guilt. S.6
(4)does not, however, purport to furnish a defence but to piovide a presumption whereby the constituent elements of the offence may be presumed to exist without proof unless the accused himself proves that they do not in fact exist. In so far as the constituent elements of the offence in question are contained in s.6(l) in terms of speed which in the light of all the circumstances, particularly those specified, is dangerous to life or property, s.6
(4), by providing that a speed in excess of the speed limit is deemed to be dangeious to life or property in the sense of s.6(l), is clearly concerned not with defences to the offence but with the establishment or negation of the offence itself. As such, it isnot covered by the principle of Gendarmerie v. Zavos and Papadopoulos v. The Republic and, in so far as 341 A. Loizou J. Mtorney-Gencral v. Makri
(1984)it purports to presume the accused's guilt and place the burden of proving his innocence on the accused, is clearly in conflict with Article 12.4' " We have quoted at length from the judgment of the learneu trial Judge as we felt that in this way we have the whole of the 5 arguments advanced on behalf of the respondent at the trial as well as his approach on the issues raised. Before, however, proceedings any further with the case, we would like to quote section 6, subsections
(1),
(2)and
(4)of the Motor Vehicles and Road Traffic Law 1972, in full:- !0 "
(1)Any person driving a motor vehicle on a road at a speed which is likely to endanger human life or to cause harm or injury to any person or property, having regard to all the circumstances of the case, particularly the nature, condition and use of the road, and the amount of traffic !5 which is actually at the time, or which might reasonably be expected to be on the road at the said time, he shall be guilty of an offence and liable to imprisonment not exceeding six months or to a fine not exceeding one hundred pounds or to both such imprisonment and fine. 20
(2)The appropriate authority may. with the consent of the Chief of Police, set, in relation to any road, a maximum or minimum speed limit, which, as regards any road within the populated area of any town or village, may not exceed 40 miles per hour; the speed limit so set 25 shall be written on plates placed along the roads in such manner that drivers using the said roads may easily notice them; the appropriate authority may, also with the consent of the Chief of Police change any speed limit thus set: 30 Provided that until the appropriate authority proceeds to set such speed limit, the same may not exceed, within the populated areas of any town or village, the limit of 30 miles per hour.
(4)For the purposes of subsection
(1), a speed in excess 35 of the limit provided in subsection
(1).
(2)or, depending 342 2 C.L.R. Attorney-General v. Makri Λ. Loizou J . on the case, in subsection
(3), shall be deemed to be a speed likely to endanger human life or to cause harm 01 injury to any person or property within the meaning of subsection
(1)". 5 The first question that calls for determination as it essentially disposes of several other consequential issues is whether the presumption created by subsection 4 is a rebuttable or an irre buttable one. Inarriving attheconclusionthatthepresumption created by the aforesaid subsection of the law is irrebuttable. 10 the learned trial Judge has drawn, as he said, assistance from the cases of Gendarmeriev. Zavos, 4 R.S.C.C. 63. and Papa dopoulosv. The Republic
(1980)2 C.L.R. 10. We do not share his view. Neitherof the two cases are consistent with his appro ach. In the case of Zavos the presumption created by section 15 33
(3)of the Antiquities Law, Cap.
- was found not to contra vene Article 12.4 of the Constitution because it did not aim at defeating the presumption of innocence but only made avail able to the person concerned a defence based on circumstances within his own knowledge. In fact, the full text of the relevant 20 passage at page 65 reads as follows: 25 30 35 40 '" It is also provided therein that the offence in quest ion shall not be deemed to have been committed if the pelson concerned satisfies a Couit that he has acquired the antiquities in question lawfully under Cap. 31, though • he did not include them in a list as above, thus giving him a further chanceof lawfully retaining theantiquities involved and excluding any possible haidship oi injustice. It may be added, that, this being so, such aforesaid provision does not contravene paragraph 4 of Article 12, because it is not aimed at defeating the presumption of innocence but only makes available to the person concerned a defence based on circumstances within his own special knowledge". It may be noted that in the said passage the expression "shall not be deemed to have been committed" is used and this bears out the accepted meaning of the word "deemed" as in law intro ducing a rebuttable presumption, an assumption or legal fiction which may be dispelled by evidence. This evidence may come out from the witnesses for the prosecution in cross-examination or by evidence adduced by the accused person. Needless to say, however, that in cases where the burden of proof in a 343 A. Loizou J. Attorney-General v. Makri (19H-1) criminal case is shifted on the accused, same is dtschaigcd by a standard of proof as thai" required for civil proceedings, i.e. a preponderance or balance of probability, as stated by HumphreysJ., delivering the reservedjudgment ofthe Court of Criminal Appeal in R. v. Gur-Briant [1943] 29 Cr. App. R. 76, at p.
- 5 "In any case where, either by statute or at common law. some matter is presumed against an pecused person 'unless the contrary is proved', the jury should be directed that it is for them to decide whether the contrary is proved: that the burden of proof required is less than that required 10 at the hands of the prosecution in proving the c?s« beyond a reasonable doubt; and that the burden may be discharged by evidence satisfying the jury of the probability of that which the accused is called upon to establish". This principle has been consistently followed in Cyprus (see, 15 inter alia, Pitsilhu v. The Police
(1969)2 C.L.R. 168). U\ti.u case of Papadopoulos reference is made also to the appioach on the same issue of the presumption of innocence of an accused person in relation lo Artick; 6
(2)of the European Convention of Human Rights which corresponds to Article 12.4 of our Con- 20 stitution and a passage from Fawcctt's textbook entitled "The Application of the European Convention of Human Rights'' to be found in page 161thereof isquoted. It is worth pointing out from the said passage that it is remarked with emphasis therein "that in general the presumption oi innocence is a 25 formula to indicate where lies the main burden of proof at the trial of the charge", whicli suggests that there isnothing inconsistent with the presumption of innocence if the evidential burden is shifted on the accused, particularly so as regards defences opened to him. Useful reference on this point may also 30 bemade to paragraph 153 from theDigestofCase-Law Relating to the European Convention on Human Rights, 1955-1967, regarding the presumption of innocence:"Article 6, paragraph 2, according to which everyone charged with a criminal offence shall be presumed innocent 35 until proved guilty according to law, requires firstly that court judges in fulfilling their duties should not stait with the conviction or assumption that the accused committed the act with which he ischarged. In other words, the onus to prove guilt falls upon the Prosecution, and any doubt 40 344 2 C.L.R. 5 10 15 20 25 Attorney-Genenil v. Miikri A. I.ui/mi .'. is to the benefit of the accused. Moreover, the judges must permit the latter to produce evidence in rebuttal. In theirjudgment they can lind him guilty only on the basis of direct or indirect evidence sufficiently strong in the eyes of the law to establish his guilt. Since Article 6
(2)is thus primarily concerned with the spirit in which thejudges must carry out their task, it may be asked whether it does not also apply to the attitude of other persons taking part in the proceedings, such ;\s counsel for the Prosecution and for the civil plaintiff. experts and witnesses. If such persons express themselves towards the accused in flights of language such as might disturb the calm of the Court by their violence or insulting nature, such behaviour would ncvcthclcss bring no blame upon ihe Court from the point of view of Article 6
(2). except inasmuch as the presiding judge by failing to react against such behaviour, might give the impression that the Court shared the obvious animosity to the accused and regarded him from the outset as guilty. The same applies if the accused, during the preliminary investigation, has been subjected to any maltreatment with the aim of extracting a confession from him; Article 6
(2)could only be regatded as being violated if the Court subsequently accepted as evidence any admissions extorted in this manner. (Cf. in particular the words "proved......... according to law*)". In application No. 8803/79 Litigens & Leitgeb v. Austria, (Decisions and Reports, Volume 26 p. 171) the Human Rights Commission held that in. respect of defamation the accused's 30 possibility of establishingthetruth of his statements requiresthe Judge to pay particular attention to the evidence submitted by the accused for that purpose and that the "proof of thuth" which is a special defence given to the accused in a defamation case is not contiary to the principle of the presumption of in35 nocence safeguarded by Article 6, paragraph 2 of the Convention. The applicants in that case complained that the presumption r,f innocence as laid down in Article 6, paragraph 2 of the Convention was violated by the revcisal of the burden of proof in the said proceedings in which although being the 40 accused, they were required to prove the truth of their statement 345 A. Loizou J . Attorney-General v. Makri
(1984)and also because the principle in "Dudio pro reo" which in their view formed part of the presumption of innocence was not applied to them. The Commission held that "The particular method chosen by the Austrian legislature 5 to regulate the private prosecution offence of criminal defamation in the press is to lay down a general criminal liability for statements which per se may be considered as defamatory (s. 111
(1)and
(2)of the Penal Code) and to piovide for a special defence if the accused can prove that 10 truth of his statement (ss:l 11
(3)and 112of the PenalCode). In other words: It is a criminal offence to damage somebody's reputation by statements in the press unless one can prove that these statements aretrue What matters for the purposes of Article 6 is that all the 15 elements of the offence, except for the truth of the statement at issue, have to be proven in the normal way by the prosecution, i.e. by the private prosecutor. As regards the existence of an objectively defamatory statement concerning the private prosecutor, and the criminal responsi- 20 bility of the accused for its dissemination in the press there istherefore no question of a shifting of the burden of proof, not of an exclusion of the principle 'in dubio pro reo'. In these respects, the mutual position of the paities to the criminal proceedings is exactly the same as in all other 25 criminal proceedings. The burden of proof is, however, shifted to the defence as regards the establishment of the truth of the statement at issue. This in no way means that the accused has to prove his innocence because he can only be considered as 30 innocent if he has not committed the offence. The offence asconceived in the applicable provisions of.the Penal Code, howevei, can even be committed by a true statement: What exculpates is not the objective truth of a defamatory statement, but ability to prove its truth. In this way 35 the law intends to compel the author of such statements to make sure in advance that what is being said can also be proven as true, i.e. it imposes a particular standard of care on everybody who makes defamatory statements in the press. Similai regulations also exist in may other 40 346 2 C1..R. 5 10 15 20 25 30 35 Altorncj-Genend «. Makri Λ. I.ni/ou J . Convention States. The reputation of the victim is pro tected in this way not only against untrue statements but against any allegations, the truth of which cannot be pro ven by their author and in respect of which it would be unfair to impose a negative proof on the victim. TheCom mission considers that in view of this object of the legi slation it is not inappropriate to make use of the legal technique of a defence, commonly referred to as the "proof of truth", to covet the exculpating element. There is therefore no appearance of a violation of Article 6
(2)of the Convention in the present case, and the applicants' complaints in this respect must be rejected as being mani festly ill-founded within the meaning of Article 27.2 of the Convention". What is happening .under subsections I and 4 of section 6 that all the elements of the offence under subsection I have to be proved in the normal way by the prosecution except that a rebuttable presumption is created in the sense that any speed in excess of the limit prescribed by the Law is deemed to be likely to endanger human life or cause harm or injury to any person or property within the meaning of subsection I, which may be dispelled by ihe accused. The shifting of the burden of proof of such issues to the defence in no way means that the accused has to prove his innocenceas he can only be considered as innocent if he has not committed the offence created by section 6, subsection 1, that is to say if he has not committed the acts which constitute the elements of such offence. Subsection 4 of section 6, does not introduce a legal fiction in the form of irrebuttable presumption precluding the investig ation into the circumstances of the speed. What it does is to introduce a defence, a legal technique to cover, as it was put in the Lingens Case (supra) the exculpating element. We do not intend to deal at length with the further contentions that the presumption introduced by subsection 4 of section 6, is in conflict with other Articles of the Constitution, such as Aiticlc 30, paragraphs 2, 3(b) and (c) or Article 12.1,
(4),
(5), as there is no merit in such contentions. As they are all based on assumptions that do not exist when the legal character and 347 A. Loizou J. Attorney-General v. Makri
(1984)significance of section 6, subsection 4 is seen as we have seen it in this case. Neither the right of an accused person to examine or cause the examination of prosecution witnesses is rendered valueless, not the right to a fair hearing is in any way interfered with. 5 We had to deal at some length with this issue because the approach of the learned trial Judge has,as counsel for the appellant said, brought to a standstill numerous prosecutions awaiting the outcome of this appeal. The appeal, however, as such has to be dismissed as we are not prepared to interfere with 10 the factual aspect of this case and the conclusions drawn on the evidence adduced by the learned trial Judge, on the strength of which he in any event found that the accused'sspeed,in the light of all the circumstances particularly the nature, condition and use of the road in question as well as the amount of traffic 15 that existed or might reasonably beexpected to exist at the time on the road in question, was not dangerous and that on the totality of the evidence the prosectuion had failed to prove its case beyond reasonable doubt. Before concluding we would like to point out that in England 20 there exist two distinct offences in relation to speed, the one under section 2 of the Road Traffic Act 1972,now under section 50 of the Criminal Law Act 1977 which corresponds to section 6
(1)of our Law and the other driving at a speed which is in excess of the speed limit section 203 of the Road Traffic Act 25 1972,which has no corresponding provision in Cyprus and which is a less serious offence than that of driving at a speed likely to endanger human life or cause damage to any person or property. The offence of speeding is constituted by driving in excessofthe speedlimit regardlessof whetlierthe speedisdanger- 30 rous or not. The introduction of such an offence would simplify matters and could serve admirably the purpose of controlling driving at excessive speed, particularly in built up areas. We trust that the appropriate authorities will take note of this observation. As we have already said and for the reasons given in this judgment this appeal is dismissed. Appeal dismissed. 348 35