(1987)1987 July 22 (A LOIZOU, STYLIANIDES, PIK1S, JJ 1 ANASTASISPOLmS, Appellant, ν THEREPUBLIC, Respondent (Cnmmal Appeal No 4881) ConstitutionalLaw—Sentence — Constitution, Art 123andArt 72—Ambitof each of the aforesaidArticles— Whether the legislature entitledto impose a mandatory sentence for any of the cnmes specified m Art 72 — As the legislatureisvested withcompetence toimpose,asamandatorysentence for such cnmes, the death penalty, it is by necessary implication entitled to 5 impose any otherfixedsentence — Itfollowsthatthe mandatorysentence of hfe impnsonment forpremeditated murderisnotunconstitutional The sole question in this appeal is whether sections 202
(2)and 29 of the Cnminal Code, as amended, are, to the extent they provide a mandatory sentence (life impnsonment} for the cnme of premeditated murder, unconstitutional for breach of Art 12 3 of theConstitution 10 Held, dismissing the appeal
(1)A senes of decisions establish that the provisions of Art 12 3 make thejudiciary thesole arbiters of themeasure of punishment for breach of the provisions of a penal law The pertinent question is whether Art 7 2 of the Constitution introduces an exception to 15 the rule laid down by Art 12 3
(2)Thefirst objective of Art 7 3 is to sanction the death penalty for the limited class of grave cnmes specified therein The second is to rest competence inthelegislature tofix thedeath penalty as mandatory for such cnmes The expression «a law may provide» imports legislative discretion whether to ordain the death penalty or not By necessary implication the legislature may ordain for the aforesaid cnmes any other fixed measure of punishment, including lifeimpnsonment 20 Appealdismissed No orderas to costs 2 5 116 2C.L.R. Politisv.Republic Casesreferred to Distnct OfficerNicosiaν HjiYannis, 1R SC C 79, Djsincr OfficerFamagusta ν Antom, 1RSC C 84; Supenntentent ofGendarmene, Lefka ν HjiYianni, 2R SC C 2 1 , 5 Morphou Gendarmene ν Engiezos, 3 RS C C 7, Distnct OfficerNicosiaν ThemtstocliandAnother, 3R SC C 47, DisrnctOfficerNicosia ν Palis, 3RS C C 27, Police ν Ahmet,3RS C C 50, Distnct OfficeKyremaν Sahh, 3 RS C.C 69, *0 Mihotis ν Police
(1975)7J SC 933 Appeal against sentence. Appeal against sentence by AnastasisPolitiswho was convicted onthe23rdJanuary, 1987 attheAssizeCourtofNicosia {Criminal Case No.537/87) on one count of the offence of premeditated 15 murder contrary to sections 203 and 204 of the Cnminal Code, Cap. 154 and was sentenced by Nikitas, P.D.C.,Laoutas, S.D.J. and Michaelides, D.J.tolife impnsonment. N.Clerides, for the appellant 20 R Gavriehdes,Senior Counsel of the Republic, for the respondents. A LOIZOU J .Thejudgment of theCourtwillbe delivered by Pikis, J. PIKIS J : Anastasis Politis was convicted on a charge of premeditated murder and was sentenced by the Assize Court of 25 Nicosia to Life impnsonment. The Courtfelt bound to impose a sentence of hfe imprisonment as a matter of statutory obligation deriving from the provisions of sections 29 and 203
(2)of the Cnminal Code (asamendedby theprovisions of sections 2 and 3 of Law 86/83). They dismissed a submission of the defence that 30 the provisions of the law were unconstitutional for inconsistency with those ofArt. 12.3.They ruledthatArt. 7.2 of theConstitution made it competent for the legislature to provide a mandatory sentence forthegravecnmeofpremeditatedmurder.Theirpower was not confined, as stated in the judgment, to providing a 35 sentence of death thatwas abolished by Law 86/83for the crime of premeditated murder. 117 PlkiaJ. PoUti» v. Republic
(1987)Counsel argued, as earlier before the trial Court, that sections 202
(2)and 29 of the Criminal Code, as amended, are unconstitutional for breach of Art. 12.3 to the extent that they ordain a mandatory sentence for the crime of premeditated murder. Art. 12.3 reads: «Nolaw shall provide for a punishment 5 which isdisproportionate tothegravityof theoffence». Aseries of decisions establish that the provisions of Art. 12.3 make the judiciary thesole arbiters of themeasure ofpunishmentfor breach of the penal provisions of the law*. Art. 12.3 of theConstitution conforms, it must be said, to the strict separation between the 10 powers of the State that underlines the division of state power underthe Constitutionof Cyprus. Punishmentfor infraction of the penal laws is, on proper classification of the nature of the power, a judicial function. The decision of the Surpeme Constitutional Court in Nicosia Police v. Djemal Ahmet** establishes that an 15 extended interpretation must be accorded to the expression «the gravity of the offence» encountered in Art. 12.3 wide enough to include the personal circumstances of the offender as a determinantof thegravityoftheoffence. Anapproach compatible with modem principles of sentencing thatpunishment should fit 20 notonly the crime but the offender as well. The pertinent question is whether Art. 7.2 of theConstitution introducesan exception totherule laid down inArt. 12.3.Art. 7.2 reads: «No person shall be deprived of his life exept in the 25 execution of a sentence of a competent court following his conviction of an offence for which thispenaltyisprovided by law. A law may provide for such penalty only in cases of premeditated murder, high treason, piracy jure gentium and capital offences undermilitary law.» 30 The first objective of Art 7.2 istosanction the death penalty for the limited class of grave crimes specified terein. The second, to vest competence in the legislature to fix such measure of punishmentasmandatoryinexercise ofitslegislativepower. What •See, interalia, DistnctOfficerof Nicosia ν HadjiYanms,1RSCC 79,TheDistnctOfficer Famagustav Demetra PanayiotouAntoni, 1RSCC 84,Supenntendent of Gendarmerie, Lefka ν Chnstodouios Antoni HadjiYianni 2 RSCC 21. Morphou Gendarmerie and Andreas Demetn Engiezos,3RSCC 7, DistnctOfficer, NicosiaandMichaelKton Palis, 3 RSCC. 27, The Distnct Officer.Famagusta ν 1)Michael Themistocli and 2) Angelou Michael, 3RSCC 47,NicosiaPoliceν DjemalAhmet, 3RSCC 50. TheDistnctOfficer, Kyrenia andAdem Sahh3RS.C. C.69. Milioasv.ThePolice
(1975)7JSC 933 "3RSCC 50 118 2 C.L.R. Politisv.Republic Pllds J. wemustdetermine iswhether legislative competence islimitedto the sanctioning of the death penalty as a fixed measure of punishment for premeditated murder.Theexpression «alawmay provide»inthesecondpartofArt.7.2importsdiscretion leavingit 5 to the legislature to ordain the death penalty for premeditated murder as a matter of legislative policy. They are not bound but may do so ifthey deem itappropriate. By necessary implication theymayordainanyotherfixedmeasureofpunishmentincluding, no doubt, a sentence of life imprisonment. Any other 10 interpretation of Art. 7.2 would lead to absurdity, because while the legislature would be free to sanction the death penalty, the severest of punishments, they would be fettered from fixing any other measure of punishment. Obviously the constitutional legislation singled out the crimes 15 listed inArt. 7.2 for exceptional treatment in view of their gravity andtheirrepercussions on the wellbeingofsociety.Inthecaseof premeditated murder what marks the gravityof the offence isthe element of premeditation mat necessarily renders the crime particularly heinous. Inagreement with the AssizeCourt, we rule 20 that sections 29 and 203
(2)of the criminal code are not unconstitutionalandassuchmakeasentenceoflife imprisonment obligatory upon conviction for premeditated murder. The appeal isdismissed. Appeal dismissed 119