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(1989) 1989August14 (BOYADJIS J ) INTHE MATTER OFANAPPLICATIONBYOR ONBEHALFOF YANNAKISΡ ELLINASFORANAPPLICATIONFORORDERS OFCERTIORARIAND/ORPROHIBITION AND INTHE MATTER OFANORDER OFTHEDISTRICTCOURTOF L

Art. 6.2 of the 35 European Convention for the

Protectionof Human Rightstohave thecriminalchargeagainsthimdeterminedwithinareasonable time hasbeenviolated. InthelightofthedecisioninBlinasv.TheRepublic

(1989)1C.L.R. 17(FullBench)theapplicantdidnotinsistontheissueofcertiorari. 40 The question as to the Jurisdiction to issue prohibition was resolved onthebasis ofthe principles appearinginthefirst ofthe aboveheadnotes. 510 I C.L.K. 5 10 15 20 25 30 InreEllinas Inthelightofthe principlessummarized inthesecondandthirdof the hereinabove headnotes the Courtheldthattimebegan torun as from the day when the applicant was first arrested, i.e. 19.12.84. Therefore, the totallength of theproceedings wasfouryearsand 15 days(Theperiod ended bythe filing ofthe Criminalcaseon 3.1.89). The criteriaapplicableinordertodeterminewhetherthetimewas reasonable or not appear in the fourth and fifth of the hereinabove headnotes, Asregards in particular the effect of the conduct of the applicant, ifwithin hisprocedural rights, the Court cited two cases, ie. Huber's case and Venturer's case, wherefrom it appears that applicant'sconductcannotdeprivehimofhisrightunderArt.6.1 of the Convention, but itmust be borne in mindwhen the questionof violationofsuchrightisbeingexamined.TheCourtfurther dismissed two submissions of the applicant, namely that the delay is this case should be attributed to the inefficient way the Police handled the matter (failure to obtain information or call for thebooks of Efstathios Kyriacou and Sons Ltd.) and to the failure of the police to employ themselvestheaccountantstocarryoutthe investigation.The Court dismissed the first submission because after the fruitless interrogations of Andreas E. Kyriacou by the Police regarding the money which the evidence in Police hands showed that he had stolen, the Police had no reason whatsoegver to continue their investigation with a view of discovering evidence against the applicant thatwouldclearAndreasE.Kyriacouandhiscompany.As regards the second submission the Court observed that the two accountants would still need the same time, even ifthey had been employed by the Police. Finally the Court, having held that the period that elapsed in this caseissuchastocasttheonusofproof ontheRepublicdecided that, inthelightofallthecircumstances,theapplicant'srightunderArt.30.

Art. 6.1 of the Convention has not been violated. Application dismissed. No order astocosts. 3 5 Casesreferredto: Ellinasv. The Republic

(1989)1C.L.R. 17; ChristoSand Othersv. lacovidou
(1986)1C.L.R. 236; InreMichael
(1989)1C.L.R. 412; Kouppis v.Republic
(1977)2C.L.R.361; 511 In re Ellinas
(1989)Application No.2612/65, Reingeisen v.AustriaYearbook XIp.268
(315); Op. Com. 27May 1966NeumeisterCasePubl.,CourtΒVol. 6p.81; Op. Com. 3 February1970 Soltikow Case,YB XIV p.869; Op. Com. 8 February1973HuberCase,D&R2p.11; 5 EckleCasePublicCourtAVol. 51 pp.33-34; Appication No. 9132/80Eric Neubeck v. TheFederalRepublic of Germany, D.&R.41; VenturaCase, D.&R.23p.5; Application. 10 Application for an order as Certiorari to remove into the Supreme Court for the purpose of quashing the committal of the applicant by the District Court of Limassol for trial before the Assize Court and/or for an order of prohibition prohibiting the AssizeCourtfrom proceeding toarraign and/ortrytheapplicant in 15 Criminal Case No.32/89 on the basis of the said committal. M.Meletiou for G. Cacoyannisand M. Koukkidou (Miss), for the applicant. CI. Antoniades, Senior Counsel of the Republic, for the Of) ώ υ respondent. Cur. adv. vult. BOYADJIS J. read the following judgment. Pursuant to the leave granted by this Court of 15th February, 1989, the applicant now applies for an order of Certiorari toremove intothe Supreme Court for the purpose of its being quashed the committal of the 25 applicant by the District Court of Limassol (H.H. C. Pamballis, D.J.)for trial before theAssize Court of Limassol for a number of criminal offences and/orfor anorder of Prohibitionprohibiting the AssizeCourt of Limassol from proceeding toarraign and/or to try theapplicant in Criminal Case No.32/89on the basis of thesaid 30 committal made by theDistrictCourtof Limassol on 13th January, 1989 and/or on the Information dated 19th January, 1989, filed by the Attorney-General on the basis and/or in consequence of thesaid committal. 512 1C.L.R. InreEllinas Boya^jisJ. The application isbased onthe following grounds: 5 10 15 20 25 «(a)The said committal isnulland void and of no effect, its invalidity being on error of law apparent on the face of the record and/or as it was made in excess of the Court's jurisdiction or power in that the prosecution of the Applicant in the circumstances of this case is unconstitutional as infringing Articles30.2,33and 35 oftheConstitution and/or Article 6.1 of the European convention on Human Rights ratified byLaw39/1962, and/or (
  1. b)The long delay in the prosecution and trial of the Applicant in the said Criminal Case No. 32/89 is an unreasonable delay and infringes the Applicant's said constitutional right and his right under the European Convention on Human Rights(andLaw39/1962) to haveall the criminal charges against him determined within a reasonable time, and/or (
  2. c)The said prosecution of the Applicant and/or the said Information amounts,inthecircumstances,toanabuseofthe process of the Court and therefore the committal of the Applicant for trial before the Assize Court of Limassol isnull and voidand ofnoeffect asbeingan errorof lawapparent on thefaceoftherecordand/orashavingbeenmadeinexcessof theCourt'sjurisdiction or power; and/or (
  3. d)The Assize Court of Limassol will proceed to try the " Applicant on the basis of the said committal and the Information filed in consequence thereof unless prohibited from doingso byan Order of Prohibition». The facts upon which the applicant relies are set forth in two affidavitsdeposedbyhiswifeMaryEllinas,ofLimassol.Thefirstof 30 these affidavits was sworn on 18th February, 1989, and the second affidavit wassworn on 29th March, 1989. TheAttorney-General oftheRepublicopposesthe application. Thefactsreliedinopposition aresetforth intheaffidavits deposed by Police Inspector Stelios Solomou, attached to the Criminal 35 Investigation Department'of Limassol Police, who was actively involved in the investigation into the alleged offences against the applicant. The first of these,affidavits was sworn on 24th March, 1989and thesecond affidavit wassworn on 10th April, 1989. 513 BoyadjisJ. InreEllinas
(1989)A large number of documentary exhibits, totalling several hundred pages,areattached tothefouraffidavitsswornbythetwo affiants. From the manner inwhich learned counsel on both sideshave argued the case, itwas made clear inthe outsetthat the issuewas 5 confined towhether ornotthecircumstancesofthecasedisclosea violation of Article30.

that both counsel took itfor granted that, incasesucha violation isdisclosed,applicant isentitled tothe particular remedies applied for, i.e.tothe exercise by this Court of its exclusive jurisdiction under Article JQ 155.4of the Constitution toissue the prerogative ordersofcertiorari and prohibition. The issuewhether the Court hasjurisdiction, in the circumstances of this case, to issue the orders of Certiorari and/or Prohibition, was neither raised in the notice of opposition norwasitargued before me. 15 On theconclusion of thehearing,thejudgment oftheCourt on theissueconfined asaforesaid wasreserved.Attheinstanceofthe Court the case was later re-opened and counsel were invited to address me whether, inthe light of the decision of the Full Bench inCivilAppeals Nos. 7648and 7649*, I havejurisdiction toissue 20 either of the orders applied for. Inthe aforesaid CivilAppeals the FullBench decided that, upon the filing ofthe information by the Attorney-General, a committal order exhausts itsforce; it merges inthe information anditsvaliditycannotthereafter be reviewed by way of certiorari. Regarding the jurisdiction to review by way of 25 certiorari the decision of the Attorney-General to file an information before theAssizeCourt,itwasheldthat, provided the Attorney-General heeds the procedural requisites set down in section 107oftheCriminalProcedureLaw,Cap. 155,hisactionis not subject tojudicial review by wayof certiorari and that section $Q 108 of the Law makes the Attorney-General the arbiter of the content of the information. Both learned counsel expressed their views on the aforementioned issue of jurisdiction raised by the Court. Mr. 35 Cacoyannis for the applicant very rightly conceded that, in the lightoftheaforementioned FullBenchdecisionandinviewofthe fact that before the filing of the present application for reviewthe information had been filedonthebasisoftheimpugned committal order, the Court has no power to accede to his application and 40 *Ellinasv.Repubhc

(1989)1C.L.R 17. 514 1C.L.R. InreEllinas BoyadjisJ. issue the order of certiorari removing into the Supreme Court for thepurpose ofitsbeingquashed thecommittal oftheapplicantby the DistrictCourt ofLimassol for trialbefore the AssizeCourt. He argued, however, thattheCourthasjurisdictiontoaccede tothat 5 part of hisapplication whereby an order of prohibition is sought prohibiting the Assize Court of Limassol from proceeding to arraign and/or totrytheapplicant inCriminalCaseNo.32/89 on thebasisoftheinformation filedbytheAttorney-General on 19th January, 1989.The learnedDeputyAttorney-Generalhas,on the 10 other hand, expressed the view that an order of prohibition lies onlyincaseswhere excessorabsence ofjurisdiction ofan inferioi tribunalorbreachoftheRulesofnaturaljusticearebeingshownto exist. In support of his proposition he referred the Court to Halsbury's Laws of England, 4th Edition, Vol. 1, para. 130; and 15 that,theallegationputforwardbytheapplicantinthepresentcase thatthedelayinprosecutinghimamountstoaninfringement ofhis fundamental right underArticle30.2oftheConstitution, does not fallundereitheroftheaforesaid twogroundstowhichtheremedy of prohibition isconfined. The learned Deputy Attorney-General 20 added that,though he isverymuch infavour oftheexistence ofa remedy against a prosecution made in circumstances which infringe Article30.2oftheConstitution, theonlyremedy available tothe applicant inthepresent caseis,perhaps, toraisethe matter ofunreasonable delaybefore theAssizeCourt whichisinabetter 25 positionthanthisCourttoenquiremorefullyintothecomplicated factual mattersinvolvedinsuch enquiry. Learned counsel put forward several other arguments for and against their respective submissions on the issue ofjurisdiction to which,however,IneednotreferasIamconvincedthatthematter 30 isadequatelycovered byauthorityand that forthereasonswhich I shall shortly explain this Court has jurisdiction to examine the application on its merits and issue an order of prohibition if satisfied thatintheparticular circumstancesofthiscase,thetrialof the applicant by the AssizeCourt of Limassol on the information 35 filedinCaseNo.32/89willresultinitselftoaninfringement ofthe right of the applicant safeguarded in Article 30.2 of the Constitution. The grounds upon which the order of prohibition lies are not confined tothosesuggested bytheRepublic.InManolisChristofi 40 and Othersv.Ninalacovidou,
(1986)1C.L.R.236delivering the judgment of the Full Bench, Stylianides, J., said at p. 246 the following:515 BoyadjisJ. In reEllinas
(1989)«An order of prohibition isan order directed toan inferior Court which forbids that Court to continue proceedings therein in excess of jurisdiction or in contravention of the Lawsofthe land». In Re Michael
(1989)1 C.L.R. 412 at ρ 413 the same Judge statedthat: 5 «Prohibition isan orderissuedoutof thisCourtdirectedto an inferior Court, which forbids that Court to continue proceedings therein in excess of its jurisdiction, or in contravention ofthelawsof theland,orindeparturefrom the 10 rules of naturaljustice». Though itis true that the application could and should, inthe lightof thedecision inCivilAppealsNo.7648and 7649* (supra) be drafted ina different form, i.e. ina way thatwould notrender the validity of the committal order the cornerstone of the 15 application,initspresentform theapplication raisessufficiently as a distinct ground for which theorder of prohibition issought the allegation of delay in prosecuting the applicant inCriminal Case No. 32/89, and also includes a distinct prayer for an order of prohibition, a remedy itself distinct and independent from the 20 remedyofcertiorari.Properlyviewed,theapplicationrevealsthat, apartfrom any attack onthevalidityof theinformation oronthe right oftheAttorney-General tofileit,theapplicantallegestherein thathistrialbefore theAssizeCourtofLimassol uponwhich heis being put upon the informationfiledby theAttorney-General in 25 Criminal Case No.32/89 infringes the Constitution which is the supreme law of the land as wellas theEuropean Convention on Human Rights which is part of our law. Unlike the present case, where itmaybesaidthatwhattheapplicantinsubstance seeksis to prevent thecommencentof the criminal trialagainst him,the 30 applicantinCivilAppealsNos.7648and7649(supra)wasseeking judicial reviewof theinformation inviewof itsparticularcontents allegedly charging offences notincluded inthe depositions. The two cases are in this respect clearly distinguishable and the decision of the Full Bench in CivilAppeals Nos.7648and 7649 35 (supra)does notdeprive theCourtfromitsjurisdiction toprohibit anAssizeCourtfromproceedingtotryanaccusedpersonuponan information valid under section 107 of Cap. 155, filed by the Attorney-General,iftherightoftheaccusedsafeguarded inArticle 30.2 of theConstitutionshall bethereby infringed. 40 '
(1989)1C.LR 17. 516 1C.L.R. InreEllinas BoyadjisJ., Having thus resolved the issue of jurisdiction, I shall now proceed to examine theapplication on itsmerits.AsIhave earlier stated, the question that falls to be determined iswhether or not the facts of the case disclose a violation of Article 30.2 of the 5 Constitution, whichprovidesthat«inthedetermination of .. .any criminal charge against him, every person is entitled to a hearingwithinareasonabletime ».Article30.2embodiesone of the fundamental rights and liberties set out in Part II of the Constitutionwhose efficient application, thelegislative,executive 10 andjudicialauthoritiesoftheRepublicarebound tosecure under Article 35 thereof. The right of an accused person to the determination of the criminal charge against him «within a reasonably time» is also safeguarded by Article 6
(1)of the European Convention on Human Rightswhich hasbeen ratified 15 by the European Convention on Human Rights (Ratification) Law, 1962 (Law 39/62), and has thus acquired, under Article 169.3of the Constitution, «superiorforce to any municipallaw». Article 30.2 of the Constitution copies the corresponding provisioninArticle6
(1)oftheConventionwhich,infact,servedas 20 the model of Part IIof our Constitution. In view of this we have always derived useful guidance in the interpretation and application ofthispart of the Constitution from the interpretation and mode of application of the corresponding provisions of the Convention by the European Commission of Human Rights and 25 by the European Court of Human Rights whose decisions and reports are of valuable assistance to us. See in this respect, inter alia, KyriakosNicolaKouppis v.Republic
(1977)2 C.L.R.361. The precise aim of both provisions, i.e. Article 30.

Article 6

(1)of the Convention, in criminal ° 0 mattersisto ensurethataccused personsdo nothavetolieunder a chargefortoolongand thatthechargeisdetermined assoonas itisreasonably possible.· The Commission has held thatthe circumstances of each case mustbe taken intoconsideration injudgingwhether proceedings 35 areofreasonablelength;inotherwords,thereasonablenessofthe lengthoftheproceedingsmustnotbe assessed intheabs*.actbut inthe lightof theparticular circumstances ofthe case concerned: Decision as to to the Admissibility of Application No. 2614/65, Reingeisen v. Austria, Yearbook XI, p.268
(315). It becomes, 40 therefore, pertinenttoreferatsomelengthtothecircumstancesof thepresentcaseasrevealedintheaffidavitsfiledbybothsidesand thedocuments attachedthereto.They are as follows: 517 BoyadjisJ . Inre Ellinas
(1989)1.InJune 1973numerousbusownersformed the«Lightning Transport» partnership, the object of which was to cany passengerstoandfrom theBritishMilitaryBasesofEpiskopiand Akrotiri and tothe EnglishSchools ofLimassol and Berengaria. The partnership carried onitsbusiness andthough ithasnot 5 officially been dissolved, ithas not carried anyworksince June
  1. The applicant wasamajor partner inthe partnership. He wasalso itssecretary and cashier.The booksofaccountsofthe partnershipwereinhiscustodyandentriesthereinweremadeby an employee under his supervision. Four brothers, namely, 10 Panikkos, Georghios, Spyros and Evripides Michael were amongstthepartnersoftheaforesaidpartnership.
  2. Atabout the same time Lightning Transport together with Efstathios Kyriacou &Sons Ltd.andfiveother Turkish Cypriot persons orfirmsin thetransport business, with theobject of 15 avoiding competition between them, formed the companyLion United BusesLtd.(hereinafter referred toasL.U.B.Ltd.)forthe purpose of contracting business with the British Military Authorities which would then be distributed for performance betweenitsshareholdersinproportiontotheirrespectivesharein 20 the company. The company would then pay over to its shareholdersallmoney received byit,Inproportion tothework actually performed by each shareholder, after deducting5% commission tocoveritsadministration expenses. The sharesinL.U.B. Ltd.were held byLightning Transport 25 45%, Efstathios Kyriacou &Sons Ltd. 10%, andtheTurkish Cypriot persons and firms theremaining 45%. Followingthe Turkishinvasion ofCyprusin1974,theTurkishCypriot partners leftthefreepartoftheisland,exceptMouzafirMuharrem whoheld 6% ofthesharesandwhoin 1975soldhissharesandbusestoa 30 joint venture formed bythe applicantandAndreasE.Kyriacou. The latterwasashareholder and director in EfstathiosKyriacou and Sons Ltd. The applicant and Andreas Efstathiou Kyriacou werethedirectorsofL.U.B.Ltd. 3.Aftertheaforesaid developmentsinL.U.B.Ltd.in1974and 35 1975 the work contracted tobeperformed byL.U.B.Ltd. was distributed between and wasperformed byLightningTransport, EfstathiosKyriacou&SonsLtd.andthejointventureofapplicant andAndreasE.Kyriacou.Each shareholderhadtherighttogive part-oftheworkallottedtohimeithertoanothershareholderorto 40 strangers.L.U.B.Ltd.,however, wouldstillpayforsuch workits 518 1C.L.R. InreEllinas BoyadjisJ. shareholdertowhomithadbeenallottedandthelatterwouldpay his sub-contractor who had actually performed the work, after deductingasmallpercentagebywayofcommission.Tocopewith thevolume of work allotted toit, LightningTransport wasusing 5 notonlythebusesbelongingtoitspartnersbutnumerousbuses belongingtootherpersons.
  3. On 8th December, 1984, Panikkos Michael, one of the partners of Lightning Transport, sent a letter to the Limassol DivisionalPoliceCommanderchargingtheapplicantwithstealing 10 largesumsofmoneybelongingtothepartnershipandhispartners andaskedthePolicetoinvestigateintothematter.Hisletterwas passed over to the C.I.D. On 18th December, 1984,the Police obtained a formal written statement from him and commenced their investigations in furtherance of which they arrested the 15 applicant on 19th December, 1984, on thestrength of ajudicial warrant. On the same daythey seized from him allthe booksof accounts, receipts etc., belonging to Lightning Transport. He remainedinpolicecustodyforfourdaysandhewasthenreleased buthisnamewasputonthestoplist. 20 5.The Cyprus Police does not have itsown accountants and .auditorsand the officers oftheAccountant-General andAuditorGeneraloftheRepublicdonotundertaketocanyouttheworkof auditingofbooksnecessary incasesofpoliceinvestigationsinto complaintsbycitizensaboutdefalcations andtheftsintheprivate 25 business sector. With the approval of the Attorney-General the firm of authorized Accountants Petrides and Modlnos were instructedbyelevenbusowners,partnersInLightningTransport, includingtheaforesaid fourMichaelbrothers,andagreedtocarry out an examination of thebooksand recordsof the partnership 30 with the object of ascertaining whether all revenue earned or acrued tothepartnership fortheperiodfrom 18thJune, 1973to 18thJune,1983,wereproperlyrecordedandaccountedforinthe booksofthepartnership,andalsotoascertainthatallmoneypaid totheownerswereinfactpaymentsforworkdonearidthatsuch 35 payments were properly authorized. Such examination which would be followed up by a report, would be carried out in accordancewiththeprovisionsofthePartnershipLaw,'Cap.
  4. Theirfeeswouldbe determined on thebasisofthetimeactually spent plus disbursements and would be paid by the aforesaid 40 eleven busowners.Written instructionstotheabove effect were given to Petrides and Modinos on 30th March,
  5. The 519 BoyadjisJ. I„n Ellinas
(1989)examination was earned out in the Police station under the supervision of the Police. Itcommenced in about the middle of May 1985 and ended on 2nd July 1986. It was carried out on almost a dayto day basis bytwo accountants. 6. Petrides and Modinos were faced with difficulties in their 5 examination of the books emanating from the fact that: (
  1. a)the bookswere notkeptintheproperand ordinarymanner,entriesin receipts were incomplete and cards describing the work done contained wrong entries; (
  2. b)there did not exist any system of internal audit or control; and (
  3. c)the persons responsible for the J Q keeping of the books had refused to give the necessary information and explanations. The time consumed for the examination wasthereby prolonged. The unco-operative attitude of the applicant on this matter appears in a report prepared by Pantelis Frydas, the Officer in charge of the C.I.D. of Limassol 15 Police, as early as 29th April, 1986, where it is stated that the applicanthad refused toaccede tohisrequeststogotothe Police Station and give certain explanations regarding several entriesin the books which appeared to be unexplained. To complete the pictureon thisaspectofthecase,reference shouldalsobemadeto 20 the following: (i)On 21st January, 1986, counsel for the applicant wrote a letter to the Divisional Police Commander demanding the return to the applicant-within seven days of the books and other documentsseizedbythePoliceon 19thDecember, 1984,inorder 25 to facilitate the preparation ofhis defence in a civil action which was filed against him by Michael brothers. The Divisional Police Commander replied by letter dated 1st February, 1986, stating that the books etc. were needed as exhibits in the case under investigation; they were in the safe custody of the police and the 30 applicant could, at any time, inspect them and also get photocopies thereof.Theapplicant did not inspectthebooks and he did nottakeanyphotocopies thereof. (ii)On7thMarch,1986,thePoliceinterrogatedtheapplicanton querries that had arisen as a result of the examination of the 35 partnership's books until that time and obtained after cautioning him a written statement from him in the form of questions and answers.Theapplicantgavethesameanswertoallquestionsput to him by the Police.Hisanswerwas thathe wasnotprepared to make anystatement orto answeranyquestionifhe hadnotbeen 40 given full opportunity to study the partnership's books and 520 1C.L.R. InreEllinas BoyadjisJ. documents in the hands of the Police and that this would necessitate his taking delivery from thePolice of all such books and documents in order to study them with the help of his. accountant. Headded that hewasprotesting once more for the ο fact that Police Inspector Stelios Solomou continued to be a memberofthePoliceteamthatcarriedouttheinvestigations. The applicant had earlier put forward the inaccurate allegation that Stelios Solomou was closelyrelatedtoPanikkosMichaelandwas, therefore, prejudiced against him. On this matter, applicant's 10 counsel had sent to the Chief of Police a letter dated 21st February, 1986, followed by a telegram dated 27th February, 1986, stating thatthe applicant would notmake any statementto the PoliceforaslongasStelios Solomou participates inthePolice investigations against him. 15 7. On2nd July, 1986,Petrides and Modinos delivered their report to thebus owners who had employed them andtothe Police. Theexamination which they carried outrevealed, inter alia, thatduring eachoftheyears 1975 to 1983 inclusive, sums of money totalling £52,343.-was paidbyLightningTransporttobus 20 drivers for work carried out "by them as sub-contractors of Efstathios Kyriacou &Sons Ltd.There wasno entry inthe books showing that the above sums which L.U.B. Ltd. had paid to Efstathios Kyriacou & Sons Ltd.,was paid over by the latter company to Lightning Transport. The Police interrogated the 25 director of Efstathios Kyriacou &Sons Ltd., namely, Andreas E. Efstathiou, whowas also a director of L.U.B. Ltd., regardingthe whereabouts ofthis money, but herefused togiveany answeror information. When interrogated,theapplicantalsorefused togive any answer. On 2nd July 1986, the Police formally charged 30 Andreas E. Efsthathiou with stealing the amount of £52,343.belonging to Lightning Transport andhis answer to the formal chargewasonlythathedidnotadmitit.On4.7.1986theapplicant was also formally charged by the Police for stealing the same amount andhis only answer toitwas thathedidnotadmit the 35 charge either. 8. Onthebasis of the findings setoutinthereport of Petrides and Modinos andof the investigations by the Police which were completed on 16th July, 1986, the Police prepared 114criminal cases and onthesame day, inaccordancewith theusualpractice, 40 sent them together with all evidential material to the AttorneyGeneraloftheRepublicforhisconsiderationandadvice.Allthose 521 BoyadjisJ. InreEllinas
(1989)cases concerned hundreds of transactions involving about half a million pounds that took place during the period between 19th September, 1973, and 18th June, 1983.The relevantfiles of the Police contained statements from witnesses, documents and reports totalling thousands of pages and concerned 109 5 complainants. There followed many meetings and consultations between the Police officers involved in the investigations and the Deputy Attorney-General and other lawyers in the Office of the Attorney-General. On severaloccasionsthefileswerereturned to the Police with instructions to carry out supplementary 10 investigations and obtain supplementary statements on several aspects of the case. The final advice of the Deputy AttorneyGeneral was given to the Limassol Police on 17th August,
  1. One of the cases in respect of which the Attorney-General had giventhem advicereferred tothesuggestion ofthePolicetofilein 15 Court a criminal case chargingjointly the applicant and Andreas Efstathiou Kyriacouforstealingtheaforesaid amountof£52,343.belonging to Lightning Transport, in respect of which the applicant was formally charged on 4th July,
  2. The Deputy Attorney-General had adopted this suggestion. The Police 20 suspected the applicant as an accomplice of Andreas Efstathiou Kyriacou, inview of hismultiple capacities inthe companies and firms involved in the performance ofthecontracts obtained from the British Military Authorities. On further consideration of the case, the learned Deputy Attorney-General gave new advice to 25 the Police on 10th September,
  3. He thereby instructed the Police to file a criminal case in respect of the aforesaid amount only against the company Efstathios Kyriacou and Sons Ltd. and Andreas E, Kyriacou. The Deputy Attorney-General also expressed theviewthattheprosecution oftheapplicantinrespect 30 of that amount was not justified by the evidence then in their possession.
  4. Following the last aforesaid advice, the Police filed against Efstathios Kyriacou&SonsLtd.andAndreasE.KyriacouCriminal Case No. 23861/87 following which they were both committed 35 for trialbefore the Limassol Assizes.
  5. Acting on the instructions of the Deputy Attorney-General dated 17thAugust, 1987,thePolicefiledagainsttheapplicantfour different criminal cases, namely, Nos. 22444/87, 22445/87, 22446/87 and 23802/87, and on5th February, 1988,the District 40 Court ofLimassol committed himfortrialbefore theAssizeson all 522 IC.L.R. InreEllinas BoyadjisJ. four cases.Wearenotconcerned, atpresent, withthesecases. It sufficestosaythat:(i)theywereallbasedonthereportofPetrides andModinos;(ii)theAttorney-Generalelectedtofileinformations only in Cases Nos. 22446 and 23802; (iii) the applicant was 5 arraigned intheLimassolAssizeCourtinCaseNo.22446/87 on 14thJuly,1988,andwasfoundguiltyandsentencedto18months' imprisonment on26thAugust, 1988;(iv)theapplicant appealed againsthisconvictionandaftertheconclusionofthehearinginthe present application and pending the delivery of the present 10 judgment,theSupremeCourtquashedhisconvitionlastJulyand he wasreleased from prison;and (v)CaseNo.23802/87 isstill pendingbeforetheLimassolAssizeCourt.
  6. After their arraignment in the Limassol AssizeCourt, the accusedinCaseNo.23861/87,i.e.EfstathiosKyriacouandSons 15 Ltd.andAndreasEfstathiou Kyriacou,wrotealetterthroughtheir advocate, dated 26th November, 1987, to Mr. CI.Antoniades, SeniorCounseloftheRepublicintheAttorney-General's Office, admittingforthefirsttimethatthechargesbroughtagainstthem refer to sums which they had collected on behalf of Lightning 20 Transport. Inthesamelettertheyput forward theallegationthat they paid over those sums to the applicant and offered to cooperate andhandovertothePolicetheirbooksfor examination andevidenceverifyingtheirallegation.Uponthatthecaseagainst themwasadjourned andfollowingsomefurther communications 25 between counsel, the case against the applicant was re-opened andnewinvestigationswerecommencedwithaviewof verifying theaforesaidallegations.Thebooksofthecompanywerehanded over to Petrides and Modinos who carried out an examination thereof withtheco-operationofthecompany'saccountant.From 30 the information received from the examination of these books which started on 20th February, 1988, and was completed on 13thOctober, 1988,theneed offurther investigationsemerged. Newand/orsupplementarystatementsfromseveralpersonswere taken and the file was again sentto the Office of the Attomey35 General for his consideration and advice. On 7th November, 1988,theDeputyAttorney-GeneralfiledanollepresequiinCase No. 23861/
  7. By the end of December 1988, the new investigationswerecompletedandundertheinstructionsfromthe officeoftheAttorney-General,CriminalCaseNo.32/89was filed 40 against the applicant on 3.1.
  8. On 13th January, 1989, the applicantwascommittedfortrialbytheAssizeCourtnextsittingin 523 BoyadjisJ. InreEllinas
(1989)Limassol on 16th January,
  1. The formal charge of the applicantand hisanswertheretodated 4thJuly, 1986,referred to earlier, was one of the documents placed before the committing Judge for his consideration. Pursuant to such committal the Attorney-General filed on 23rd January, 1989, the information 5 undersection 109ofCap. 155containing36 counts chargingthe applicant withstealing several amounts totalling about £30,000.which he had allegedly received for and on behalf of Lightning Transport on several occasionsbetween 8th March, 1980and 7th September, 1983.Thisamountispart oftheaforesaid largersum 10 of £52,343 which covered the period between 1975 and
  2. The trialof theapplicant on theaforesaid information wasstayed as a resultofthepresent application and oftheorder ofthisCourt made at the instance of the applicant staying the criminal proceedings against him pending the determination of this 15 application. Theonlypointatissueatthepresentstageoftheproceedingsis the question whether or not the criminal charges against the applicant weredetermined «withina reasonable time»as required by Article 30.

Article 6

(1)of the 20 Convention, bearing in mind the fact that by the time when the applicant filed the present application his trial had not yet commenced. Inordertogiveananswertothisquestionthe Court must first determine the relevant period to be considered under theaforesaid articles,anditwillthenexamine,havingregardtothe 25 applicablecriteria, whetherthisperiod hasbeenreasonableinthe particular circumstances of the case. The parties are in disputeas tothe period to be considered for the purposes of determining thisapplication. Though they agree that this period ends on 3rd January, 1989, when the criminal 30 prosecution now sought to be suppressed was initiated by the filing of Criminal Case No. 32/89 against the applicant, they disagree astothestartingpoint ofthe period. The applicant alleges that the starting point of the relevant period isthe 19th December, 1984, when he had been arrested 35 and the partnership's books were seized from him, whereas the Republic alleges that Case No. 32/89 isnot the offspring of the examination of those books which was completed on 2nd July, 1986, but of the later examination of the books of the company Efstathios Kyriacou &Sons Ltd. brought about as a result of the 40 524 1C.L.R. InreEllinas BoyadjisJ. letterbytheletter'sadvocatetotheOffice ofthe Attorney-General dated 26th November, 1987 and, therefore, the startingpointof the relevant period could not be earlier than the last aforesaid date. 5 The Court cannot follow the Republic's argument on this matter. Case No. 32/89 was partly the offspring of the examination ofthepartnership'sbooksand partlytheoffspring of the information receivedbythePoliceon 26thNovember, 1987, and the investigations that were carried outas a resultthereof. In 10 resolvingthismattertheCourtalsotakesintoaccountthefactthat following the examination of the partnership's (Lightning Transport) books, the applicant was formally charged by the Police for stealingthe amount referred to in CaseNo.32/89 and that the formal charge and the applicant's answer thereto were 15 included in the evidential material submitted to the committing Judge upon whichhereliedtocommittheapplicantfortrialbythe AssizeCourton the aforesaid case. The question at what stage the period of reasonable time referred to in Article 6
(1)begins, is a question of interpretation: 20 Op.Com. 27 May 1966,Neumeister Case, Publ.Court B,Vol.6, p. 81. In a number of decisions the Commission held that the provisions of Article 6
(1)are generally to be understood as implying thatthe relevant period begins with the day on which a person ischarged; that indetermining thisregard mustbehad to 25 the particular case concerned; that on the one hand the word «charge»inthesaidArticlecannotbeconstruedinthetermsof the domestic law of any of the Contracting States but must be interpreted independently; that on the other hand, it may be necessary to have regard to the whole system of criminal 30 procedure of the State concerned in order to interpret and thus delimit the notion of «charge» for the purpose of applying that notiontothefactsofaparticularcase;Op.Com.3February 1970, Soltikow Case, YBXIVp. 869, and Op. Com. 8 February 1973, HuberCase, D & R 2 , p . l l . 35 In Neumeister Case (supra) the Commission held that the relevant stage is that at which the situation of the person concerned has been substantially affected as a result of the suspicion against him. In Eckle Case where a search and seizure warrant was issued 40 againstthe applicants on 25th April, 1967,the Commission held 525 BoyadjisJ. InreEllinas
(1989)thattheaforesaid datemustberegardedasthestartingpointofthe relevant period since such an encroachment upon theirrights madeitquiteclearthattheprosecutionwereresolvedtoinstitute criminalproceedings. Ishouldfinallyrefer tothejudgment oftheEuropean Courtof 5 HumanRightsof15thJuly1982inEckleCase,Publ.CourtA,Vol. 51, pp.33-34,whereitwasstatedthat:«In criminal matters, the 'reasonable time' referred to in Article6
(1)beginstorunassoonasapersonis'charged'.This mayoccuronadatepriortothecasecomingbefore thetrial 10 Court (see, for example, the Deewer Judgment of 27 February1980,SeriesA,Vol.35,p.222,para.42),suchasthe date of arrest, the date when the person concerned was officially notified that he would be prosecuted of the date when preliminary investigations were opened (see the 15 lVem/7o//Judgmentof27Junel968,SeriesA,Vol.7,pp.2627, para. 19; the NeumeisterJudgment of the same date, SeriesA,Vol.8,p.41,para. 18,andtheRingeisenJudgment of16July1971,SeriesA,Vol.13,p.45,para.110).'Charge' forthepurposesofArticle6
(1)maybedefined as'theofficial 20 notification giventoanindividualbythecompetentauthority ofan allegationthat hehascommitted acriminal offence', a definition that also corresponds to the test whether 'the situation ofthe(suspect)hasbeen substantiallyaffected' (see theabove-mentioned DeweerJudgment, p,24,para.46)» 25 Guidedbytheaforesaid caselawoftheEuropean Commission andCourt,Ihavedecidedtoacceptthesuggestionoftheapplicant onthispointandIrulethatthestartingpointoftherelevantperiod isthe 19thDecember, 1984,whentheapplicantwasarrestedand his position was thus substantially affected as a result of the 30 suspicionagainsthim. The Court, therefore, finds that the total length of the proceedings is four years and 15 days (from 19th December, 1984,until3rdJanuary, 1989). Thequestionwhethertheabovelengthoftheproceedingscan 35 beconsideredasreasonablemustbedeterminedhavingregardto the criteria which have been established for thispurpose in the caselaw of theCommission and the European Court of Human Rights.ThisbeingthefirstCypruscase,asfarasIknow,wherethe 526 1 C.L.R. InreEllinas BoyadjisJ. matterhasbeenraisedintheformofanapplication underArticle 155.4oftheConstitution,thereisnoCyprusauthorityonanyof thepointsinissuethathasbeenpublished asyet.Theprinciples developedbytheEuropean CourtofHumanRights,particularly 5 in its judgments of 27th June, 1968, in the Wemhoff and Neumeister Cases, and which have been summarized in the Commission'sReportof19thMarch,1970,intheRingeisenCase as confirmed in the European Courts Judgment of 16th July, 1971,inthatcase,maybeshortlystatedasfollows:10 Thequestionwhetherornottheapplicant,inthedetermination of any criminal charge against him, has had a hearing within a reasonabletimeinaccordancewithArticle6
(1)oftheConvention, mustbedecidedinrelationtotheparticularcircumstancesofthe proceedingsconcernedand,inparticular,withregardto: 15
(1)thecomplexityofthecaseasawhole;
(2)the manner in which the case has been handled by the nationaljudicialauthoritiesandCourts;and
(3)theapplicant'sown conduct. None of the above elements is conclusive in itself. They are 20 factorsinthecasewhichmightexplainthelengthoftheparticular criminal proceedings concerned. It is, therefore, indispensable that each one of them should be examined separately and evaluated witha view to determining their contribution towards the length of the proceedings. In the end, however, the 25 Commission must evaluate, in the light of all these factors together,thetotalperiodunderexaminationinordertodetermine whetherornotitwasreasonablewithinthemeaningofArticle6
(1)oftheConvention. Regarding the complexity oftheproceedingstheCommission 30 hasheldthatthecomplexityandvolumeofthecasecanonlybe invoked is so far as it actualy contributed to the delays in the proceedings, and, in any case, it cannot be held against the applicant in so far as it was created by the judicial authorities themselves: Application No. 9132/80 Eric Neubeck v. The 35 FederalRepublicofGermany, D. &R. 41,p.13. Regardingtheapplicant'sownconducttherearetwodecisions of the Commission from which Ihave derived guidance and to whichImustrefer. 527 BoyadjisJ. InreEllinas
(1989)The first case is Huber Case, D. & R. 2, p.11,where in the decision of the Commission dated 8th February, 1973,we read the following:«However, before the Commission can expressan opinion as to whether or not the period which was required to 5 determine the criminal charges against the applicant was reasonable within the meaning of Article 6
(1)of the Convention, it must examine the applicant's own conduct duringthevariousstagesoftheproceedingsagainsthim,asit is alleged by the respondent Government that the principal 10 cause for any delays has been the applicant's own attitude whichshowed a lack ofco-operation .... A preliminary question arises in this context, namely to what extent the applicant's own conduct isat all relevant to thegeneral issue here underconsideration.TheCommission 15 observesthatadistinctionmustbemadebetweenthree forms ofaction inthiscontext:firstly,theaccused person's reliance onproceduralrightswhichareavailabletohim underthelaw; secondly, his failure to co-operate in the investigation and trial;and thirdly, any deliberate obstruction on hispart. 20 Itisgenerally accepted thatan accused person isunder no obligation to renounce hisprocedural rights orto co-operate in the criminal proceedings against him.However, there are two extreme views as to the question of what should be the effect ofan unco-operative attitudeonthepartofanapplicant 25 withregard tohisclaim thattheproceedings againsthimhave lasted beyond a reasonable time. Inone viewsuch attitudeis considered asconstitutingpartof hisrightasadefendant with the consequence that his conduct isirrelevant with regard to hissubsequentallegationthatArticle6
(1)hasbeenviolatedby 30 reason of the length of these proceedings. According to the other view, his failure to co-operate and, even more so any deliberate action on his part to obstruct the proceedings against him, would as a matterofequity havetobe regarded asstoppingtheapplicant from complainingunderArticle6
(1)35 of the Convention that the proceedings have been delayed beyond a reasonable rime. In the Commission's opinion, neither of these extreme viewsisconvincing,theCommissionconsidersthatanyuncooperative or even obstructive attitude on the part of the 40 528 1C.L.R. 5 10 15 20 25 InreEllinas BoyadjisJ. applicant during the proceedings against him, although it cannot defeat hisclaim under Article6
(1)of the Convention, must nevertheless be taken into consideration in any examination of the question whether or not there hasbeen a violation of hisrightto a hearing within a reasonable time as guaranteed by that provision. This follows clearly from the necessity to establish the causes of any delays which is indispensableprerequisite tothe examination ofthe question ofviolation». The second case is Ventura Case, D. &R. 23,p.5,where we read the following intheCommission's report of 15th December, 1980:«Generallyspeaking,theapplicantdoesnothimself appear tohavetakenanystepswhichleddirectlytoanunduedelayin theproceedings.Itremains,however, tobedecided whether, and to what extent, his failure to co-operate during the investigationsmayhaveaffected thesubsequent courseofthe proceedings. In this connection, the Commission points out that the applicant's refusal to co-operate during the proceedings does not prevent him from invoking Article 6
(1)ofthe Convention, butthat itmustbeborne inmindwhen the question of aviolation of therighttotrialwithina reasonable time, guaranteed bythisprovision, isbeing examined.Thisis clearly connected with the need to establish the causes of delay,whichisanessentialpreliminarytoconsiderationofthe question of aviolation (HuberReport, para. 111). In the present case, it has been established that the applicant did not mention Giannettin's name to the InvestigatingJudge untilMay 1973(cf.para. 47). 30 Moreoever, he said nothing until 1975about the proposal concerning his escape, allegedly made to him in 1973 (cf. para.54).Bothofthese factors hadsomeeffect onthe course of the investigation. Inparticular, the first ledtothe enquiries concerning theS.I.D.(ItalianSecret Service). 35 Despite these revelations,the fact stillremains that, during the first phase of the investigations before the Milan InvestigatingJudge,theapplicantmadenomentionofcertain facts which, if divulged earlier, would have rendered the investigationlessdifficult andtherebyexpeditedtheenquiries and thus theproceedings. 40 529 BoyadjisJ. InreEllinas
(1989)Itwouldseem, onthecontrary,thattheapplicantadopted a defensive strategy,whichinvolvedwaitingfortheenquiriesto develop before he revealed information which - as he must have known - would have led the Investigating Judge in Milan,and laterCatanzaro,to orderfresh enquiries ... 5 The Commission concludes, byavote of 11against4, that Article 6
(1)was not violated in respect of the duration of the criminal proceedings». Inview ofthe fact that intheinstantcase the overall duration of the proceedings appears tohave exceeded thelength which can, 10 asa general rule,beregarded asthe«reasonabletime»referred to inArticle 6
(1)of the Convention, itisforthe respondent Republic tojustify the delay. In this respect the Government invokes the complexity of the case, the unco-operative attitude of the applicant and the 15 allegation that the Police authorities acted throughout the investigations with allpossible despatch. On the other hand, the applicant submits that the delay was wholly and/or mainly due to the following two factors for which the Republic issolely to blame,viz.: ^ (
  1. a)The Police were either unobservant or inefficient in their investigations. (
  2. b)The Police should have themselves employed the private accountantstocarryouttheexamination ofthebooksofLightning Transport. Regarding factor (a)above,Mr.Cacoyannis hasargued thatthe Policewere inefficient because theyalways could and they ought to have approached the accountant of Efstathios Kyriacou and Sons Ltd. and ought to have asked him the simple question whether his employers had paid the money which they had 30 received from L.U.B. Ltd. either to the applicant or to Lightning Transport or to anybody else. The Police, counsel added, could also seize and examine the books of the company of Efstathios Kyriacou and Sons Ltd. and had they done so they could find evidence ofthe money being paid to the applicant for and on 35 account of Lightning Transport. Counsel further argued that such steps could have been taken immediately after the report of Petrides and Modinos of 2nd July, 1986,and itwas due to their 530 " 1C.L.R. InreEllinas BoyadjisJ. negligence or inefficiency that they remained inactive after "2nd July, 1986,and until 17th November, 1987,when they received the letter from the advocate defending the accused in Criminal CaseNo.23861/87,namely, EfstathiosKyriacou&SonsLtd.and 5 AndreasE. Kyriacou. The Court cannot agreewith thearguments ofthe applicant on thismatter.AfterthefruitlessinterrogationsofAndreasE.Kyriacou by the Police regarding the money which the evidence then in Policehandsshowed thathehadstolen,thePolicehadno reason 10 whatsoever to continue their investigation with a view of discovering evidence against the applicant that would clear Andreas E. Kyriacou and his company. They could reasonably expect that AndreasEfstathiou Kyriacou would have volunteered such evidence ifhe had itin hispossession or ifitwaswithin his 15 power to do so. So, any inactivity of the Police on this matter before 17th November, 1987,was not due totheirinefficiency or negligence. Regarding factor (b)above, namely, the failure of the Police to employ themselves Petrides and Modinos, Mr. Cacoyannis was 20 unable to show in what respect the situation would have been different had the Police done so. Petrides and Modinos would havetaken thesameperiod of timetocarryoutthe work whether they were in the first place employed bythe Police orbythe bus ownerswho had actually employed them. The suggestion ofMr. 25 Cacoyannis thattheperiodoftimeconsumed forthe examination of the books would have been shorter if the fee payable to the accountants was not a per hour fee but was a lump sum for the whole work, isonlya meresurmise and entirely unsubstaqtiated. Consideringthelengthoftherelevantperiodinthepresent case 30 in the light of the criteria established by the caselaw of the CommissionandtheEuropean CourtofHumanRights,the Court is of opinion that the specific reasons invoked by the Republic sufficiently explain the delay in a manner which shows that the conductofthe Policeauthoritiescannotbejustifiably subjected to 35 any criticism. The Court is satisfied in this respect that the case under investigation was of unusual volume and complexity and further recalls the unco-operative attitude of the applicant. However disappointing itmay be that more than four years have elapsedsincethePolicestartedinvestigatingthecaseandthetrial 40 of the applicant before the Assize Court was not able to 531 BoyadjisJ. InreEllinas
(1989)commence,thedelaythathasoccurredcannotbeattributedtothe fault of the Republic. The Court concludes thatthe circumstances inthe present case do notdiscloseanyappearance ofaviolation ofeitherArticle6
(1)oftheConvention orofArticle30.2oftheConstitution.Neitherdo 5 theydisclose anyabuse oftheprocessoftheCourtin prosecuting theaccused inCase No.32/89. The Application is, therefore, dismissed as regards both the relief sought in respect of certiorari and in respect of prohibition. Noorder as to costs. ' 10 Application dismissed. No orderasto costs. 532

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