Cyprus Supreme Court dismisses constitutional appeal on time limits and damages, allowing only a request for police names.

[*717] 1967 June 17

(TRIANTAFYLLIDES, J.)

REVISIONAL JURISDICTION

In the matter of Article 146 of the Constitution.

Modestos Savva Pitsillos,

Applicant,

and

The Republic of Cyprus, through

1. The Attorney-General,

2. The Minister of Interior,

3. The Commander of Police,

Respondents.

(Case 113/66)

Constitutional Law - Cyprus Constitution, Article 29 - Omission of Commander of Police to accede to request of Applicant for the names of Police constables involved in an incident between the Applicant and the Police - Wrongful, being contrary to Article 29.

Constitutional Law - Cyprus Constitution - Competence, Article 146 - Exercise of Judicial authority - Award of damages - No competence of Supreme Court, under Article 146, in matters of exercise of judicial authority or of awarding damages.

Time, Article 146.3 of the Constitution of Cyprus - Applicant's recourse against his arrest, detention and ill-treatment by the Police - Out of time, as being filed after the expiration of the period laid down in Article 146.3 - Provision as to time mandatory.

Judicial Authority - Exercise of - Not within competence of the Supreme Court under Article 146.

Damages - Claim for damages - Outside the competence of the Supreme Court under Article 146.

Applicant in person.

K. Talarides, Counsel of the Republic, for the Respondents.

JUDGMENT

The following Judgment was delivered by:-

TRIANTAFYLLIDES. J.; By his several claims in this recoursewhich are drafted in a somewhat confused manner - the Applicant appears to seek relief as follows

Claims 1 and 2 relate to the institution and prosecution against the Applicant of criminal case 6998/66, in the District Court of Nicosia, in respect of an incident on the 5th February, 1966, which took place between the Applicant and the Police.

By claims 3A and 3B the Applicant complains against an omission of the Commander of Police to investigate properly certain matters raised by the Applicant in his letters to the Commander of Police dated the 12th February and the 17th March, 1966 (see exhibits 1 and 3); the matters in question relate to the aforesaid incident of the 5th February, 1966. In this connection the Applicant complains, also, against the replies given to him by the Commander of Police and dated the 22nd February, the 23rd March and the 19th April, 1966 (see exhibits 2. 4 and 5). as well as against the failure of the Commander to disclose to him the names of certain police constables involved in the incident in question.

By claim 3C the Applicant complains against arrest, detention and ill-treatment by the Police in relation to the incident of the 5th February, 1966; also against the destruction by the Police, on the same day, [*719] and in the course of such incident, of property of his, namely, a glass-case pastry therein, which the Applicant was selling as a hawker.

By claim 3D the Applicant complains against the failure of the Police to obtain statements from the Applicant, and from certain witnesses of his, in relation to the said incident of the 5th February, 1966, and, also, against the failure of the Police, on the 16th March, 1966, to take down the answer made by the Applicant to a relevant charge, which was read out to him on that day.

By claim 3E there seems to be challenged an alteration of the charge made against the Applicant, i.e. that he was charged for an offence different than the one for which he was later prosecuted, as above.

By claim 3F the Applicant complains that the Police on the 5th February, 1966, sent him off a certain locality, Where the incident in question took place while he was offering for sale his pastry to pupils.

By claim 3G the Applicant claims damages in relation to the above-mentioned matters.

The Applicant has conducted these proceedings throughout in person.

Claims 1 and 2 of the Applicant do not relate to matters within the competence of this Court under Article 146 of the Constitution, but to judicial matters which are outside such competence (see Kyriakides and The Republic. 1 R.S.C.C., p. 66; Gavris and The Republic. 1 R.S.C.C., p. 88); therefore these claims fail on this ground. [*720]

Regarding claim 3A of the Applicant no omission of the Commander of Police to deal with the complaint made by the Applicant has been established; on the contrary, as it appears from his letter to the Applicant dated the 19th April, 1966, (see exhibit 5) the Commander has duly examined such complaint.

The contention, however, of the Applicant that the Commander of Police has failed to make known to him the names of the police constables concerned, whose numbers the Applicant had noted down in relation to the events of the 5th February, 1966, seems to be well-founded. The Commander in his last letter to the Applicant (see exhibit 5) stated that it had been found that the police constables had acted in the lawful execution of their duties; but he did not either supply their names - as applied for by the Applicant - or refuse to do so for any given reason. In my opinion the Commander is, in the circumstances, guilty of a breach of Article 29 of the Constitution, through having failed to attend to the relevant request of the Applicant, and either grant it or refuse it with due reasoning. As this was a matter which related to proper administration, in the sense that it involved the conduct of the Commander, as head of the particular service, in a situation which had arisen in the course of duty between his subordinates, the police constables, and a citizen, the Applicant, - who presumably required the names of the constables in relation to possible proceedings against them in - indication of his legal rights, if any - I am prepared to hold that the request of the Applicant, for the names of the police [*721] constables in question, was made in respect of a subjectmatter within the jurisdiction under Article 146, and that, therefore, this Court has competence under Article 146 to entertain the Applicant's recourse against the Commander's failure to attend to the Applicant's aforesaid request (see Xenonhontos and The Republic, 2 R.S.C.C. p. 89); and as indicated, already, such failure is wrongful, being contrary to Article 29 of the Constitution, and entitles the Applicant to succeed in this point.

Regarding claim 3B I have not been satisfied, on the material before the Court, that the Commander of Police, in taking the view which he appears to have taken when replying to the Applicant, has acted wrongly in any way; it was up to the Applicant to discharge the relevant burden of proving his case on this point, and he has failed to do so.

The events on which claim 3C is based took place on the 5th February, 1966, in the course of, and in relation to, the relevant incident on that day between the Police and the Applicant, and, therefore, this recourse, which was filed on the 19th May, 1966, is, in this respect, out of time, having been filed after the expiration of the seventy-five days' period laid down by Article 146(3) of the

Constitution; and the Court is bound to apply the relevant time-limit (see Moran and The Republic. 1 R.S.C.C. p.10).

The fact that the Applicant complained in the matter to, and expected a reply from, the

Commander of Police cannot entail, in the circumstances of the present [*722] Case, the prevention of the running, in the meantime,

of the time laid down -under Article 146(3), because it was not physically possible to reverse, by administrative review, the acts against which claim 3C is directed (see Xenophontos and The Republic, supra); thus, the complaint to the Commander of Police cannot be regarded as a recourse for higher administrative review which deprived, while it was pending, the acts concerned of their finality or effectiveness, so as to prevent the running of the time under Article 46(3).

Claim 3D relates to matters which are so closely connected with the-at the time when the recourse was filed - pending judicial proceedings against the Applicant (case 6998/66, above) that they are outside the competence of this Court under Article 146 of the Constitution, by virtue of which this recourse has been made (see Kyriakides and The Republic, supra, p. 73; Gavris and The Republic, supra p. 93); this claim, therefore, fails on this ground; and the same is the fate, for the same reason, of claim 3E.

Claim 3F of the Applicant relates to what took place on the 5th February, 1966, and it is, therefore, out of time for the same reasons as claim 3C: the sending off of the Applicant by the Police, on that date, appears to be an oral direction, given in the context of the events of that day, and not a Police order of duration which, to be of any effect at all - if otherwise valid - ought to have been in writing and duly reasoned; thus, no question of reversing by administrative [*723] review such sending off could arise, so as to consider whether the aforementioned complaint of the Applicant to the Commander of Police could affect the question of this claim being out of time.

Lastly, claim 3G is outside the competence of this Court under Article 146, being a claim for damages (see paragraph (4) of Article 146 and Gavris and The Republic, supra).

In the result this recourse fails except to the extent that it has succeeded as against an omission of the Commander of Police to attend to the request of the Applicant for the names of the three police constables involved in the events of the 5th February, 1966, whose numbers the Applicant, as already stated, had noted down. It is declared, therefore, that the omission in question ought not to have been made and whatever has been omitted should have been performed; it is now up to the Commander of Police to attend to the relevant request of the Applicant and to decide whether to grant it or not.

Before concluding I would like to state that though claim 3C of the Applicant has been found to be out of time sight should not be lost of the remarks of the Supreme Court, on appeal, in the related criminal proceedings (case 6998/66, criminal appeal 2832*- see exhibit 6). It is up to the appropriate authority to examine whether or not it is necessary, in the circumstances, to make an ex gratia gesture to Applicant by Government.

Regarding costs it is ordered - subject to the [*724] order for costs against Applicant made on the 15th June, 1966 - that the Applicant he paid by the Republic £2.450 mils out-of-pocket costs plus £3.- for time lost during his attendances in Court in relation to these proceedings.

Order, and order as to costs, in terms. [*723] review such sending off could arise, so as to consider whether the aforementioned complaint of the Applicant to the Commander of Police could affect the question of this claim being out of time.

Lastly, claim 3G is outside the competence of this Court under Article 146, being a claim for damages (see paragraph (4) of Article 146 and Gavris and The Republic, supra).

In the result this recourse fails except to the extent that it has succeeded as against an omission of the Commander of Police to attend to the request of the Applicant for the names of the three police constables involved in the events of the 5th February, 1966, whose numbers the Applicant, as already stated, had noted down. It is declared, therefore, that the omission in question ought not to have been made and whatever has been omitted should have been performed; it is now up to the Commander of Police to attend to the relevant request of the Applicant and to decide whether to grant it or not.

Before concluding I would like to state that though claim 3C of the Applicant has been found to be out of time sight should not be lost of the remarks of the Supreme Court, on appeal, in the related criminal proceedings (case 6998/66, criminal appeal 2832*- see exhibit 6). It is up to the appropriate authority to examine whether or not it is necessary, in the circumstances, to make an ex gratia gesture to Applicant by Government.

Regarding costs it is ordered - subject to the [*724] order for costs against Applicant made on the 15th June, 1966 - that the Applicant he paid by the Republic £2.450 mils out-of-pocket costs plus £3.- for time lost during his attendances in Court in relation to these proceedings.

Order, and order

as to costs, in

terms.

*Vide Pitsillos v. The Police.

(1966) 10 J.S.C. 1063.