Court held shouting 'perjurers' at a public speech insulted the President regardless of political capacity or criticism.

[*697] 1971 August 26

(PAPADOPOULLOS, D.J.)

IN THE DISTRICT COURT OF NICOSIA

The Police,

v.

Takis Aristidou,

Accused.

(Criminal Case No. 8230/71).

Criminal Law - Insulting Head of State - Section 46A of the Criminal Code Cap. 154 - Dual capacity of Head of Cyprus State - Political capacity and that of Archbishop and Ethnarch - Offence constituted even if insulting words do not refer to the political capacity of the Head of State - Purpose of the aforesaid section 46A to protect the honour and dignity of the person of the Head of State.

Criminal Law - Insulting Head of State - Section 46A of the Criminal Code Cap. 154 - Part of expression used held to be insulting and not amounting to criticism - Bona fide criticism - There cannot be a bona fide insult even if accused believed honestly in what he was saying.

Constitutional Law - Constitutionality of legislation - Constitutionality of section 46A of the Criminal Code Cap. 154

Constitutional Law - Article 19 of the Constitution - Freedom of speech - Although an absolute right of the citizen has certain limitations - It stops where insult starts.

L. Loucaides, Senior Counsel of the Republic; for the Prosecution,

Fr. Markides, P. Petrides and E. Markides, (Mrs.) for the Defence.

JUDGMENT*

The following judgment was delivered by:-

PAPADOPOULLOS, D.J.: The accused in the present case [*698] is charged with the offence of insulting the President of the

Republic, contrary to section 46A of Cap. 154. Section 46A reads as follows:-

"Any person who publishes orally or in writing or toy any other means anything which tends to insult or offend the honour of the Head of State or defame or degrade him, is guilty of an offence and he is liable to imprisonment of three years".

The particulars of offence in the charge sheet state that the accused on the 7th of March, 1971 at Mahaeras monastery, in the district of Nicosia, orally published, the words "unacceptable perjurers" (aparathehti epiorki) referring to the person of the President of the Republic, when the. Minister of Interior was delivering a speech at that monastery and immediately after the Minister asked the people to advance under the bright leadership of the President and Ethnarch Makarios and that the above mentioned words tend to insult or offend or degrade the President of the Republic.

The facts of the case are simple and mostly admitted by both sides.

On the 7th of March, 1971 during a speech of the Minister of Interior at Mahaeras on the occasion of the annual memorial service of E.O.K.A. hero Gregoris Afxentiou, before a big gathering of people and high officials of the State and when the Minister was asking the people to advance under the Archbishop and Ethnarch and exactly at this point [*699] as shown by Exhibit 1 , which is before the Court, i.e. the official publication of the speech of the Minister, the accused shouted in a loud voice the words, "unacceptable perjurers".

The only difference as to the facts of the case is that the Prosecution alleged that the words published were in the manner described above, whilst the defence alleged that the accused in fact shouted "the perjurers are unacceptable" (aparathehti i epiorki).

On this point, I would like to say that although I accept the version of the Prosecution, I do not think that for the purposes of this case it would make any difference if I accepted the version of the defence, The accused himself stated on oath before the Court that he was referring to Archbishop Makarios who, in his opinion, by signing the Zurich and London agreements, violated the well known oath of Phaneromeni which was for "Union and Union only".

On the facts of the case the defence by an able examination of the witnesses and profound arguments citing a number of authorities both of Cyprus, as well as of Greece, France and other countries, submitted that the accused is not guilty of the offence charged.

The senior counsel of the Republic, on the other hand, Mr. Loucaides, in a most careful presentation of the case for the prosecution submitted that the accused is guilty of the offence charged. [*700]

I had the opportunity of careful consideration of the case, having in mind all the authorities put before me and I will try, as briefly as possible, to deal with the various legal points.

The first submission by the learned counsel of the defence, was that the words in question independently of any other defences, were referring to the ethnarchic and religious capacity of President Makarios and not to his political authority.

Mr. Markides submitted that one must separate the authorities of the President and as long as the accused was referring only to one of the dual capacities of President Makarios, he cannot be held liable under section 46A which clearly speaks of insulting the Head of State.

I think I need not say that I accept the sub mission that President Makarios is both the political as well as the religious leader in our Island, on the one hand as Head of State and on the other as Archbishop.

Accepting the facts as mentioned at the beginning of my judgment, it is inferred that the accused shouted the words in question when the Minister referred to the President as Archbishop and Ethnarch.

What I have to examine, at this stage, is, in my opinion, the following:- Since the words in question were referred to one of the capacities of the President as Archbishop and Ethnarch, would His Honour be offended and [*701] insulted in the exercise of his political authority according to section 46A

In my opinion the answer is in the affirmative. The purpose of section 46A is to protect the honour and dignity of the person of the Head of State, so as to be in a position to carry out his political authority unobstructed. In my opinion, although the President exercises two authorities, his personal dignity cannot toe separated. Such separation, in my opinion, would lead to very dangerous complications. I believe that even if the Head of State were insulted toy name only, this would again constitute an offence under section 46A even if no mention whatever were made to any of his capacities. In my opinion this was the intention of the legislator in passing this law and in the light of this spirit section 46A must be interpreted.

I think that my view is enhanced by looking at the laws of other countries, as for instance, Article 278 of the Italian Code which is similar to our section 46A and which has been interpreted as follows:-

"The insult must be directed either at His honour, subjectively and objectively understood as the opinion one has for himself and others have for him in relation to his moral value or at his prestige which is the particular ornament so closely connected with the dignity and respect of public office".

(Cass 18.2.1957). [*702]

Again, the French Penal Code, Article

26 which is similar to our section 46A which was interpreted on the 31st May, 1965 as follows:-

"The offence on Article 26 which according to the French Legal Encyclopaedia, paragraph 126 states that its purpose is to protect the President of the Republic during the execution of his duties against any insult on his person - this offence is committed by any insulting expressions or offensive and defamatory accusations which are directed against the President of the State not only in the execution of his duties, but also directed against his private life and are of such a nature as to offend his honour and dignity".

Again in Greece where Article 168( 2) of the Greek Penal Code provides that insulting the honour or defaming the King is an offence punishable with imprison ment from three months to five years (See Greek Constitution by Yiannis Yerolymbos p. 57).

In a decision of Arios Paghos, No.

538 (66) Vol. 17, page 212, it was stated:-

"Article 168(2) of the Penal Code provides for the offence of insulting the King because expressions which do not constitute simple expression of opinion or criticism but are also insulting the honour and defamatory of [*703] the King which expressions were made in order to arouse against him contempt and defamation, are insulting to the honour and defamatory of the King".

In another decision of Arios Paghos, No. 391/66, page 33, it was stated:-

"The facts which have been thus proved and accepted unchallenged by the Appeal Court constitute the offence under Article

168 (2) of the Penal Code, because the above insulting expressions of the person of the King which were made in order to arouse contempt against him are capable of degrading in his person the prestige of the Royal authority".

Also, in the decision of Arios Paghos, No. 196/63, p. 433 it was stated:-

"There is no contradiction in the offence which is provided by section 168(2) of Penal Code of insulting the honour of the Queen because the above expressions which were insulting the honour of the Queen as devoid of affection and respect mother, were made to arouse con tempt against her, are capable of degrading in her person the prestige of the Royal authority against which they were directed".

Also Vavarettos in the Greek Code of Procedure, states amongst other things as regards Article 168(2) – [*704]

"The necessary ingredients of the offence are insulting expressions, contemptus, disgraceful and defamatory of the good name and honour of the King".

In the light of the above, I am of the opinion that the submission of Mr. Markides about the dual capacity and that one has to offend the Head of State in his political capacity, cannot be sustained.

Before I proceed to examine the other submissions of the learned counsel of the defence, I think that I have first to examine the very expression if it is insulting.

I do not think that the word "unacceptable" is insulting, but the word "perjurers" uttered to anyone, tends, in my opinion, to insult, degrade, or offend the honour and dignity of the person against whom the expression is directed, unless of course there are special reasons which take away their insulting nature.

Mr. Markides submitted that there were such reasons in the present case and this because it was made in relation to a certain act and, therefore, it is a mere criticism. To this I will give my answer briefly.

I think that criticism is not exercised in the manner the accused did by shouting in the holy place of a Church but by argumentation and in such place and in such manner and time where those who have a different opinion might express it. This, I think, is a matter of fact and in my opinion the expression "perjurer" under the circumstances does not amount to criticism. [*705]

As to the submission that the criticism is bona fide and that the law must be so interpreted as not to come in conflict with the Constitution, I am of the opinion that there cannot be a bona fide insult, even if the accused believed honestly in what he was saying.

As to the constitutionality of the law, I would like to say the following:-

In Cyprus Article 19 of the Constitution, gives great freedoms of expression of opinion, caustic criticism or strong criticism, but inevitably imposes certain limitations. Freedom of speech, although an absolute right of the citizen, has certain limitations as it has in all other countries of the world . This freedom stops where insults start. This of course does not limit the freedom of criticism, because criticism must be based on true facts within certain limits excluding the intention of insulting purposes. (Antonopoulos, Freedom of Press in Greece, 1965, pp.270-271).

In the light of what I have said I find the accused guilty as charged.

* This is an English translation of the judgment in Greek appearing at pp. 688-696 ante.