Cyprus Supreme Court declares Sponge Fishery Law forfeiture clause unconstitutional as disproportionate punishment.

[*74] 1964 October 13

(ZEKIA, P., VASSILIADES, TRIANTAFYLLIDES, MUNIR,

JOSEPHIDES, JJ.)

REVISIONAL JURISDICTION

In the matter of Article 144 of the Constitution

- and -

In the matter of a reference of the District

Court of Famagusta in Criminal Case

No.4950A/62, Entitled:

Between

The Director of Department of Customs and Excise, Famagusta,

v.

1. Andreas Matheou Kariolou,

2. Costakis Kyriakou,

3. Andreas Manoli,

(Case No. 308/62)

Sponge Fishing Law, Cap.146, Section 10 - Forfeiture of vessel and equipment on conviction - Article 12.3 of the Constitution - Forfeiture now discretionary.

L. N. Clerides, for the Accused,

M. Spanos, Counsel of the Republic, for the Republic.

JUDGMENT

VASSIDIADES, J.: The case before the Court is reference under Article 144 of the Constitution, made by the District Court of Famagusta, in criminal case No.4950A/ 62, instituted by the Director of Customs and Excise against the master of a ship and two members of the crew, for fishing sponges without a permit, contrary to sections 7(a), 10 and 11 of the Sponge Fishery Law, Cap.146; and for possessing sponges knowing that they were taken in contravention of the said Sponge Fishery Law,

The difficulty, according to counsel for the Respondents arose when, facing this charge, the respondents were in difficulty as to their plea; a difficulty not arising from the facts of the case, but from the provision in section 10 of the Sponge Fishery Law, for the forfeiture of the vessel and her equipment, in case of conviction,

I need not cite here the whole section. It is sufficient to say that it provides that, in addition to the fine therein prescribed - a fine not exceeding £25.-, the vessel and equipment thereof, shall be forfeited. The accused had good grounds to fear, counsel added, not unjustifiably perhaps ,that had they not raised the question of unconstitutionality, the trial-Judge would make an order for the forfeiture of the ship and her equipment in addition to any fine he might think fit to impose, notwithstanding the provisions of Article 12(3) of the Constitution, and regardless of the merits of the case. [*76]

Provisions in Cyprus statutes regarding forfeiture or confiscation of articles connected with offences have been considered in numerous cases, both by the Supreme Constitutional Court and the High Court of Justice, prior to the enactment of the present Administration of Justice (Miscellaneous Provisions) Law, 1964. In all such cases, the view taken was that statutory provisions regarding confiscation following upon conviction, were, as a rule, provisions in the nature of punishment and should be interpreted and applied accordingly, subject to the provisions regarding punishment in Article 12(3) of the Constitution.

It is also well settled by now, that in such cases, the trial-court complying with the requirements of Article 188 of the Constitution, should make, in interpreting and applying laws preserved in force under that Article, such modification or adaptation of the law as may be necessary to bring the law in line with the Constitution; and should read and apply the law subject to the Constitution.

In this case, it would appear that if the Judge proceeded in that manner, no difficulty would arise at all. There is no dispute regarding the factual part of the case; and no question as to what law is applicable to its facts.

In the circumstances, the answer to the question reserved by the District Court, i.e.: "whether, having regard to Article 12(3) of the Constitution, section 10

of the Sponge Fishery Law, Cap. 146, is unconstitutional", [*77] should he in the affirmative, to the extent that it provides "for a

punishment which is disproportionate to the gravity of the offence". And such provision should he read and applied in such a manner as to bring it in line with Article 12(3) of the Constitution. This is the unanimous decision of this Court in the question reserved by the District Court.

This

decision, applied in the present case, in the light of the line of decisions in cases of similar nature, would mean that the provision regarding forfeiture in section 10 should be considered as part of the punishment, and, therefore, as coming within the discretion of the trial-Judge, in considering sentence, who would then make or abstain from making an order for forfeiture as the merits of the case might require for purposes of punishment. The case now goes back to the District Court under the rules in force.

Order in terms.