Supreme Constitutional Court dismisses application for failure to reply as out of time and outside jurisdiction.

[*89] 1961 November 6

(forsthoff, p., triantafyllides and munir, jj.)

(October 19, November 6, 1961)

Charilaos Xenophontos,

And

The Republic of Cyprus, Through the Minister of the Interior.

(Case No. 35/61)

Time — Period of 75 days — Art. 146.3.

Written requests or complaints — Reasoned decision — Recourse for failure to reply — Subject matter of complaint to be within the competence of the Supreme Constitutional Court, otherwise, this Court has no jurisdiction to adjudicate — Meaning of “decision” in Art. 29.1.

Decision of Attorney-General to institute criminal proceedings, Art. 113.2 — Closely related to judicial proceedings — Not within the jurisdiction of the Supreme Constitutional Court — Art. 146.1.

Whilst the Applicant, a municipal employee, was riding his bicycle in Nicosia on the 27th October, 1960, police constables stopped him and asked him to produce his identity card. An incident then ensued for which each side blamed the other.

Subsequently an exchange of correspondence on the conduct of the police took place between the Applicant and the Attorney - General with copies on each occasion to the Minister of the Interior.

The Application was filed on the 27th April, 1961.

Held : (a) the Application was out of time as it was made after the period of 75 days provided for in Art. 146.3 ;

(b) unless the subject matter of the “request or complaint”, to which there had been failure to send a “duly reasoned” reply, was within the competence of this Court, this Court had no competence to entertain a recourse for non-compliance with Art. 29 ;

(c) the exercise of the authority of the Attorney-General to institute criminal proceedings in this case against the police constables concerned, was not within the ambit of Art. 146.1, as being closely related to judicial proceedings in criminal cases, and, therefore, this Court had no jurisdiction in the matter.

PER CURIAM : The word ‘decision” in Art. 29.1 should be interpreted as being a “decision” which was capable of being reached, having regard to the circumstances of each particular case, within the period of 30 days.

The Application was dismissed.

Ph. Clerides for the Applicant.

P. N. Paschalis, Counsel of the Republic, for the Respondent.[*90]

Cur. adv. vult.

November, 6. The Judgment of the Court was read by:

FORSTHOFF, P. : †The Court declares—

This Application cannot succeed and is dismissed accordingly.

‡On the 27th October, 1960, the Applicant, a municipal employee, was riding his bicycle in Nicosia. Upon the Applicant being stopped by police constables and being asked for his identity card an incident occurred between the Applicant and the police constables, for which each side blames the other.

The Applicant complained at the Central Police Station, Nicosia, about the conduct of the police constables involved in the incident in question and the police constables concerned, on their part, likewise reported the Applicant. No proceedings, however, were ever instituted either against the police constables concerned or against the Applicant in respect of the respective parts which they had played in the incident in question.

On the 3rd March, 1961, a letter (Exhibit 1) was addressed on the Applicant’s behalf by his advocate to the Attorney- General of the Republic giving the Applicant’s version of the incident which took place on the 27th October, 1960, and stating that the Applicant was requesting under paragraph 1 of Article 29 of the Constitution an investigation with a view to ascertaining the reasons for which the police constables concerned had not been prosecuted and asking to be informed of the Attorney-General’s decision in the matter. A copy of this communication to the Attorney-General was sent to the Ministry of the Interior.

On the 8th March, 1961, the Attorney-General, in reply to Exhibit 1, wrote a letter to the Applicant’s advocate (Exhibit 2) in which he acknowledged receipt of Exhibit 1 and informed him that he would investigate the matter and communicate the result of his investigation to the Applicant’s advocate in due course. A copy of this letter also was likewise sent to the Minister of the Interior.

On the 12th May, 1961, and after the filing of the Application in this Case, a further letter (Exhibit 3) was addressed by a Counsel of the Republic, on behalf of the Attorney- General, to the Applicant’s advocate stating that the facts were not as set out in Exhibit 1, that they had been incorrectly stated by the Applicant and that on the actual facts there could be no prosecution against the police constables concerned. [*91] Again a copy of this letter was sent to the Minister of the Interior.

†This Application was filed on the 27th April, 1961. By his motion for relief, as modified by Directions made on the 7th September, 1961, the Applicant prays for a declaration -

(a) that his being arrested, assaulted, bodily injured and searched without warrant, by the police constables concerned on the 27th October, 1960, was unconstitutional ; and

(b) that the failure of the Minister of the Interior to give a reasoned reply to the letter of the 3rd March, 1961, (Exhibit 1), as required by Article 29 of the Constitution, was unconstitutional.

The Opposition was filed on the 15th June, 1961, and, in addition to justifying the arrest, and any force which might have been used on the Applicant, as being lawful, it raises, inter alia, the issues that -

(i) the recourse has not been made within the time prescribed by paragraph 3 of Article 146 of the Constitution and is, therefore, out of time ; and

(ii) the question of the Applicant not receiving a reply to his letter of the 3rd March, 1961, (Exhibit 1), is not, in the circumstances of this Case, entertain-able by this Court in these proceedings.

When the Case was heard for Directions on the 7th September, 1961, it was directed, by consent, that the above two issues raised by the Respondent in his Opposition should be dealt with first at the commencement of the hearing of the Case, which was fixed for the 19th October, 1961.

Submissions of counsel on the above two legal issues were accordingly heard on the 19th October, 1961.

The acts which the Applicant complains of and which are the subject-matter of this recourse took place on the 27th October, 1960. This recourse, which was filed on the 27th April, 1961, has clearly been made after the lapse of the period of seventy-five days prescribed in paragraph 3 of Article 146 of the Constitution and is, therefore, out of time.

Counsel for Applicant has sought to bring the recourse within the prescribed period by relying on the correspondence, commencing with Exhibit 1, which was exchanged between the Attorney-General of the Republic and Applicant’s counsel in March, 1961, on the ground that the period in question [*92] should be reckoned as from the time when the position crystallized at the conclusion of such correspondence.

The Court is of the opinion that Exhibit 1 which was, in any event, written long after the period of seventy-five days since the alleged commission by the police constables concerned of the acts complained of had elapsed, cannot be relied upon for the aforesaid purpose. The said Exhibit 1 is not, and could not have been regarded as amounting to, a request for an administrative review for the purpose of reversing the acts complained of in this recourse, which reversal was not, in any event, physically possible, but Exhibit 1 is in effect a complaint that no criminal proceedings were instituted in respect of the aforesaid acts.

With regard to the failure of the Respondent to give a reasoned reply to Exhibit 1 under Article 29 of the Constitution, it should first be observed that Exhibit 1 was addressed not to the Minister of the Interior but to the Attorney-General of the Republic with only a copy to the Ministry of the Interior. Having regard to the subject-matter of the complaint contained in the said Exhibit 1, namely, the failure to institute criminal proceedings against the police constables concerned, the Court considers that Exhibit 1 was properly addressed to the Attorney-General of the Republic who, by virtue of paragraph 2 of Article 113 of the Constitution, has control over the institution and conduct of criminal proceedings.

The question for consideration in this Case is whether, having regard to the subject-matter of the complaint made by Exhibit 1, this Court has jurisdiction to entertain the prayer contained in paragraph 3 of the Applicant’s motion for relief, i.e. that there has been an omission to reply to Exhibit 1 in accordance with Article 29 of the Constitution.

Inasmuch as paragraph 1 of Article 29 of the Constitution requires that the notice of decision which has been taken in the matter shall be “duly reasoned”, it follows that in order for this Court to have competence to entertain a recourse in respect of a failure to comply with Article 29. the subject-matter of the written request or complaint in question made under Article 29 must be within the jurisdiction of this Court under Article 146. Otherwise this Court could not properly examine the matter and decide whether the reply in question was “duly reasoned” or not as required by Article 29.

In this Case the subject-matter of the complaint made by Exhibit 1 under Article 29 is, in effect, the failure of the Attorney-General of the Republic to institute criminal proceedings in respect of the acts in question against the police constables concerned. In she opinion of the Court the exercise of such an authority by the Attorney-General of the Republic, which in this respect is so closely related to judicial proceedings in criminal cases, is not within the ambit of paragraph 1 of Article 146, and, therefore, this Court has no jurisdiction to entertain the prayer contained in paragraph 3 of the Applicant’s motion for relief.

The Court considers it useful to observe in this connection that a “decision” which a public authority is required to reach within thirty days in paragraph 1 of Article 29 of the Constitution must be interpreted as being a “decision” which is capable of being reached, having regard to the circumstances of each particular case, within the aforesaid period of thirty days.