Supreme Constitutional Court dismissed appeal for police beating as not connected to executive authority.

[*119] 1961 December 8

(FORSTHOFF, P., TRIANTAFYLLIDES and MUNIR, JJ.)

(September 13, November 16, December 8, 1961)

STELIOS LAOUDHIA OF MORPHOU,

AND

THE REPUBLIC OF CYPRUS, THROUGH THE MINISTER OF THE INTERIOR.

(Case No. 58/61)

Acts — Police acts not committed in the exercise of “an executive or administrative authority” — Not connected with arrest — Art. 146.

Words & phrases — Meaning of “act” in Art. 146.1

The Applicant was arrested on the 23rd June, 1961, for allegedly causing a breach of the peace, and was taken to the Morphou Police Station wherefrom he was taken, at his own request, to his garden to switch - off the water-pump which had been left in motion. There he was allegedly beaten-up by his escorts and taken back to his cell where he was allegedly beaten - up again. He was released from custody on the following day.

Held : (a) The word “act” in Art. 146.1, meant an act committed in the exercise, or purported exercise of an “executive, or administrative authority” and not any act, even of a private nature, committed by an organ, authority or person vested with executive or administrative authority (Andreas N. Gavris and The Republic (Minister of Interior and another), 1. R.S.C.C., p. 88, Phedias I. Kyriakides and The Republic (Minister of Interior), 1 R.S.C.C., p. 66, Charilaos Xenophontos and The Republic (Minister of Interior), 2 R.S.C.C., p. 89, and Eleni Solomou [*120] & another and The Republic (District Officer, Nicosia) & another, 1 R.S.C.C. p. 96, distinguished) ;

(b) in the instant case, and on the facts as alleged by the Applicant the alleged ill-treatment was not connected in any way with the purpose of the arrest of the Applicant, or with any other official function, or duty of the police, nor was it committed in the purported exercise of any executive or administrative authority vested in the police officers concerned, but was a case of wanton personal violence unconnected with any such authority.

The Application was dismissed.

Cases referred to :

Andreas N. Gavris and The Republic (Minister of the Interior & another), 1 R.S.C.C.

Charilaos Xenophontos and The Republic (Minister of the Interior), 2 R.S.C.C.

Eleni Solomou & another and The Republic (District Officer, Nicosia) & another, 1 R.S.C.C.

Phedias I. Kyriakides and The Republic (Minister of the Interior), 1 R.S.C.C.

A. Pantelides for the Applicant.

P.N. Paschalis, Counsel of the Republic, for the Republic.

Cur. adv. valt.

December, 8. The Judgment of the Court was read by:

FORSTHOFF, P. : The Court declares—

This Application cannot succeed and is dismissed accordingly.

On the 23rd June, 1961, in the evening, the Applicant was arrested by the Police at Morphou and was taken to the Morphou police station because he had caused a breach of the peace.

Applicant was confined to a cell and while he was so confined he requested to be allowed to proceed to his garden in order to switch off his water-pump which had been left in motion.

Applicant was escorted by the police to his garden and he alleges that, as soon as he had entered the water-pump shed, his police escorts assaulted him and beat him fiercely on the head and elsewhere.[*121]

He further alleges that, after their return to the police station, he was handcuffed, with his hands behind his back, and he was again beaten fiercely with the result that he sustained two fractured ribs and other serious injuries.

He was then locked up in a cell for the night and was released on the following day after having been taken once again to his garden and left there.

†This Application was filed on the 1st July, 1961. By the motion for relief the Applicant seeks :-

“A Decision of the Supreme Constitutional Court declaring the brutal treatment, the torture and the inhuman and humiliating punishment to which the Applicant was subjected by police organs during his arrest at Morphou on the 23.6.61, as well as the assault against him by the same organs, as being null and void and of no effect whatsoever, contrary to the provisions of the Constitution and that they have taken place in excess and/or abuse of the power entrusted in the police organs”.

The recourse is based on Articles 7 and 8 of the Constitution which respectively provide for “the right to life and corporal intergrity” and against “torture or inhuman or degrading punishment or treatment”.

The Opposition was filed on the 20th July, 1961, and the Case came up for Directions on the 13th September, 1961.

The hearing of this Case took place on the 16th November, 1961. At such hearing counsel for Respondent took the preliminary objection that the ill-treatment, the subject-matter of this recourse, did not constitute, in the way in which it was alleged to have taken place, “acts” committed in the exercise of executive or administrative authority in the sense of Article 146. Counsel for Applicant was heard in reply and the decision of the Court was reserved until today.

The crucial issue for determination is whether the illtreatment complained of, assuming it has taken place as alleged, constitutes acts “of any organ, authority or person exercising any executive or administrative authority” in the sense of paragraph 1 of Article 146.

The Court is of the opinion that an “act” in the aforesaid sense must be an act committed in the exercise, or at least the purported exercise, of executive or administrative authority and cannot be just any act, even of a private nature, committed by an organ, authority or person vested with executive or administrative authority.[*122]

In all previous similar Cases before this Court, inter alia, Nos. 3/60[1], 10/60† and 35/61‡, the alleged tresspass to the person was definitely connected with the purported exercise of executive or administrative authority. In Case No. 10/61●, an instance of tresspass to land, the Court came to a similar

conclusion.

In deciding an issue relating to jurisdiction, such as the present one, the Court must take the facts to be as alleged by Applicant, [t is the Applicant’s case that on two occasions the police guarding him assaulted him, all of a sudden, without anything having happened there and then while he was in their custody. It is not pleaded or suggested at all by Applicant that the assaults in question were either connected with the purpose of the arrest or with any other official function or duty of the police. It is not the case for Applicant that the ill-treatment in question was committed in the purported exercise of any executive or administrative authority vested in the police officers concerned. On the contrary it appears, as alleged, to be wanton violence entirely unconnected with any such authority.

It is rather significant that Applicant does not base his recourse on Article 11 which is the provision relevant, inter alia, to the legality of an arrest. Had the alleged ill-treatment taken place in connection with the purpose of his arrest or as an integral part thereof then it would have borne a relation to the legality of the arrest itself and Article 11 would have been resorted to. As it is, the recourse is based only on Articles 7 and 8 which relate to the issue of the illtreatment by itself independently of the arrest.

The Applicant in a case like the present may have a remedy before another court but he does not have a remedy before this Court under Article 146.

For the above reasons this recourse cannot be entertained at all and is dismissed accordingly.

* Andreas N. Gavris and The Republic (Minister of the Interior & another), 1 R.S.C.C., p. 88.

† Phedias I. Kyriakides and The Republic (Minister of the Interior), 1 R.S.C.C., p. 66.

‡ Charilaos Xenophontos and The Republic (Minister of the Interior), 2 R.S.C.C., p. 89.

● Eleni Solomon & Georghios Loncaides and The Republic (District Officer, Nicosia and another), 1 R.S.C.C., p. 96.

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