[*34] 1963 March 26

 

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

 

(January 7, 9, February 1, March 26, 1963)

 

Alecos Constantinides,

And

The Cyprus Broadcasting Corporation.

(Case No. 119/62)

Competence—S.C.C., of, to interpret and apply its Rules made under Art. 135.

Rules of the S.C.C.—Procedural orders and directions made by a Judge not proceedings of first instance—Reviewed by way of reconsideration and not by way of appeal—Mode of reviewing.

Composition of the S.C.C., Art. 133.9.

Cyprus Broadcasting Corporation Law, Cap. 300A—To be read subject to the Constitution in general and Art. 171, in particular—Functions of the Corporation under s. 17(1) (d) are public duties, owed ony to the State and not to private persons—s. 19(3), a public duty owed to political parties—.s.17(2) (e) not relating to the domain of public law, but to the domain of private law— Non-acceptance of contributions not an exercise of administrative or executive authority in the sense of Art. 146.1—S.C.C. has no jurisdiction.

The Applicant, a journalist by profession and a member of some standing of the literary world of Cyprus had, for some time past, been a regular contributor to various programmes of the Respondent until in March, 1962, the Respondent discontinued seeking or accepting contributions from the Applicant, and did not use for broadcast certain translations or adaptations of theatrical work which the Applicant had made and which had been accepted and paid for by the Respondent.

At the request of the Applicant’s counsel the Respondent informed him that the reason for such discontinuance was due to its policy to give other duly qualified persons, also, the opportunity of coming into contact with the listening public and that the possibility of Applicant’s contributing to Respondent’s programmes in the future was not excluded.

It was the Applicant’s contention that the Respondent’s decision was null and void for having been based, inter alia, on discriminatory and improper personal reasons contrary to Arts. 6 & 28.

During the Presentation of this Case before a Judge of the Court pursurant to r. 9 of the Court’s Rules, counsel for the Respondents applied that one of the grounds of law contained in the Opposition be referred to the Court, under the proviso to r. 9(2) of the Court’s Rules, for determination as a preliminary legal issue, and that the Presentation proceedings, in the meantime, be stayed.

The said ground of law was as follows :-

“3. It will be further submitted by the Respondents that the question in relation to accepting or declining literary contribution by the Respondents on the part of members of the public and any functions of the [*35] Respondents in connection therewith is not a matter of public law and consequently the Respondents are not exercising any executive of administrative authority in the sense of Article 146 of the Constitution”.

Counsel for the Applicant objected on the ground that the course suggested would amount to splitting the Case unnecessarily.

The Judge taking the Presentation ruled that the preliminary legal issue raised by counsel for the Respondents concerned the question of the jurisdiction of the S.C.C. to entertain the recourse, and that it should be referred to the Court for a Decision thereon.

Counsel for the Respondent sought review of the Judge’s ruling by the Court, submitting that the Judge before whom the Presentation was taking place should not sit on such review; further, that the Court in deciding on the above submission, concerning the constitution of the Court on review under r. 20, should first hear arguments by the parties, and that for such purpose the Court should, again, not comprise the Judge who made the said ruling.

The Case was then adjourned sine die and was referred to the S.C.C• which, having decided the matter without hearing the parties further, communicated its Decision to the parties in writing.

Held : (a) in view of the competence vested in the S.C.C. by Art. 135 to regulate its practice and procedure by Rules of Court, the Court had competence to interpret and apply such Rules;

(b)   the making of certain procedural orders and the issue of certain directions by a Judge of the Court were not proceedings of first instance, but a mode of proper and expeditious discharge of the Court’s functions which might, under r. 20 of the Court’s Rules, be reviewed by the Court by way of reconsideration and not by way of appeal, (Lefkios Rodosthenous and The Republic, 1 R.S.C.C., p. 127, distinguished) without the Court hearing, necessarily, further argument if the relevant contentions of the parties were sufficiently before it;

(c)   the S.C.C. was competent and bound, virtute officio, in a proper case to examine the question of its composition, either ex proprio motu or on being moved by any party to any proceedings;

(d)   the general functions of the Cyprus Broadcasting Corporation, as laid down in s. 17 (1) (d) of the Cyprus Broadcasting Corporation Law, Cap. 300A, were public duties, by their very nature, owed to the State and not to private persons;

(e)   Cap. 300A had to be read subject to the Constitution, particularly Art. 171 thereof, which contained no provision casting upon the Respondent a public duty to accept contributions from private individuals;

(f)    the enabling provisions of s. 17(2) (e) of Cap. 300A did not relate to the domain of public law but to the domain of private law and did not involve the performance of a public duty by the Respondent (Andreas A. Marcoullides and The Republic (Public Service Commission), 3 R.S.C.C., p. 30 at p. 34, applied);

(g)   the non-acceptance by the Respondent of the Applicant’s contributions [*36] and the non-broadcasting of accepted contributions, did not amount to an exercise of administrative or executive authority in the sense of Art. 146.1, and, therefore, the Court had no jurisdiction in the matter.

The Application was dismissed.

Cases referred to :

Andreas A. Marcoullides and The Republic (Public Service Commission), 3 R.S.C.C.

John Stamatiou and The Electricity Authority of Cyprus, 3 R.S.C.C.

Pelopidas Sevastides and The Electricity Authority of Cyprus, (unreported).

Fr. Saveriades and Eleni Ioannidou for the Applicant.

G. Polyviou for the Respondent.

Cur. adv. vult.

January, 9. The Decision of the Court as communicated to the parties was as follows:

FORSTHOFF, P. : The Court having considered—

that it is vested, under Article 135 of the Constitution, with the competence to regulate its practice and procedure by Rules of Court and, consequently, it has the competence to interpret and apply such Rules, and

that under the said Rules certain procedural orders or directions may be made or given by a Judge of the Court, instead of by the Court, not by way of proceedings of first instance but as a mode of properly expediting the discharge of the functions of the Court, with the said Judge acting for the Court which is seized of the proceedings, and

that a review by the Court of any such order or direction has been provided for, under rule 20 of its Rules, not by way of appeal therefrom but by way of reconsideration in order to ensure to the parties in a Case the effective and ultimate control by the Court over its proceedings (the Decision in Lefkios Rodosthenous and The Republic, 1 R.S.C.C. p. 127, not being, therefore, relevant in this respect), and

that on such a review, as above, as well as on other procedural matters arising in a recourse, it may, as a rule, be necessary and proper, so long as the relevant contentions of [*37] the parties are already sufficiently before the Court, as in the present Case, to dispense with the hearing by the Court of further argument thereon, in order, thus, to avoid protracting the proceedings unduly both to the detriment of the interests of justice and of the parties themselves, and

that the Court is competent and bound, virtute officio, to examine either ex proprio motu or on being moved by any party and in such manner and by such procedure as it may deem proper in the circumstances of each Case, whether or not in any such Case its normal composition should be altered by resorting to the course laid down under Article 133(9);

the Court having examined the several contentions of the parties made in this Case before a Judge of the Court, during Presentation, on the 7th January, 1963, and being of the view that such contentions are sufficiently before it, both on the issue concerning its composition and on the issue of the review sought under rule 20 of its Rules, and that it is necessary and proper to dispense with the hearing of further argument thereon, now, therefore, decides as follows:

(a)   The Court, as normally composed, should decide on its composition for the purpose of a review under rule 20 of its Rules.

(b)   In such review, as above, of a procedural order or direction made or given by a Judge of the Court, the Judge concerned should participate therein.

(c)   The directions given by way of the ruling made by a Judge of the Court during Presentation in this Case on the 7th January, 1963, should be confirmed.

(d)   The Presentation, pursuant to such ruling, should be continued on a date to be fixed.

March, 26. The Decision of the Court was read by:

FORSTHOFF. : The Court declares—

This Application cannot succeed and is dismissed accordingly.

Applicant is a journalist by profession and he, also, appears to be a member, of some standing, of the literary world of Cyprus.

For some time past, the Applicant had been a regular contributor to various programmes of the Respondent.

In March, 1962, the Respondent discontinued seeking or accepting contributions from Applicant. Applicant, [*38] through his counsel requested, on the 22nd March, 1962, to be informed of the reasons for such discontinuance. A reply from Respondent was received, dated the 30th March, 1962, in which it was stated that it was the intention of the Respondent to give also to other duly qualified persons the opportunity of coming into contact with the listening public and that it was pursuant to such a policy that the Respondent had ceased obtaining contributions from Applicant. It was added also that the possibility of Applicant contributing to Respondent’s programmes in the future was not excluded.

It appears, further, that certain translations or adaptations of theatrical works which Applicant has made previously and which have been accepted and paid for by Respondent, for the purposes of its programmes, have not been used for broadcasts, as expected.

The Application in this Case was filed on the 12th May, 1962, and by the motion for relief the Applicant seeks a declaration that the relevant decisions and actions of Respondent are null and void and of no effect whatsoever as having been based, inter alia, on discriminatory and improper personal reasons, contrary to Articles 6 and 28 of the Constitution.

The Opposition was filed on the 20th October, 1962. It amounts to the contention that the recourse of Applicant is unfounded both in law and in fact. It is declared therein that “any literary or other work produced or submitted by the Applicant” to Respondent “will be examined with open mind and fairly and if it is approved it will be broadcast on the usual terms”.

The Case came up for Presentation before a Judge of this Court on the 7th January and 1st February, 1963. As a result of a Ruling made during Presentation, the legal issue raised by paragraph 3 of the grounds of law in the Opposition was reserved for determination by the Court as a preliminary legal issue, pursuant to rule 9(2) of the Rules of the Court.

The hearing, on the said issue, took place on the 28th February, 1963.

By the aforesaid ground of law in the Opposition the Respondent has contended that the question of accepting or declining by Respondent literary contributions emanating from members of the public, and any functions of the Respondent in connection therewith, is not a matter of public law and consequently the Respondent, in acting in such matters, is not exercising any executive or administrative authority in the sense of Article 146 of the Constitution.

This Court has already dealt with some aspects of the same problem, as raised by the above contention of Respondent, [*39] in, inter alia, the Case of John Stamatiou and The Electricity Authority of Cyprus, 3 R.S.C.C. p. 44, and Pelopidas Sevastides and The Electricity Authority of Cyprus, (Case 191/62, not reported yet).

As it has been stated by the Court in the latter Case —

“In determining whether or not a decision, act or omission of a public corporation, such as the Respondent, is a ‘decision, an act or omission of any organ, authority or person, exercising any executive or administrative authority’, in the sense of paragraph I of Article 146 of the Constitution, due regard must be had not only to its nature and character but also, primarily, to the powers vested in, and duties imposed on, such public corporation and its functions generally, as well as to the particular nature of the decision, act or omission concerned”.

Under section 17 of the Cyprus Broadcasting Corporation Law, CAP.300A, it is part of the duties of Respondent “(l)(a) to operate by sound or television a public broadcasting service for reception by the public” and also “(1) (d) to promote the development of the broadcasting service whether in Cyprus or abroad, in accordance, as far as practicable, with recognized international standard practice” ; further, in doing so, the Respondent is, inter alia, empowered, but not also obliged, to “(2) (e) provide and receive from other persons matter to be broadcast”.

The aforesaid duties (1) (a) and (1) (d) are, in the opinion of the Court, public duties.

The discharge of duty (1) (a), above, does not appear to be involved, in this Case. Concerning duty (1) (d), above, it has been considered by the Court whether or not the non-acceptance of a contribution might, in certain circumstances, amount to a breach of such duty which could vest a corresponding right in the author thereof. The Court has reached the conclusion that the said duty (1) (d) is, by its very nature, a duty due only to the State, which has certain powers in the matter, and no rights of private persons arise in relation thereto. This view is also borne out by the fact that CAP. 300A has made, wherever this was intended to be so, specific provision concerning rights to the service to be provided by Respondent, as e.g. under sub-section (3) of section 19, in relation to political parties. Though the relevant provisions of CAP.300A have now to be read subject to the Constitution, and particularly Article 171 thereof which regulates broadcasting for the Greek and Turkish Communities, the Court could not find any provision of the Constitution which casts upon the Respondent a public duty to accept contributions from private persons. [*40]

Coming now to the enabling provisions of section 17(2)(e), above, the Court is of the opinion that they do not involve the performance of a public duty by Respondent. In accordance with the evidence of the Director of the Greek Programmes of Respondent, which on this point has not been contested, the reception of matter to be broadcast, presumably pursuant to the said provisions, is made under a special agreement entered into specifically for each particular contribution. The Respondent contracts for contributions in the same manner as it may contract for other means necessary for the performance of its public duties; in deciding whether or not so to contract the Respondent is not acting in the domain of public law but in the domain of private law, because the process of seeking, selecting and accepting contributions for its programmes is not part of the public duties of Respondent but a preparatory step which is part and parcel of the commercial activities of Respondent, as such activities have already been recognized by this Court, concerning the Electricity Authority of Cyprus, in the Case of Andreas Marcoullides and The Republic, 3 R.S.C.C. p. 30 at p. 34.

Under a contract for a contribution, as aforesaid, the Respondent and the contributor meet in a legal situation where both parties are on an equal footing, as in any other private law contractual transaction, and not in an unequal relationship such as existing where a governmental organ exercises power towards a person governed; such latter relationship is indispensable, as a rule, to the notion of an administrative act or decision in the sphere of public law.

In the light of the above, and as the circumstances in which the contributions of Applicant have not been accepted did not involve any decision by Respondent upon a public competition for the purpose, in which case somewhat different considerations might have arisen, the Court is of the opinion that the non-acceptance by Respondent of the contributions of Applicant, as complained of, is not a matter of public law and does not amount to the exercise of administrative or executive authority in the sense of Article 146.1 with the result that this Court has no jurisdiction in this Case. This recourse has, therefore, to be dismissed, at this stage, without the necessity or possibility existing for any further enquiry into the contested factual aspects thereof.

What has been stated above applies with equal, if not greater force, to those contributions of Applicant which, as it has been alleged, are not being broadcast though they have been accepted and paid for. It is for Respondent to decide how and when to use, if at all, the various contributions which are procured by means of private contractual transactions, as described earlier in this Judgment and no corresponding public law right would vest in the circumstances in the authors of such contributions. [*41]

Lastly, it may be observed that the remedy, if any, of this Applicant might have to be sought along the line of hierarchical control, though, in view of the declaration contained in the Opposition of Respondent, and which has been quoted above, to the effect that contributions to be submitted by Applicant will be examined and if approved will be broadcast, it appears that the stage of not accepting contributions of Applicant, in order to give others a similar opportunity, as alleged by Respondent, has already passed; in such circumstances it would have to be considered whether the Applicant has a legitimate interest, in the sense of Article 146.2, but this issue does not have to be resolved in view of the Court’s conclusion that it has no jurisdiction in the matter.

For The Reasons set out above the Court declares as stated in The Order.