(1983) 1 CLR 929
[*929] 1983 May 27
[TRIANTAFYLLIDES, P.]
IN THE MATTER OF AN APPLICATION BY PHAEDON G.
ECONOMIDES FOR LEAVE TO APPLY FOR AN ORDER OF CERTIORARI.
(Application No. 11/83).
IN THE MATTER OF AN APPLICATION BY PHANOS CHRISTOU AND PAVLOS SAMARAS FOR LEAVE TO APPLY FOR AN ORDER OF CERTIORARI.
(Application No. 12/83).
Certiorari-Leave to apply for-Principles applicable-Prima facie case-Committal for trial by an Assize Court-Alleged contravention of the Criminal Procedure (Temporary Provisions) Law, 1974 (Law 42/74 through absence of admissible in law evidence on the basis of which the committal could have been based-And alleged miscompliance with provisions of sections 93 and 94 of the Criminal Procedure Law, Cap. 155 and with the relevant provisions of Article 30 of the Constitution-Prima facie case made out-Leave to apply for orders of certiorari granted.
The applicants sought leave to apply for an order of certiorari quashing their committal for trial by the Assize Court, which was made by virtue of the provisions of the Criminal Procedure (Temporary Provisions) Law, 1974 (Law 42/74). Leave was sought on two grounds:
(a) That the committal was contrary to Law 42/74. Applicants contended that there were errors of law apparent on the face of the proceedings and thus the District Court has acted in excess of jurisdiction because there was not before the District Court any admissible in law evidence on the basis of which the decision to commit the applicants for trial could have been based.
(b) That there occurred miscompliance, at the committal for trial stage, with the provisions of sections 93 and 94 of the Criminal Procedure Law, Cap. 155, and, [*930] also, with the relevant provisions of Article 30 of the Constitution.
Held, that, without deciding on the validity of the above contentions, this Court is satisfied, on the basis of the material at present before it, that applicants have made out sufficiently a prima facie case which merits serious and further consideration; accordingly the applicants will be granted leave to apply for orders of certiorari in respect of their committal for trial by an Assize Court.
Applications granted.
Cases referred to:
In re Constantinou (1983) 1 C.L.R. 410.
Applications.
Applications for leave to apply for an order of certiorari in order to quash the decision of the District Court of Larnaca in Criminal Case No. 3982/83 whereby applicants were committed for trial by an Assize Court.
G. Cacoyiannis with Chr. Triantafyllides for the applicant in Appl. No. 11/83.
E. Efstathiou, for the applicant in Appl. No. 12/83.
A.M. Angelides, Senior Counsel of the Republic, for the Republic.
Cur. adv. vult.
TRIANTAFYLLIDES P. read the following decision. The nature of these two applications was described in a Decision which I gave on the 24th May 1983, in relation to the preliminary issue of the jurisdiction of this Court to deal with them, and whatever I have stated in such Decision should be deemed to be incorporated herein by reference and, thus, does not have to be repeated again.
In order to be granted the leave applied for by them the applicants have to make out a prima facie case sufficient to justify such a course. This requirement has been stressed repeatedly in our case-law. I will only refer, in this respect, to the case of In re Constantinou (Application No. 1/83, not reported yet) and to the case-law cited in the judgment in that case. [*931]
The grounds on which leave is being sought by the, applicants in the present instance appear to be mainly two, as follows:
First, that their committal is contrary to the Criminal Procedure (Temporary Provisions) Law, 1974 (Law 42/74). The applicants contend that there are errors of law which are apparent on the face of the proceedings and that as a result of such errors the District Court of Larnaca has acted in excess of jurisdiction in committing for trial the applicants. In this respect one of the principal arguments of counsel for the applicants has been that there was not before the District Court any admissible in law evidence on the basis of which the decision to commit the applicants for trial by an Assize Court could have been based, since the applicants are only implicated by statements given to the police by co-accused of theirs which constitute evidence admissible in law only against such co-accused and not against the applicants.
I am not going, at this stage, to decide on the validity of the above contentions of counsel .for the applicants but I am satisfied, on the basis of the material at present before me, that they have made out sufficiently a prima facie case which merits serious consideration.
The second ground, which is relied on by the applicants in seeking leave to apply for orders of certiorari, is that there, allegedly, occurred miscompliance, at the committal for trial stage, with the provisions of sections 93 and 94 of the Criminal Procedure Law, Cap. 155, and, also, with the relevant provisions of Article 30 of the Constitution. In this respect, too, I think that the material before me justifies the conclusion that a prima facie case has been made out sufficiently to merit further consideration after the applied for by the applicants leave has been granted.
I have, therefore, decided to grant to the applicants leave to apply for orders of certiorari in respect of their committal for trial by an Assize Court.
In view of the urgency of this case counsel for the applicants should file their applications not later than the 31st May 1983 and counsel appearing for the Republic may file oppositions thereto not later than the 4th June 1983, and such applications are fixed to be heard on the 6th June 1983. [*932]
I do not propose, at this stage, to make any order staying the effect of the order for the committal of the applicants for trial, but a copy of my present order which grants leave to the applicants to apply for orders of certiorari in relation to such committal should be sent to the Registrar of the District Court of Larnaca, so that the Assize Court sitting in Larnaca will be enabled to take cognizance of the said order.
Leave to apply for orders of
certiorari granted.
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