"
1880
2
That in the case of Sawas Mr. Phillips, acting upon his own interpretation of the Ordinance, concluded that the accused, having been claimed as a Greek subject, must be tried before the High Court of Justice, and he therefore transferred the trial to that Court.
That the jurisdiction of the High Court of Justice was defined by section 10 of the Ordinance as follows:--
"All jurisdiction, criminal and civil, over all persons and in all cases other than such as would have been under the sole jurisdiction and authority of the Ottoman Courts if the said convention had not been made, shall, subject and according to the provisions of this Ordinance, be vested in and exercised by the High Court."
That by section 108 provision was made for the transfer of cases from the Ottoman Courts to the High Court, and vice versa, in the manner therein prescribed; but the same section contained an exprese saving of the jurisdiction of the Ottoman Courts, and enacted (sub-section e) that, subject to the provisions therein contained as to the transfer of cases, the jurisdiction of the Ottoman Courts should continue over all persons and in all cases that would have been subject to their jurisdiction if the convention between Great Britain and the Porte of the 4th June 1878 had not been made.
That before the British occupation of Cyprus, crimes committed by foreigners against Turkish subjects were within the sole jurisdiction and authority of the Ottoman Courts in the sense that they were not justiciable as of right by any other Court (see Férand-Giraud, vol. ii., p. 850).
That the exercise of that jurisdiction as regarded British subjects was regulated by Article 42 of the British capitulations (see Sir E. Hertslet's Turkey," p. 20).
"Treaties on Trade,
That Mr. Phillips contended (paragraphs 8 to 11 of his minute) that as the Ottoman Courts could not proceed in such a case without the presence of the Consular representative of the nation concerned, the case was not “under their sole jurisdiction and authority within the meaning of section 10 of the High Court of Justice Ordinance, and there- fore that crimes committed by foreigners against Turkish subjects were primá facis justiciable by the High Court, notwithstanding the saving clause contained in section 108.
That the first question which presented itself was whether, under the circumstances above stated, the legal status of Sawas in Cyprus was that of an Ottoman subject. That if so, his trial before the High Court without a formal transfer of the case under section 108 of the Ordinance would seem to have been unwarranted by law.
That the next question was whether, assuming Sawas to have been properly treated as a Greek subject, the case was one which, previously to the British occupation of Cyprus, would have been "under the sole jurisdiction and authority of an Ottoman Court" within the meaning of section 10 of the Ordinance taken in conjunction with section 108. That if so, the trial would likewise seem to have been unwarranted by law.
That he was to request that we would take all the accompanying papers into our consideration, and favour your Lordship with our opinion on the above questions, and if we should be of opinion that the trial of Sawas before the High Court of Justice was not warranted by law, that we would advise your Lordship as to the steps that should be taken in reference thereto.
In obedience to your Lordship's commands, we have the honour to
Report
That, assuming the facts to be correctly stated in the High Commissioner's despatch, No. 188, of the 26th November, Sawas is an Ottoman subject, and, in our opinion, his trial before the High Court of Justice was not warranted by law.
Under sections 10 and 108 of this Ordinance, the Ottoman Courts had the sole jurisdiction over the case; and since the High Court of Justice had no jurisdiction over Sawas, he must be left for the Ottoman Courts to deal with.
We have, &c.,
(Signed)
The Right Hon. the Marquis of Salisbury, K.G.
JOHN HOLKER. HARDINGE 8. GIFFARD.
J. PARKER DEANE.
PUBLIC RECORD OFFICE
CO.
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