The Judicial System of Cyprus – Myron Nicolatos, President of the Supreme Court of Cyprus, International Business Law Consortium

by on April 20, 2017

The Judicial System of Cyprus
Myron Nicolatos
President of the Supreme Court of Cyprus
International Business Law Consortium
Nicosia, March 2017

Transcript

Distinguished guests, ladies and gentlemen, good afternoon. First of all, I would like to thank the organizers for their kind invitation to speak before a distinguished audience, and especially my
good friend Chris Pelaghias.

My topic is: The Judicial System of Cyprus.

When Cyprus became an independent republic, the Courts of Justice Law of 1960 was enacted according to which the courts of Cyprus apply mainly the Constitution, the laws which have been retained by virtue of the Constitution, the principles of common law and equity, and the laws enacted by Parliament after 1960.

Today, Cyprus has a mixed legal system, unique, probably, in the world. In the domain of private law we apply the English common law and equity, accompanied by corresponding rules of procedure and evidence, but in the domain of public law we apply administrative law based on the Greek model, which is itself largely based on the French droit administratif. It is well-known that the common law system, in the common law the accusatorial procedure is followed with the two sides having the responsibility of presenting their cases, and the judge being in the position of the umpire, whereas in the continental system the inquisitorial procedure is followed with the judge having the task of finding the truth.

The Law on the Administration of Justice (Miscellaneous Provisions) 33/64 was enacted in 1964 in order to address the enormous constitutional and legal difficulties that arose in the functioning of the state with the withdrawal of the Turkish ministers, members of parliament and judges from its institutions. Law number 33/64 made several changes in the justice system, among which was the amalgamation of the Supreme Constitutional Court and the High Court of Justice in the present Supreme Court. The leading case in our constitutional law Attorney-General vs. Ibrahim considered that the above-mentioned law 33/64 was constitutional under the doctrine of necessity. It was unanimously held that the creation of the new Supreme Court was justified under the law of necessity. Inter-communal troubles and the decision in ‘64 of the Turkish Cypriot leadership to withdraw from participation in all functions assigned to their community by the Constitution created an impasse and it was imperative to have recourse to the law of necessity in order to secure the survival of the state.

Although established by the administration of Justice Law, the Supreme Court exercises its jurisdiction and powers in accordance with the Constitution and within the framework set out therein for the exercise of the powers of the Supreme Constitutional Court and the High Court respectively. The Supreme Court is the supreme Constitutional Court, therefore it decides preemptively questions of constitutionality of proposed legislation when asked to do so by the President of the Republic. In particular, article 140 of the Constitution provides that the Supreme Court has exclusive power to hear and determine references by the President of the Republic for the opinion of the court as to whether a law, or decision of the House of Representatives, or any special provisions thereof is repugnant to or inconsistent with any provision of the Constitution. Such reference may be made at any time prior to the promulgation of any such law. This is a preventive procedure and its purpose is to avoid the enactment of unconstitutional legislation. Very recently we had sixteen such references by the President of the Republic and eight of them have already been decided, and the Supreme Court has decided that all eight laws were unconstitutional as contravening certain articles of our Constitution. The remaining eight references are still to be decided.

The President of the Republic has the right to ask for the advice of the Supreme Court on the question of the constitutionality of a piece of proposed legislation before its signature by the President, and the ruling of the Supreme Court on the subject is binding on everyone.

The Supreme Court had also until recently acted as the First Instance Administrative Court consisting of panels of single judges and as the Appeal Administrative Court consisting of panels of five judges. However, we had recently the adoption of law number 131/215 by which a new First Instance Administrative Court has been established with the Supreme Court remaining the appeal court for administrative cases.

The Supreme Court is also the Civil and Criminal Appeals Court. Panels of three judges decide finally on civil and criminal appeals. The Supreme Court acts as the Electoral Court of the land hearing election petitions. It has also jurisdiction to hear and determine admiralty cases, both at first and final instance. It has also exclusive jurisdiction to issue the prerogative orders, habeas corpus, certiorari, mandamus, prohibition and quo warranto which are the traditional tools of the English system of judicial review.

The first instance courts.

The most important first instance courts, apart from the already mentioned Administrative Court, are the district courts, one for each of the six districts of Cyprus. They are the first instance civil and criminal courts for the district. Since the Turkish invasion of ‘74 and the continuing occupation of the north-eastern part of the island, two of our district courts, those of Famagusta and Kerynia are under occupation and their jurisdictions have been assumed by the Larnaca and Nicosia district courts respectively. The district courts have jurisdiction to hear at first instance civil cases where the cause of action has a reason, wholly or in part, within the limits of the district where the court is established, or where the defendant resides, or carries on business within that district. The district court judges have also jurisdiction to try at first instance summarily all offenses punishable with imprisonment for a term not exceeding five years, or with a fine not exceeding 85.000 euros, or both.

First instance criminal jurisdiction is also exercised by the assize courts composed of three judges. They have unlimited jurisdiction to try all criminal offenses punishable by the Criminal Code or any other law and they have power to impose the maximum sentence provided by the relevant law. At present we have four assize courts. The maximum sentence provided by law is life imprisonment. The other first instance courts and tribunals are courts of specialized jurisdiction, therein Control Tribunal; the Industrial Disputes Tribunal, which have jurisdiction to hear applications by employees for unjustified dismissal and redundancies; the Military Tribunal has jurisdiction to try offenses committed by members of the Armed Forces; the family courts, which have jurisdiction to hear matrimonial petitions for the dissolution of marriage as well as all the relevant property disputes between the spouses, and they have also exclusive first instance jurisdiction to hear cases of custody, maintenance, access and adoption of children. They are composed of one president and two other judges. At present we have three family courts.

All the lower courts are bound by the case law of the Supreme Court. English authorities are not binding on our courts but they are of persuasive effect, especially those of the Supreme Court. Since our independence there is no appeal from our Supreme Court to the Privy Council, but
there is such right of appeal from the courts of the British Bases in Cyprus to the Privy Council.

The principle of separation of powers is fundamental in our constitutional law. In accordance with this principle each of the three powers of the state, the executive, the legislative and the judicial, is autonomous and sovereign in its sphere of activity. While the principle of separation of powers is not explicitly mentioned in the Constitution, several constitutional provisions underline that such a principle is fully applicable.

The independence of the judiciary, both institutional and individual, is inherent in the doctrine of separation of powers. Judges’ independence is a cardinal feature of our legal and judicial system. An independent judiciary in the sense that it is distinct and autonomous in its sphere of competence is the cornerstone of democracy. The independence of the judiciary is evident by the way judges are appointed, their conditions of service, including their security of tenure and the safeguards for their remuneration. By virtue of article 157 of the Constitution and section 10 of law 33/64, the appointment, promotion, transfer, termination of appointment, dismissal and disciplinary matters of judicial officers are exclusively within the competence of the Supreme Council of Judicature, which is composed by the President and all the Supreme Court justices only. There is nobody else in the Supreme Council of Judicature, neither ministers, nor parliamentarians, nor advocates or anybody else. It is one of the few countries in Europe and in the world that the Supreme Council of Judicature – in other countries called High Council for the Judiciary – is composed only of judges.

By vesting the Supreme Council of Judicature with the exclusive competence to regulate the judicial profession and also to determine matters relating to their dismissal the independence of judicial power is guaranteed. The President and the members of the Supreme Court are appointed by the President of the Republic, securing in this respect the necessary democratic legitimacy. The President of the Republic, however, normally follows the recommendation of the President and members of the Supreme Court regarding the appointment of the members of the Supreme Court, and by doing so any risk of political or other interference with the appointment of justices of the Supreme Court is eliminated. Since 1960 there is only one known case where the President of the Republic did not follow the advice of the Supreme Court in appointing President and members of the Supreme Court. In all other cases the Presidents of the Republic have considered themselves bound in practice to follow the advice of the Supreme Court.

By virtue of articles 153, 163 and 164 of the Constitution, the Supreme Court is vested with power to make its own rules of practice for regulating the practice and procedure of the Supreme Court and of any subordinate court established in accordance with the Constitution. In accordance with the principle of separation of powers, neither the executive, nor the legislative may interfere with a judicial process and issues relevant to the exercise of such power. Nobody may interfere with the judges’ judicial duties. Such interference is a criminal offence punishable with imprisonment and/or fine. Senior judges may not interfere with the judicial duties of junior judges. Only on appeal there may be interference with the judgment. So there is both institutional and individual independence.

The fundamental rights and liberties of the individual are entrenched in part two of our Constitution which contains a list of fundamental rights based on the European Convention on Human Rights. I may say also with humility that some rights, such as the right to property, has higher protection under our Constitution than under the European Convention on Human Rights. Property may be confiscated in accordance with a convention for the public benefit or public utility, whereas in Cyprus it cannot be confiscated for these two reasons. The reasoning of judicial decisions, the adequate explanation of the foundations of judgments, and the ratio behind the conclusions of the court is mandatory and necessary for the proper administration of justice. The right of a litigant to present his case before the court requires that the case be heard by an independent and impartial court, having the same composition throughout the proceedings. For similar reasons it is impermissible for sentence to be imposed by a judge other than the one who tried the case.

Article 35 of the Constitution imposes a positive obligation upon each one of the three powers of the state to assure the effective application of human rights in its sphere of competence. It has always been there role of the courts to protect fundamental rights and freedoms of citizens within the framework of the law and the Constitution, and that is what an independent judiciary will continue to do to the best of its ability. The judges though are not empowered to question the expressed will of the legislature. Undoubtedly, the legislature legislates in his wisdom and the judge applies the law. Nevertheless, the general principles of constitutional and administrative law require the legislator to give sufficient reasons, especially when invoking public interest, and the judge has the right and the duty to scrutinize those reasons and the justification given. Moreover, the judge should not abandon his role as the guardian of legality and to allow without skepticism the subjection of basic individual rights to the general public interest. According to our law, the public interest has to be specified and justified. The state cannot use public interest in general in order to limit fundamental human rights.

Courts will seek, were possible, to construe domestic legislation as compatible with the international obligations of Cyprus. This is based upon the reasonable assumption that Parliament is not lightly to be taken to have legislated, so as to place our country in breach of its international obligations. Our national jurisprudence confirms an extensive application of the provisions of the European Convention on Human Rights in the domestic law and the recognition of the jurisprudence of the European Court of Human Rights as an important source for the interpretation of the Convention. Against judgments of our Supreme Court there is, of course, the right of recourse to the European Court of Human Rights in cases of alleged violation of human rights.

As of 1st May 2004 Cyprus is a full member of the European Union and therefore the acquis communautaire forms part of our legal system. Constitutional amendments have been made in order to give European law supremacy even over our Constitution. European law is there for an integral part of our Constitution, and no constitutional provision may invalidate any provision of a binding nature of European Community, or European Union law. Moreover, the EU Charter of Fundamental Rights is given legal recognition by the Treaty of Lisbon, having the same legal force as the Treaties. In the Charter the EU has set out in one piece the existing fundamental rights of every European Union citizen. The Charter covers the whole range of civil, political, economic and social rights of European citizens. The jurisprudence of the European Court of Justice in Luxembourg has become gradually authoritative. The cooperation and dialogue between the national courts and the European Court of Justice through the preliminary rulings certainly contribute to the uniform protection of fundamental rights and freedoms of EU citizens.

In a democratic society the duty of the judge is imperative in ensuring and safeguarding the existence of effective constitutional checks and balances. The judge does not have the tools to examine policy considerations, and therefore it is accepted that some acts defined as actes de gouvernement are not subject to judicial control falling exclusively in the domain of the executive. But judges must defend the legal and legitimate rights and interests of all those who rely upon them in times of crisis the role of the judge is more difficult and more critical as there is a risk the other two powers of the state will exercise pressure in order to limit or even abolish basic rights. In such times the judges continue their mission to administer justice in accordance with the eternal principles of justice, as enshrined in the Constitution, the laws and international treaties. The judge in accordance with his oath should always administer justice to all in accordance with the law and without fear of prejudice, or hope of advantage. The judicial system of Cyprus provides all the substantive guarantees and safeguards of independence, impartiality and honesty and its standard is high. Therefore, it is capable and well equipped to administer justice honestly, properly and fairly.

Thank you for your attention.