LECTURE 3 - 14.10.2009
JURISDICTION OF THE COURTS
Jurisdiction of the Supreme Court
The Jurisdiction of the Supreme Court is founded on Articles 133 to 164 of the Constitution. In addition the Supreme Court as it operated since 1964 on the basis of the Law of Necessity exercises its jurisdiction under Section 3 of Law 33 / 1964, the Administration of Justice (Miscellaneous Provisions) Law of 1964.
Under Section 9 of the aforesaid Law the Supreme Court exercises the jurisdiction of the former Supreme Constitutional Court and the High Court under the aforementioned Constitutional provisions.
Under Section 10 of the Law the Supreme Court is also the Supreme Council of Judicature responsible for the appointment, promotion, transfer, termination of services and dismissal of judges as well as disciplinary supervision.
Under Section 11 (2) of the Law its first instance jurisdiction is exercised by one or more judges. In practice its first instance jurisdiction, in all matters including Administrative Law recourses under Article 146 of the Constitution, is exercised by a single judge.
Its appellate jurisdiction is exercised by at least 3 judges and in cases of Administrative Law at least 5 judges (See section 11 (3))
Finally it is provided, under Section 12 (2) that any judge of the District Court can try any case irrespective of the Community to which the parties belong.
As far as the Constitutional and Administrative jurisdiction of the Supreme Court is concerned this has been examined in more detail in Lecture No.2 and need not be repeated herein.
Reference should be made to Section 19 of Law 14/60 under which the Supreme Court has exclusive jurisdiction as an Admiralty Court in a limited number of cases discussed in Lecture No 2.
In addition under Section 22 (1) the former matrimonial jurisdiction of the Supreme Court can now be exercised by the President of the District Court. In practice matrimonial jurisdiction in all matters except with relation to Turkish Cypriots is now exercised by the Family Courts.
In addition under Section 22 B Admiralty cases maybe referred in a number of cases by the Supreme Court to the President or Senior Judge of the District Court.
Arrest of ships remains under Section 22 B within the jurisdiction of the Supreme Court.
Under Section 25 of the Courts of Justice Law the Supreme Court also acts as an appellate Court from decisions of any Court exercising jurisdiction in civil and criminal matters. The Supreme Court in any case at the appeal level has jurisdiction to review all the evidence and reach is own conclusions and issue any judgment it may deem appropriate.
In addition, by virtue of Law 99(1) / 2007 amending Section 25 of the Courts of Justice Law by adding a new Section 25 (2A) , any Court hearing a case at first instance may upon the application of any litigant decide for the referral of any matter to the European Communities Court, on the basis of the relevant Articles of the European Communities Treaties. The decision of the Court to refer such a matter is subject to an appeal before the Supreme Court.
The District Court exercises Civil and Criminal jurisdiction under the provisions of law 14/60.
A. Civil Jurisdiction – Territorial Jurisdiction
Under Section 21, a District Court has jurisdiction to decide any action whenever:
a) The cause of action arose wholy or partly within the boundaries of the District.
b) The Defendant at the time of filing of the action resides or carries a profession within the District.
c) Where all parties are Cypriot and the cause of action arose wholy or partly within the British Sovereign Bases or the Defendant or any of them resides or carries a profession within the Sovereign Base Areas.
d) The cause of action arose wholy or partly within the British Sovereign Bases from the use of a motor -vehicle.
e) The cause of action arose wholy or partly in the Sovereign Base Areas from an accident or industrial decease during the cause of his employment (employers liability cases).
In addition the District Court has jurisdiction in relation to charities or patents or trademarks and the action may be introduced in any District Court.
Where the action concerns the distribution or sale of any immovable property or any matter relating to immovable property the action shall be introduced in the District Court where such property is situated.
By virtue of an amendment to the Courts of Justice Law 102 (1) / 1992 claims for rents or damages for breach of contract for the sale of land or tenancy agreement can be introduced in the District Court in accordance with the normal principles of jurisdiction under paragraphs (a – e ) above described irrespective of where the property is situated. A claim for damages for breach of contract has been widely interpreted.
B. Civil Jurisdiction – Scale of the Claim
The President of the District Court has jurisdiction in all actions irrespective of the scale of the claim.
A Senior District Judge or a District Judge has limited jurisdiction depending on the scale of the claim.
A Senior District Judge can hear claims up to €500.000 and a District Judge up to €100.000.
In addition a Senior District Judge or District Judge has jurisdiction to hear any action for possession of immovable property or any actions based on tort relating to immovable property in which the title is not in dispute irrespective of the subject matter of the property.
In addition a Senior District Judge has jurisdiction to try accident cases and compulsory acquisition or requisition cases relating to immovable property irrespective of the scale of the claim.
Under Section 22 (4) a Senior District Judge or a Judge may issue interlocutory decisions which do not adjudicate on the subject matter of the action, e.g. Judgments in Default or even Summary Judgments or where judgment is by consent.
In order to decide on the scale of the subject matter under Section 22 (5) one has to look in to the pleadings or any admissions made or the Court may decide upon an application.
Interest is not taken into account for purposes of determining the subject matter scale of the action.
C. Criminal Jurisdiction
Sections 23 and 24 provide for the jurisdiction of the District Court in criminal cases.
Normally a District Court has jurisdiction over offences committed within the District by anybody and in the Sovereign Base Areas for offences committed against a Cypriot by a Cypriot or relating to a Cypriot .
In case where the offence committed is on the border or within a mile from the border or partly in one District and partly in another the offence may be tried by any of the District Courts involved.
As far as the offences that may be tried within the jurisdiction of the District Court are concerned a Senior District Judge and a District Judge has jurisdiction to try summarily all offences punishable with imprisonment for a term not exceeding 5 years or a fine not exceeding £5000 pounds or both.
Under Section 24 (2) the Attorney General may consent for trial of a felony by summary proceedings in a District Court
D. Assize Courts
There are four Assize Courts operating in Cyprus for the time being , in each of the major Districts, i.e Nicosia-Kyrenia, Limassol, Larnaca – Famagusta, Paphos.
The Assize Courts operate under Law 14/60 and in particular Sections 3 , 5 , and 20. They normally sit for 2 years under Section 5(3) . The judges of the Assize Court serve for a term of office which may be terminated by the Supreme Court only.
Under Section 20 of the Courts of Justice Law the Assize Courts have jurisdiction to try all offences against the Criminal Code or any other law committed:
(a). Within the Republic.
(b) Within the Sovereign Base Area by a Cypriot against a Cypriot or in relation to a Cypriot
(c) In any country of the world by a civil servant citizen of the Republic or
(d) On any Cyprus ship or airplane
(e) On any other place and circumstances that the law may provide for.
e.g. The Criminal Code CAP 154 Section 5 (8) it covers offences abroad by citizens of the Republic punishable with two years imprisonment and is also an offence in the Country where committed
In substance the Assize Courts hear felonies and the more serious crimes except those for which the Attorney General has given his consent for a summary trial as above described under Section 24 (2) of the Courts of Justice Law.
E. Family Courts - Rent Control Courts – Labour Dispute Courts – Military Courts – Advocates Disciplinary Council
The jurisdiction of these special Courts or bodies is to be found in the relevant laws setting them up.
As we have seen in Lecture No. 2 the relevant laws are Article 111 of the Constitution as amended by Law 95/89 and the Family Court Law 23/90 which provides for the creation of the Family Court.
The Family Courts have jurisdiction to dissolve Greek - Orthodox marriages or any other church marriage excluding marriages within the jurisdiction of the other Communities Court , civil marriages and all matters relating to guardianship, maintenance, the recognition of children, adoption, property matters and all other matrimonial causes provided one of the two parties is resident in the Republic for a continued period of more than 3 months.
In property claims between husband and wife no residence requirements exist.
As far as the territorial jurisdiction is concerned this is determined in accordance with the Plaintiff’s or Defendant’s residence or place of employment.
In case of dispute relating to infants the residence of the infant is relevant but under Section 12 (2) of the Law the Family Court may refer any case to an appropriate Family Court having jurisdiction in the matter.
RENT CONTROL COURTS
In Rent Control cases the matter is government by Law 23/83.
The Rent Control Court has jurisdiction for the application and interpretation of Law 23/83 and for any incidental or related matters.
The Law is applicable to immovable properties, that is buildings for residence or shops which includes offices (see definition Section 2) completed up to 31st December 1999.
It also applies to tenancies which have expired or have been terminated known as “statutory tenancies” in controlled areas determined by previous laws or an order adopted from time to time by the Council of Ministers .
Basically Municipalities and buildings within them are territories to which the Rent Control Legislation is applicable.
In all other cases the District Courts have jurisdiction over Landlord and tenant matters.
The territorial jurisdiction of the three Rent Control Courts is laid down not in the law itself but in the rules adopted by the Supreme Court pursuant to Article 163 of the Constitution and Section 31 of the Rent Control Law 1983.
Every Court has jurisdiction over all immovable property covered by the law within the District in which the Court sits.
Further, the provisions of the Courts of Justice Law and the civil procedure rules are applicable relating to the summoning of witnesses and in general the civil procedure rules are applicable as well as the Court of Justice Law by virtue of Rule 11 (A) .
LABOUR DISPUTES COURT
As far as the Labour Disputes Court is concerned its jurisdiction is provided in Law 8 /1967.
Section 12 is relevant.
The Labour Disputes Court has jurisdiction over all types’ of labour disputes.
The seat of the Court is stipulated under Section 12 (10) to be in Nicosia but it can also sit in other Districts for example in Limassol or any such other District that the Supreme Court may be notice in the Official Gazette decide .
The territorial jurisdiction of the Court is based on where the dispute arose (See Section 12 (10)).
The Military Court is set up by virtue of Law 40/64 which is the Military Code and Procedure Law of 1964.
There is one Military Court having jurisdiction all over Cyprus.
It sits in Nicosia and it has jurisdiction to try military offences under Article 112.
The Court has jurisdiction over offences committed by army personnel and has jurisdiction over prisoners of a war in addition as well as over deserters and the military on leave.
Under Article 113 the Military Court has no jurisdiction over offences tried by the Ordinary Criminal Courts and for road traffic offences in non military vehicles.
Accomplices under Article 114 are subject to the jurisdiction of the Ordinary Criminal Courts.
The Supreme Court has jurisdiction under Article 115 to decide conflicts of jurisdiction.
Conscripts are also subject to the jurisdiction of the Court under Article 112 (d).
As far as the Ecclesiastical Courts are concerned we have noted that they continue to operate under the Charter of the Holly Church of Cyprus 1979 Articles 236 to 335.
The relevant provisions are to be found in the Charter of the Church of 1979.
ADVOCATES DISCIPLINARY COUNCIL
Finally reference has to be made to the Advocates Disciplinary Council provided for in the Advocates Law Cap 2.
The relevant provisions are to be found in Section 16 of the Advocates Law , which provides for the establishment of the Disciplinary Council composed by the Attorney General as its President , the President of the Council of the Cyprus Bar ex officio and of five Advocates who are elected for the purpose from which two must have at least a practice not less than 15 years and they are elected every 3 years by the General Assembly of the Cyprus Bar Council.
The hearing of a disciplinary case against an advocate takes place before either the Attorney General as President and two elected members or the President of the Bar Council and two elected members.
Obviously the Disciplinary Council has jurisdiction over all advocates in connection with disciplinary offences.
Disciplinary rules adopted by the Council of Ministers have been adopted.
The decision of the Council is subject to an appeal before the Supreme Court.
Proceeding maybe instituted by the Council or the Attorney General or following a complaint by any Court or the Cyprus Bar Council or the Local Bar Council.
In cases of individuals’ complaints the Council itself must give its leave to proceed.
F. Tax Tribunals and Tender Review Board
These two bodies operate in the field of Administrative Law. They are intended to provide a review of an administrative decision in the field of tax matters and government tenders.
As far as the Tax Tribunal is concerned this is set up by virtue of law 4/1978 of The Tax Assessment and Collection of Taxes Law 1978 Section 20 A introduced by Law 80 (1) of 1999.
Any aggrieved person may file a hierarchical recourse to the Tax Tribunal within 45 days from the notification to him of a tax decision.
The matter is examined and the Tax Tribunal has to issue its decision within a year from the filing of the hierarchical recourse.
The Applicant may challenge the decision of a Tax Tribunal before the Supreme Court under Article 146 of the Constitution.
The Tax Tribunal may annul or ratify the tax assessment or may issue a new decision on the matter.
The Tribunal is set up by virtue of Section 4 A of the Law and operates pursuant to regulations issued by the Council of Ministers.
TENDER REVIEW BOARD
As far as the Tender Review Board is concerned this is set up by Law 101(1) 2003 , Τhe Conclusions of Contracts (Supplies, Works and Services) Law 2003, Sections 55 – 60.
The Board hears hierarchical recourses and has wide powers of ratification or annulment. The procedure has to completed within 30 days and is laid down in the law and in Regulations adopted by the Council of Ministers. It can hear recourses against acts or decisions of the Awarding Authority relating to government tenders.
G. Some Relevant Jurisprudence of the Supreme Court of Cyprus
Summary of Case Law
1. In the Efthymiadou case 1986 it was decided that actions for recovery of arrears of rent and compensation for damage caused to rented premises relating to statuary tenancies fall within the jurisdiction of the Rent Control Court exclusively
2. (a) In Constantinou ν. Panayides (1984) it was held that under section 29 (I)(c) of the Courts of Justice Law 14/60 common law is applicable in Cyprus. Therefore enticement was applicable in the law of Cyprus.
(b) In Ελληνική Τράπεζα ν. Πολυδωρίδη (1993)
Principles of equity applicable in Cyprus. Promissory estoppel applicable in Cyprus.
3. Theofanous v. Georghiou (1969)
A point as to jurisdiction maybe taken at any stage even on appeal for the first time.
4. Cyprus Hotels Co Ltd (1968)
Lease agreement of Miramore Hotel in Limassol. Termination of lease. Dispute. Referral to arbitration notice. Action in the District Court of Nicosia. Matter relating to the interpretation of the lease not relating to land so as to bring it within the jurisdiction of Limassol where the Hotel situated.
5. A-G v. Savvides (1979)
Action in Nicosia for a declaration of right to occupy leased premises and interim order. The property in Limassol. District court of Nicosia has no jurisdiction. Certiorari issued.
6. Central Co-operative Bank Ltd (1984)
Jurisdiction is a matter of public policy. The Appellate Court can raise it on its own motion.
7. Philippou v. Philippou (1986)
The Jurisdiction of an inferior Court should be traced in the statute establishing it. It is the duty of the Court to examine a point that goes to jurisdiction.
8. Kολοκασσίδου ν. Ελληνική κ.α. (1994)
Only where both District Courts have jurisdiction can be Supreme Court order transfer of proceedings from one court to the other under section 61 of Law 14/60 (Courts of Justice Law).
9. Παναγιώτου ν. Χ. Κυριάκου (1991)
Issue of jurisdiction can be raised at any stage. Section 58 of Cap 224 (Boundary Disputes) and section 61 of cap 224 (correction of error) not applicaple where dispute as to the facts eg. Fraud. Section 80 of cap 224 (appeal from decision of D.L.O. unconstitutional – countray to Article 30.1 and 2 of the Constitution to the extent that it excludes recourse to the Courts.
10. Ιωαννίδης ν. Κρητικού (1192)
Cyprus Courts have no jurisdiction over any matter relating to immovable property outside Cyprus. Section 21 (1) and 21 (2) it Law 14/60. Deposit for renting property in England. Breach of tenancy Agreement. No Jurisdiction.
11. In Re Rdeiz (1989)
No leave for Certiorari issued. Applicant alleged that offence carried a sentence in excess of three years therefore District Court had no jurisdiction. Court held that offence charged carried a three years sentence so Court had jurisdiction.
12. Ακαδημία Αθηνών ν. Παναγιώτου. (1994)
Money Deposits in USA Banks of Deceased. Deceased domiciled in Cyprus. Administrators claim right to property of deceased wherever situated. No will. Court has no jurisdiction to issue an injunction for acts outside Cyprus but had jurisdiction to decide for deposits in USA as deceased domiciled in Cyprus and Cyprus Law under Wills and Succession Law CAP 195 Section 4, 5, 13 applicable.
13. Εφ. Ελλ. Εκπ. Στροβόλου ν. Χ. Παύλου (1993)
District Court has no jurisdiction to try whether Contract deemed entered into by the award of a tender in favour of the Plaintiff. Matter within the sphere of Article 146 of the Constitution.
14. Σιακαλλής ν. Δημοκρατίας (2001)
Possession and supply of Drugs in Br. Sovereing Base of Akrotiri. Accused a Cypriot. Section 5 of the Criminal Code gives jurisdiction to offences committed abroad. Therefore Assize Court had jurisdiction.
Dr. Christos Clerides