Lecture 2 - 7/10/2009
The Cyprus Court structure consists of a two tier system. At the top of the Internal Legal order is the Supreme Court of Cyprus. The Supreme Court, since the Administration of Justice (Miscellaneous Provisions) Law 33/64 enacted in the aftermath of the 1963 – 64 Constritutional Crisis with the departure of Turkish Cypriots from their office in various Government posts including the judiciary, exercises an overall supervisory function and role over inferior Courts.
THE SUPREME COURT 1964
The Court is the “successor” of the Supreme Constitutional Court established under Article 133 of the Constitution and the High Court established under Article 153.
It exercises as a unified Court since 1964 First Instance and Appellate jurisdiction in various matters including Constitutional and Administrative Law. It exercises its Constitutional and Administrative Law jurisdiction under Articles 137 – 151 and in particular under Article 146 its Administrative Law Jurisdiction. Today it is composed of 13 Greek – Cypriots Judges with one of them being elected as its President. Judges of the Supreme Court are appointed by the President of the Republic and retire at 68. The seat of the Supreme Court is in Nicosia. As a matter of practice the President of the Republic fills a vacancy by appointing senior judges, usually the most senior President of the District Court. He is not restrained from appointing a judge from the private practice or the ranks of the office of the A.G. This has never been done except with the appointment of the late Judge R. Gavrielides from the ranks of the Attorney General”s Office of the Republic.
The President or the Vice President has a right of Recourse to the Supreme Court:
(a) On grounds of discrimination between the two communities of any law or Decision of the H of R or the Budget. (Articles 137 – 138).
(b) On grounds of conflict or contest of power or competence between the House of Representatives/Communal Chambers Article 139.
(c) For an opinion on the constitutionality of proposed legislation Article 141, Article 142.
(d) In matters relating to Article 25 i.e. the right to a profession, trade or business.
(e) To decide whether special circumstances justify the continuation of the life of the House of Representatives, until assumption of office of the new house. The right of Recourse is given also to 1/5 of the newly elected members of the House. Article 143.
Under Article 144 in any proceedings anyone may raise the constitutionality of any matter in which case the matter is referred to the Supreme Court for a decision. In practice Constitutional Law matters may be decided as a matter of Law by any Court subject to an appeal.
The above provisions are rarely invoked as Constitutional Law matters are decided by Courts of any standing as a matter of Law and the House of Representatives usually takes the advice of the Attorney General on the constitutionality issues before legislation is enacted.
In addition the Supreme Court sits as an Election Petition Court under Article 145.
In other matters the Supreme Court acts as an Appeal Court in Civil and Criminal matters hearing appeals from the District or Assize Courts, the Family Courts, the Rent Control Laws, the Labour Disputes Court, and the Court Martial.
In Administrative Law Matters it hears recourses from the Tenders Review Board and the Tax Tribunal and against all administrative acts or omissions. As an Administrative Court the Supreme Court has first instance and appellate jurisdiction.
It also has jurisdiction to issue prerogative orders of Habeas Corpus, Mandamus, Prohibition Quo Warranto and Certiorari. This leg of the Supreme Court’s jurisdiction has resulted in a very prolific jurisprudence, limited by recent decisions, by the Court’s self imposed limitation that where a right of appeal exists it will not normally exercise its jurisdiction under Article 155.4 of the Constitution.
Finally under Section 19 of the Courts of Justice Law 14/60 the Supreme Court Sits as an Admirally Court. In important cases, (claims in excess of €100.000 for necessaries, carriage of goods by seat, ship repairs/supplies/dues, master or crew wages, ships expenses). Other claims as well as claims for collisions are tried by the President of the District Court having territorial jurisdiction.
In the past the Supreme Court exercised jurisdiction in Matters of Charities, Matrimonial Causes between non-orthodox Cypriots and Trade Marks matters now dealt with by the District and Family Courts.
DISTRICT COURTS AND ASSIZE COURT
The Law is to be traced in Section 3 – 30 of the Courts of Justice Law 14/60.
There are six District Courts each in every district. i.e. Nicosia, Limassol, Famagusta, Larnaca, Paphos and Kyrenia. Kyrenia and Famagusta under occupation sits in Nicosia and Larnaca respectively.
The enabling provision for the Constitution of the District Courts and Assize Courts is Section 3 of Law 14/60.
Assize Courts have three Judges. One President and two Senior or District Court Judges appointed by the Supreme Court.
In practice there is one President of the District Court, one Senior District Judge and one District Judge.
Also in practice they normally sit for two years although under Section 5 (3) their term of office is determined by the Supreme Court.
Judges take the judicial oath specified in Section 9 of the Law. Under Section 10 (8) judges may constitute a Judges Union. Provision is also made in Section 11 for the Chief Registrar of the Supreme Court and for other District Court Registrars. See Sections 11 and 12 as well as for other Civil Servants of the Courts appointed by the Civil Service Commission.
In Section 20 of the Law it is provided that the Assize Court has jurisdiction to try all offences committed within the Republic or Sovereign Base Areas if they relate to Cypriot and they also have extra territorial jurisdiction to try offenses committed by Civil Servants abroad or on any ship or aeroplane registered in the Republic or anywhere if any law provides for extra territorial jurisdiction.
As from 1.1.2008 the Assize Court has jurisdiction to compensate with a sum not exceeding 10.000 euro the victim, of an offence.
District Courts are normally engaged with all types of Civil Litigation. See Sections 21, 22, 22 (a) and 22 (b), 23, 24.
Every decision of any Court exercising civil jurisdiction is subject to an appeal. See Section 25.
Also every decision of a Court exercising criminal jurisdiction is subject to an Appeal to the Supreme Court. Appeals against acquittals are subject to certain restrictions. It is to be noted of course that criminal justice is not administered only by the Assize Courts but also with the District Courts which have jurisdiction to hear and try summary criminal offences and others. See Section 23.
Under Section 24 the District Court has jurisdiction to try summarily offenses punishable with a term of imprisonment not exiting of 5 years or with a fine not exiting £50.000 pounds and may also order compensation not exceeding £6.000 pounds.
Under Section 24(2) the Attorney General may give his consent for a summary trial of any offense even if this would normally be tried by the Assize Court.
In practice District Courts hear tens of thousands of summary criminal cases every year.
Normally there is one judge trying what is described as “proper criminal” and others try road traffic offenses .
Following the Constitutional amendment of article 111 by Law 95/99 the jurisdiction of the Ecclesiastical Courts exercised exclusively over divorce has been abolished.
As a result a divorce is now issued by the Family Courts which under Article 111 (2) (a) are composed of three judges one of whom is drawn from the clergy and presides over the Court.
The amendment of the Constitution was deemed to be lawful. Since the Church failed to recognize the Constitutional amendment it refused to appoint the President of the Family Court and under Article 111 (2A) (a) the President has been appointed by the Supreme Court.
Under Article 111 (3) Family Courts relating to the other religious communities have also been set up.
In Section 111 (4) provision is made for a Family Appeals Court composed of three Judges of the Supreme Court. As a result Law 23/90 providing for the Family Courts was enacted. The Family Courts Law provides for the composition of Family Courts with jurisdiction to try divorce cases of church marriages in accordance with the rites of the Greek Orthodox Church as well as divorce cases of Church Marriages in accordance with the rites of any other church as well as divorce of civil marriages.
The family Courts also have jurisdiction over all family law matters including maintenance, recognition of children, adoption, property matters, provided at least one of the litigants is resident in Cyprus. In case of property matters this is not a requirement.
Family Courts sit in all Districts, and have ever since been successfully in operation. Under Section 18 of the Law the provisions of the Courts of Justice Law relating to witnesses and evidence are applicable. Under section 16 the Family Courts have the same powers as the District Courts under Law 14/60 part IV.
The also have all the powers that District Courts have under the Civil Procedure Law Cap 6.
Under Section 21 (1) all the decisions of the Family Court are subject to an Appeal heard by a special Appeals Family Court composed of three judges of the Supreme Court. The Law was put into force 1.1.1990.
Needless to say that the Ecclesiastical Courts under Article 111 of the Constitution prior to its amendment continue to operate and issue divorces in accordance with the Charter of the Church of Cyprus of 1979 and in particular Articles 260 – 355.
The Family Law reform was the result of a Special Commission set up by the then Minister of Justice Mr. Phoebus Clerides responsible for the modernization and codification of Family Law in Cyprus.
As far as the legal order is concerned the only divorce recognized by the Law of the Republic is the one decreed by the Family Courts and it is irrelevant whether the Church has issued or not a divorce.
It was thought necessary to amend the Constitution to allow for the introduction of Family Courts in view of the fact that procedure before the Ecclesiastical Courts was deemed anachronistic. In order to get a divorce before the Ecclesiastical Court one basically had to lie and defame.
The grounds of divorce have also been amended to bring the law in line with modern standards permitting a divorce where a marriage has irretrievably broken down.
RENT CONTROL COURTS
Law 36/75 was enacted on 11.7.75 to amend and codify previous Rent Control Laws going back to the Colonial Legislation Cap 86.
It was enacted at the aftermath of the Turkish invasion and occupation of the northern part of the Republic of Cyprus.
Law 36/75 was repealed by the latest and more wide scope legislation, the Rent Control Law 23/83 applicable today with various amendments from time to time. In accordance with Section 4 of Law 23/83, Rent Control Courts were set up in order to adjudicate upon disputes arising from any matter relating to the application of the Law including any incidental or complementary matters.
As a result matters relating to statutory tenancy, i.e. rent adjustment, and orders for repossession are adjudicated upon in the Rent Control Courts.
The District Courts still retain jurisdiction in matters unrelated to “statutory tenancies”.
Under Section 7 of the Law all decisions of the Rent Control Law are subject to an appeal within 42 days to the Supreme Court.
In accordance with Section 2 of the Law, Rent control Law is applicable to immovable properties i.e. shops, offices or property used for residence in the rent controlled areas and which were completed by 31 December 1999.
Properties outside the rent Control areas and completed since the year 2000 are not covered by the Rent Control Law and mattes relating to landlord and tenant fall within jurisdiction of the District Courts.
The Court is composed of a President and two other lay members appointed by the Supreme Council of Judicature. The Minister of Justice draws up a list of lay members for each District finally selected by the Supreme Council of Judicature. In practice the three Member Court is composed of the President and of one member representing owners and one the tenants.
Law 8 of 1967, The Annual Leave with Emoluments Law of 1967 made provision in Section 12 thereof for the establishment of the Labor Disputes Courts.
The Court has jurisdiction over all labour disputes as well as claims arising from an employment contract including wages etc.
The Court consists of a President and two Members one representing the employers and the other the employee side. Their member are appointed by the Supreme Council of Judicatures. The Opinion of the President of the Court is biding as far as legal points are concerned.
The other lay members are drawn up from a list draw up by the Minister of Labour Social Security published by the Supreme Council of Judicature in the Official Gazzette.
The seat of the Court is Nicosia but in accordance to an amendment of the Law 169(1)/(2002) it may operate also in another District. In fact Labor Diputes Courts operate in other Districts as determined by the Supreme Court.
All decision of the Court are subject to an appeal to the Supreme Court. See section 11 A of the Law as amended by Law 110 (1)/1999.
In fact appeals are heard by the Supreme Court on points of law mainly. See Section 13 (a) of the Law.
The need for the creation of the National Guard became apparent in 1964 as a result of threats for the invasion of Cyprus by Turkey and to introduce law and order following the Turkish Cypriots fighting against the Police Forces of the Republic.
The National Guard Law of 1964 was enacted as a result. This necessity called for the enactment of a Military Code by virtue of law 40/64.
Provision is made in a military Code amongst other things for the creation of a Military Court and appeals therefrom to the Supreme Court. See article 102 of the Code.
The Military Court was set up by Article 103 and it is composed of a President and two other Members, all appointed by the Supreme Council of Judicature.
The two members of the Court in each particular case are chosen by the President of the Military Court.
The President of the Court must have the qualifications to be appointed of a Senior District Judge and the Deputy President the qualifications of the District Court Judge.
The President and the Deputy President are elevated to highest military rants of a Major General (Υποστράτηγος) and Brigadier (Ταξίαρχος).
Detailed provision is made for a Military Prosecutor and for the personnel of the Court.
The criminal procedure is provided in the Code itself.
The Code is applicable to the Military offenses committed within or outside Cyprus.
Any member of the armed forces committing an offence not punishable by the military Code but punishable under the common criminal Code or any other law is considered to be guilty of a military offense and is punished by the Military Court with the same punishment provided in the ordinary criminal Code or other such law.
Dr. Christos Clerides