Strasbourg, 1 February 2006
Consultative Council of European Judges (CCJE)
Questionnaire on “ The role of judges in striking a balance between protecting the public interest and human rights in the context of terrorism”: reply submitted by the delegation of Cyprus
Reply of Cyprus
to the Questionnaire on terrorism
as approved by CCJE at its 6th Meeting.
In reply to the questionnaire on “The role of judges in striking a balance between protecting the public interest and human rights in the context of terrorism”, please find herein below the following answers following the same sequence of the questions.
A1. Judges in Cyprus although do not follow a specific initial and in-service training in international and European law; nevertheless they do attend a variety of seminars and conferences on the above both in Cyprus and abroad. A number of judges were trained in European Law just before the accession of Cyprus into the European Union by attending specific seminars organized by EIPA Antenna Luxemburg in the framework of the Justice and Home Affairs Programme (PHARE) held in Krakow and Warsaw. Other judges were trained in the whole field of European law at Thessalonica-Greece over a period of a few weeks.
Moreover, since accession, a continued flow of seminars and conferences organized in Cyprus provide a steady input of knowledge on European legal matters. Such conferences/seminars are organized by the Pan Cyprian Bar Association, the British Council in collaboration with the Supreme Court and the Bar Council. The Registrar of Companies in collaboration with the Office for Harmonization in the Internal Market, based at Alicante, Spain, also provided a specialized seminar on the Community Trade Mark. Currently there is a two-day seminar organized by the European Commission Directorate-General Enlargement on the General Principles of EU Law and the role of the National Judge.
As regards in-service training, there are a number of internal communications from the Supreme Court to the District Courts on various aspects of Community Law as well as lectures on more specific matters such as the much debated issue of the European Arrest Warrant.
The total number of judges in Cyprus is 97.
(See also the reply of Cyprus on the initial and in-service training programmes questionnaire (document CCJE (2003)18 of 25.2.03), where it is also stated that Cyprus follows the Anglo-Saxon Common Law system and appointed judges come from the ranks of experienced lawyers with active participation in the day-to-day administration of justice. Also younger judges have already trained in European Law matters during their University years and are well versed with the basic principles of EU Law.
A.2 All judges receive the Cyprus Official Gazette and the library of each Court receives a number of textbooks and legal periodicals on various matters of practice including European law matters including legislation and case law. There is access to the Cyprus Legal Portal via the internet (Leginet system) from which judges can obtain any and all relevant case-law and statutes. Access is also available for the E.C.H.R. and the E.C.J. The relevant internet fees are paid by the government but each judge has to do his own research depending on the kind of case he is handling.
A.3 There is no available programme for judges to attend foreign language courses. However, each court has its own legal translation facilities especially in criminal cases free of charge. Due to the geographical position of Cyprus there is need to provide (and does effectively provide) translation in a variety of languages from English to Urdu.
B1. Cyprus has been a member of the Council of Europe since 1962 and a member of the E.U. since 2004. Part II of its Constitution (Articles 6-35) entrenches the basic Human Rights as contained in the European Convention of Human Rights and has through its case-law adhered to these human rights principles in a systematic way affording full protection to all the rights of man. Cyprus Courts have over the years had an active interaction with the European Courts, intensified since accession to the E.U. In May 2005 almost all the judges of the E.C.J. at Luxembourg visited officially the Cyprus Supreme Court on the occasion of the inauguration of its new premises, while judges from the Supreme Court as well as from the lower Courts have officially visited the E.C.J on various occasions. Such visits take place from time to time.
B2. Same as above with the additional information that mostly the judges of the Supreme Court are the ones who participate at these events but there is feedback information given to the lower Courts as well.
C1. As stated above, Cyprus Courts apply the European Convention of Human Rights in a systematic and thorough manner. The Convention is part of the internal Cyprus Legal Statute Book, enacted into Law as early as 1962. (The European Convention of Human Rights (Ratification) Law No. 39 of 1962). It also forms Part II of the Constitution of Cyprus of 1960. Under Article 169(3) of the Constitution all international conventions, treaties and agreements concluded by the Cyprus Government shall have from their publication in the Official Gazette of the Republic «…. Superior force to any municipal law …… ». The same holds true of EU treaties while the case-law of both the E.C.H.R. and the E.C.J is followed as binding case-law by the Cyprus Courts where there is identity of factual and/or legal background. Especially the case-law of the E.C.H.R. is applied very often by the Courts both at the lower level and on appeal.
C2. Council of Europe recommendations and resolutions are seriously taken into account when interpreting relevant instruments and indeed on certain occasions are taken into account for amending existing primary or secondary legislation.
C3. In case a particular internal legislation is held to be in contravention of the E.C.H.R. then the national Courts do not apply the internal legislation since, as stated above, the Cyprus Courts are bound to apply the Convention of Human Rights which is already part of the internal legislation but also forms part of the basic law to be found in the Constitution. The Courts in Cyprus do not prescribe their own measures in implementing and executing their decisions but follow what is laid down in the relevant legislation as regards the mode and methods of execution.
C4. No direct application is possible under our internal legal system for re-opening the proceedings and no existing legislation permits this but it is possible that in a proper case, the Supreme Court sitting as the final appellate Court could ex proprio motu take a decision implementing in practice the “total restitution” principle by expunging the decision which violated the provisions of the E.C.H.R.
However, a claim for compensation is possible by instituting a suit for this purpose. Cases have been decided by the Supreme Court, recognizing the principle that violation of a provision of the Convention of Human Rights affords ipso facto a direct right to monetary compensation.
The matter of breach of the reasonable time requirement is not governed by national law but Art 30 of the Constitution provides that each person is entitled to a fair and public hearing within a reasonable time (same as Article 6 of the Convention) and therefore if a person is not awarded a reasonable compensation, then an action may be instituted for the purpose.
D1-3 The answers to these questions can be grouped together for convenience. As Cyprus has not had as yet any serious problem with terrorist activities, it has not incorporated any of the Council of Europe recommendations and resolutions in its internal legislation or taken special measures to distribute and publicize these instruments, nor has it passed any specific substantive or procedural legislation designed to deal specifically with terrorism. However, the provisions of the Criminal Code and the adherence of the police authorities and the Courts to all procedural requirements for bringing suspects to justice (arrest, detention, remand in custody, filing of a criminal charge and trial within a reasonable time), afford enough protection against any terrorist activity while at the same time there is strict adherence to the protection of human rights, since at every stage there is, through a speedy due process via the justice system, an active control by the Court which provides rulings and decisions that touch upon the rights of suspected persons and/or of the accused.
Moreover, the judge at every stage acts as a safeguard to any possible abuses of the system by maintaining and upholding human rights principles. Not only the lower Courts ensure that the authorities conform to the minimum acceptable standards but also the Supreme Court in whose exclusive jurisdiction are the prerogative writs, such as mandamus, quo warranto, prohibition, certiorari and habeas corpus check and regulate the actions of the state in the fields of deportation, exclusion and control of aliens. In this way and with free and ready access to the Court any administration malpractices come under close judicial scrutiny.
President District Court