Strasbourg, 14 January 2008
Consultative Council of European Judges (CCJE)
Questionnaire for 2008 CCJE opinion concerning the quality of judicial decisions: reply submitted by the delegation of Cyprus
In reply to the questionnaire on “The Quality on Judicial Decisions”, please find herein below the following answers of the Cyprus delegation, following the same sequence of the questions.
Part I: Preparation of the Judicial Decision
1. There is no specific model that has to be followed in drafting and preparing judicial decisions. Each individual Judge may express his opinion in the judgment in the manner that he deems more appropriate and maintains a complete freedom in so doing.
2. Judicial decisions can either be taken unanimously or by majority and are equally both effective and binding. There are now no two or even number judicial panels and therefore no question of a second or casting vote arises. There used to be a so called “Full Court” panel in the District Court composed of two judges, usually a President and a District Court Judge, dealing with civil cases, where again there was no casting vote of the President of the Court. In any event, the Courts of Justice Law no. 14/60 provides that where a number of judges in a particular case is even, and the judges come to different conclusions, judgment is given against the party which bears the burden of proof or the burden of providing or producing the evidence.
3. Usually judicial decisions deal either with all the points raised by the parties, or at least, with the main ones, but this mainly depends on the individual judge and the way he thinks best to tackle the questions before him. If the style of the judgment is concise and synthetic at the same time, this is considered sufficient for disposing of the issues raised by the parties.
4. The usual way a judicial decision is drafted is to identify firstly the issues, factual and legal, followed by a summary of the evidence presented. The judge then proceeds to evaluate the evidence, discuss and decide credibility issues and after coming to a final conclusion regarding the true facts of the case, applies the legal principles obtained and declares his final decision on the case. In the event that the case concerns only legal issues, the judgment deals only with the legal problem in question after setting out the agreed or accepted by the parties facts out of which the legal dispute arises.
In general terms, an appeal court decision deals with the points raised on appeal by the lawyers or by the parties and since the appeal process in Cyprus is by way of rehearing, the Appeal Court may discuss the evaluation and credibility issues as set down in the first instance decision, and may accept or reverse them. The same is true for the legal issues involved in the case. There is no necessity to obtain prior leave to appeal against a first instance judgment except where the sole matter for appeal concerns the question of costs.
5. In principle there is no difference in the way a judgment is drafted according to its civil, criminal or administrative context, although administrative decisions are usually decided on legal issues and rarely are factual questions discussed. Again, criminal decisions especially in serious crimes tend to be longer and more expansive and analytical since detailed evidence is usually given, forensic and otherwise, while the liberty of the accused is at stake.
6. Decisions in all cases are usually given out in full text to the lawyers or the parties of the case right after the announcement of the decision itself. A drawn up judgment is later requested by the lawyers or parties and issued by the Registry for execution purposes. The drawn up judgments simply state the name of the parties, their lawyers and the outcome in monetary terms or otherwise and in criminal cases the sentence passed in the event of a conviction.
Judicial decisions are by nature binding only on the specific litigants and do not affect the public at large. However, all decisions of the Appeal or Supreme Court make law and set out the correct legal principles in a particular subject matter which are henceforth followed under the principle of precedent. Decisions maybe either in personam or in rem according to the subject matter. Usually cases in admiralty raise issues in rem, especially where a vessel is involved, while issues of land ownership affect all the possible owners who have to be joined as parties in the proceedings.
7. Decisions are enforced through the official court bailiffs in civil cases, while in criminal cases the Police are charged with the responsibility of collecting fines and committing convicted persons to prison.
Contempt proceedings may be taken against a party not conforming to a judicial decision or order of the court and may be fined or imprisoned if found guilty. Contempt proceedings in civil cases are tried on summary criminal trial principles, as non compliance with a court decision or order is always regarded a very serious matter pertaining to the core of the administration of justice system.
8. All judicial decisions are announced in open court and any member of the public or any journalist may be present and take notes of the decision. In certain cases involving judicial proceedings in camera, i.e. usually in cases of rape or involving children, the public, including journalists, are excluded from attending the court at the hearing and at the time of the announcement of the decision. In such cases the court may prepare a brief summary of the decision without disclosing the names of the accused or the complainant and pass it on to journalists for publication purposes.
9. Judicial decisions take into account local legislation or any E.U. directives on personal data protection, especially in criminal cases involving children and rape issues, while in civil cases in accordance with the Processing of Personal Data Protection Law No. 138(1)/01, personal data may be disclosed or processed where the subject thereof publicizes the same in necessary court proceedings. The Supreme Court has also given directions that where substituted service of any writ of summons or other proceedings is necessary by way of publication in any daily newspaper, only that information may be disclosed that is considered sufficient to alert the party against whom the action is filed, with a corresponding note that details of the action itself are available in the Registry of the Court in which the action is filed. This is especially true in family court matters.
10. All judicial decisions, once announced, may be made available from the Registry if the appropriate fees are paid to all persons that may have an interest in the decision following the approval of an application to that effect by the President of the Court where the case has been tried. Any party to a cause or matter is entitled as of right to be furnished with office copies of all documents in the proceedings upon payment of the proper fee. A number of decisions which are considered important are cited on the internet site of the Supreme Court or other individual legal portals.
11. Certain decisions are available in the internet, usually important ones, handed down by the Appeal Court. The internet information made available will hopefully in the years to come contain all decisions that are of importance both of first instance courts as well as all Supreme Courts cases.
Part II: Evaluation of the Judicial Decision
12. There is no official evaluation of the quality of justice operable, but statistical data are collected each month on the number of decisions handed down by the various courts, including the Supreme Court itself, as well as data concerning the effectiveness of the execution process. The quality of a first instance decision itself is judged and evaluated by the Appeal Court, where an appeal is filed, otherwise it is evaluated generally by the lawyers and the parties in the case and where it makes headlines, by journalists and the public at large. There is no official mechanism within the Supreme Court itself for evaluation of their own judicial decisions, for promotion purposes or otherwise, as the Supreme Court is the final Court of the land. Certain decisions may be re-examined in the European Court of Human Rights, if recourse to it is taken by a litigant, in which case the decision may be sustained or not. Otherwise, the evaluation of the quality of the decisions of the Supreme Court is a matter of academic discussion by lawyers and other relevant actors in the judicial system.
13. As above.
14. See the answer to question 12, with the addition that the evaluation of the judicial decision concerns the correct application of the legal principles involved, the re-examination of the factual issues so as to correct any misunderstanding of the facts by the first instance judge, as well as an evaluation of whether the judge reasonably decided any credibility issues. All the above fall properly within the parameters of the Appeal Court functions.
15. As there is no official system of evaluation of the quality of justice one cannot properly discuss any advantages or disadvantages. Constitutionally, only the Supreme Court is legally responsible for evaluating judicial decisions by way of sustaining or reversing them. The Ministry of Justice under the Constitutional framework of the Republic of Cyprus belongs to the executive branch of government and has no role to play or involvement with the judiciary itself or the quality of judicial decisions, either at first instance or at level of the Supreme Court.
16. A more effective system regarding the execution process, as well as a speedier and simpler procedural methodology would help to improve the quality of decisions, as far as the speed of the administration of justice is concerned.
17. Is a system of evaluation of quality of each of the following in force in your State:
· professional performance of police? Yes
· professional performance of public prosecution services? Yes
· professional performance of lawyers? Yes
· enforcement of judgments? Yes
· efficiency of ministry of justice services in general? Yes
· quality of legislation? No
It should be explained, however, that where an affirmative answer is given, there is no outside independent and separate body that evaluates the above, but the evaluation is made either by internal bodies that exercise disciplinary control and review general performance for promotion purposes or by means of checks and balances within the executive and the legislative branches of the state. For example, police performance is evaluated by the Ministry of Justice and Public Order, since the Police force comes under its auspices. Similarly, public prosecutors come under the umbrella of the Attorney General’s Office, while the services of the Ministry of Justice, in general, come under the scrutiny of the President of the Republic, the Ministry of Finance, so far expenditure is concerned, and the House of Representatives, regarding general performance.