Impartiality of judges and fair trial in Cyprus!

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I have followed closely the developments in the media during the past few days, following the extremely serious complaints made by lawyer Nicos Clerides in relation to the conflict of interest of judges of the Supreme Court whilst carrying out of their duties. It is part of human nature that when such serious complaints are made, it causes a reaction and each person attempts to defend and protect themselves.

Justice, however, goes beyond lawyers and judges and governmental leaders and must go beyond interests. Maintaining justice is God’s will for legal order to be maintained for the general good of humanity.

The substance which derives from these complaints is that there was a breach of one of the most important principles of justice which relates to the maintenance of impartiality and the independence of the judicial body.

This principle provides that justice must not only be served but it must also be shown to be served. In the same way, for example, as Caesar’s wife. It constitutes a very old and well-established principle which aims at safeguarding justice and ensuring that the people have trust in those with authority, as well as honesty and impartiality of the judicial body so that justice institutions are not affected.

This principle was also adopted by the European Court in the case Nicholas v Cyprus 63246/10, which was issued on 9 January 2018. It concerned an application of a Cypriot against the Republic for breach of their human rights by the Supreme Court of Cyprus due to a conflict of interest of the main judge, Mr Kramvis, at the time part of a three-judge panel at the Supreme Court, who were judging the appeal of the Applicant. Specifically, the said judge did not exempt himself from the case but also did not disclose to the lawyers the fact that his son was married to the daughter of the lawyer Mr Polyvios Polyviou, managing partner of the law firm “Chrysafinis & Polyviou”, who was representing the Defendants / Respondents in the Appeal and also that both of them were actually working for the same law firm.

The European Court held that the non-exemption of the judge under such circumstances was wrong, and was in breach of the principle of objective impartiality, namely that justice must not only be served but must be shown to be served, and consequently this behaviour was in breach of article 6(1) of the European Convention on the Protection of Human Rights, proclaiming the procedure as infected and sentencing the Republic with damages and legal charges.

The court, inter alia, pointed out that with such behaviour, the trust of the people is undermined in relation to the proper administration of justice by the Judges, something which must be ensured in every democratic society.

The Supreme Court of Cyprus, following the decision of Nicholas v Cyprus 63246/10, published a relevant directive on 8 March 2018 which was published in the Official Gazette of the Republic of Cyprus on 16 March 2018, according to which no judge must hear alone or along with other judges, any cases in which the parties are represented by lawyers who have a family relationship with the judge or from law firms in which family members of judges are working.

However, according to these regulations the judge has the discretion to exempt himself and is called to simply disclose his relationship with the law firm representing one of the parties and if the lawyer of the other party does not object, then the judge may hear the case, regardless of the conflict of interest. The question is whether this regulation is a satisfactory measure for preserving the Rule of Law or even better, the sense of Justice. Namely, how is trust best ensured in the eyes of the people in the institution of Judicial Power, when the judge exempts himself automatically in situations where there is a conflict of interest or when he puts the burden on the lawyers of the parties to decide whether he should be exempted or not?

It is logical that, as already correctly mentioned by various authors who wrote articles on this matter these past few days, a lot of lawyers will think twice to request the exemption of the Judge, fearing the negative consequences towards them, something which must not be overlooked.
Assuming that the priority of an impartial judge under such circumstances will be the protection of the sense of Justice and the trust of the citizen towards the provision of justice by an impartial Court, I cannot understand why a judge would choose not to exempt himself, nor can I think how justice is best served by his non-exemption.

In any case, it is known that many judges in Cyprus, in the District Court as well as the Supreme Court, clearly recognizing the necessity to ensure the trust of each citizen in justice, choose by themselves to be exempted automatically when there is a conflict of interest, without asking the lawyers of the parties! In my opinion, this method is undoubtedly more effective for the purpose of ensuring trust in the people towards justice and better serves the interests of justice.

Having in mind the above, and the legal principles outlined in the case Nicholas v Cyprus 63246/10 and other similar cases, in conjunction with the reaction of the people in Cyprus following the complaints made by Mr Nicos Clerides, I believe that the exemption of judges under these circumstances must not be left to the discretion of the judges and the lawyers of the parties. It should be regulated legislatively and must be automatic. Further, there should be a code of conduct for Judges who do not act properly, in order to ensure the credibility of the Judicial Body and the Rule of Law!

I consider it also important to note that justice and democracy are served better when the lawyers, judges and generally the officers of justice themselves have the courage to raise such issues in the same way Mr Nicos Clerides has done, without being stifled or having to face retaliation.

Whether there is corruption within the judicial body or not is something which should be judged within the scope of a fair trial, since according to another important principle of justice, each person is innocent until proven guilty. What we can say with certainty though is that the hearing of cases by judges where their family members are working in law firms who represent one of the parties, is in breach of the principles of fair trial in accordance with the Court of Human Rights as has already been held in the case Nicholas v Cyprus 63246/10 and this must end for the best interests of everyone.

The Supreme Court, recognizing the seriousness and the immediate necessity to resolve the issue following the recent crisis and the extensive publicity through the media , proceeded with an amendment of the above Judicial Practice of 2018 on 28 January 2019 which came into force as from 1 February 2019, so that judges are exempted automatically in case that family members are working for law firms who are representing one of the parties, with the exception of standard appearances and cases heard by plenary session.

Yiannos Georgiades
Advocate & Legal Consultant

Article first published in the Cyprus Times