[ccje2004/docs/CCJE(2004)3e] English only
CONSULTATIVE COUNCIL OF EUROPEAN JUDGES
QUESTIONNAIRE ON MANAGEMENT OF CASES,
JUDES’ ROLE IN THE PROCEEDINGS,
AND USE OF ALTERNATIVE DISPUTE SETTLEMENT METHODS
the delegation of Cyprus
In reply to the questionnaire of the Chair of the CCJE-GT on Case Management, Judges´ role in trials, and Alternative Dispute Resolution Methods, please find hereinbelow the answers of the Cyprus delegation following the same sequence of questions. Certain items and questions are grouped together for convenience.
A. Access to Justice.
1. The Cyprus Judicial system is based on the Anglosaxon Common Law system with the difference that it also has a written Constitution, which is considered to be the supreme law of the land. No particular measures have been taken by the legislature and/or the Court system to inform the public on the functioning of the judicial system but access to justice is open to all and anybody may watch any trial except where the Court for reasons of public policy e.g. in rape cases or where the victim is a minor, decides to hold the proceedings in camera. Reports of decided cases are easily available and the media often report about pending cases, both civil and criminal. In fact, citizens know very well their rights and extensively use court proceedings and the litigation process.
2. Court fees are generally not high in civil cases. There are no court fees for criminal cases except for some minor stamp duties and a lawyer may be employed by anybody if he so wishes. In criminal cases, a lawyer will be appointed by the court, where the defendant has no financial means to have the assistance of a lawyer.
3. There is a complete and effective legal aid system under the Legal Aid Law No. 165(1)/02. This Law with its implementing Regulations of March 2003, entrenches in a statutory form the legal aid system that existed since 1960, when Cyprus was declared and recognized as an Independent State. The Law gave effect to the Constitutional provision under Art 12(5)(c), which states that every person charged with an offence has as a minimum right, inter alia, to be given free legal assistance if he has no sufficient means to employ a lawyer.
Law 165(1) of 2002 has also been enacted (as stated in its Preamble) to accord with various European Union obligations arising out of the treaty in relation to family matters, justice and Internal Affairs with special reference to human rights.
a) Anyone is eligible who is certified by means of a welfare report that his financial position is such that he is unable to meet the costs of a trial and the case is serious enough or there are other circumstances that make it desirable for the Court to grant free legal assistance.
Legal aid may be given for any criminal trial for any offence punishable with imprisonment in excess of one year, including any preliminary inquiry and any inquiry of whatever nature prior to the commencement of the criminal trial. The trial may cover any court of criminal jurisdiction, Summary or Assize Court, Military Court, as well as the Supreme Court.
Legal aid may also be given in respect of proceedings in which human rights issues are involved (including civil actions against the State), family matters under bilateral or multilateral conventions to which Cyprus is a party, including matters of adoption, alimony, recognition of illegitimate children, property division, etc.
b) The state is responsible for the payment of the lawyer’s fees out of state funds.
c) There are regulations issued by the Supreme Court setting out the fees payable to the lawyers under the legal aid scheme. The amount of the fees depends on the nature and complexity of the case in issue.
4. a) – c) No such schemes exist. The fees payable are in accordance with the Civil Procedure Rules and follow the traditional English way of costs recovery i.e. party to party costs, party-solicitor costs etc.
B. Reduction of Excessive Workloads In the Courts.
1. Judges in Cyprus do not perform any other duties or functions apart from purely judicial ones.
2. No bodies outside the judicial system exist for solving specific small claims disputes. Such small claims are dealt with by the judicial system itself and, where appropriate, a summary procedure may be followed.
3. The Courts in Cyprus are autonomous (save on budgetary matters which come under the authority and responsibility of the Ministry of Finance in collaboration with the Ministry of Justice and the Supreme Court and approved by the House of Representatives) and therefore any review comes from within the judicial system itself under the authority of the Supreme Court. The Administrative President of each District Court is primarily responsible for the balanced distribution of the workload on approval by the Supreme Court. Any variation or re-distribution is left to the discretion of the Administrative President who gives the necessary directions to the Registrar of the Court.
4. As stated under par. 3 above, the judicial system is independent and autonomous. Judges under the directions of the Supreme Court obtain the necessary means for management by enhancing the quality of the personnel, updating the technological equipment and increasing the number of persons working in the Courts. Judges do not receive any training in management techniques as they are appointed from the ranks of highly qualified and experienced practicing lawyers. The management is left to the Chief Registrar and his assistants in close collaboration with the Supreme Court acting in such matters usually through its President.
C. Quality of Justice and its Assessment.
1. The assessment of the quality of judicial activity falls within the exclusive province of the Supreme Court which under Arts 157 and 163 of the Constitution has the sole power of appointment, dismissal and discipline of judges and for regulating the practice and procedure of itself and any other court including the composition of the registries and the duties and powers of officers of the Court in general.
2. Statistical data collection with regard to judicial activity is the primary responsibility of the Registrar of each District Court both for civil and criminal matters. Other courts such as the Family Court, the Labour Court and the Rent Control Court also provide statistical data through their respective registries. Such data cover the number of cases filed in each court per month, the number of cases pending and the number of cases tried both by each Judge separately and by the Court as a whole. Data include also information not only on the final outcome of the case itself, but also on any applications filed within the case, prior to as well as during the substantive trial. Data cover every possible judicial activity depending on the nature of the case covering such wide subjects ranging from administration proceedings to serious criminal trials. All statistical data are forwarded to the Supreme Court for general assessment of the work of the District Courts, but also for assessing the work of individual Judges. Such data are taken into account for evaluation and/or promotion purposes, but not exclusively. Of primary importance is the quality of the work of the Judge as reflected in his judgments, his general handling of the cases, his impartiality, honesty, legal knowledge and his ability to work effectively and speedily. It is only where two Judges are candidates for one promotional post that statistical data may play a decisive role, if all other qualities, attributes and characteristics of the Judges are equal.
Such data are also used as a general feedback of the judicial activity and the workload of the Courts in general, are evaluated accordingly and form the basis of directions or recommendations by the Supreme Court for better, speedier and more effective justice.
D. Alternative Dispute Resolution.
a) In general.
There no official ADR schemes in operation in Cyprus either of a general or a specialized nature. There are however some private individuals or associations offering ADR generally and in particular in family matters. The outcome is not officially recorded anywhere and no person is barred from access to court due to the fact that he participated in such a scheme. Access to such private ADR is voluntary and the costs are born by the person(s) concerned. Private ADR is not much in use however. This trend is bound to change with the eventual introduction of official mediation. Currently a bill is pending before the House of Representatives which when enacted into Law will enable the parties in dispute to refer matters to mediation either in or out of court, especially in family matters. The Judge will have the power to refer a pending case to mediation. Mediators may be such people as lawyers, psychologists, etc. Judges will not be able to act as mediators.
b) – d) In-court and out of court ADR-ADR in administrative law disputes.
E. Case Management.
a) In general.
1. The average length of a civil proceeding is about 3 years and of a criminal one about 9 months -1 year in the first instance courts. An additional of one year on average applies for appellate civil cases, and, depending on the circumstances and the urgency of the criminal appeal involved, an additional time is necessary ranging from a few days to a few months. In simplified or accelerated procedures (meaning the securing of an interim order or of a judgment on summary proceedings), the average time is anything from a few days to 3-4 months. The source of this information is a study report made by a Special Committee appointed for the purpose under the Chairmanship of the ex-President of the Supreme Court and the updated collective statistical data of each successive year.
The Supreme Court issues Practice Directions at regular intervals with respect to the need to speed up the rate of the judicial process in general and for conforming with the Constitutional mandatory provision of dispensing justice within a reasonable time under Art 30, par. 2. Internal court arrangements under the supervision of the Administrative President of a District are possible in order to reduce the workload and provide for a more balanced distribution of work between the Judges.
The introduction of the system of stenotyping court records is under serious study and hopefully it will be introduced as soon as possible. This will make the transcripts of the court proceedings readily available for appeal purposes.
2. In general the judge controls the parties´ activities in the sense that he regulates the proceedings, as he deems proper for the expedient outcome of the case, including determination of the calendar for the presentation of evidence and arguments. He may also guide the parties through the so-called “summons for directions” stage where the various procedural problems may be tackled and the strength and or weakness of the case of each party may be aired. He does not however have the power to initiate proceedings himself such as summary proceedings as the initiative for any application comes from the parties involved. He may sanction delaying tactics through his powers of either disallowing costs incurred by the party responsible for such tactics or may dismiss applications as unduly frivolous or vexatious on ex-parte or inter-partes proceedings. The judge has the authority to punish contempt of court for abusing or insulting behavior committed in the face of the court.
3. All cases at the District Court level irrespective of the amount involved in civil cases are heard by a single judge. The same holds true for all criminal cases for offences punishable by imprisonment of up to 5 years. Where, however, the case on the initiative of the Attorney General is filed upon information in the Assize-Court (e.g. usually serious criminal cases for felonies punishable with at least 3 years imprisonment), the case is heard by a panel of three judges.
b) In civil disputes.
1. The Supreme Court has already commissioned the drafting of a completely new set of Civil Procedure Rules. These Rules are expected to be placed before the Supreme Court for examination and approval within the next 2-3 months. These Rules follow the pattern of the new English Civil Procedure Rules known under the code-name of Woolf. The overriding objective will be to enable the courts to deal with cases justly, speedily and effectively and increased powers will be handed over to the Judge to manage the case in a way that will appear to him to effectively resolve the issues at hand. In this way Recommendation No. (84)5 will be fully implemented. In the meantime various amendments to the existing Civil Procedure Rules, especially in respect to the so called “Summons for Directions” stage, make it possible for the Judge to “manage” the case to quite an effective degree.
2. Simplified or accelerated procedures exist basically in two areas: (i) where an interim order or measure is sought urgently in which case an application for such an order may be made ex-parte and may be placed before a Judge on the same day or the next at the latest, and (ii) where a summary judgment is sought where an application is made inter-partes but if the Judge is of the opinion that there is indeed no defence, a judgment may be issued within a few days after hearing the parties without a proper trial and without hearing the evidence.
3. There are as yet no simplified methods of commencing litigation but there is a standard writ of summons or originating summons application available for all cases depending on the subject matter. It is possible in certain circumstances to have a preparatory hearing where there is a need to obtain the evidence of a witness who will not be available for trial. Moreover, where a summary judgment application is pursued, if successful, no hearing on the merits takes place. Furthermore, it is possible to apply to have a legal point tried at the outset provided such a legal point will dispose of the whole case without the necessity of hearing evidence. Proceedings are usually oral except on applications for summary judgment or other similar applications or in company petitions where the evidence is taken on affidavits. It is possible to dismiss as frivolous and vexatious a drafted defence and apply for judgment on the writ. Adjourments are not usually given except where the case must be tried for a number of days or where a witness is not available on a particular date. Once the hearing of a case commences it is usually tried on a day-in day-out basis and where adjournments do take place they are usually for brief periods only.
By a very recent amendment to the Evidence Law CAP 9 by Law No. 32(1)/04 of 12.3.04 the whole of the hearsay rule has been substituted by more flexible rules of evidence whereby it is possible to receive hearsay evidence both oral and documentary. Such hearsay evidence maybe evaluated by the Judge according to various criteria set out in the Law and upon the proper exercise of his judicial discretion.
The active role of the Judge in conducting the case will be greatly enhanced under the new Civil Procedure Rules but under the traditional common law system he is an umpire and exercises his right to call evidence himself vary sparingly and only in very exceptional circumstances.
A Judge may not give a mere oral judgment as under the Constitution Art. 30, par. 2, every judgment “shall be reasoned and pronounced in public session”. A right of appeal is safeguard in every civil or criminal case and therefore even if the judgment is pronounced orally it will need to be reduced to writing either for the purposes of an appeal or merely for the benefit of the litigant, who is entitled to have such a copy of the judgment and in criminal cases, has the right to have such a copy free of charge.
4. As to summary proceedings the Judge may decide summarily any dispute irrespective of the amount of the monetary claim involved, where there is no reasonable defence to the action. Such summary proceedings usually cover monetary claims and are not suitable for employer-employee relations, landlord and tenant relations or family matters, except where again there is no reasonable defence. Manifestly ill-founded claims are dealt with under an application to dismiss the action for not disclosing a reasonable cause of action or is otherwise frivolous and vexatious.
A summary judgment does has the force of “res judicata” despite the fact that no procedure on the merits was held.
5. Injunction relief is available in any situation where it is just for the applicant to seek such relief either at the commencement of the case on an ex-parte application or as a final order after hearing the case as a whole. Usually such injunction relief takes the form of an interlocutory injunction prohibiting certain action and very rarely do the courts issue mandatory injunctions for the performance of contractual obligations prior to the hearing of the whole case on its merits. In granting injunction relief, Cyprus follows the Anglosaxon system of law and equity.
6. Certainly interlocutory judgments and time limits do play a vital role in the shortening of ordinary proceedings. If an applicant is successful in obtaining an interlocutory order, this may well lead to a final judgment on the merits, thereby finalizing the whole case within a reasonable time period.
7. In Cyprus, following the Anglosaxon system of law, it is possible to obtain protective measures right at the commencement of the case aiming to secure the availability of funds, or even the subject matter of the action, so that such funds or subject matter may not be dissipated but remain available for due execution at the end of the trial. A “mareva” injunction may also be obtained in any court by freezing funds available at bank accounts whether of a foreign or a Cypriot national upon satisfying the Court that there is reasonable fear that the defendant will remove the funds out of the jurisdiction. Receivers and managers may also be appointed by interlocutory applications especially in company cases or cases where it is necessary for an outsider to step in under the authority of a court in order to maintain and secure a given situation. The decision whether such protective measures are necessary rests solely with the applicant and the remedy is usually granted on an ex parte basis, always followed however by an inter-partes proceeding, where the ex parte order is scrutinized with a view to decide whether to uphold or annul it.
8. As Cyprus follows the English Common Law System an application for an Anton Piller order is possible and such an order is readily available where the circumstances of the case are such as to justify the gathering of information prior to the trial. As in the English system, an Anton Piller order is available to gather information usually in piracy cases and cases involving infringement of trade marks, patents and copyright.
9. A first instance judgment is immediately enforceable without leave of the judge and can only be suspended upon an application to that effect on the basis that an appeal has been filed and only if the court after hearing both parties so decides. The norm is that a successful litigant is not deprived without due cause of the fruits of his judgment.
10. Under the Constitution a right of appeal is available in every single case and such a right of appeal does not depend on any prior leave by the court. Although such prior leave would be desirable in certain circumstances so as to limit the number of cases going to appeal, especially obviously untenable appeals, it is as yet due to Constitutional provisions not possible to restrict the right of appeal.
11. (i) Obviously in any system of law it is possible to provide for additional measures aiming at securing more effectively the enforcement of judgments. The enforcement of court judgments is done through the court bailiff system machinery and a most speedy and quick method should be found, either by increasing the number of the bailiffs involved, or, alternatively create a mechanism for private execution, monitored however by the court.
(ii) Obtaining information on debtors΄ assets is not readily available under our system, with the exception of securing such information where an interim order is sought restricting the power of a debtor to sell his land or other assets in pending cases involving monetary claims. Such information may be given on application to the Land Registry Office of the District where the debtor resides. Information regarding assets of a debtor is also readily available where a debtor is declared by the Court bankrupt. Any differentiation of the present system should only be made after careful examination of the need of the debtor to maintain his right of privacy, except where the law otherwise provides. Therefore, any possible change should balance the need on the one hand of the applicant-creditor to obtain the necessary information and on the other hand, the right of the debtor not to divulge unnecessary information.
(iii) There are already in force various Conventions to which Cyprus is a party which make possible the recognition of judicial decisions from other countries. There could be a general European Convention among the Council of Europe Member States providing for mutual recognition of judgments issued in any member State.
c) In criminal matters.
1. & 2. In general, the Cyprus Criminal Law System follows the English Criminal System of trial and it is fairly simple especially in summary trials. There are no particular accelerated or simplified procedures and no management of criminal justice.
3. (i) The Attorney General of the Republic is the only competent authority under the Constitution to decide whether to discontinue a particular criminal case, whether of a petty or a serious nature, and this he may do irrespective of whether adequate evidence of quilt is available. The Attorney General may also file in a particular case a nolle prosequi without giving any reasons for so doing. In practice the Attorney General exercises such prerogative only in very exceptional circumstances.
(ii) Minor road traffic, tax and customs law offences are usually dealt with outside the criminal law system, but, if the offender does not pay or conform with the necessary directions given by the appropriate officer, a criminal prosecution may follow.
(iii) No official out of court settlement is possible in criminal cases, but in private prosecutions especially for bounced cheques, it is possible as a matter of practice for the case to be dropped or discontinued with the leave of the Court where the amount of money involved has been paid.
(iv) No such penal orders are possible.
(v) A guilty plea may be entered by any accused person at the beginning of the criminal trial upon arraignment, whereupon the court hears the facts of the case, without any evidence, and passes sentence accordingly. There is no separate procedure to obtain a guilty plea, except within the criminal trial itself.
(vi) Where there is a failure to comply with procedural requirements such as not giving enough information on a criminal count or where there is duplicity of offences, the proceedings may be declared void and the accused may be discharged.
(vii) It is not possible to notify decisions of the Court through the mail as any judgment must be handed down in a public session at the end of the trial where the accused is invariably present. Criminal summonses to the accused or witnesses are served through the police machinery.
(viii) It is not possible for the court to refrain from issuing a judgment in writing upon the parties agreeing to such a course. As stated before, the right of appeal is guaranteed against any decision and such decision must therefore be reduced in writing for appeal purposes. However, in minor criminal cases, especially traffic offences or offences against municipal laws and regulations, the Judge usually either orally states the facts and pronounces the sentence or a standard form is invariably used where as a matter of course the Judge records the plea of guilty and the basic facts as well as the sentence, usually a fine or a recognizance.
4. No jury system exists in Cyprus, the Judge being an adjudicator of both the law and the facts of the case. The Judge does not participate in any stage of the investigation process, his role being restricted to try the case that is filed and brought before him in accordance with the Law and the evidence produced. As stated before, a guilty plea is possible only within the criminal process itself, takes place before the Judge in open Court, the Judge being also responsible for sentencing the accused.