08 Mar Compliance of Cyprus with a decision of the ECHR
Compliance of Cyprus with a decision of the ECHR
by George Coucounis
“A violation of Article 6.1 of the Convention was found and the re-opening of an appeal was ordered”
THE decision of the European Court of Human Rights, ECHR, dated 9.1.2018 in the case of Nicolas v. Cyprus was examined by the Supreme Court of Cyprus in a judgment issued on 24.2.2022. The ECHR accepted Nicolas’ application and in particular that the decision of the Court of Appeal violated Article 6.1 of the European Convention on Human Rights, the provision concerning the impartiality of the Court. The applicant submitted an application and requested the re-opening of his appeal, which had been dismissed, in order to be given the opportunity to have his appeal heard again and for a final decision to be taken. A violation of the applicant’s human right to a fair trial was found as the impartiality of the judiciary was not ensured. There was an absence of objective impartiality of the Court of Appeal which heard the appeal with reference to a specific member of the Court who participated in its composition. Both the ECHR and the Supreme Court in their decisions recognised that there is no relevant case law and that the re-opening of an appeal is exercised on a case-by-case basis within the discretion of the Court in the exercise of its inherent power.
The decision of the Supreme Court dated 24.2.2022 was issued by majority, which states that it is a fact that there is no case law that recognizes the possibility of giving remedy in case of finding absence of impartiality of the Court of Appeal, in violation of Article 6.1 or the corresponding Article 30.2 of the Constitution. According to the law that applies in Cyprus, the Court stated that the violation of the rules of natural justice causes nullity of the relevant decision of the Court. This, of course, applies to a decision of the Supreme Court in the exercise of its Secondary Jurisdiction, as a Court of Appeal, when such a violation is found by the Court within the framework of its inherent power. The Court added that in the present case, the effect of the ECHR decision is such, in essence, on the decision appealed, without, however leading to its annulment or revocation.
The Court emphasized, however, that, for this Court, the violation of the applicant’s specific right had as a consequence that the said decision of the Court of Appeal be considered, in essence, invalid. The Court, referring to case law citing the principle of “audi alteram parterm” (hear the other side as well), decided that similar remedy could be awarded and in this case, especially in the absence of other remedy, in order to restore the above violation. In particular, the Court, exercising its inherent power, may, for the purpose of administering justice between the parties, order the re-opening of an appeal, in order for it to be adjudicated “before an independent, impartial and competent Court of Appeal”.
Having found that the applicant had not applied to the ECHR for redress under Article 41 of the Convention, the Supreme Court concluded that this did not deprive the applicant of the possibility of re-opening the appeal as the remedy requested in his application. Such remedy may be awarded in proportion to other cases, where a violation of the principle of natural justice was found, on the basis of the exercise by the Court of Appeal of its inherent power, to do justice between the parties directly involved in the appeal. Undoubtedly, as the Court stated, the issuance of such an order is compatible with the relevant provisions of the Convention and the case law of the ECHR, in accordance with the requirements of Article 46.1. It is thus achieved, in addition to the payment to the applicant of any amount of money as “fair satisfaction” and restoration of his rights under Article 6.1 thereof.
The Supreme Court referred to the relevant case law of the ECHR which states that: “The State Party in question will be under an obligation not only to pay those concerned the sums awarded by way of just satisfaction, but also to take individual and/or, if appropriate, general measures in its domestic legal order to put an end to the violation found by the Court and to redress the effects, the aim being to put the applicant, as far as possible, in the position he would have been in had the requirements of the Convention not been disregarded.” It added that in the present case the ECHR did not give the applicant any remedy other than the finding of the violation and for the reasons stated above, the Court decided that the application was successful and issued an order to re-open the appeal for consideration by a competent Court of Appeal.