Filenews 22 March 2022 - by Michalis Hadjivasilis
A last-ditch effort to find a formula and approve the three bills for justice reform, along with the Commercial Court and Naval Court, will be tabled tomorrow in the House Committee on Legal Affairs.
Three years after their submission by the Government and despite the meetings that took place to find the right balance, the bills have not been forwarded to the Plenum for a vote. At this pivotal point in time, we asked the views of the president of the Cyprus Bar Association, Christos Clerides, on what a rejection of the bills would mean. "They must be put to the plenary immediately and everyone should take their share of the responsibility," he says. He recalled that the Supreme Court has warned that if they do not pass, justice will completely collapse. In favour of the reform are Greco, Venice Commission, The European Commission, The Rule of Law, the Irish experts, the Advocate-General, the Department of Justice, the GPP, civil society, the suffering world. "Those who are against the passage of the three Bills, should say so publicly and assume the responsibilities and consequences", stressed Mr. Clerides.
- What are the three bills that are pending for a vote in the House provide for?
- The reform provides for a return to the Constitution as soon as possible, i.e. a new Supreme Constitutional Court that will hear cases of public law and a new Supreme Court for criminal and civil actions, which will be mutually controlled for disciplinary action and further in the Supreme Constitutional Court will be registered appeals against appointments and promotions of judges, which will be carried out by another body, the new Supreme Judicial Council.
- Is it possible to separate the Supreme Court?
- The answer is yes. With the 1960 Constitution we did not have a single Supreme Court. The unified Supreme Court was established in 1964 by a law of the House of Representatives, which was contrary to the Constitution, but was legally justified by the Law of Necessity by the new unified Supreme Court.
In countries of Continental Law, which we have in Cyprus in the field of Public Law, we always have two courts. For example, in Greece, the Council of State and the Supreme Court or in France the Conseil d'État and the Cour de cassation. The separation means that:
(1) It is now possible to appeal by decisions of the Supreme Judicial Council to the Supreme Constitutional Council, on issues of appointments and promotions of judges.
(2) We return to the checks and balances of the 1960s because the judges of the new Supreme Court are controlled by the judges of the Supreme Constitutional Court, and the judges of the Constitutional Are controlled by the judges of the new Supreme Court.
(3) As experts have advised us, it is necessary for the Supreme Constitutional Court to deal with the specialized field of Public Law. Specialization brings speed and quality.
The current system has failed in many areas, namely:
- Contributed to the terrible delays and the accumulation of appeals (5,000).
- Failed to deal effectively with the accumulation of cases of the District Courts.
- In the field of Public Law we have a plethora of contradictory decisions.
- We have district court decisions on unconstitutional laws and they remain in abeyance for many years and as things stand for a decade. See stranded buyers.
- The System also failed in the administration of the courts with the tragic situation prevailing in the District Court of Nicosia, the lack of space for new judges and registers and the dispersal of special jurisdiction courts outside the area of the courts.
- But the Irish did not propose in their 2018 report a separation of the Supreme Court.
- That is correct, but the Irish themselves, with the contacts that the Cyprus Bar Association has had with them since then, are advocating separation. The PPP, like the Supreme Court, believes that it is imperative that the Bills be passed immediately, since the justice system will collapse. At the same time, it promotes the creation of specialized departments in the District Courts, the introduction of ODR (online dispute resolution), the involvement of experienced lawyers for the trial of the backlog (recorders), the introduction of new civil procedure institutions immediately where possible and e-justice.
- What about the administration of the courts? Should we not have an independent authority?
- The answer is yes. Already, the European Commission and the competent bodies of the Council of Europe have set as a goal the operation of the Independent Authority of courts, in which the GPP will also have a role in autumn 2022. The relevant bill is being processed both by Mr. George Erotokritou (responsible for the reform) with the help of experts, and by the GPP. I think it is possible to have the service in 2022.
Reluctance from parties to vote
- Why is there a malaise in the passage of bills?
- I note that in the House there are some party forces with reluctance to immediately promote the reform as it has been proposed. They cite some initial concerns expressed by the Supreme Court which, however, with regard to the creation of the three courts in the highest tier, did not raise questions of constitutionality. Issues of possible unconstitutionality for the participation of the GI and the President of the GPP have been overcome. The Supreme Court took seriously the acceptance by the GPP of a proposal that the president of the GPP and the GS participate without the right to vote and asked the State to immediately pass the Bills with a warning that justice is collapsing.
However, parliament cannot delay in enacting the legislation for fear of unconstitutionality. In other cases, on manifestly unconstitutional matters, he did not hesitate to make political decisions. The former Attorney General, Mr. Costas Clerides and the current One, Mr. George Savvidis, have expressed the view that there is no question of unconstitutionality without of course anyone being absolute. The matter, if raised, will be decided in the future by the competent Court.
Any further delay entails the collapse of the Supreme Court and the rule of law will now be put at risk.
To "break" the image of promotions behind doors
According to Mr. Clerides, there is also provision for the creation of a new Advisory Council to advise the President of the Republic on the appointments of judges of the Supreme and Supreme Constitutional Court. Also, a new Judicial Council is created with the participation of judges from all levels and judges of the Supreme Court as well as the Attorney General and the President of the Cyprus Bar Association. "It is time," he adds, to 'break' the image that appointments and promotions are being made behind 'closed doors'. In the 21st century, transparency in justice is imperative.
