Filenews 28 August 2022 - by Michalis Hadjivassilis
He assumed, at a critical time for justice, his duties as President of the Supreme Court. The challenges are many for this and he is called to lead the effort to make a series of changes with a milestone on 1/1/2023, so that the transition can be smooth.
Mr. Antonis Liatsos knows first hand the problems in the field of Justice, which is why he is not hiding. He opens his papers to "F" and talks about the road map that will be followed, while pointing out the dangers of deforestation of the District Courts from their promotion to Appeal Judges. It notes that the success of the new courts is also related to the selection of the appropriate judges, while it also proposes the out-of-court settlement of disputes as a solution for cases that are delayed.
-During your confirmation ceremony as a President of the Supreme Court, you stated that you have the responsibility to lead the effort to implement the reform of the Judiciary. What is the next day like for Justice?
-Lately, justice has been in the centre of interest, due to the great, unprecedented for our country, reforms that are taking place. The effectiveness and quality of the judicial work and the way in which the responsibilities of the judicial bodies are exercised are directly intertwined with the daily life of the citizen, since they have a decisive impact on human rights and his fundamental freedoms. It is mainly for these reasons, but even as a form of accountability to the citizens, that the Judiciary, as the main guarantor of the democratic character of any modern regime, must maintain open channels of communication with civil society, from which it emanates and for the sake of which it is awarded.
The day after the reform bills are passed is full of challenges. Their implementation is the big issue. To this end, the Supreme Court has already begun to work on a roadmap, given the complexity and complexity that characterizes the full completion of the reform structures. The President of the Supreme Court is by law and President of the transitional Advisory Council, as well as President of the transitional Supreme Judicial Council. Following a relevant recommendation by the Pancyprian Bar Association, the Supreme Court has already approved the appointment of two lawyers as members of the transitional Advisory Council and two more as observers to the transitional Supreme Judicial Council, as provided for by the relevant reform Law, Law 145(I)/2022. The first session of the two Councils was set on 1.9.2022. The importance of their work is crucial, I would say decisive, in the direction of a successful conclusion to the whole reform. This is because the selection and appointment of a large number of new, fully worthy Judges will also determine the value of the reform structures, especially with regard to the appellate judiciary, the Court of Appeal. The roadmap also covers the timetables for establishing the regulatory framework for the operation of the new judicial structure. Regulations that should be completed and enter into force with the establishment of the new Courts, i.e. on 1.1.2023. In addition, meetings have already been arranged with all stakeholders, including the competent Ministries and state services, in order to initiate and ensure the timely placement of the necessary staff, as well as the provision of the necessary means for the smooth start of operation of the courts in question. You understand the multilevelity of the processes and the pressing time limits to be completed. I should stress that the success of the project does not depend on the Supreme Court alone, but presupposes the immediate response of the state, at least as far as the staffing and provision of the necessary means of operation of the courts in question are concerned.
-How will the separation of the current Supreme Court be done, so that there is a smooth transition and so that the administration of justice is not affected?
- According to the reform Law 145(I)/2022, the existing Supreme Court from 1.1.2023 will operate as the Supreme Constitutional Court and as a Supreme Court, with nine Judges the first and seven the second. The existing Judges, i.e. the Judges of the Supreme Court as they are today, will become members, either of the Supreme Constitutional Court or of the Supreme Court, after having exercised the right of choice to the President of the Republic. The President of the Republic is legally obliged, for reasons of paramount importance related to the independence of the Judiciary and its officers, to respect the aforementioned selection of the existing Judges. Any vacancies in one or both Supreme Courts will be filled by the President of the Republic, after taking into account the relevant recommendations of the transitional Advisory Council, which are, by law, advisory in nature. These conditions ensure the smooth transition of the current Supreme Court to the two new Supreme Judicial Bodies. Personally, knowing for many years how the Supreme Court operates and the level of its members, I have no doubt that justice in this tertiary field will operate smoothly and without any particular problems.
-A large number of new judges will be required to implement the changes. How will this issue be addressed?
- The question is crucial because, in my opinion, it is the most important factor for the success of the whole reform project. The irreproachability of the procedure and the final selection of the most suitable for appointment to the position of Judge, will also determine the value of the whole reform effort. Despite the fact that a great deal of time and energy has been spent in the direction of presenting positions and opinions on the separation of the Supreme Court, I am strongly convinced that our attention should be turned, in particular, to the great intersection attempted by the creation of the appellate court, namely the Court of Appeal. This is because, I have no doubt, the two highest judicial bodies, namely the Supreme Constitutional Court and the Supreme Court, will not face any problems in their smooth functioning, given their staffing, to a large extent, with the existing Judges of the current Supreme Court. However, the establishment of the new judicial body, the Court of Appeal, which will be staffed entirely with Judges who have not had at an earlier stage the opportunity to exercise appellate jurisdiction, nor the experience of the organization and operation of such a Court, entails multiple risks, especially in the transitional stage. Therefore, the transitional Supreme Judicial Council, which also has the power to select and appoint the Court of Appeals, should act with particular care and prudence in the selection of the most appropriate, always bearing in mind the important, I would say crucial, role that the Court of Appeal is called upon to perform and, among other things, the risk of deforestation of the District Courts, that lurks.
-One of the issues that concerns lawyers is the criteria for the appointment and promotion of judges. Are there any thoughts of making further changes to the Guide to Judicial Conduct?
-The criteria for the appointment and promotion of Judges are based on an expert study, which took into account what is in force in other countries, the systems of which could serve as a model. The essence and main objective of the criteria is, above all, the transparency of the whole process, the consolidation of the independence and impartiality of the judiciary and the facilitation of the selection of the most suitable candidates for appointment or promotion. As has already been said, the relevant decisions of the Supreme Judicial Council will now be reviewed by the Supreme Constitutional Court, which, in this case, will act as a judicial council of cassation. Under these circumstances, each candidate will now be given the opportunity to challenge the judgment of the Supreme Judicial Council.
The Guide to Judicial Conduct was drawn up along the lines of the Bangalore Principles of Judicial Conduct, which were adopted by the countries of the Council of Europe. It contains patterns of behaviour, which are part of the long judicial tradition and have been recognized by a series of decisions of the Supreme Court of our country. Its implementation ensures the completely irreproachable behaviour of the judicial officers and any violation of it raises the issue of disciplinary action, with all the ensuing serious consequences on the person of the Judge under prosecution. It is with great satisfaction that I note that to this day there has been no case of violation of the Guide, a fact that testifies to the high level of behaviour of the officers of justice.
Mutual control of the judges of the two Courts
- Which cases will the Supreme Constitutional Court consider and which will the new Supreme Court examine?
- From 1.1.2023, as Law 145(I)/2022 provides, the Supreme Constitutional Court will have the jurisdiction established by the Constitution, in relation to the then Supreme Constitutional Court. Specifically, it will have exclusive jurisdiction to decide definitively and irrevocably on what is covered by Articles 137 to 151 of the Constitution. Among other things, in appeals concerning a conflict or challenge to power or competence, raised between any bodies or authorities of the Republic and on petitions of the President of the Republic for an opinion in relation to the unconstitutionality of laws. In addition, it will hear an appeal referred by the Court of Appeal against a decision of an Administrative Court on a matter of public law or major public interest or of general public importance or coherence of the law on conflicting or contradictory decisions of the Court of Appeal. It will also have jurisdiction to decide at third and final instance, after a permit it grants and following a prior review appeal procedure, over legal issues arising from the decision of the Court of Appeal which concern a major issue of public interest or which are linked to a differentiation of settled case-law or to the need for a correct interpretation of a legislative provision. Furthermore, a matter of particular importance, the Supreme Constitutional Court acts as an appellate council of the Judiciary against a decision of the Supreme Council of the Judiciary. In this way, it is now possible to review the decisions of the Supreme Judicial Council on the appointment, promotion or disciplinary control of Judges. Accordingly, as of 1.1.2023, the Supreme Court will exercise the jurisdiction and authority provided for by the Constitution under the then Supreme Court. As a higher court, it will also hear appeals referred by the appellate body, i.e. the newly established Court of Appeal, of a political or criminal nature, on a matter of major public interest or consistency of law, where it considers that the reference in question is justified. In addition, it has jurisdiction to decide at third and final instance, after a permit granted by himself and following a previous civil or criminal appeal procedure, on legal issues arising from the decision of the Court of Appeal and related to the differentiation of settled case-law or to the need for a correct interpretation of a legislative provision or to a major issue of public interest or consistency of law in conflicting or contradictory decisions of the Court of Appeal. It will also decide, a particularly important jurisdiction, for the retrial by the Court of Appeal or by the Court of First Instance, of a criminal case in which a conviction has been handed down, on the basis of new evidence or facts which, in the opinion of the Supreme Court, may overturn, in whole or in part, the decision.
I would add that, in the transitional phase, both the Supreme Constitutional Court and the Supreme Court, in order to help eliminate late appeals, will hear, respectively, the pending revision appeals registered before 31.12.2018 and civil appeals registered before 31.12.2017.
The above juxtaposition, in broad terms, of the jurisdiction of the two Supreme Judicial Bodies, is indicative of the range of intersections that are now being attempted in our judicial system. In addition to the transparency guaranteed through the mutual control of the Judges of the two Courts, the coherence of the law is ensured and safeguards are put in place that concern the rights of convicted persons, in the first and second instance.
No more traditional case management
-How do you think the problem with the huge delays in the administration of Justice will be addressed?
-The delay in the administration of justice is a phenomenon observed in many countries, including Member States of our European family. In our country, we must note, it is particularly worrying when it comes to civil and administrative cases. The meagre means that the State, for a number of years, provided to the Judiciary, combined with the large volume of cases registered immediately after the Crisis of the Stock Exchange, around 2000, and the collapse of the banking system in 2013, are the main reasons for causing the delays under discussion. In order to deal with this open wound in the body of Justice, the Supreme Court, over the last ten years, has promoted and taken a series of measures. With the full support of the State, the establishment of two new Courts, the Administrative and the International Protection, was made possible, the establishment of a Commercial Court and a Naval Court was launched, the positions of Judges were increased, the revision of the Institutions of Civil Procedure was promoted and all the suggestions for the "General Reform of the Courts" were adopted, a project funded by the EU and completed with the delivery of the Report of the Irish experts, entitled "The Functional Review of the Courts System of Cyprus". Furthermore, the establishment of a reform department, as well as the official operation of the Cyprus School of Judges, in August 2020, have greatly helped to promote the reform sections and to the preparation of training programs both to Judges, as well as to the rest of the staff of the Courts and lawyers, on an annual basis. The implementation of the i-justice system and the expected completion of e-justice by the end of the year will lead to a new era, with beneficial effects in terms of speeding up the administration of Justice. Particular emphasis should be placed on the staffing of the Courts with the necessary staff, on the coverage of housing needs, primarily with regard to the District Court of Nicosia and on the provision, especially to the Judges of first instance, of the necessary means to facilitate their mission.
The liquidation of delayed cases is the bet that must be won in order for the work of reform to be successful. The treatment of this colossal project was the subject of many years of study by the Supreme Court. It was held that the traditional management of these cases is impossible to lead to their liquidation. In this context, innovative solutions were sought, including the creation of an additional team of Judges, consisting of retired Judges and a number of retired lawyers, a relevant list of which has already been sent by the Pancyprian Bar Association. It remains to appoint some of them, after of course the approval of the relevant funds by the competent ministry and after ensuring the impartiality of their own participation.
The adoption and implementation of alternative forms of dispute resolution, such as arbitration and mediation, will contribute greatly to the acceleration of the administration of justice. To this end, the Supreme Court, in a recent session, agreed, in principle, with the introduction of the ODR (Online Dispute Resolution) procedure subject of course to the approval of its secure, regulatory, network of operation. However, there is a reluctance on the part of the parties involved to seek settlement of disputes between them in a context other than recourse to the Court of Justice. The reasons should be troubling. I am of the opinion that an important factor is the lack of information for citizens, but also the effort that must be made towards the creation of a reliable system of alternative dispute resolution, in order to consolidate the necessary sense of trust in the citizens involved and all interested parties.
We are responsible for implementing the changes
- Before the bills were passed by the House, enough time was spent on whether what will be implemented is in accordance with the Constitution. What is your position on this point?
- You will understand that, by virtue of my position, it would not be appropriate to express any opinion on the constitutional aspect of the reform laws under discussion. The Supreme Court's firm approach is that any disputes that arise as to the constitutional dimension will be judged, as is customary, in due course, by the competent Court. I should note that in the course of discussing the reforms with the competent bodies, but also among the members of the Supreme Court, different views, thoughts and positions were expressed and developed through fruitful dialogue. They echoed, in any case, the genuine concerns and concerns of all of us, given the seriousness of the issue and the consequences it entails for the future of Justice in our country. The need to improve and save our judicial system, which was on the verge of collapse, with all the foreseeable consequences for the Rule of Law itself, prevailed. We now bear the responsibility for the implementation of the reform laws of Justice, as a self-evident debt to our country, but also to each individual citizen.
