Filenews 25 February 2023
Part A
Justice must not only be but also appear to be impartial. This is the conclusion of a major investigation by "F" on whether corruption has spread to the judiciary, whether there is integrity and impartiality in the decisions of the courts, and whether the appointments and promotions of judges are made through transparent procedures.
No one disputes that the Judiciary was left out of corruption, but several incidents have called into question procedures, there have been shadows for appointments and conflicts of interest in the trial of cases. The conflict that existed between the former Attorney General Costas Clerides and the former President of the Supreme Court, Myron Nicolatos, cannot be forgotten, that in at least two cases, the Supreme Court acted in a way, because of its compositions, that violated the principle that justice should not just be administered but appear to be administered.
The President of the Supreme Court Antonis Liatsos, the Attorney General George Savvidis, the former Attorney General Costas Clerides, the former Minister of Justice Ionas Nicolaou, the President of the Cyprus Bar Association Christos Clerides, the former MP and reputable lawyer Andreas Angelides and the President of the Committee against Corruption of Lawyers Orestis Nikitas present their views to "F".
Particularly scathing appears the former Attorney General Costas Clerides, who himself served as a judge for 25 years, on the issue of impartiality and objectivity of judges as well as conflict of interest. It speaks of cracks in citizens' trust in judges and points out the gaps in the appointments of judges and their promotions. As he points out, the process is not transparent since the most senior judges judge the younger ones.
According to Mr. Clerides, because corruption appears to have spread its tentacles in almost all areas of public life, the question arises from many whether it has also knocked on the door of the judiciary. The answer given by the judiciary itself to this question, it adds, through its representatives when the opportunity arises, is always in the negative. It is accompanied by the argument or justification of that reply, according to which the existence of any case of corruption committed by a judicial officer in connection with the performance of his duties has not been observed over time. Although the above statement is certainly correct and reassuring, it should be noted that this fact does not in itself constitute indisputable proof of the conclusion it conveys.
Various problems, continues the former Attorney General, have been identified from time to time and to one degree or another have created some cracks in the feeling of absolute trust that citizens should have in the judiciary. The most important assets which a judge must possess from the outset, both in general and in particular in each individual case which he is called upon to hear, are objectivity and impartiality. In relation to these two elements, the distinction between subjective impartiality and objective impartiality always comes into play. In the words of a great judge, every time he was called upon to go up to the bench to hear a case, he felt that it was he who was under judgment and probation. And that's how every judge should feel. He himself may subjectively feel, and perhaps justifiably, that he is, or that he has been practiced to be, so objective that he can fairly and impartially adjudicate a case that concerns even himself, or a relative or friend. But that is not and cannot be the criterion. The criterion is always what impression can reasonably be created in the mind of a person involved in the case and of any reasonable person. This issue always puts the issue of conflict of interest at the forefront. Unfortunately, this issue has often been addressed in relation to the judicial officers and their required objective impartiality.
A conflict of interest in such circumstances, notes Mr. Clerides, exists as soon as a person, here a judge, is put in such a position in the performance of his duties as to give him the opportunity, actual or even potential, to use his position for his own benefit or interest, or for the benefit or interest of someone with whom he is related, or financially, or friendly. He may not use his position in this way, but what is important is that he never allows himself, or others not to allow him with appropriate restrictions, to find himself in such a position.
Two problems of judicial functioning
From the experience and experiences I have gained as a lawyer for more than 10 years, as a judicial officer for 25 years and as a Prosecutor for another 7, problems related to the above issues we have had, and to some extent we continue to have with regard to judicial officers under two aspects of the judicial function:
(a) In the matter of appearing before judges, lawyers who are related by kinship with judges.
b. In matters of appointments and promotions of judges by the judges themselves who sit as the competent Judicial Council.
As the first issue, he points out, the question of regulating which judges are prevented from attending and should not hear cases in which they appear representing parties, lawyers who are related to the judges hearing the case, has always been predominant. It should be noted in this regard that until the early 80s, there was no statutory restriction so that a judge had the right to hear a case in which he appeared for a party, a lawyer who was a son, a brother, etc. of the judge. Later, and after more mature thoughts and protests, it was forbidden for judges to be heard by judges who were related to such a degree of kinship with appearing lawyers, but other lawyers from the same office to which the lawyer associated with kinship belonged or worked continued to be allowed to appear. In the end, however, this issue was also settled by procedural regulations following reactions and recommendations from organisations such as the GRECO Group.
On the second point, he continues, the procedure for first appointments and promotions of all judges of the district and other courts of first instance belongs exclusively and definitively to the highest judicial officers who are only the most senior colleagues of the candidates in question. It cannot be said that this was or is a transparent process or that it provides the necessary guarantees of objectivity. In other words, the possibility of influencing the judgment of the judges by personal relationships, preferences and friendships with those judged cannot be ruled out. Combined with this negative aspect with the absence of any means of monitoring the decisions of the Council which it appoints or promotes, it is in no way characterised by external guarantees of impartiality and objectivity. It is expected that with the recently adopted legislation on justice reform, the current situation will further improve.
In conclusion, he concludes, what can be said is that in matters of potential conflict of interest and corruption that refer to the officers of the judiciary, no matter how much trust is and must be attributed to the judges, not everything, or even some of the manifestations of these issues, can and should not be left to their subjective judgment.
Supreme Court: No trace of corruption
Supreme Court President Antonis Liatsos defends the changes made recently both in the way judges are appointed and in the Judicial Conduct Guide established since 2019. He points out that no allegations of corruption of a judge have been filed to date and admits that there is no audit of the judges' assets, which will be done soon.
A constituent element of a democracy, he says, is the rule of law, the main feature of which is the existence of an independent and effective judiciary. In modern democratic states, the administration of justice by impartial and independent, personal and institutional judges, emerges as a fundamental principle. These guarantees are guaranteed and shielded by the Constitution of the Republic of Cyprus, the crystallized binding principles of our jurisprudence and by the 2019 Guide to Judicial Conduct.
The independence and quality of the Judiciary are safeguarded, among other things, by the way in which its judicial officers are appointed. With the primary aim of appointing the most suitable candidates, the judges of the courts of first instance are appointed by the Supreme Council of the Judiciary, on the basis of a defined, meritocratic and transparent procedure and thorough criteria issued and published by the Supreme Court in July 2019. The above procedure shall apply mutatis mutandis, but with the same guarantees as regards the appointment of the judges of the newly created Court of Appeal. I must point out, emphasizes Mr. Liatsos, that with the recent amendment of the Law on the Administration of Justice, the transitional Supreme Judicial Council (and from July 1, 2023 the Supreme Council of the Judiciary), within the framework of its exclusive competence for the appointment or promotion of judges of the Court of Appeal and judges of the courts of first instance, operates, in a new form, thereby further enhancing the transparency of the process. This is because it is possible to participate in its sessions of the Attorney General, the President of the Cyprus Bar Association and two lawyers of recognized prestige and of the highest professional level. In addition, a matter of particular importance is the fact that the Supreme Constitutional Court, which will operate on 1 July 2023, will act as an appellate judicial council against a decision of the Supreme Council of the Judiciary. This now makes it possible to review the decisions of the Supreme Council of the Judiciary on the appointment, promotion or disciplinary control of judges. Furthermore, by separating the existing Supreme Court into Supreme and Supreme Constitutional, the mutual control of the officers of the two supreme judicial bodies is achieved.
Judges to be and appear impartial
Judges, observes the President of the Supreme Court, as regards their decisions and the procedure for making them, must be and appear to be impartial, that is to say, free from any prejudices, whether subjective or objective. The judicial practice dated 17.3.1988, as amended by subsequent decisions of the Supreme Court, preserves, together with our settled case-law, the impartiality of the judicial process. In this context, and also in order to exclude any possibility of conflict of interest, the judge is excluded when a lawyer who is a member of his family appears before him, under the broadness given to the term "judge's family", but also lawyers who are employers or employees or partners or lawyers who work under the same professional roof as this lawyer. With the 4th amendment of the Judicial Conduct Guide, this Judicial practice was fully incorporated into the Guide and is an integral part of it.
The Guide to Judicial Conduct was adopted in 2019 and has been revised five times to date for the purpose of further improvement and enrichment. It contains basic guiding principles of judicial conduct to enhance judicial integrity. The guidelines of the Guide are binding, are the quintessence of judicial conduct and their violation may lead to disciplinary liability. The Guide is continuously supervised and reviewed by the Standing Ethics and Conduct Monitoring Committee. In addition, continues Mr. Liatsos, the Supreme Court, given the case law that the issuance of a Regulation, which regulates the submission of an asset declaration by judicial officers, in the context of the source of assets, falls within the exclusive competence and jurisdiction of the Judiciary, proceeded to the establishment of a Committee, which submitted a recommendation for the preparation of a relevant Regulation and which was accepted by the Supreme Court. The Regulation is currently being prepared and will be published in the near future.
All of the above constitute a strong set of rules in order for the judiciary to fulfil its self-evident duty of accountability to citizens and society. This is despite the fact that the Judiciary of Cyprus has proved, over time, that it is fully aware of the weight of its function. I stress, for confirmation, that no trace of corruption, of any kind, has appeared in the history of the Cypriot Judiciary. On the contrary, the conduct of its functionaries, both private and public, is characterized by superior morality, decency and honesty, concludes the President of the Supreme Court.
