Abstract
By way of a background to the analysis in the more empirical chapters that follow, this chapter will commence with a brief historical background to the legal system in Cyprus, followed by an outline of the criminal justice process and a study of the evolution and the legal framework of the prosecution system.
The first task is useful in gaining an understanding of the origins and the general characteristics of Cyprus law. Although Cyprus is mostly characterised as a common law jurisdiction, it will become apparent that it has attracted influences from various legal systems and under those influences even original common law institutions have been modified. The second section discusses the law relating to the criminal justice process, highlighting again its particular characteristics and the way that a written Constitution has modified some rules and practices of the original English system. Finally, in the last section, the evolution of a private system of prosecutions to a unique prosecution system which concentrates extensive powers in the Attorney General’s Office will be outlined and the present – limited and vague – legal provisions that regulate the prosecution process will be examined. This is essential in order to understand the inter-relationships of the various agencies that maintain an involvement in the prosecution of criminal offences and the key role of the Attorney General’s Office. In some aspects there is a blurred division of responsibilities between criminal justice agencies that needs to be further explored. Overall, in this chapter, I will provide a discus\sion of the law and describe how it serves as an additional context for the rhetoric and the operational practices regarding prosecutions, which I will investigate in the following chapters.
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Notes
- 1.
Quoted in Johnson (2002, p. 268).
- 2.
For a detailed description of the legal institutions of the Ancient Kingdoms of Cyprus, see Colotas (1988).
- 3.
See Kemal Cicek (2002).
- 4.
See Tornaritis (1980, p. 17).
- 5.
- 6.
For an overview of the justice system in Cyprus during British rule, see Limbourides (1983).
- 7.
The effects of the British common law on a culture different from that of Britain and the move away from local customs combined to create legal conflicts. See Demetriadou (1989).
- 8.
Symeonides (2003, p. 449) also reports that “even some of the statutes that the colonial authorities enacted during this period increased rather than decreased the diversity of Cypriot law. For example, two statutes, one on contract law and the other on the sale of goods, were supposed to be codifications of the English common law in those respective areas. This was true to some extent. However, strangely – but not surprisingly – these statutes also contained elements of Indian, including Hindu, law. Why? Because they were copies of ‘codifications’ undertaken in India, another British colony, a few years earlier … Similarly, the Law of Intestate Succession drew from provisions of the Italian Civil Code, while the Law of Horizontal Ownership of Buildings was based on a corresponding Greek statute”.
- 9.
The structure of the new state was based on the separation of powers. The legislative power vests in the House of Representatives, the executive power is exercised by the President and the Council of Ministers and the judicial power is vested principally in the Supreme Court and its subordinate courts as established under Part X of the Constitution. It should be also pointed out that the Constitution of Cyprus is one of the most complicated constitutions of the world, due to the effort to construct a bi-communal state, the basic function of which were requiring the participation of the members of the Greek-Cypriot and Turkish-Cypriot communities. See, inter alia, Loucaides (1982), Tornaritis (1980) and De Smith (1964).
- 10.
Article 188 of the Constitution.
- 11.
See Pikis (1981), who argued that the reason why common law was adopted in Cyprus en masse with the Law 14/1960 was the common belief of both Greek and Turkish Cypriots that it had been tested in the country for a while and provided security for people and effective protection of civil rights.
- 12.
- 13.
Most of the reasons mentioned here are analysed in Symeonides (2003, pp. 451–454).
- 14.
Stylianou v. The Police (1962) 2 C.L.R. 152. See also Mouzouris v. Xylophagou Plantations Ltd (1977) 1 C.L.R. 287, The Police v. Xidia (1992) 2 C.L.R. 26 and Parris v. The Republic (1999) 2 C.L.R. 126.
- 15.
“(T)he Common law must be planted here as a living growth which can be pruned by judicial decision to suit local conditions [because] … the intention of the country’s legislator was the service of people in this country”. (Paikkos v. Kontemeniotis (1989) 1 C.L.R. 50 at 73). See also Protopapas v. Gunther, [1974] 10 J.S.C. 981.
- 16.
Christodoulou v. The Republic (1967) 3 C.L.R. 691.
- 17.
As of 1 May 2004, Cyprus is a full member state of the European Union. Therefore, European Union law and principles are also applicable in Cyprus.
- 18.
See Symeonides (2003).
- 19.
“(A)lthough Cyprus legal system comprises various statutes not based solely on English law but also on various other continental legislation, nevertheless, the common law cardinal rules of legal construction continue to prevail and the Republic of Cyprus may still be considered as a common law country” (Tornaritis 1982, p. 40).
- 20.
- 21.
See particularly the discussions about the reform of the Evidence Law in criminal cases (House of Representatives: Discussions on the Draft Bill on Evidence, 2001–2003).
- 22.
Clerides (1984).
- 23.
Criminal Procedure Law Cap. 155 s.3.
- 24.
- 25.
The British did not introduce the jury system in all of their former colonies, as the public participation in the administration of criminal justice was not well suited to a colonial regime. See Kapardis (2001, p. 60). See also Vidmar (2002), who reports that the jury system was introduced in a number of British colonies, albeit with various modifications (e.g. in some African colonies only whites were eligible to serve on juries and in other instances property or other requirements effectively excluded non-whites).
- 26.
Loizou (1972).
- 27.
See, inter alia, Drakos (2005).
- 28.
See European Commission’s Report (1999, p. 58): “The Constitution safeguards fundamental rights and liberties in a comprehensive way. The constitutional charter of human rights is modelled on the European Convention on Human Rights, even though it is more detailed and extensive”.
- 29.
An example of this was the abolition of the mandatory or minimum sentence as it was judged contrary to the constitutional principle which states that “no law shall provide for a punishment disproportionate to an offence” (Article 12.3 of the Constitution). Another example would be the power of arrest and detention that has been formulated in such a way as to comply with the constitutional requirements contained in Article 11 and the right of liberty of an individual – see the discussion later in this chapter.
- 30.
Pitsillos v. The Police (1966) 2 C.L.R. 50.
- 31.
Kyriakides v. The Republic 1 RSCC 66.
- 32.
Nevertheless, as people (especially police officers and Law Officers) I interviewed argued, currently, it is considerably more difficult for the police to issue arrest warrants compared, for instance, to two decades ago. An example of the stricter approach of the courts has been the decision in Re Polycarpou (1991) 1 C.L.R. 207 mentioned above.
- 33.
See, however, section 13.2 of Criminal Procedure Law.
- 34.
An arrested person may be remanded in custody for renewable periods of up to eight days. And the total period of remand in custody must not exceed three months (Article 11.6 of the Constitution).
- 35.
Tsirides v. The Police (1973) 2 C.L.R. 204, Stamataris v. The Police (1983) 2 C.L.R. 107, Aeroporos v. The Police (1987) 2 C.L.R. 232, Shimitras and Another v. The Police (1990) 2 C.L.R. 397, Houris v. The Police (1989) 2 C.L.R. 56, Simillides v. The Police (1997) 2 C.L.R. 160, Demetriades v. The Police (1997) 2 C.L.R. 312, Ioannou v. The Police (1998) 2 C.L.R. 495, Lomjanidje v. The Police (2003) 2 C.L.R. 401, etc.
- 36.
An application for a remand must be made by a police officer not below the rank of inspector (Criminal Procedure Law s.24).
- 37.
Azinas v. The Police (1981) 2 C.L.R. 9.
- 38.
See inter alia Attorney General v. Aeroporos (1999) 2 C.L.R. 232, The Republic v. Kyprianides (1994) 2 C.L.R. 37, The Police v. Yiallouros (1992) 2 C.L.R. 147, Parpas v. The Republic (1988) 2 C.L.R. 5, Merthodja v. The Police (1987) 2 C.L.R. 227 and The Police v. Georghiades (1983) 2 C.L.R. 33. See also Pikis (2003, Chap. 6).
- 39.
See, e.g. Michalis Andrea Psillas v. The Republic (2003) 2 C.L.R. 353 and Parris v. The Republic (1999) 2 C.L.R. 186.
- 40.
Since 1 January 2008, this amount corresponds to 85,430 Euro.
- 41.
Courts of Justice Law 1960, s.24.2.
- 42.
This information must comply with all the formalities provided under the Criminal Procedure Law, s.39.
- 43.
See section 39 of Criminal Procedure Law.
- 44.
Criminal Procedure Law s.155(b).
- 45.
Criminal Procedure Law, s.90. See G. Pattiki and Another v. The Attorney General (2000) 1 C.L.R. 1669.
- 46.
See sections 92–106 of Criminal Procedure Law.
- 47.
Criminal Procedure (Temporary Provisions) Law 1974 (Law 42/1974 as amended by Law 44/1983).
- 48.
See a similar provision in the Canadian Criminal Code, s.577 (“Direct Indictments”), based on which the Attorney General has the power to directly indict the accused without the accused having the benefit of a preliminary inquiry.
- 49.
Loizou and Pikis (1975, p. 96).
- 50.
As will be shown in Chap. 6, it is this criterion that most of the Law Officers are referred to, when asked about the level of evidence that a case should satisfy in order to be sent to court.
- 51.
(1962) 1 All E R 448.
- 52.
(1981) 2 All E R 1001.
- 53.
See Mansfield and Peay (1987).
- 54.
E.g. Attorney General v. Christodoulou (1990) 2 C.L.R. 133.
- 55.
See, inter alia, Attorney General v. Theodorou (2002) 2 C.L.R. 9.
- 56.
See Jackson and Doran (1995) for a discussion of the Diplock Trials in Northern Ireland.
- 57.
It has to be mentioned, though, that this book does not deal with the role of the Law Officers in presenting cases in court.
- 58.
Article 30.2 of the Constitution provides that the judgment of the Court shall be reasoned. Section 113.1 of the Criminal Procedure Law creates the same obligation, providing that reasons must be given for the judgment of the Court.
- 59.
Similar provisions can be found in Scottish law.
- 60.
See, however, the changes introduced by Law 14(I)/2009. This recent Law, which modifies section 9 of Evidence Law, provides that there is no need for corroborative evidence in support of the sworn or un-sworn evidence given by a child.
- 61.
This is the exact – oddly sounding – phrase that the judiciary are using. Being both the arbiters of the law as well as the facts, they are obliged to warn themselves – instead of the jury – of the dangers that the acceptance of evidence without corroboration may involve.
- 62.
- 63.
Law 32(I)/2004 which amended the Law of Evidence (Cap. 9).
- 64.
It should be noted that, as Kapardis (2001) remarks, this principle was introduced in Cyprus with the “necessary” adaptations suited for a colony: for example, although the High Commissioner had the power to appoint Justices of the Peace for the lower courts, Ordinance XXVI of 1879 provided for the appointment of police magistrates, rather than lay magistrates, while, as we saw earlier, jury trials were never introduced into Cyprus. “One could, therefore, surmise that the British simply did not think they could call upon ‘good and lawful men’ among the local population to administer justice …” (Kapardis 2001, p. 60).
- 65.
See in Chap. 2 the similarities with the situation in Ireland and Northern Ireland.
- 66.
See also Christodoulou (1994).
- 67.
See in Appendix 2 a list of all the post-holders during British rule.
- 68.
Cyprus Gazette, 5/11/1878.
- 69.
See the Governor’s Annual Report for the year 1881 (Biddulft 1881).
- 70.
- 71.
See Chap. 2 for the history of public prosecutions in (including others) England and Wales and Ireland.
- 72.
Loizou and Pikis (1975).
- 73.
- 74.
- 75.
See Bell (1989, p. 9): “In Ireland … a deliberate policy was adopted to introduce a professional system of law enforcement, the main reason being that its impartial administration could not be otherwise guaranteed”.
- 76.
- 77.
Articles 112–114 of the Constitution.
- 78.
There is a similar provision in the Constitutions of other Commonwealth countries: see, for example, Article 76 of the Constitution of India, Section 88(I) of the Nigerian Constitution and Article 42 of the Constitution of Guyana (Casey 1996).
- 79.
The English and Irish Law Officers were relieved from their drafting responsibilities as early as 1869 and 1875 respectively, when the Parliamentary Counsel’s Office was established. See Casey (1996).
- 80.
There are other Commonwealth countries that chose this path, for example, Kenya, Singapore, Pakistan, Seychelles, etc. (Edwards 1989).
- 81.
The two communities are the Greek-Cypriot community and the Turkish-Cypriot one. However, since the Turkish invasion in 1974 the two communities have been violently separated. The majority of Turkish-Cypriots are now living in the north part of Cyprus, which is under Turkish occupation.
- 82.
However, it should be noted that according to some officials at that time, the fact that the serving Attorney General (Mr Tornaritis) was part of the committee that drafted the Constitution, contributed towards the allocation of extremely broad powers and political independence to the Office of the Attorney General.
- 83.
For example, in England he is a Minister appointed by the Prime Minister but not a member of the Cabinet. It has been advocated that when executing his prosecutorial functions, he may seek the advice of the Cabinet but he is not required to do so. The most well known explanation of this relationship is the one found in a parliamentary speech of Lord Shawcross when Attorney General in 1951 (see H.C. Debates, Vol. 483, col. 683).
- 84.
On the contrary, in England and Wales the independence of the Attorney General is only a matter of convention. See, for example, Marshall (1984), cited in the Law Reform Commission of Canada (1990), commenting that it is difficult to find “any clear legal ground for asserting a right in the Attorney General to act independently”.
- 85.
E.g. Corruption and extortion by a public office s.105-6 of Cap. 154, Participation in an illegal union s.56, 67 of Cap. 154, etc.
- 86.
In Re Ttooulias (1984) 1 C.L.R. 885, Attorney General v. Ioannidi (1993) 2 C.L.R. 377, Attorney General v. Andrianou (1995) 1 C.L.R. 486.
- 87.
See Artemis (1989, p. 4033): “The power assigned to the Attorney General might be abused as there is a possibility of any power to be abused. As a general proposition that is true but it has nothing to do with this question. A law, either pre-existing the Constitution or enacted thereafter, cannot validly alter or abridge the powers of the Attorney General conferred on him by the Constitution”.
- 88.
See Chap. 6.
- 89.
See also: In Re Koumougiouros (1995) 1 C.L.R. 805.
- 90.
- 91.
For example, Social Insurance Law 2/1964, Municipal Corporations Law 64/1964, Streets and Buildings Regulation Law Cap. 96, etc.
- 92.
For example, Law 82/1967 s.176.1: “Prosecutions against this Law … are referred to as custom prosecutions and are made subject to any direction of the Attorney General of the Republic”.
- 93.
See also Ttofinis v. Theocharides (1983) 2 C.L.R. 363.
- 94.
- 95.
As shown in Chap. 2, before the enactment of the Prosecution of Offences Act 1985, the vast majority of prosecutions were carried out by the police and normally by a constable in his own right as a private prosecutor. See, though, the principle of constabulary independence there.
- 96.
See Chap. 4 for a further analysis of this point.
- 97.
It has to be remarked, though, that the exact meaning of this provision has not been properly analysed. See Chap. 4.
- 98.
See, for example, Circular GE 7/1969/2 issued by Mr Tornaritis, dated 12/06/1976. For detailed discussion on this topic see Chap. 5.
- 99.
See Chap. 2, however, for exceptions to this rule, either as matter of practice or new legislative trends.
- 100.
See Question in Parliament of MP Mr Anastasiades, dated 01/02/1969. See also Loucaides (1979).
- 101.
This reply of the Ministry of Justice appears to be based on the letter of the Attorney General Mr Tornaritis to the Ministry of Justice, dated 13/02/1969 (G.E. 18/30/3) and reflects his opinion on this matter.
- 102.
Mr Efstathios Efstathiou was Member of Parliament (1985–1996) and President of the Law Committee of the Parliament (1991–1996).
- 103.
As will be shown later, however, this power is not identical to the power of the police in England and Wales before the Criminal Justice Act 2003, as it is subject to the limitations and restrictions that the special relationship between the Attorney General and the police demands.
- 104.
In fact, in order to appease police reactions a special section of that Law provided that there would be an intermediate period during which police officers without legal qualifications would be able to appear in court provided that they would be qualified upon a certain date.
- 105.
See Chap. 4.
- 106.
And also from the DPP’s Office which in 1879 acquired the role of the Public Prosecutor in England and Wales.
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Kyprianou, D. (2010). Introduction to Cyprus Law and Prosecution System. In: The Role of the Cyprus Attorney General's Office in Prosecutions: Rhetoric, Ideology and Practice. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-01921-0_3
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