Lectures

Contempt of Court - Lecture 6

By: CHRISTOS CLERIDES Nov. 10, 2009

In this lecture we shall deal with Contempt of Court. By and large the Cyprus Law follows the old practice of Contempt of Court followed in England.

Statutory provision is made in Sections 42, 44 of the Courts of Justice Law 14/60.

A. SECTION 42

Under Section 42 the Court has the power subject to the Civil Procedure Rules to compel obedience to its orders.

The Court is empowered to impose a fine or imprisonment or proceed with sequestration of property. The Court may also adjudge compensation.

This provision enables an applicant, party to the proceedings to proceed against any other party against whom an order either Interim or Interlocutory or perpertual has been issued to proceed for a violation of the Order or Injunction. The injunction  maybe of a prohibitory or mandatory nature.
 
The procedure is laid down in Order 42 A of the Civil Procedure Rules and O.48 r 1-13.

As it has been decided by the Supreme Court of Cyprus in its appellate jurisdiction for a valid application under his Section to be made it must be established that the relevant/order/injunction was duly served (true copy hereof) on the person concerned personally and that the Order was indorsed with a note warning  the person to whom it is addressed of the consequences of failure to comply with it.

In addition the application with all its exhibits must be duly served and particulars of the contempt committed must be described in the body of the application which is made by summons. Provision is made in Order 42 A for substituted service of the Order where personal service is impossible.

The party concerned must appear personally as the proceedings followed are quasi Criminal.

In practice some judges require that the person appears and should be formally charged like an accused , i.e the contents of the application should be read out to the respondent and he has to answer them.

The Court will normally give directions for opposition and will set down the case for hearing the soonest possible. It may bind the respondent with a bond to appear before it or may order that he be present.

In case of failure to comply with the Order of the Court he or she is subject to a warrant of arrest being issued.

In the case Mouzouris v. Xylophagou Plantations Ltd (1977) 1 CLR 287, it was decided that personal service of the Order is a prerequisite to the invocation of the Court’s jurisdiction under Or.42 A of the Civil Procedure Rules for Committal. In addition it was held that a Contempt of Court has to be established beyond reasonable doubt even if the proceedings are taken as part of a Civil Action. It was also stressed that irregularities in the proceeding may invalidate them.

In the case of Μιχαήλ v. Μιλτιάδη Σελίπα (1996) 1 ΑΑΔ 749, the Supreme Court decided that a breach of a Court Order  for payment of a debt by installments tantamounts to a failure to comply with a lawful Order of the Court  under Article 11 (2) of the Constitution which may lead to the imprisonment of the Respondent under Sections 82-85 of the Civil Procedure Law Cap 6 and may lead to the imprisonment for contempt despite the provisions of Article 1 of the Fourth Protocol of the European Community (Law 52/89) which prohibits imprisonment for a Civil debt.

A violation of a Court Order may bring into play the provisions of Section 42 of Law 14/60 (Courts of Justice) or if it is a moneytary judgment to be paid by installments ,the provisions of CAP 6 , which may result in the imprisonment of the accused.

Non compliance with a Court Order may also bring into play the Criminal Code and in particular Section 137 which provides for a fine or imprisonment for two years in case of non compliance with an order of the Court.

For all intents and purposes the threat of a fine or imprisonment or the sequestration of property constitutes a strong incentive for ensuring compliance with Orders of the Court.

In the matter of Turhan Kazim Shemsettin v. Timour the respondents were sentenced to 30 days imprisonment for contempt of Court under Section 42 of Law 14/60 which the Court held that it conforms fully with Article 162 of the Constitution. Article 162 provides for the power of the Court to commit to prison until compliance with a judgment or its Order.

In relation to sequestration the Supreme Court in Οικονομίδου v. Ph. Economides Estates Ltd (1999) 1 AAΔ 1145 , where the defendant failed to comply with an order of the Court for specific performance of a contract of sale of a flat and parking spaces decided that it could not order sequestration of the property of the defendant/respondent company since there had to be filed first a writ of attachment against  the directors of the Company  and if not found then the property of the Company maybe ceased under a writ of sequestration.

Up to 2002 it was not possible in the Context of Civil Proceedings to punish a person under Section 42 of the Courts of Justice Law 14/60 who was not a party to the proceedings. In other words a party could proceed under Section 42 of Law 14/60 against another party to the proceedings.  In other words a party could proceed under Section 42 of Law 14/60 against another party to the proceedings  but could not proceed against any other person not a party to the proceedings.

In the case of Christoforou v. The Archibishop of Cyprus Chrysostomos the plaintiff applicant alleged that the Archibishop Chrysostomos rendered assistance to the defendant in Civil Proceedings namely Mr. A. Gregoriou for infringing an interim Order of the Court freezing the assets of the defendant Companies and maintaining the status quo pending final determination of the action.

Mr. Christoforou’s argument was based on well established precedent in England that a person aiding and abetting a Contempt of Court could be found equally guilty of that Contempt.

Nevertheless the Supreme Court of Cyprus decided in Appeal that under Cyprus Law and section 42 of Law 14/60 this is not possible as the jurisdiction of the Court in Civil Proceedings is confined to the parties before it and not to third parties who may be liable for criminal but not Civil contempt (See Re Archibishop of Cyprus Chrysostomos (1993) 1 AAΔ 961).

The law has now been amended by virtue of Law 80 (1) 2002 which provides that it is now possible to punish for contempt under Section 42 non-parties provided they have knowledge of it and knowingly and intentionally induce or abet the non compliance.

 

 

 

Finally note should be made of the case of Krashias v. Adidas (1989) 1 AΑΔ 750 which establishes the following:

1. The way to invoke the jurisdiction of the Court under Section 42 of Law 14/60 is specified in O42 A of the Civil Procedure Rules.

2. The applicant must call for oral evidence to prove his case for contempt where the facts are in dispute.

3. If the Order and application are not personally served no contempt can be established.

B. SECTION 44

Section 44 of the Courts of Justice Law provides for specific instances of Contempt of Court which are intended to undermine the authority of the Court and the Administration of Justice.

As we have seen above Section 44 of Law 14/60 is intended to ensure compliance with the Orders of the Court whereas Section 44 of Law 14/60 is intended to punish for Contempt committed in the face of the Court or intended to undermine the authority of the Court, its stature and the Administration of Justice.

An offence of a summary nature is committed subject to a term of 6 months imprisonment or a fine £100 or both in case a person :

(1). Shows disrespect to the Court

(2). Causes disturbance  

(3). Publishes false material or material that may prejudice the fair trial of a case

(4). Publishes in camera proceedings

(5). Scandalises the Court after judgment.

(6). Attempts to interfere with witnesses

(7). Dismisses a witness from his employment

(8). Takes possession of property from another who has possession of it as a result of a writ of possession.

(9). Takes or publishes a photo or a movie of the Court/area or the transport of suspects and or convicts from or to the Court, or attempts to question them

(10) Commits any other act of intentional disrespect

It is further provided in Section 42 (2) that in cases of contempt in the face of the Court the person may be put under custody and be convicted “on spot” to a fine of £25 or one month imprisonment or to both.

Since the Kyprianou case we have examined in detail in our previous lecture, a new Section 49 (3) has been included by law 36 (1)/2009 in order to comply with the judgment of the ECHR in Strasbourg finding the Republic guilty of a number of violations of the European Convention.

It will be recalled that Mr. Kyprianou an Advocate was punished for Contempt of Court in the face of the Court and sentenced to imprisonment by the Assize Court of Limassol before which he was appearing. He complained about the Bench not paying attention to the procedure when he was cross examining but rather exchanged “notes” (ραβασάκια) between themselves.

He was found guilty by the Bench and sentenced to a short term of imprisonment. The ECHR found that the same Bench which was the “complainant” should not also act as the “judge” of the case and further that Mr. Kyprianou’s freedom of speech rights were violated. As a result the law was amended and under Section 44 (3) in case the contempt is directed personally against the judge the matter maybe referred if the person concerned fails to apologize to the President of the Supreme Court for him to appoint another Judge to try the issue: The procedure to be followed is laid down in Section 44 (4) – (8) of the law.

The procedure to be followed is quick and summary and is intended to deal with the matter on the same day.

Under Section 44 (7) the Court has to balance the rights of freedom of speech as opposed to the need to safeguard the authority of the Court.

Under Section 44(8) rules of Court maybe enacted for details of the procedure to be followed.

Finally it should be mentioned that under Section 44 (9) an advocate cannot be found guilty of contempt of Court in the face of the  Court and for words or conduct when an advocate appears for a client but may be guilty of a disciplinary offence. Limited immunity is thus granted to Advocates when defending their clients.

A few more illustrations from the case law may be given.

In the case of Γρηγορίου v. Δημοκρατίας (Αρ.1) (2001) 2ΑΑΔ 299 the accused misbehaved himself in the course of a criminal trial. He was insulting to the judges and prosecution Counsel whom he assaulted. The imprisonment of 3 months for contempt was upheld. In the case of Ευαγγέλου v. Αστυνομίας (Αρ2) (2000) 2 ΑΑΔ 224 the accused complained that the judge collaborated with the prosecution to secure his conviction. The imprisonment of one month was upheld on appeal. In the case of Athlitiki v. The Police (1967) 2 CLR 249 a fine of £50 was imposed on the publishing company and the editor was bound over for one year for publishing an article capable of prejudicing the fair trial of a pending judicial proceeding S.44 (1) (c).

In the case of ΗΛΙΑ v. AΣTYNOMIA ( 1998) 2 ΑΑΔ 283  the accused was shouting from the accused stand questioning  a prosecution witness. He was fined £100. The fine was reduced to £75 as it was the maximum permitted under the law. The conviction was upheld.

As it can been seen from the above the distinction maintained in England between Civil and Criminal Contempt is by and large maintained in Cyprus also with the peculiarities nevertheless of the Cyprus Legal Practice and Law.

In the Criminal Code detailed provision is also made for various offences against the proper Administration of Justice in general.

The practice  and procedure in England and the relevant case law is used as a guidance for the Cyprus judges and Advocates (See in general ATKINS Vol. 12. 1962 pages 101-117).

Dr. Christos Clerides
Associate Professor of Law
European University

Nicosia 10/11/2009