Talking about judges is one of the most favourite topics amongst Advocates. I suppose that talking about Advocates may also be one of the most favourite subjects amongst judges. But the truth of the matter is that judges and Advocates in Cyprus especially due to its small size belong to one and the same close family. Practically almost everybody knows each other amongst some 2000 actively involved judges and Advocates. This maybe an advantage since one knows what to expect from each other. Experienced Advocates know the potential , ability wisdom and practice of judges. On the other side of the fence experienced Judges know the calibre and professional ability of Advocates. It is just that a times things get out of hand as they did in the notorious Kyprianou case where breakdown of communication in the atmosphere of a tense Assize Court trial led to the unacceptable by all means sending to prison of an experienced lawyer and to severe and provocative challenge of Judges by an experienced Advocate. Advocates in that sad event of Cyprus Legal history rallied behind their Colleague and protested publicly the conviction and sentence and Judges on the other hand unanimously and judicially by their judgment in the Appeal Court sitting in full Bench rallied in favour of their Colleagues, three Judges of the Assize Court in dismissing the appeal. In the end the ECHR sitting in full composition decided that the sentence was disproportionate to the exercise of the right of freedom of speech and expression and judges confronting this type of situation where they have to deal with a complaint against themselves are not the best of Judges to try the issue.
In the result the Republic of Cyprus was forced to amend its legislation to ensure that another judge should hear such complaints and Advocates in exercising their freedom of speech enjoy the protection of the law and can not be punished for contempt but for a disciplinary offence if found guilty.
Appointment and training of judges
SUPREME COURT
The Constitutional Provisions relating to the appointment of judges in the then Supreme Constitutional Court and the then High Court are to be found in Articles 133 and 153. Nevertheless as we have seen above in order to cope with events making impossible the functioning of the Supreme Constitutional Court and the High Court as a result of the politically motivated deliberate refusal of the Turkish Cypriot Judges to remain in their positions as we have seen in Lecture 1, the Administration of Justice (Miscellaneous Provisions) Law of 1964 was enacted which was later on ruled to be Constitutional and saved by the doctrine of the Law of Necessity , see the A.G. v. Ibrahim (1964) CLR 195 case. In the circumstances the constitutional provisions relating to the appointment of judges of the Supreme Court have been rendered temporarily inoperative. Under Section 3 of the Law the successor Supreme Court is set up, composed since 1988 of 13 Judges. The President of the Republic appoints the 13 Judges and its President.
All judges are considered equal but the President of the Court shall take precedence over all the judges, with the remaining ranking in accordance with their seniority of appointment to the post. He is treated as a primus inter paribus. Under Section 4 of the Law Judges of the Court are appointed by the President of the Republic. Nobody is appointed as a Judge unless he is a lawyer of 12 years practice and of the highest moral standard.
As we have seen in Lecture no.2 the Supreme Court under Section 10 of the law is also the Supreme Judicial Council responsible for the appointments , promotions , transfer and termination of the engagement of judges . Under Section 10 the Supreme Judicial Council also exercises disciplinary supervision over judges. The Supreme Court under Section 14 has as its seat Nicosia but for First Instance or Review Jurisdiction the Ministry of Justice may appoint a building in one of the major cities in any District for such a seating.
Under Section 4 (1) the President of the Republic of Cyprus fills any vacancies within 45 days. Judges of the Supreme Court sit normally up to the age of 68. Under Section 8 of the Law any judge before assuming the duties of his office shall subscribe before the President of the Republic their affirmation of faith and take the judicial oath in the form prescribed in the Courts of Justice Law.
DISTRICT COURTS
As far as the District Court Judges are concerned their appointment, is provided for in the Courts of Justice Law 14/60 and in particular in PART II Sections 3 -17.
Under Section 6 a President of the District Court or a Senior District Judge must be a practicing advocate of at least 10 years standing and of high moral standard. A District Judge must be a practicing advocate for 6 years and must be of high moral standard. The number of Presidents of the District shall not exceed 13 and of Senior District Judges 16 and of District judges 39 , i.e in total 68. It is to be noted that in Section 8 of the Courts of Justice Law as amended, the salary and terms of office of the judges are specified. District Court judges remain in office until 63 . Detailed provision is made for the pensions and allowances of judges . In Section 9 provision is made for the judicial oath and under Section 10 A as from 1991 a Judges Union is allowed.
As it can be seen form the above provisions judges at the higher level, that is the Supreme Court level including the President of the Supreme are within the exclusive domain of the President of the Republic as far as their appointment is concerned. Since 1988 there are 13 Supreme Court judges . The current President of the Supreme Court is Mr. Petros Artemis an experienced and well respected judge. Judges of the Supreme Court are normally and almost invariably experienced judges who have gone through all the lower stages of judicial appointment starting as District Judges and climbing up to the position of the Administrative President of the District Court of Nicosia which is considered the most Senior District Court post before appointment to the Supreme Court. With the exception of the late Judge Rallis Gavrielides all other Supreme Court Judges were selected and appointed by way of “promotion” as it were and not from the profession. The late Judge Gavrielides was chosen from the ranks of the Attorney General . District Court judges are Advocates with a minimum experience of 6 years in practice. A large number of District Court judges are nowadays women. In the Supreme Court there is only one woman Judge that is Judge Efi Papadopoulou who was initially appointed as a District Court judge from the ranks of the office of the Attorney General.
As it can therefore be seen Judges of the Supreme Court are very experienced judges who have tried numerous cases by the time they reach that position. The system of promotion in practice to the Supreme Court has its advantages but also disadvantages. An advantage is that District Court judges are given motivation to find themselves elevated to the highest judicial appointment. In addition political appointments are thus excluded in the sense that it is nowadays a “convention” that the President of the Republic will “promote” to the post of a Judge of the Supreme Court when a vacancy occurs the most Senior of the Presidents of the District Court which is normally the Administrative President of the Nicosia District Court. The main disadvantage of this is that very successful and experienced advocates are excluded in essence from appointment to the highest judicial office. In addition District Court Judges have little experience of Administrative Law, Family Law or Rent Control or the Employment Tribunal practice. The promotion practice should be reconsidered to provide more variety and enrich the Supreme Court with the experience of advocates in practice of the highest ranking.
There is no training school for judges in Cyprus. All it takes is for an advocate to be of 6 years standing and in practice and be selected by judges of the Supreme Court sitting as the Supreme Judicial Council. The rule is that judges appoint judges and the Judges of the Supreme Court are being “promoted” to the office within the family, so essentially we have a self serving family which comes from the legal profession starting with a 6 years experience and climb up the ladder to the highest judicial office after many years of judicial experience.
Normally judges of the Supreme Court are in their 50’s and they serve until the age of 68 as we have seen. Recently discussion has taken place about the need to establish a Judges School in Cyprus. Most of the advocates in Cyprus come from Greek and British Universities. You have a fusion of University background of Continental Law experience with Anglo-Saxon Common Law and Equity lawyers. Judges come from both schools. Having regard to the history and sources of Cyprus Law the command of English language is essential and in practice all judges have an adequate command of the English language. The working language is Greek.
Disciplinary offences of judges.
All Judges except Supreme Court Judges are subject to the disciplinary jurisdiction of the Supreme Judicial Council. Special Regulations of 1986 , E.E. Παρ. 11, 19.12.1986 have been put into force to ensure that Judgments are rendered within 6 months of having being reserved. The Supreme Court may order retrial or issue any order. A special regulation has been adopted by the Supreme Court for the exercise by the Supreme Courts of disciplinary jurisdiction over Judges of Inferior Courts in 2000, E.E Παρ. 11 , 28.7.2000. A Judge guilty of conduct not befitting the Profession is dismissed as provided in the Constitution. If guilty of a disciplinary offence which is defined in the Regulation may be publicly reprimanded or simply reprimanded. Disciplinary offences include refusal, omission, deviation or slugginess in the performance of duties. There have been a few disciplinary convictions so far.
Criticism of judges and decisions.
In the past it was considered that judgments were beyond criticism. It was only very rarely that advocates found the courage to criticize publicly judges for their decisions. It was further considered that a lawyer involved in the case should restrain himself and never comment on a judgment in which he was involved as an advocate. I remember in the early 80s when I started practice law in Cyprus I gave an interview in a popular magazine criticizing the quality of judgments in Cyprus and described Cyprus justice as “justice of mediocrity”. This stirred up a lot of discussion between judges of the Supreme Court at the time and I got the feeling that I would be referred to the Disciplinary Board. I learnt from friends judges later on that this was very much in the cards but the idea was dropped. More recently we have all witnessessed the direct attack of the Attorney General on the judgment of the Assize Court 1719/06 Republic v. Efstathiou and others 19.3.2009, acquitting members of the Police for inhuman and degrading treatment and assault against students arrested. The incident was recorded on a video seen by the public on TV and yet the Assize Court dismissed the charges something which infuriated the public and the Attorney General himself as it was more than obvious to anybody watching the film on TV that indeed violence was used. The Supreme Court itself reacted to this severe criticism by publishing an announcement condemning basically and rejecting the accusations of the Attorney General and stating amongst others that the remarks of the A-G were improper and an unjustified attack against Courts and justice due to loss of control !
It is fair to say today that nowadays Judges are more receptive to criticism of their decisions and themselves . Certainly criticism from academics or lawyers of a high standard is more than welcome even if published in daily newspapers or magazines or on the radio or the TV.
Even the public at large or human rights organization or the civil society in general can direct criticism, against the judiciary and its judgments, always provided that it is informed criticism made bona fide and does not of course constitute defamation. Judges themselves may sue for defamation. As we have seen in previous lectures judges even have the power to punish for contempt either in the face of the Court or in relation to publications intended to pervert or influence in an unacceptable manner the course of justice. It may be said that nowadays criticism of judges is more easily accepted by judges themselves than in the past and with the introduction of law faculties in local universities it is expected that more informed criticism coming from the Cyprus Law Schools will come about. This is indeed a healthy sign.
The Advocates Law and Qualifications to Join the Cyprus Bar
Chapter 2 is the Advocate’s Law has 34 Sections and 3 Schedules. This is a subject which we shall deal with in another course next term. Nevertheless for purposes of this Lecture we can examine the main provisions of the Law relating to the admission to the profession and disciplinary matters. Part II provides for admissions and registration. This is regulated by the Legal Council which is composed of the Attorney General as its President , the President , Vice President and Secretary of the Cyprus Bar Association and from 3 Advocate chosen from the Bar Council from a list proposed by the Attorney General. The list must contain advocates who qualify for appointment to the Supreme Court and the term of office is for 3 years. The Legal Council decides on admission or registration and carries out the relevant examination. Decisions of the Legal Council may be reviewed by Civil Action before the District Court. The qualifications for registration are:
(a) The candidate must be 21 year of age at least
(b) Must be of good character
(c) A citizen of the Republic or an EU Member or the spouse or the child of a citizen of the Republic or any other EU Member
(d) Has his habitual residence in Cyprus
(e) Is the holder of a Degree or Law Diploma of a Greek or Turkish University or United Kingdom University or is a barrister at Law or is the holder of such a degree or diploma awarded from any other university or institution as the Legal Council may from time to time publish in the Official Gazette and
(f) Has done a pupilage practice of no less than 12 months in the Law Chambers of an Advocate of at least 5 years standing
(g) He has passed the examinations set by the Legal Council.
A person who receives a certificate form the Legal Council entitling him to be registered as an advocate may under Section 6 of the law upon the payment of a fee be entered on the register kept by the Chief Registrar known as the “Advocates Register”. Under Article 6 A there is an additional register for practicing advocates kept with the Council of the Cyprus Bar Council known as the “Register of Practicing Advocates”. Such a person is granted an annual license upon payment of a fee. It is to be noted that under Section 2 of the Law for purposes of the law practicing law includes all types of practice defined therein such as appearing before the Courts, drafting pleadings , articles of association , registration of trademarks , ships and the rendering of opinions on any legal matter. In the past merely rendering opinions on legal matters was not considered as “practice” in the eye of the law and this enabled retired advocates basically practice law in this field without being considered as practitioners and therefore forfeit their pensions rights or be subject to the offence of practicing in law without the necessary license. Under a new Section 6 Γ introduced in 2007 the Legal Council may approve the formation of a limited liability company of advocates to provide legal services as an advocate on certain conditions, mainly that it is composed by the registered licensed legal practitioners. Every such company is registered with the Cyprus Bar Council where a Special Register known as “Advocates Company Register” is kept. The Chief Registrar is kept informed of both registers. The company bears the name of LLC i.e Lawyers Limited Company.
Under a new Section 6 E it is obligatory for an advocate to maintain a professional indemnity insurance as from the 1/01/2010. Under Section 11 of Part 3 of the Law no one is allowed to practice advocacy unless he is a registered advocate in possession of an annual license.
Any such person who practices law without being registered or in possession of a license is guilty of a criminal offence and furthermore he is barred from claiming his fee or is duty bound to return such a fee.
The new Part III A was introduced in the year 2002 and concerns services of lawyers from other Member States of the European Union. They are allowed to render a service in the Republic subject to the same conditions and obligations provided for , for local advocates expect the requirement as to residence. A practical problem of course arises in such cases and this relates to the requirement to use Greek language before the Cyprus Judicial Authorities.
Part III B also introduced in 2002 provides for the permanent practicing of the legal profession in Cyprus by lawyers of other Member States of the European Union. The conditions are let down in Section 14 A. Under Section 14 O after 3 years of practice such a lawyer is entitled to be registered as a practicing advocate in Cyprus in the same manner as other advocates.
The remaining parts of the law deal with discipline, the Local Bar Councils , Committees and the Cyprus Bar Association, pensions and allowances. For purpose of this lecture we shall deal only with discipline to be found in Part IV of the Law.
As it can be seen from the above provisions the profession is strictly regulated by law and controlled by the Legal Council which consists of the Attorney General and Senior Long Standing Advocates. A number of them are elected . The Legal Council has recognized a large number of degrees and diplomas from various countries other than Greece , Turkey and the UK. Inevitably it will recognize all degrees and diplomas from all Cyprus Universities which are fresh in this field provided the standard and quality of education is comparable to that of approval University degrees and diplomas. The examination set by the Legal Council has become more difficult nowadays and preparation and study to pass the exams may take a full one year. It is usually carried out in pararell with the one year pupilage during which the candidate is expected to appear in Court give opinions draft pleadings etc. Assistance is offered through lectures given by judges and Senior advocates usually in the afternoons. The advantage of law graduates from a Cyprus Law Faculty would be that they will not have difficulties in passing these exams as during their course they cover all the subjects for which an examination is given for purposes of becoming registered advocates. The majority of registered advocates in Cyprus are graduates of Greek Universities with more recently an increasing number of graduates from UK Universities. A large number of university graduates obtain post graduate degrees or diplomas and or become qualified Barristers at law or solicitors in England. The English language is widely used although Greek is essential for practice in Cyprus as at least since 1989 the use of the Greek language is compulsory in all Courts.
Advocates Disciplinary Control
Under Cap 4 Advocates Law Part IV an Advocate is an officer of justice subject to disciplinary proceedings. The Disciplinary Council is set up for the purpose.
It is composed of the A-G as its President, the President of the Cyprus Bar Association and 5 elected advocates . It sits with its President and two members for hearing .If the A-G does not preside the President of the Cyprus Bar Association shall preside. The ultimate penalty is the striking off the “Register of Advocates”. Fines and suspension as well as reprimands are options. There is a right of appeal to the Supreme Court exercised within two months.
The Cyprus Bar Council adopted the latest Rules of Etiquette by ΚΔΠ 237/2002.
In summary an Advocate serves justice and truth. He defends his clients rights and has duties towards the Courts, the client , the public to his colleagues, and the Local Bar Associations. He has to respect the professional privilege of his client, not to tout for business , not to be actively involved in other business, enterprise or trade and should advertise under a strict code and regulations. He cannot for example advertise that he is a specialist in a certain field or advertise in newspapers or magazines, radio or TV.
It is a disciplinary offence not to charge the minimum fees specified in the Regulations. He has to be polite in Court but not service.
Conclusions and Recommendations
Judges have a good overall relationship with Advocates. They both serve the interests of justice albeit from a different perspective. It is only natural relations that at times are strained but nevertheless there is a basic level-of mutual respect overall. There is room for improvement. Training of judges in a special School maybe desirable. Six years experience in the profession may not be enough. The conditions and terms of employment could be greatly improved to make it more attractive for more experienced lawyers to apply for judicial appointment.
The “promotion” of Judges to the Supreme Court has to be reconsidered.
As far as Advocates are concerned local and the Cyprus Bar Association should issue from time to time directions and guidelines, as to Professional etiquette. The pupilage practice has to be reconsidered and more strictly regulated to ensure that it is carried out with more care and the examinations standard should be higher. The Judicial appointment system could also be improved by requiring higher standards from the applicants who do not always come from the ranks of the most esteemed and able advocates. Advocates should also move towards specialization and larger partnerships. The need for specialization applies equally to judges. All the above and many other improvements should be considered by a Law Commission which should produce a report with its recommendations. There is certainly room for improvement.
Dr. Christos Clerides
Associate Professor
16/12/2009