President of the Supreme Court of Cyprus
Judicial protection of Human Rights in Cyprus
The Constitution of the Republic of Cyprus safeguards fundamental rights and liberties in a comprehensive way. Human rights are entrenched in a separate part of the Constitution, Part II, extending from Article 6 to Article 35. The constitutional charter of human rights is modelled on the European Convention on Human Rights, save that its ambit is broader. Article 33 of the Constitution provides that limitations or restrictions to the rights and liberties guaranteed, "shall be interpreted strictly and shall not be applied for any purpose other than those for which they have been prescribed". As indicated in the case of Police v. Ekdotiki Eteria (1982)2 C.L.R. 63, any restrictions imposed by law must refer to and serve exclusively the purposes for which the Constitution permits limitations of the rights protected.
Soon after independence, achieved in 1960, Cyprus became a member of the Council of Europe. Cyprus acceded to the European Convention on Human Rights on 16th December 1961, soon afterwards ratified by the House of Representatives becoming part of domestic law. This was accomplished by Law 39 of l962 promulgated on the 24th May 1962. The Constitution is the supreme law of the Republic (Article 179.1 of the Constitution.).
The constitutional protection of human rights and the protection guaranteed by the European Convention on Human Rights are coincidental; Save that their ambit under the Cyprus Constitution is wider and they are defined in greater detail. Decisions of the European Court of human Rights are a source of guidance in the interpretation and application of both the relevant provisions of the Constitution and the Convention. An important consequence of the embodiment of human rights in the supreme law of the country is that no law and no act or decision of an organ of the Republic repugnant to or inconsistent with the provisions of the Constitution, including those protecting human rights, can be validly issued. (Article 179.2 of the Constitution.) A law, rule, or regulation issued and every executive or administrative decision taken in breach of the provisions of the Constitution, can be adjudged unconstitutional by a court of law, and on that account be declared unenforceable.
Human rights have a universal dimension. They are perceived as inherent in man constituting the inborn attribute of human existence to be enjoyed at all times, in all circumstances and in every place.
Viewed in their proper context Human Rights are definitive of the framework of the system of government and social order. They incorporate the values that should characterize every civilized society. The following passage from one of the judgments in the case of Police v. Georghiades (cited above), reflects their essence:
"The pursuit of truth is no warrant for watering down fundamental rights. If that were to be allowed to happen, fundamental human rights would soon be chased out of the statute book. The recognition and effective enforcement of basic human rights is, in itself, an ultimate truth for the realisation of the human ideal, of supreme importance for the release of the creative forces in man. Recognition of fundamental human rights is a principal object of civilisation."
Brief reference is made hereunder to a small number of judicial decisions from the voluminous body of Cyprus case law on the interpretation and application of human rights, characteristic of judicial approach to the subject.
In Police v. Georghiades (1983) 2 C.L.R. 33, it was affirmed that human rights can be asserted not only against the State but against everybody. Respect for the fundamental rights of the individual is owed by everyone. Evidence obtained in or resulting from breach of the fundamental rights of a person is inadmissible as evidence in any court of law. Consequently, a tape, recording the conversation between a psychologist and his client, made in secret was held to be inadmissible as evidence in criminal proceedings against the doctor on charges of perjury and related offences because it derived from a breach of the accused's rights to privacy and freedom of communication. In the same spirit it was decided in Police v. Yiallourou (1992) 2 C.L.R. 147, that the tapping of a telephone conversation without the sanction of the interlocutors, constituted a breach of both the right to privacy and the right to freedom of communication.
Two decisions subsequent to Georghiades (supra), established conclusively that not only evidence stemming directly from breach of fundamental human rights but indirectly too, is inadmissible as evidence. In Merthodja v. Police (1987) 2 C.L.R. 227, a statement obtained by the accused while in custody was found to be inadmissible because at the time it was given the authority for the detention of the accused, had expired. The confinement of the suspect without judicial authority constituted a breach of his right to liberty and security of person. In Parpas v. Republic (1988) 2 C.L.R. 5, it was decided that specimens of signature given by the accused while in custody on suspicion for possession of explosive substances, could not be received in evidence in criminal proceedings against the accused on charges of impersonation, uttering a forged document and obtaining money by false pretences, because his detention had been secured not for the purpose for which it was authorised but for an ulterior purpose, namely to provide an opportunity to obtain specimens of his signature.
The presumption of innocence safeguarded in article 6(2) of the Convention and entrenched in article 12.4 of the Constitution, is all embracing. In President of the Republic v. House of Representatives (1994)3 C.L.R. 1, it was decided that the presumption imports the right against self-incrimination. Consequently, a law obliging a category of persons to make statements regarding their affairs that could incriminate them, was declared to be unconstitutional. A necessary inference is that the right to silence in the face of accusation cannot be forfeited in any circumstances. Article 12.2 of the Constitution, provides: "A person who has been acquitted or convicted of an offence shall not be tried again for the same offence." In Pernell and others v. The Republic, Criminal appeals 6148, 6149, 6150 - 9 July 1998, it was held to be impermissible for the prosecution to adduce on appeal incriminating evidence that emerged after the conclusion of the trial in an effort to strengthen the foundation of a conviction challenged on appeal by the accused. Acceptance of such evidence, the Court noted, would be tantamount to allowing the prosecution a second opportunity to prove the offence.
The right of the individual to a fair trial for the determination of his civil rights and obligations and of any criminal charge brought against him/her by an independent impartial and competent court, established by law, is safeguarded by Article 30 of the Constitution (Article 6.1 of the Convention). In Kyriakides and Others v. The Republic Cases 298/96, 299/96, 300/96 - 26.11.1997, it was held in line with the case law of the European Court of Human Rights on the subject, that only a court of law can pronounce a person guilty of a criminal offence. No valid pronouncement can be made on the civil rights and obligations of the individual or his criminal liability, except by a competent court of law. In Ellinas v. Republic (1989)2 C.L.R. 149, it was stressed that the courts of law are the sole arbiters of the guilt of the accused and his rights generally. Trial through the press is incompatible with the right of the accused to a fair trial. The right to trial free from prejudice and every kind of stigmatisation is bound up, it was observed, with freedom itself, in essence an inseparable part of it.
Breach of the right to a fair trial derails the judicial process and renders its outcome void. In Efstathiou v. The Police (1990)2 C.L.R. 294, the conviction of the accused for a traffic offence was quashed because the criminal charge against him was not determined within a reasonable time. The court pointed out that compliance with the constitutional norms of a fair trial, is a prerequisite for a valid judicial determination. In Victoros v. Christodoulou (1992)1 C.L.R. 512, the judgement of a civil court was set aside for failure to try the case within a reasonable time. In Gregoriou v. Bank of Cyprus Ltd (1992)1 C.L.R. 1222, the judgement of a civil court was set aside and a retrial of the case was ordered because of breach of Article 30.3 (b) of the Constitution safeguarding the right of a litigant "to present his case before the court and to have sufficient time necessary for its preparation". The trial court had wrongly dismissed an application made on behalf of the plaintiff to adjourn the case at the stage of final addresses in order to enable him to attend and help in the presentation of his address.
Another attribute of fair trial is that the judgment of the court should be duly reasoned. The reasoning of a judgment is a species of accountability for the exercise of the judicial power (competence - jurisdiction) of the State designed to eliminate arbitrariness in the judicial process. A judgment must be reasoned by reference to matters in dispute, the evidence produced before the Court and the arguments advanced on either side. Failure to reason a judgment, like every failure to observe the norms of a fair trial, renders the proceedings a nullity. (Eteria Pafitis & Iordanous Contractors Ltd and others v. A. N. Stasis Estates Co., Ltd C.A. 9434 - 15.5.1998; Costa Glyky v. Demou Lemesou C.A. 10005 - 17.12.1998.)
There is a rich body of case law definitive of human rights safeguarded by the Constitution and the Convention, and the range of their application. Space confines us to an enumeration of only a small number of decided cases. I may only add, for the completion of the short survey here undertaken, that the right of equality before the law, the administration and justice, and the exclusion of every species of discrimination direct or indirect, is comprehensively safeguarded by Article 28 of the Constitution. In Koullouros v. Koullourou and another (1989)1 (E) C.L.R. 50, the court affirmed in the strongest terms that men and women have equal rights and equal responsibilities. It is within this context, it was emphasised, that marital rights and obligations must be determined.
Human rights are embodied in a separate part of the Constitution (Part II, Articles 6-35 inclusive), establishing the inalienable rights of the individual. Article 35 of the Constitution provides:
"The legislative, executive and judicial authorities of the Republic shall be bound to secure, within the limits of their respective competence, the efficient application of the provisions of this Part."
This Article has been interpreted as imposing a positive obligation on each power of the State to ensure the effective application of Human Rights in its domain. In the recent decision of Yiallourou v. Nikolaou C.A. 9931 - 8.5.01, the Supreme Court (in plenary session), held that breach of a fundamental right or liberty of the individual safeguarded by the code of Human Rights enshrined in the Constitution confers per se a right of action against the wrongdoer, be it the State or a fellow human being.
The person whose fundamental right is violated may claim any appropriate remedy known to the law, including compensation. In Yiallourou (above), a sum of C?5,000 damages, (the equivalent of approximately U.S.$ 7,600), was awarded against the defendant, a fellow employee of the Municipality, for tapping his telephone conversations. Such interference constituted a breach of his right of privacy safeguarded by Article 15.1 and freedom of communication safeguarded by Article 17.1 of the Constitution. The sum of ?5,000 represented compensation for injured feelings, distress, pain and suffering, and ultimately for violating his being as a physical and social entity. The plaintiff had suffered no financial loss.
Limitations may be imposed to the exercise of certain Human Rights in the interest of constitutional order, security of the Republic, public health, public morals, or the protection of the rights of others. Property rights may be limited for the sake of town planning. A restriction of human rights is only permissible if, (a) the limitation is specifically permitted by the Constitution, (b) it is introduced by Law, and (c) it is warranted by a serious, if not an inevitable danger to one or more of the causes for which limitation is possible.
It is for the legislature to establish the need for legislating, particularly the urgency of the need for legislation; and it is for the Courts ultimately to decide whether the limitation is warranted by a pressing need in the interest of the specified causes. The matter is examined at great length in a fairly recent decision of the Supreme Court, namely the President of the Republic v. House of Representatives 2/99 - 12.5.2000.
It must be noted that the Constitution itself in Article 33 provides:
"1. Subject to the provisions of this Constitution relating to a state of emergency, the fundamental rights and liberties guaranteed by this Part shall not be subjected to any other limitations or restrictions than those in this Part provided.
2. The provisions of this Part relating to such limitations or restrictions shall be interpreted strictly and shall not be applied for any purpose other than those for which they have been prescribed."
Human Rights, properly appreciated, establish the framework for the identification of what is and ought to be the common law of mankind uniting humanity in its common pursuits.
In 1974 Cyprus was invaded by Turkey. The invader occupied about thirty-eight per cent of the territory of the island, causing the displacement of an approximately corresponding percentage of the population from their homes and ancestral land. As a result the island was cut in two. The occupation continues nearly twenty-eight years after the invasion. As a consequence of the Turkish invasion and occupation of a large part of the island, citizens of the Republic were and are denied fundamental human rights as the European Court of Human Rights judicially acknowledged in a series of decisions. (See inter alia Case of Loizidou v. Turkey judgment of 18 December, 1996, 1996-VI No. 26 and the Case of Loizidou v. Turkey, judgment of 28th July 1998. Case of Cyprus v. Turkey Application No. 25781/94).
Notwithstanding the calamity that befell Cyprus in 1974, the occupation of a large part of the country by the Turkish army and the displacement of thousands of citizens of the island, human rights remained intact in every part of the country under the control of the State. The case law of the Supreme Court does demonstrate, I believe, that human rights are given effect to and are duly protected as ever before.