21.03.2022
A violation of Article 6.1 of the Convention was found and a decision was made to reopen the appeal.
The decision of the European Court of Human Rights (ECtHR) dated January 9, 2018 in the case of Nicholas v. Cyprus was considered by the Supreme Court of Cyprus in a judgment dated February 24, 2022.
The ECHR accepted Nicholas’ application and, in particular, the decision of the Court of Appeal violated Article 6.1 of the European Convention on Human Rights, the provision on the impartiality of the court. The applicant applied for a review of his complaint, which was dismissed.
A violation of the applicant’s right to a fair trial was found because the impartiality of the judiciary was not ensured with reference to a particular member of the court. Both the ECtHR and the Supreme Court acknowledged that there is no relevant case law and that retrial of the appeal is carried out on a case-by-case basis.
The decision of the Supreme Court was rendered by a majority, stating that there is no case law recognizing the possibility of granting remedies in the event of a lack of impartiality of the Court of Appeal found in violation of Article 6.1 or the corresponding Article 30.2 of the Constitution.
Under the law in force in Cyprus, the court stated that a violation of the norms of natural justice annulled the decision. This, of course, applies to the decision of the Supreme Court in the exercise of its secondary jurisdiction as a court of appeal, when such a violation is found by the court within its inherent powers. The Court added that in this case the consequences of the ECtHR decision are as follows, but do not lead to annulment or withdrawal.However, the court emphasized that, for this court, the breach meant that the appellate court’s decision was essentially invalid. Referring to case law referring to the principle of “audi alteram parterm” (also hear the other side), it was decided that a similar remedy could be awarded in this case as well. In particular, that the court may order a retrial of the appeal to be heard “in an independent, impartial and competent court of appeal”.
Having found that the applicant had not applied to the ECtHR for damages in accordance with Article 41 of the Convention, the Supreme Court concluded that this did not deprive the applicant of the opportunity to re-examine the complaint. Undoubtedly, as the court stated, the issuance of such an order is compatible with the relevant provisions of the Convention and the case law of the ECtHR, in accordance with the requirements of Article 46.1. In addition, payment to the applicant in order to restore his rights is carried out in accordance with Article 6.1 of this Law.
The Supreme Court referred to the relevant case law of the ECtHR, which states that: “The said State Party will be under an obligation not only to pay to the parties concerned the amounts awarded in just satisfaction, but also to take individual and/or, if appropriate, general measures in its internal law to put an end to the breach found by the court and to remedy the consequences, the purpose of which is to place the applicant, as far as possible, in the position in which he would have been had the requirements of the Convention not been disregarded.”He added that in the present case, the ECtHR had not provided the applicant with any remedy other than finding a violation and, for the reasons set out above, the court decided that the complaint was upheld and ordered the retrial of the appeal by the competent court of appeal.
George Coucunis is a lawyer practicing in Larnaca and founder of George Coucounis LLC, Advocates & Legal Consultants
