24.01.2022
It is illegal to act as a real estate agent without being registered and licensed, and a board of real estate agents may apply to the court for an order that, pending completion of a pending private criminal proceeding against a person doing so, they must stop doing this job.
The relevant provision of the Real Estate Agents Act, L.71(I)/2010, does not give the court the power to order that an ex parte statement be served on the accused. Where there is an indictment citing offenses and prima facie evidence linking a particular office or premises to the crime in question, the court must issue such an order, as well as an order to suspend the use of any premises associated with that crime. The decision is made unconditionally, is not subject to return and is valid until the trial, while the accused is not given the opportunity to be heard.
The application is made in accordance with the Real Estate Agents Act, section 34(1), and the provisions of section 32 of the Courts Act 14/60 or section 9 of the Civil Procedure Law, chapter 6 do not apply.
The ex parte application is examined by the court and, if the relevant prerequisites of Article 34(1) are met, an order is issued and no other provisions apply. The issuance by a court of an order to serve an ex parte statement on the defendant for hearing is an act of abuse of power. In such a case, the council may apply to the supreme court to issue a certiorari ordinance repealing the decree. In a decision delivered on 21 December, the Supreme Court intervened and overturned the district court’s order to serve the defendant with the ex parte statement filed by the council. The Council filed a private criminal case and, at the same time, an ex parte motion for an interim order ordering the defendants to cease their activities as a real estate agent until the case is heard or until they are registered in the register of real estate agents and the corresponding license. The District Court ordered its service, considering that it had the discretion to notify the defendants of the application in order to give them an opportunity to present their position.
The Council suggested that once the conditions of Article 34(1) were met, the Court had no discretion. In the indictment, the defendant was charged with acts constituting protracted offenses entailing serious criminal liability. The Supreme Court agreed and stressed that the statutory wording clearly reflects the will of the legislator to enable the prosecutor’s office (council) to secure a ruling by filing an ex parte application (subject to conditions).
The Supreme Court found that, for reasons of public interest, the law provides for an exceptional ex parte application procedure. In appropriate cases, the powers of the court of first instance are exercised in the absence of the other party, which is not perceived as prejudicing the merits of the criminal case or the constitutional presumption of innocence. The court noted that similar judicial approaches are seen in other pieces of legislation, such as the Streets and Buildings Act, Chapter 96, and approved the council’s application and overturned the district court’s order.
George Coucunis is a lawyer practicing in Larnaca and founder of George Coucunis LLC, Advocates & Legal Consultants
