The procedure is carried out on the basis of sworn testimony, with the exception of the right to cross-examination.
The courts have the power to issue orders, interim or final, that the parties do something or refrain from doing something. This may be the transfer of property, and not its alienation, the cessation of encroachment on property, the demolition of illegal buildings, allowing the child to communicate with the other parent, prohibiting the spouse from entering or leaving the family home, etc.
The party against whom the order has been issued must comply, otherwise he will violate the order and may be punished for contempt of court. The relevant process, despite its civil law nature, is considered quasi-criminal and is governed by the rules of criminal procedure, and therefore it must be proven that the crime took place beyond any reasonable doubt.
The contempt procedure was reviewed by the Larnaca District Court in a ruling issued on 9 March. The applicants asked to be allowed to give oral evidence, arguing that otherwise they would suffer. The Court considered that consideration of the issue should be carried out in accordance with the legal basis and nature of the procedure.
The judge referred to section 42 of the law, L.14/60, and added that, in accordance with case law, this section defines the court’s jurisdiction to punish persons for contempt of court decisions. It determines the means of enforcing the orders by imposing a fine or imprisonment, or by issuing an arrest warrant. This is an article of a criminal nature, which entails not strict or absolute responsibility, but an offense that has both objective and subjective content. Its objective essence (actus reus) includes an action or inaction that disturbs order, and its subjective essence (mens rea) is deliberate defiance. It must be proven beyond reasonable doubt that voluntary disobedience has taken place, taking into account the consequences of granting the petition, which entails the risk of imprisonment.
Due to the nature of the quasi-criminal proceedings and the fact that they had the burden of proof, the applicants offered to hear the complaint by way of oral testimony. The Court disagreed, referring to O.48 R.4, which provides that an application is examined on the basis of the facts stated in the application or affidavit, with the exception of the right to cross-examination. David Bean’s book Precepts makes it clear that the defendant has the right to give oral evidence (if he so chooses) or to testify under oath, in which case the defendants may be subjected to cross-examination. It is clarified that there can be no question of being forced to testify, but if they choose to do so, they can be subjected to cross-examination.
Consequently, the court held that the hearing should be conducted on the basis of an affidavit. This approach was considered the most appropriate, as it sufficiently takes into account that this is a quasi-criminal procedure with very serious consequences if disobedience is proven, and ensures the rights of the defendant with the options provided.
As regards the applicants’ argument that they would suffer if oral evidence was not allowed, the court noted that since O.48 allowed more than one affidavit to be filed, the situation was different. The Court may, with leave, order certain matters to be examined or even, in exceptional cases, require evidence to be given, and the defendant may decide to testify under oath by oral testimony and be subjected to cross-examination.
George Coucunis is a lawyer practicing in Larnaca and founder of George Coucounis LLC, Advocates & Legal Consultants