Law of Cyprus
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| This article is part of a series on the politics and government of Cyprus |
The law of Cyprus (Greek: Κυπριακό Δίκαιο) is a legal system which applies within the Republic of Cyprus. Although Cyprus law is extensively codified, it is still heavily based on English Common Law in the sense that the fundamental principle of precedent applies.
History
The majority of contemporary legal instruments and principles date back to the colonial legislation enacted by the British in the period between 1878 and 1960. Unlike in the United Kingdom the British Government of Cyprus enacted numerous codifications of the common law principles, known as Chapters. These Chapters are still in force today. For example, while in the United Kingdom the rules on civil liability are purely based on case law and the principle of negligence as expressed in Donoghue v Stephenson,[1] Cyprus has Chapter 148[2] which governs the vast majority of civil liability claims.
Despite the extensive codifications the fundamental doctrine of precedent found in common law still applies. First instance courts are obliged to follow the interpretation which is given by the Supreme Court in judgments in which it establishes case law. As most of the legislation in force codifies common law principles, case law deriving from the courts of the United Kingdom or even other Commonwealth jurisdictions remain an important source of inspiration for courts in Cyprus. However, since 1960 the courts of the Republic have developed a rich body of case law of their own, which is thought to be more authoritative and better suited to the particular features of local society.
Because the island had been under Ottoman rule between 1570 and the arrival of the British in 1878, some of these codifications incorporate in them principles of Ottoman law, primarily in the field of property law.[3] In this respect, the law of property in Cyprus is unique in that it is a mixture of several influences.
After the independence of Cyprus in 1960 and the establishment of the Constitution, another important influence was continental law. In the fields of public and administrative law, Cyprus has followed the approach found in Greek law, which in turn is based on French administrative law. In both substance and procedure, Cyprus administrative law draws from the example of the French Conseil d'état. In matters of constitutional and administrative law, the Supreme Court adopts the inquisitorial system found in continental law, whereby the court also contributes to identifying the legal and factual questions that need to be ascertained during the procedure.
The latest development in Cyprus law has been the accession of Cyprus to the European Union which has caused the harmonisation of Cyprus statutes and case law with the acquis communautaire and also introduced a number of European Union legal instruments into the Cypriot legal order.
Hierarchy of Norms
The legal system of Cyprus has an established hierarchy of legal rules or norms whereby certain legal rules are hierarchically superior to others. Until the accession of Cyprus to the European Union the Constitution was the hierarchically highest norm of the legal system. Today, according to Article 1(a) of the Constitution, EU law is supreme to any national law and even to the Constitution itself. The Constitution then follows and after that are international law obligations, according to Article 149 of the Constitution. Ordinary laws follow, then secondary legislation and finally administrative or implementing acts.
Laws passed by the Parliament must therefore respect European Union law, the Constitution and International Law. To this end, the Supreme Court has the ability to examine the compatibility of any law passed by the Parliament with constitutional provisions. This can be done either after a reference of the President of the Republic on the basis of Article 140 of the Constitution, or as part of an administrative law claim under Article 146. Furthermore, if the question of constitutionality of a legislative provision is raised in ordinary criminal or civil proceedings, the relevant first instance court may also examine it as a secondary issue arising in that procedure.
Judicial System
The judicial system in Cyprus only has two levels. Although there are several categories of first instance courts, there is only one appellate jurisdiction, which is the Supreme Court.
The Supreme Court
The Supreme Court is located in the capital, Nicosia. It is the appellate court for criminal and civil matters, but it also has exclusive jurisdiction in some areas. Cyprus has a two-tier justice system, meaning that between the first instance courts and the supreme court there is no intermediate judicial remedies. All appeals are heard by the Supreme Court and this is why it is often also referred to as the Appellate Court. It is composed of thirteen judges, which are appointed by the President of the Republic of Cyprus. The official criteria for being appointed to the court is that the person must be a 'jurist of high professional and moral level' without mentioning that she or he must be already part of the judiciary. Nevertheless, the vast majority of judges have been chosen from the already existing judiciary, after the suggestion of all of Supreme Court justices, acting together as the Supreme Judicial Council.
More specifically, the Supreme Court is the first instance and also appellate court, therefore having exclusive jurisdiction, for maritime disputes, electoral law disputes and issues of national security. Until recently, the Supreme Court also had exclusive jurisdiction for every judicial review procedure in Cyprus administrative law. From late 2015, a special administrative court of first instance will be instituted in order to alleviate the Supreme Court of the large bulk of cases.
The District Courts
The District Courts (Επαρχιακά Δικαστήρια) deal with all civil cases at first instance level and they also have the jurisdiction to rule on certain criminal law cases. The jurisdiction of the Court spans over disputes which arise in the District in which it is located. There are currently four District Courts operating, one in Nicosia (for the Nicosia and Kyrenia Districts), one in Limassol, one in Larnaca (for the Larnaca and Famagusta Districts) and one in Paphos. District Courts have a Civil Division and a Criminal Division. In both divisions, a case is heard by a single judge. Nevertheless, the District Courts' criminal competence is limited - they may only impose sanctions which count up to five years of imprisonment.
District Court judges have three levels of hierarchy : District Judges, Senior District Judges and Presidents of District Courts. While in the Criminal Division, there is no distinction as to what level of Judge will hear a specific case, in the Civil Division, the level of the judge that will hear the case depends on the size of the claim, with only Presidents having jurisdiction over claims that extend beyond five hundred thousand euros.
In the Criminal Division, the District Courts may only hear cases in which the offence carries a maximum penalty of five years of imprisonment. Nevertheless, the Attorney General, as the Prosecutor of the Republic, has the discretion to file any type of criminal case either before the District Court or the Assize Court. Should the Attorney General choose to file the case at the District Court instead of the Assize Court, despite it being for an offence which normally carries a sentence higher than five years, the maximum penalty that may be imposed is automatically reduced to five years of imprisonment, due to the limited jurisdiction of the Criminal Division of the District Court as to the maximum sanction that it may impose.
Assize Courts
Assize Courts (Κακουργιοδικεία) are Criminal Courts which are composed of three judges, one of which must hold the position of a President of District Court and presides over the session. While Assize Courts have in theory jurisdiction to rule on any criminal law case, from misdemeanours through to murder, due to the fact that District Courts deal with most cases which carry a maximum sanction of five years imprisonment, it is primarily more severe cases which are filed in Assize Courts. These Courts have the ability to impose the heaviest of all sentences, life imprisonment.
There are no jury in Assize Courts or in the Criminal Divisions of District Courts. Nevertheless, while a majority of 2/3 is necessary for a conviction in Assize Courts with each judge having one vote, the President's vote counts for two in case there is disagreement on the height or quality of the sentence to be imposed.
The Courts of Special Jurisdiction
There are three types of court which are considered of 'special jurisdiction'. These types of court include the Family Courts, the Industrial Disputes Tribunals and the Rent Control Courts.
Family Courts
Family Courts have exclusive jurisdiction when it comes to family law disputes. The Family Courts have exclusive jurisdiction to determine petitions for divorce, custody of children, maintenance and property disputes between spouses where the parties are members of the Greek Orthodox Church.If the parties belong to one of the other religious groups jurisdiction is vested in the Family Court for Religious Groups. There are three Family Courts, one for Nicosia and Kyrenia, one for Limassol and Paphos and one for Larnaca and Famagusta. There is also one Family Court for Religious Groups, based in Nicosia.Cases are heard and determined by a single judge, except divorce petitions which are heard and determined by a court composed of three judges.[4]
Industrial Disputes Tribunals
The Industrial Disputes Tribunal has exclusive jurisdiction to determine matters arising from the termination of employment such as the payment of compensation. The Industrial Disputes Tribunal has jurisdiction to determine any claim arising out of the application of the Protection of Motherhood Law, cases of unequal treatment or sexual harassment in the workplace and disputes between Provident Funds and their members. The Industrial Disputes Tribunal is composed of a President or a Judge, who is a member of the judiciary, and two lay members appointed on the recommendation of the employers' and employees' unions. The lay members have a purely consultative role. There are currently three Industrial Tribunals in the Republic, based in Nicosia and Larnaca and Limassol.[5]
Rent Control Courts
Finally, the Rent Control Courts have jurisdiction over leases, matters regarding recovery of possession of controlled rented property and the determination of fair rent, as well as any other incidental matter. Each Rent Control Court (of which there are currently two, one for Larnaca and Nicosia and another for Limassol and Paphos) is composed of a President, who is a member of the Judiciary, and two lay members nominated by the tenants and landlords associations. The lay members have a purely consultative role.[6]
Administrative Court
Administrative law in Cyprus has its foundations in Article 146 of the Constitution which allows for the judicial review of executable administrative acts. Until recently, the competence of judicial review has been reserved for the exclusive jurisdiction of the Supreme Court. In 2015 a new law was passed instituting an Administrative Court to be composed by five judges. This will function as the first instance administrative Court.
References
- ↑ [1932] AC 562
- ↑ "Ο περί Αστικών Αδικημάτων Νόμος". Cylaw.org. Retrieved 2015-07-02.
- ↑ "Ο περί Ακίνητης Ιδιοκτησίας (Διακατοχή, Εγγραφή και Εκτίμηση) Νόμος". Cylaw.org. Retrieved 2015-07-02.
- ↑ http://www.supremecourt.gov.cy/judicial/sc.nsf/DMLIDT_en/DMLIDT_en?OpenDocument. Missing or empty
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|title=(help) - ↑ http://www.supremecourt.gov.cy/judicial/sc.nsf/DMLRCT_en/DMLRCT_en?OpenDocument. Missing or empty
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