Acting as a real estate without being registered and holding a licence is illegal and the real estate agents council may apply to court for the issuance of a decree that until the trial of the pending private criminal case against the person doing so is completed, they must cease to exercise the profession.
The relevant provision of the Real Estate Agents Law, L.71(I)/2010, does not provide the court with discretion to order the service of the ex parte application to the accused. As long as there is an indictment making reference to the offences and prima facie evidence connecting a specific office or premises to the offence under trial, the court is bound to issue such a decree, as well as a decree suspending the use of any premises associated with the offense. The decree is issued unconditionally, is not returnable and is valid until the trial, while the accused is not given the opportunity to be heard.
The application is filed under the Real Estate Agents Law, article 34(1) and the provisions of article 32 of the Courts Law 14/60 or article 9 of the Civil Procedure Law, Cap.6, do not apply.
The ex parte application is examined by court and if the relevant prerequisites of article 34(1) are met, the decree is issued and no other provisions need to apply. The issuance of a decree by the court ordering the service of the ex parte application to the accused in order to be heard is an act in excess of power. In such a case, the council may apply to the supreme court to issue a certiorari order annulling the decree.
In a judgment issued on December 21, the supreme court intervened and annulled a decree of the district court ordering the service of an ex parte application filed by the council to the accused. The council filed a private criminal case and simultaneously an ex parte application for the issuance of an interim order ordering the accused to cease acting as a real estate agent until the case was heard or until they registered in the real estate rgents registry and a relevant licence was issued. The district court ordered its service, considering that it had discretion to notify the accused of the application in order to give them the opportunity to present their position.
The council suggested that once the conditions in article 34(1) are met, the court had no discretion. The indictment charged the accused with acts that constituted persistent offences of severe criminal liability. The supreme court agreed. The court stressed that the legislative wording clearly reflects the will of the legislator to enable the prosecuting authority (the council) through the filing of the ex parte application to secure the decree (subject to the conditions).
The supreme court concluded that for reasons related to the public interest, the legislator provided for the exceptional procedure of applying ex parte. In appropriate cases, the power of the trial court is exercised, in the absence of the opposing party, without this being perceived as prejudicial to the substance of the criminal case or to the constitutional presumption of innocence. The court noted that similar judicial approaches are observed in other legislations, such as the Streets and Buildings Law, Cap.96 and approved the application of the council and annulled the decree issued by the district court.
George Coucounis is a lawyer practicing in Larnaca and is the founder of George Coucounis LLC, Advocates & Legal Consultants, [email protected]