A violation of Article 6.1 of the Convention was found and the re-opening of an appeal ordered
The decision of the European Court of Human Rights (ECHR), dated January 9, 2018, in the case of Nicholas v. Cyprus was examined by the Supreme Court of Cyprus in a judgment issued on February 24, 2022.
The ECHR accepted Nicholas’ application and in particular that the decision of the Court of Appeal violated Article 6.1 of the European Convention on Human Rights, the provision concerning the impartiality of the court. The applicant requested the reopening of his appeal, which had been dismissed.
A violation of the applicant’s right to a fair trial was found as the impartiality of the judiciary was not ensured, with reference to a specific member of the court. Both the ECHR and the Supreme Court recognised that there is no relevant case law and that the reopening of an appeal is exercised on a case-by-case basis.
The decision of the Supreme Court was issued by majority, which states that there is no case law that recognises the possibility of giving remedy in case of finding absence of impartiality of the Court of Appeal, in violation of Article 6.1 or the corresponding Article 30.2 of the Constitution.
According to the law that applies in Cyprus, the court stated that the violation of the rules of natural justice nullifies a decision. This, of course, applies to a 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 the framework of its inherent power. The court added that in the present case, the effect of the ECHR decision is such, but without leading to annulment or revocation.
The court emphasised, however, that, for this court, the violation meant the Court of Appeal’s decision was, in essence, invalid. Referring to case law citing the principle of ‘audi alteram parterm’ (hear the other side as well), it was decided that similar remedy could be awarded and in this case. In particular, that the court may order the reopening of an appeal, in order for it to be adjudicated “before an independent, impartial and competent Court of Appeal”.
Having found that the applicant had not applied to the ECHR for redress under Article 41 of the Convention, the Supreme Court concluded that this did not deprive the applicant of the possibility of reopening the appeal. 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 ECHR, in accordance with the requirements of Article 46.1. In addition payment to the applicant as restoration of his rights is due under Article 6.1 thereof.
The Supreme Court referred to the relevant case law of the ECHR which states that: “The State Party in question will be under an obligation not only to pay those concerned the sums awarded by way of just satisfaction, but also to take individual and/or, if appropriate, general measures in its domestic legal order to put an end to the violation found by the court and to redress the effects, the aim being to put the applicant, as far as possible, in the position he would have been in had the requirements of the Convention not been disregarded.”
It added that in the present case the ECHR did not give the applicant any remedy other than the finding of the violation and for the reasons stated above, the court decided that the application was successful and issued an order to reopen the appeal for consideration by a competent Court of Appeal.
George Coucounis is a lawyer practicing in Larnaca and the founder of George Coucounis LLC, Advocates & Legal Consultants, [email protected]