A brief overview of the criminal process in Cyprus
Cyprus is a common law jurisdiction. The criminal process in its entirety and the law of evidence are modelled on the English system of law that was gradually introduced by the British when they colonised Cyprus. The rights of the suspect and accused person are guaranteed by the Constitution and the European Convention on Human Rights, applicable in Cyprus by virtue of Law 62/39. The protocols to the European Human Rights Convention have also been incorporated into Cyprus Law. The rights of arrested and detained persons are protected under Law 163(I)/2005 as amended. Herein below we shall purport to illustrate briefly an overview of the criminal process under Cyprus Law from the time a person becomes a suspect up until his conviction, the passing of sentence and the appeal proceedings.
The police authority is charged with the duty to investigate into the commission of a criminal offence with the view to collect evidence and bring the culprit(s) to justice. Every investigating officer may call for questioning and take a statement from a person whom he has reason to believe is acquainted with the facts or circumstances of the offence he is investigating. The investigating officer may also issue a written order for the production of a document against a person on whose possession the document may be found. (section 6 of Cap. 155). Access by police authorities to telecommunication data for purposes of criminal investigation can be obtained by a court order pursuant to section 4 of the Retention of Telecommunication Data for the Investigation of Serious Criminal Offences Act of 2007 (Law 183(I)/2007). Likewise, the lawfulness of interception of private communications by the police requires the issuing of a judicial warrant in accordance with the provisions of the Protection of Private Communications Act of 1996 (Law 92(I)/1996) as amended. Access to bank accounts held in Cyprus or abroad by law enforcement agencies can be obtained by means of a disclosure order issued by a judicial authority under the Prevention and Suppression of Money Laundering Activities Law 2007 as amended. Compliance with the provisions of the above-mentioned laws is of paramount significance for the legality of evidence gathered. Time and again it was propounded by the Supreme Court of Cyprus that evidence gathered as a result of an unlawful interference with the right to private life or the right to communication and correspondence is unconstitutional and inadmissible in evidence.
A person suspected of being involved in a crime may be arrested on the strength of a judicial warrant before being questioned by the police. The arrest of the suspect is the normal practice in serious offences. The arrest of a person without a reasoned judicial warrant is unconstitutional save in the case of a flagrant offence punishable with imprisonment. A crime is “flagrant” if it is discovered during or immediately after it was committed. Provision for an arrest without a judicial warrant in case of a flagrant offence punishable with imprisonment is made under Article 11(3) of the Constitution. The Criminal Procedure Law, Cap. 155, provides for the arrest by a police officer without a judicial warrant of a person whom he suspects upon reasonable grounds of having committed an offence punishable with imprisonment for a term exceeding two years, or who commits in his presence an offence punishable with imprisonment.
When arrested the suspect must be informed in a language in which he understands the reasons for his arrest, the right of access to a lawyer, the right to remain silent, the right against self-incrimination, the right to free legal assistance and the prerequisites for eligibility, in case of foreigners the right to an interpreter and translation. The right of access to a lawyer now includes the right of the lawyer to be present during police interrogation. Upon arrest the police officer making the arrest can search the arrested person and may seize any article or document, which the police officer has sufficient reason to believe may form material evidence against the person searched. The entry or search of a dwelling house is unconstitutional unless made on the basis of a judicial warrant duly reasoned or when made with the express consent of the occupant
A person under arrest is bound to consent to the taking of his fingerprints, palm prints, saliva, and to provide hair. The arrestee may refuse to provide samples of blood or urine. In that case the police may apply for an order of the court compelling him to provide under medical supervision such samples if judged appropriate.
A person arrested or accused for the commission of a criminal offence is presumed innocent until conviction. The right of innocence is guaranteed by the Constitution, the European Convention on Human Rights and the Criminal Procedure Law.
Questioning of the suspect by the police is conducted pursuant to the Judge’s Rules. As soon as a police officer has evidence which would afford reasonable grounds for suspecting that a person has committed the offence he shall caution that person before putting him any questions by informing him that he is not obliged to say anything but anything he says may be put into writing and given in evidence. The right to silence is safeguarded by the Constitution, the European Convention of Human Rights and the Criminal Procedure Law. According to case law and statute the exercise of the right to silence during police questioning cannot lead to any incriminating inferences against the accused.
It is unconstitutional for a suspect in custody to be questioned for offences other than those for which he has been arrested. Police questioning must not be oppressive or repetitive. A confession must be voluntary. A voluntary confession is a confession that is given out of a suspect’s own free will, and has not been obtained by force, coercion, or intimidation. Voluntariness is the test of admissibility of a confession.
If the evidence collected by the police authorities is considered sufficient for charging the suspect at the police station he must again be cautioned by the police. At all times the suspect has the right to remain silent and make no response to the accusation.
The person arrested shall as soon as practicable and, in any event, not later than 24-hours thereafter, be brought before a judge if not earlier released. If the police wish to prolong the detention of the suspect they must apply to the court for his remand in custody. A person may be remanded in custody at any one time for a maximum period of eight days. Before ordering the remand of a person in custody and/ or renewal of a remand order the court must be satisfied (a) that there is reasonable suspicion connecting the suspect with the offence under investigation, (b) the time that has elapsed was properly utilised for the investigation, (c) the police investigation is still incomplete (d) the prolongation of the suspect’s custody is reasonably necessary for completion of the investigation in order to prevent the suspect from communicating with witnesses or taking steps to hide or destroy evidence. The burden of proof rises in direct proportion to the length of the period of detention for which it is sought to detain the suspect. The longer the period to detain the suspect, correspondingly higher becomes the burden cast upon the authorities to justify the limitation of freedom. The remand of a person in custody for purposes of investigation shall not exceed the total period of three months for the date of arrest. The suspect has the right to appeal the decision of the Court to remand him in custody.
Criminal proceedings against a person commence by a charge preferred before a Court. The charge shall be in the prescribed form and must comply with the provisions of Criminal Procedure Law relating to the framing of charges. On the other hand, the criminal guarantees of Article 6 and corresponding guarantees under the Constitution of Cyprus (article 30.2), begin to apply once the suspect has been “charged” with a criminal offence, that is when officially notified by the competent authority that he has committed a criminal offence, usually at the date of arrest and / or when questioned by the police under caution. The concept of a “criminal charge” within Article 6 of the Convention (ECHR) has been determined in a number of cases by the European Court of Human Rights.
A charge may contain a number of counts either for the same offence or for different offences subject to the power of the Court to direct at any stage of the proceedings that the accused should be tried separately upon any one or more of different counts, if of the opinion that this is not conductive to the interests of justice. More than one accused may be joined in one charge and may be tried together unless the court directs that they shall be tried separately that is to say, (a) persons accused of the same offence, (b) persons accused of different offences committed in the course of the same transaction, (c) persons accused of an offence and persons who under the provisions of any enactment are deemed to have taken part in the commission of such an offence i.e. principals and accessories to a crime, (d) persons accused of an offence and persons accused of attempting to commit such an offence. The Court retains discretion to order separate trials exercised in the interests of justice if it considers that a joint trial will be unduly prejudicial to an accused person.
Once the accused is summoned to appear before the court he is entitled upon submission of a written request to the prosecution to be supplied with a copy of all statements and documents collected during police investigation. The right of the accused to be furnished by the prosecution with all the material evidence gathered during the investigation process is guaranteed by the right to equality of arms, the right to a fair trial as well as the Criminal Procedure Law, Cap. 155 as amended.
Offences depending on their gravity are triable summarily by a single judge of the District Court or on information by the Assize Court composed by three judges presided over by a president of a District Court, a senior district judge and a district judge. The jurisdiction of a judge in a summary trial is limited to the imposition of a sentence of up to five years imprisonment and/or a fine up to euro 85.430,00. The jurisdiction of the Assize Court on the other hand is unlimited. On trials on information the names of prosecution witnesses are written on the back of the indictment and the prosecutor is obliged to call those witnesses to testify in Court or offer them to the defence for cross-examination unless for good reason he regards the witness evidence as unworthy of belief.
Whenever a charge has been brought against a person of an offence not triable summarily or as to which the Attorney General is of the opinion that it is not suitable to be disposed of by a summary trial, the accused is committed for trial before the Assize Court by a district court judge who either releases the accused on bail or remands him in custody. Under Article 113 of the Constitution the Attorney-General has power exercisable at his discretion in the public interest to institute, conduct, take over and continue or discontinue any proceedings for an offence against any person in the Republic. The power of the Attorney – General in this regard is not subject to judicial review. The Attorney – General also has the power to remit a case for summary trial after committal to the Assize Court.
The accused has the right to defend himself in person or through a lawyer. The choice of a lawyer rests entirely with the accused person. On appearance of the accused before the court, each charge is read over and he is required to plead guilty or not guilty. If there is indication that the accused is unfit to plead on account of mental incapacity the court will inquire as to his/her fitness to plead and if found to be unfit he/she will not be tried and an order may be made for his/her care and treatment of mental condition. A number of preliminary objections may be raised before the accused pleads to the charge relating: (a) to the jurisdiction of the court substantive or territorial; (b) previous acquittal of the offences of which he is charged, or previous conviction for the same offences (autrefois acquit – autrefois convict); (c) previous pardoning of the offences; (d) the inadequacy, incompleteness and duplicity of charges. Moreover, an application can be made before or after plea to stay proceedings as an abuse of process. The right of a person who has been acquitted or convicted not to be tried twice for the same offence is guaranteed by Article 12.2 of the Constitution as well as the 7th Protocol to the European Convention on Human Rights. Moreover Article 12.1 of the Constitution provides that no person shall be held guilty of any offence on account of any act or omission which did not constitute an offence under the law at the time when it was committed; and no person shall have a heavier punishment imposed on him for an offence other than that expressly provided for it by law at the time when it was committed.
If the accused pleads not guilty to the charge or charges another date is given for the trial of the case. New charges can be added during the trial if they emerge from the evidence adduced. If this happens the accused will be required to answer to the new charge and the proceedings may be adjourned to afford the accused amenity to prepare his defence; unless the new charge is directly linked to the existing charges and the evidential material supporting it, in which case the court may direct the uninterrupted continuation of the hearing. A person may with the leave of the court change his plea during the trial.
If an accused pleads guilty to some charges and not guilty to others, normal practice is to adjourn the sentencing until after the trial of the charges to which the accused pleaded not guilty. Where there are co-accused one of whom pleads not guilty and the other guilty the proper practice is to postpone the sentence on the one who has pleaded guilty until trial of the other save in case the accused who pleaded guilty will testify as a prosecution witness.
The accused is presumed to be innocent, a fundamental right or every person facing an accusation. The standard of proof is proof beyond reasonable doubt. The Constitution of Cyprus (Article 30.2) and the European Convention of Human Rights (Article 6) guarantees to the accused person the right to a fair trial and public hearing within reasonable time by an independent and impartial tribunal established by law. Judgment shall be reasoned and pronounced in public session. The press and the public may be excluded from all or any part of the trial upon a decision of the court where it is in the interest of the security of the Republic or the constitutional order or the public order or the public safety or the public morals or where the interests of juveniles or the protection of the private life of the parties so require or, in special circumstances where in the opinion of the court publicity would prejudice the interests of justice.
Every person charged with an offence has the minimum constitutional rights: (a) to be informed promptly and in a language which he understands and in detail the nature and grounds of the charge preferred against him; (b) to have adequate time and facilities for the preparation of his defence; (c) to defend himself through a lawyer of his choice or if he has no sufficient means to pay for legal assistance, to be given free legal assistance when the interests of justice so require; (d) to examine and have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; (e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court (Article 12.5). The same rights are guaranteed under the European Convention on Human Rights (Article 6.3).
The eligibility of a person to free legal assistance is governed by Law 165(I)/2002.
The accused has the right to apply for bail pending trial. The right of the accused to bail is governed by the Criminal Procedure Law and the European Convention of Human Rights and the presumption of innocence. The Court may remand the accused in custody pending trial if there is a well-founded fear that if released on bail (a) he would abscond and that it is not possible to impose adequate and enforceable bail conditions to secure his appearance at the trial, (b) he would interfere with the course of justice i.e., interfere with witnesses, warning of other suspects, destruction of evidence, (c) he is likely to commit further offences. The accused has the right to appeal against the decision of the Court to remand him in custody pending the trial.
The process of trial is modelled on the adversarial system of justice. Although the Judge must ensure compliance with the rules of evidence and procedure he must invariably distance himself from the conflict that unfolds before him and maintain strictly his arbitral position throughout the proceedings. There is no trial by jury in Cyprus. The judge is the arbiter of both facts and law. Decision is made on the basis of the evidence presented during the trial by the prosecution and defence.
The prosecutor has the right to make an opening of his case, but this is not obligatory. The prosecutor calls the witnesses to prove his case. After examination in chief prosecution witnesses are liable to cross-examination by the defence and can be re-examined by the prosecutor on matters arising from cross-examination that need explanation. The same rules apply with regard to defence witnesses. A party calling a witness is not entitled to cross-examine him that is he is not at liberty to question his evidence and impeach his credit, unless such witness is first declared hostile by the court.
Any Court exercising criminal jurisdiction may and upon application of the Attorney General shall at any stage of the proceedings reserve a question of law arising during the trial of any person for the opinion of the Supreme Court. A question of law may be reserved at any stage of the hearing.
At the close of the case for the prosecution the accused or his advocate may submit that a prima facie case has not been made out against the accused sufficiently to require him to make his defence. If the Court sustains the submission it shall acquit the accused. The test for deciding whether there is no case to answer is: (a) when there has been no evidence to prove an essential element of the offence; (b) when the evidence adduced by the prosecution has been so discredited as a result of cross examination or is so manifestly unreliable that no reasonable tribunal should safely convict on it. In deciding whether there is a case to answer the Court does not assess the credibility of evidence.
If it appears to the Court that that a prima facie case has been made out against the accused the court shall call upon him to make his defence entitling the accused (a) to remain silent, (b) make an unsworn statement from the dock without being liable to cross examination or (c) give sworn evidence in the witness box in which case he will be liable to cross examination by the other side. The accused has the right to make an opening statement. This right is very rarely exercised. The accused may call any witnesses or other evidence he has to adduce his defence. If during the defence a matter arises which the prosecution could not have foreseen the prosecutor may with the leave of the court adduce evidence to rebut such new matter.
If the accused testifies he may not be cross-examined as to his previous convections unless he has personally or through his advocate asked questions of the witness to establish his own good character, or has given evidence of his good character, or the nature of his conduct of the defence is such as to involve imputations on the character of the prosecutor or the witness for the prosecution.
Where upon a joint trial one of the accused gives evidence and in so doing incriminates one of his co-accused, such co-accused shall be entitled to cross-examine him, and such cross-examination shall take place before cross-examination by the prosecution.
If the accused adduces in his defence new matter which the prosecution could not have foreseen that is a matter arising ex improviso the prosecutor may with the leave of the court adduce evidence to rebut such new matter.
At the end of the trial the parties make their final addresses. The party who has called a witness last addresses the court first and the other side has a right of reply. Thereafter the court delivers its judgment and for this purpose it may adjourn the trial. The Court’s judgment must be reasoned as warranted by the norms of a fair trial. Adhering to the norms of a fair trial is a prerequisite to the validity of judicial proceedings.
If at the end of the hearing only part of a count is proved constituting a self-existent offence the accused may be convicted of that offence without amendment of the charge. The accused may be convicted of an attempt to commit the offence with which he is charged without amendment of the relevant charge or information. The court may, at the conclusion of the proceedings, direct the addition of a count or counts arising from the evidence associated with the charges and convict the accused without any amendment of the original indictment
If the accused is found guilty or if he pleads guilty the sentencing process follows. In the case of minors, young offenders and persons with a problematic persona the Court directs the preparation of a social inquiry report from the Welfare Office. The prosecution brings to the notice of the court previous convictions of the accused and states the facts surrounding the commission of the offence in case the accused pleads guilty. In case of factual dispute between prosecution and defence the Court may order a Newton hearing. The burden of proof is again on the prosecution to satisfy the court beyond reasonable doubt about the correctness of their version of events. Where the accused is found guilty the facts on which the Court will rely for passing sentence are stated in the Courts’ judgment. The Court may with the consent of the prosecutor and the accused, take into consideration any other outstanding offence or offences which the accused admits having committed. The defence has the right to address the Court in mitigation. The Court will then pass sentence on the accused and may adjourn the proceedings for that matter.
A citizen of an EU Member State convicted to a term of imprisonment in Cyprus can be sent to his country to serve the sentence there provided imprisonment under consideration exceeds the period of 6 months, in accordance with the Convention on Transfer of Sentenced Persons adopted by member states of the Council of Europe
A person who has been convicted and sentenced upon a plea of not guilty has a right of appeal against conviction and sentence. The exercise of the right of appeal does not suspend the prison sentence. A person who has been convicted and sentenced upon a plea of guilty has a right of appeal against sentence and against conviction only if the facts alleged in the charge or information did not disclose an offence. The Attorney General has a right of appeal against acquittal and against sentence. A person who has been convicted has the right to be present during the hearing of his appeal. The appeal must be filed in the prescribed form within the time set out by the rules of procedure. The grounds of appeal must be reasoned. The appeal is not a rehearing of the case. The Supreme Court usually orders the submission of skeleton arguments.
On appeal against conviction or acquittal the Supreme Court examines whether the decision of the first instance court is fraught with legal or factual error, if there is some basic flaw in the assessment of the credibility of evidence, and if there has been violation of the norms of a fair trial. The test for overturning a conviction is whether there is some lurking doubt that an injustice has been done. Violation of the right to a fair trial renders the conviction unsafe. If an appeal against acquittal is successful, the Supreme Court may order a retrial of the case. The grounds of appeal against sentence is that it is manifestly excessive or manifestly inadequate and/ or that it is wrong in principle. In determining an appeal against sentence, the Supreme Court may increase, reduce or modify the sentence.
There is no third tier of justice. The remedies available to the person are exhausted with the disposition of the appeal. If there has been a violation of human rights which is not remedied on appeal, recourse may be had to the European Court of Human Rights.