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- INTRODUCTION (History, purpose of the review and classification of administrative acts, definition of an administrative authority)
- 1. Main dates in the evolution of the review of administrative acts
Cyprus was established as an independent state on 16th of August 1960. The judicial system of Cyprus is based on the Constitution which was signed on the same day.
Article 146 of the Constitution is the principal provision creating competence in administrative law. Under this Article the Supreme Constitutional Court (now the supreme Court) “shall have exclusive jurisdiction to adjudicate finally on a recourse made to it on a complaint that a decision, act or omission of any organ, authority, or person exercising any executive or administrative authority is contrary to any of the provisions of this Constitution or of any law or is made in excess or in abuse of powers vested in such organ or authority or person”.
Because of the necessitous circumstances that arose in 1963, entailing paralysis of the judicial authorities, the Supreme Court of Cyprus was established by the Administration of Justice (Miscellaneous Provisions) Law (33/64). The jurisdiction and powers of the Supreme Constitutional Court were vested in the Supreme Court. This law also introduced a two tier administrative jurisdiction of the Supreme Court.
In 1999 the Law Codifying the General Principles of Administrative Law that Must Govern the Actions of the Administration was enacted. This law had codified the case law of the Supreme Court.
- 2. Purpose of the review of administrative acts
The jurisdiction of the Supreme Court as the only administrative court covers the whole area of executive and administrative action in the public sphere, to the exclusion of matters falling within the domain of private law.
The legality of the acts or omissions of any organ, authority or person exercising any executive or administrative authority is reviewed and, they are either annulled (in part or wholly) or confirmed.
Any such decision of the Supreme Court binds any court, organ or authority in the Republic and, accordingly any of them is bound to give effect to and act upon it.
The Supreme Court cannot go into the merits of the decision under review and resolve the matter with a decision, on the substance, of its own.
- 3. Definition of an administrative authority
No definition is given by the Constitution. Administrative authority should be contradistincted with legislative or judicial authority.
Administrative authorities include public legal entities, local government authorities, statutory bodies performing public functions.
- 4. Classification of administrative acts
An administrative act should be a unilateral authoritative one, it should emanate from an authority of public administration and be within the public domain. It must directly and adversely affect the interests of a person, it must not be an act of legislation or act of government and be distinguished from a judicial decision.
- I – ORGANIZATION AND ROLE OF THE BODIES, COMPETENT TO REVIEW ADMINISTRATIVE ACTS
- A. COMPETENT BODIES
- 5. Non-judicial bodies competent to review administrative acts
Legislative provisions specify procedures for administrative review of executive acts by higher administrative authorities (Hierarchical control). Such procedure however is not final or conclusive and does not bar the filing of a recourse to the Supreme Court.
- 6. Organization of the court system and courts competent to hear disputes concerning acts of administration
The Cyprus judicial system entails two levels in the court structure.
a) First instance courts include the District Courts, the Assize Courts, the Rent Control Tribunal, the Industrial Tribunal, the Military Court and the Family Court.
The District Court has First instance civil and criminal jurisdiction.
The criminal jurisdiction is limited to offences carrying a maximum sentence of five years or a fine not exceeding £50.000 or both. It must be noted that a Judge with the consent of the Attorney-General can assume jurisdiction and try summarily any offence. In such a case the punishment to be imposed cannot exceed the punishment and compensation which he is otherwise empowered to impose.
The District Court has jurisdiction to hear and determine all civil actions,
(a)Where the cause of action has arisen wholly or in part within the limits of the district where the Court is established, or
(b)Where the defendant at the time of the filing of the action resides or carries business within the limits of the Court.
The Assize Court has jurisdiction to try all the criminal offences which are punishable by the Criminal Code or any other law and has the power to impose the maximum sentence provided by the relevant law.
Rent Control Tribunal
The Rent Control Tribunal has jurisdiction to try all the disputes which arise from the application of the Rent Control Laws, which include amongst other matters, the payment of rent and recovery of possession.
The Industrial Tribunal has jurisdiction to entertain applications by employees for unjustified dismissal and redundancy payments.
The Military Court has jurisdiction to try military offences under the Criminal Code and any other law committed by members of the armed forces.
The Family Court has jurisdiction to take up petitions concerning the dissolution of marriage as well as matters which relate to parental support, maintenance, adoption and property relations between spouses provided that the parties are residing in the Republic.
b) The Supreme Court
The Supreme Court has jurisdiction to hear and determine all appeals from all judgments of inferior courts in civil and criminal matters. The Court can uphold, vary, set aside any such judgment or order the retrial of the case as it may think fit. The Court can draw its own inferences from the facts drawn by the trial Court and in certain exceptional cases may receive further evidence.
The Supreme Court as the only administrative court in the country, has exclusive jurisdiction to adjudicate on any recourse filed against a decision, act or omission of any organ, authority or person exercising any executive or administrative authority on the ground that it violates the provisions of the Constitution or any law or it is in excess or in abuse of any power vested in such organ, authority or person.
The Supreme Court has exclusive jurisdiction to issue the prerogative orders of habeas corpus, mandamus, prohibition, quo warranto and certiorari.
The Supreme Court has jurisdiction to hear and determine admiralty cases. The original jurisdiction is exercised by a single judge and an appeal against his decision lies to a Bench of at least five.
The Supreme Court as the Electoral Court has the power to hear and determine petitions concerning the interpretation and application of the Electoral Laws.
The Supreme Court has jurisdiction to adjudicate as to whether a law is compatible with the provisions of the Constitution or any conflict of power or competence which arises between any organs or authorities of the Republic. In addition the Supreme Court has jurisdiction to hear a recourse by the President of the Republic as to whether a law passed by the House of Representatives is repugnant or inconsistent with any provision of the Constitution.
- B. RULES GOVERNING THE COMPETENT BODIES
- C. INTERNAL ORGANIZATION AND COMPOSITION OF THE COMPETENT BODIES
- D. JUDGES
- 11. Status of judges who review administrative acts
No, there are no specialized administrative courts. Judicial review of administrative acts is exercised by all Supreme Court Judges.
- 12. Recruitment of judges in charge of review of administrative acts
The Supreme Court Judges are appointed by the President of the Republic and they hold office until they attain the age of sixty eight. They are as a rule, selected from among the most senior of the judges serving in the lower courts, following a recommendation from the Supreme Court, but the President may appoint anyone who is a lawyer of high moral standard and with at least 12 years practice.
- 13. Professional training of judges
In order to qualify for appointment as a District Judge, one has to be a registered advocate with, at least, six years practice in the legal profession and of high moral standard.
- 14. Promotion of judges
They are appointed as district judges, then promoted to senior district judges and finally to presidents of district courts.
- 15. Professional mobility of judges
First instance judges are appointed, transferred and promoted by the Supreme Council of Judicature, which is composed of the members of the Supreme Court.
The Supreme Court Judges serve in the Supreme Court until their retirement.
For a judge to take up any other position in the public administration, he has to resign from his post.
- E. ROLE OF THE COMPETENT BODIES
- 16. Available kinds of recourse against administrative acts
The application for annulment may assert lack of competence, infringement of an essential procedural requirement, substantive violation of the law, contravention of the Constitution, excess or abuse of discretionary power.
As already mentioned the Supreme Court may confirm the decision, act or omission, in whole or in part, declare either in whole or in part, such decision or act to be null and void and of no effect whatsoever or declare that such omission either in whole or in part ought not to have been made and whatever has been omitted should have been performed.
The Supreme Court has no jurisdiction to award damages to any person aggrieved by any decision or act declared to be void. This jurisdiction rests on the District Court.
- 17. Existence of mechanisms for the delivery of a preliminary ruling apart from the procedure under the Article 234 of the EC Treaty
There are no mechanisms at the moment for the delivery of a preliminary ruling (apart from the procedure under Art. 234) as far as judicial review is concerned. There is such procedure in criminal jurisdiction for questions of law reserved, and for questions of constitutionality referred to the Supreme Court by Family Courts, Industrial Tribunal Court and Rent Control Court. The District Courts after 1964, have power to decide questions of constitutionality, subject to appeal to the Supreme Court.
- 18. Advisory functions of the competent bodies
The Supreme has no advisory role.
The Supreme Court is given jurisdiction, under Article 140 of the Constitution, to hear a recourse by the President of the Republic, made prior to its promulgation, as to whether a law or decision passed by the House of Representatives is repugnant or inconsistent with any provisions of the Constitution. If in the opinion of the Supreme Court such law or decision is indeed repugnant, the law or decision is not promulgated and has no effect.
- 19. Organization of the judicial and advisory functions of the competent bodies
- F. ALLOCATION OF DUTIES AND RELATIONSHIP BETWEEN THE COMPETENT BODIES
- II – JUDICIAL REVIEW OF ADMINISTRATIVE ACTS
- A. ACCESS TO JUSTICE
- 21. Preconditions of access to the courts
There are no pre-conditions.
- 22. Right to bring a case before the court
Under Article 146.2 of the Constitution a recourse may be made by “a person whose any existing legitimate interest, which he has either as a person, or by virtue of being a member of a community, is adversely and directly affected by such decision or act or omission”.
Article 186 provides that the term person includes any company, partnership, association, society, institution or body of persons, corporate or unincorporate.
- 23. Admissibility conditions
The first prerequisite is that there must be an act or decision taken by an organ or authority, or person exercising executive or administrative authority in the field of public and not private law.
The executory nature of such act or decision is considered to be another prerequisite. The main characteristic of an executory act is the creation of a legal result by which a legal situation is created, varied or abolished which can be defined as a right or an obligation of an administrative nature.
A third prerequisite for a person to file recourse is that he must have an existing legitimate interest which is adversely and directly affected. A legitimate interest of a person must be prejudicially affected directly by the act or omission. The concept of “interest” is not similar to the concept as applied in civil law. It must be concrete of a financial or moral nature. In this respect a person’s interest must be distinguished from the interests of the general public. No actio populari is allowed. The interest must exist at the time of the filing and the hearing of the recourse. Whether the interest is directly affected is a question of fact to be decided on the circumstances of each case.
- 24. Time limits to apply to the courts
Article 146.3 of the Constitution provides that recourse must be filed within 75 days from the date of the publication of the act or decision or, if not published and in the case of an omission, from the day when it comes to the knowledge of the applicant. If there is doubt or uncertainty as to the commencement of the period, such doubt has to be resolved in favor of the applicant.
The provisions of Article 146.3 are mandatory and should be given effect in all cases. However the period of limitation does not run where the person is prevented in filing a recourse by reasons of force majeure.
- 25. Administrative acts excluded from judicial review
The administrative jurisdiction of the Supreme Court covers the area of executive administrative acts or decisions within to the domain of public law. Excluded from the jurisdiction of the court are acts, decisions or omissions of public authorities within the domain of private law. Internal acts of the administration, preparatory acts, confirmatory acts, and acts of government are not subject to the revisional jurisdiction of the Court.
- 26. Screening procedures
Proceedings before the Administrative Court are not filtered, permission of a judge is not required. However under Article 134.2 of the Constitution when a recourse appears to be prima facie frivolous the court may, after hearing arguments by or on behalf of the parties concerned, dismiss such recourse without a public hearing if satisfied that such a recourse is prima facie frivolous.
- 27. Form of application
The Supreme Constitutional Court Rules of 1962 provide that a specific form must be filed. This form must contain the name of the court, the year in which the application is instituted, the Article(s) under which it is made, the name and address in full of the applicant, the administrative organ that issued the decision, name and address in full of the applicant’s advocate, if any, and an address for service in Nicosia.
It must also contain a statement of the case of the applicant setting out in a summary form all the material facts relied upon, the requested remedy and the legal grounds of the application. The application must be accompanied by copies of all the documents, referred in the application, which are in the possession or power of the applicant .
Non compliance to any of the above formalities is not fatal and can be remedied.
- 28. Possibility of bringing proceedings via information technologies
At present it is not possible to file a recourse through the internet. However e-procedures may be introduced after the construction of the website of the Court.
- 29. Court fees
According to Article 163.2 of the Cyprus Constitution the Supreme Court may make Rules for prescribing forms and fees in respect of proceedings in the courts and regulating the costs of, and incidental to, any such proceedings.
The Court Fees Order provides that the fees of the Courts are to be taken by means of revenue stamps. Stamp duty for filing an application for annulment is currently CyP 52.25 (approximately 85€).
- 30. Compulsory representation
Legal representation is not compulsory at all the levels of the judicial system.
- 31. Legal aid
legal aid is granted in
1. Criminal proceedings before a court, against any person, for an offence that he may have committed in violation of any legislative provision, for which an imprisonment sentence is provided for exceeding one year and includes preliminary interrogation and every other stage of interrogation or other procedure taking place before the commencement of subsequent criminal proceedings that relate to it.
2. Civil proceedings before a court, at any stage, lodged against the Republic for damages sustained by a person due to determined violations of human rights.
3. Criminal proceedings lodged by any person, where the offence in examination concerns determined violations of human rights.
4. Family court cases concerning parental care, alimony, recognition of a child, adoption, property relation of spouses and any other dispute in the family.
5. Cross border disputes.
6. Administrative cases concerning asylum, refugee and international protection applications.
- 32. Fine for abusive or unjustified applications
No, but the unsuccessful applicant may be ordered to pay all the costs of the proceedings.
- B. MAIN TRIAL
- 33. Fundamental principles of the main trial
Although the Cyprus legal system is adversarial, the Supreme Court in the exercise of its revisional jurisdiction follows the inquisitorial system.
The right to a fair hearing is safeguarded in our Constitution and by the European Convention of Human Rights which has been ratified. Furthermore our jurisprudence also protects this right.
Observance to the attributes of a fair trial is a prerequisite for a valid judicial determination.
- 34. Judicial impartiality
Judicial independence is strongly maintained in Cyprus and is secured by our Constitution.
The Constitution separates the three powers of the State and there can be no intervention in the administration of justice.
Entrusting judicial appointments (first instance judges) to the judicial power of the state is an institutional safeguard for both the independence and impartiality of the judiciary.
The security of tenure afforded to the judges strongly supports the independence of the judiciary.
- 35. Possibility to rely on the new legal arguments in the course of proceedings
Only legal arguments that have been outlined in the application form can be the subject of review by the court. There is however, jurisdiction to amend, on proper application, so as to include additional or other arguments.
- 36. Persons allowed to intervene during the main hearing
All applications for review are served on all interested parties.
Any interested party can intervene in the proceedings provided he has a legal interest in the non- annulment of the decision and stands to lose as a result of the annulment of the administrative act. The interested party can not intervene to support the annulment of the action.
- 37. Existence and role of the representative of the State (“ministère public”) in administrative cases
The State is usually, represented through the office of the Attorney General who acts for the respondent administrative organ. Administrative organs, such as municipalities or statutory bodies functioning under special legislative provisions are represented by lawyers of their choice.
- 38. Existence of an institution or a person with a role analogous to the French "Commissaire du gouvernement"
Under certain circumstances the Attorney General may be allowed to appear as amicus curiae.
- 39. Termination of court proceedings before the final judgment
If the act of the administration had been revoked or the omission is rectified and the applicant is satisfied, the proceedings are abolished.
Furthermore, if before the case is concluded, the applicant dies then, as it is explained in question 23 the legal interest ceases to exist. Provided a legitimate interest is not vested in his/hers heirs, the recourse is abated.
In any case an applicant may withdraw his recourse.
- 40. Role of the court registry in serving procedural documents
The applicant serves the application to the respondent and to the interested parties. As for the pleadings, each party forward theirs to the other party.
- 41. Duty to provide evidence
Although the Cyprus legal system is adversarial, the Supreme Court in the exercise of its revisional jurisdiction follows the inquisitorial system. Therefore it reviews the administrative actions independently of the participation of the litigants. The Court has the power and responsibility to regulate the production of evidence in accordance with the requirements of the due discharge of its competence under Article 146.
Furthermore under Rule 11 of the Supreme Constitutional Rules 1962, the Court has power to summon any person to give evidence or produce documents for the purpose of enabling the court to come to a just decision in the case.
- 42. Form of the hearing
The hearing is conducted in public. Each party submits in writing its case and may, with the leave of the Court, call witnesses or produce evidence (if necessary) in support of its case. The applicant, the respondent and the interested parties are the only ones that have a right to participate in the hearing. In administrative jurisdiction the hearing is not conducted in camera.
- 43. Judicial deliberation
At the end of the hearing the judge or judges, if the case is heard by more than one judge, deliberate in private and they deliver their decision. No other person is allowed to take part in these deliberations.
- C. JUDGMENT
- 44. Grounds for the judgment
A detailed and proper reasoning for the deliberations of the Court is mandatory and warranted by the Constitution and constitutes at the same time a fundamental element of the judicial process. The evidence must be analyzed in the light of the issues arising. There must be a clear pronouncement indicating the outcome of the case.
- 45. Applicable national and international legal norms
Usually in a case, reference may be made to the European Convention of Human Rights, to Community law i.e directives, regulations and Cyprus case law.
Furthermore judicial precedents of other European Countries with similar to ours, administrative law may also be cited (i.e. Greek Council of State)
- 46. Criteria and methods of judicial review
See Question 2 above.
- 47. Distribution of legal costs
The Judge has discretion in the apportionment of the costs. Usually the costs follow the outcome of the case. The party that loses the case has to bear the legal costs. However under special circumstances, the court may order that each party bear its own costs.
- 48. Composition of the court (single judge or a panel)
Revisional jurisdiction is usually exercised by a single judge of the Court, subject to appeal before a division of the Supreme Court composed of five judges, provided always that the plenum of the Supreme Court, composed of seven or more judges, may deal directly with a recourse under Article 146, in which case there is no appeal.
- 49. Dissenting opinions
Judgments may be unanimous or there may be dissenting judgments as well.
- 50. Public pronouncement and notification of the judgment
Judgments are both pronounced in public and given in writing to the parties.
- D. EFFECTS AND EXECUTION OF JUDGMENT
- 51. Authority of the judgment. Res judicata, stare decisis
All judgments of the Supreme Court have the force of res judicata.
An annulling decision of the Court binds both the applicant and the administration. Following an annulment of an act, the administration is bound to re-examine the matter and is estopped from issuing an identical act on the same grounds and the same reasoning which were declared invalid.
Annulment of the act or decision operates erga omnes. Dismissal of the application does not preclude other persons from filing a recourse against the same act or decision.
A single judge exercising administrative jurisdiction under Article 146 is bound by any decision of the plenum or of any decision given on appeal, with regard to any matters relevant to the case at hand. The Supreme Court is likewise bound; unless it considers that on the basis of certain criteria there should be departure and restatement of any principle.
- 52. Powers of the court in limiting the effects of judgment in time
The matter was examined by the Supreme Court and the majority of the Court was of the opinion that no such limit can be imposed by the Court.
- 53. Right to the execution of judgment
Article 146.5 of the Constitution makes all decisions of the court binding on all courts and all organs and authorities in the Republic whom it requires to give effect to the court’s decision. The administrative authorities are obliged to take the measures called for by the judgment or to refrain from any action declared to be unlawful.
Consequently if a respondent organ or authority fails to give effect to and act upon the decision, the citizen concerned is entitled to compensation.
The Court has no power to issue an injunction apart from an interlocutory one.
- 54. Recent efforts to reduce the length of court proceedings
Article 30 of the Constitution provides that: “...every person is entitled to a fair and public hearing within a reasonable time…”. This Article corresponds to Article 6.1 of the European Convention on Human Rights.
Furthermore Rules of Procedure of 1986, issued by the Supreme Court provide that no judgment shall be reserved for a period exceeding 6 months. On the application of any party, after the elapse of the above period or ex proprio motu, after the elapse of 9 months, the Supreme Court may:
(i)order the retrial of the case by a different court,
(ii) make an order for the issue of judgment within a time limit,
(iii) issue any other necessary order.
- E. REMEDIES
- F. EMERGENCY AND SUMMARY PROCEEDINGS / APPLICATIONS FOR INTERIM RELIEF
- III – NON-JUDICIAL SETTLEMENT OF ADMINISTRATIVE DISPUTES
- IV – ADMINISTRATION OF JUSTICE AND STATISTIC DATA