Posted on January 25, 2021
By Andreas Hadjigeorgiou
The newly formed International Protection Administrative Court (IPAC) was constituted back in 2019, and begun its work officially around the middle of June 2019 – a little more than a year ago. The IPAC was created in order to facilitate the trial of cases involving asylum-seekers on a faster and more effective basis. This means that the IPAC was charged specifically with the purpose of examining cases and issuing decisions on a more expedient manner. The issuing of decisions on a timely basis is, after all, protected under the right to a fair trial. From July 2019 even the Refugee Reviewing Authority ceased to accept new applications, so it could give way to the new Court. Nevertheless, while the creation of the IPAC is one step forward in meeting the standards highlighted by the demands of justice, and especially the right to a fair trial, certain aspects of how IPAC functions can be seen as two steps back. The most important aspect of this backwards stepping relates to the judgments rendered by IPAC.
As of the date of writing this article (October 2020) there is an inexplicable absence of any IPAC judgments from the reach of the public and the lawyers representing asylum-seekers. Cylaw.org (the free to use service which collects and makes available all the decisions of Cypriot Courts) has no cases available from the IPAC – and the administration of cylaw was unable to provide any information as to why these decisions are unavailable; nor when they will become available. The same applies for the Cyprus Bar Association (CBA), which regulates cylaw and funds its functioning and development costs, and was unaware of this omission.
Furthermore, if one tries to reach the IPAC administration, he will realize that the problem runs deeper than first meets the eye. Specifically, the answer the present author was given by the administration was rather simple: ‘the decisions are not available online, and there is no way for anyone to access them – even in print’. Adding, the IPAC administration mentioned that they are not aware of any initiative to make these decisions available and they cannot comment on when (nor if) such decisions will become available. This is, of course, a critical blow to any claims of ‘improvement’ in the Cypriot administration of justice. However, the question to be asked is whether the mere absence of the judgments of the IPAC amounts to an infringement of guaranteed human rights – and more specifically the right to a fair trial.
Accessibility and Publication of Court Judgments:
From the outset it should be mentioned that the IPAC judgments do not carry the same weight as the decisions of the Supreme Court. Within a common law system, such as the Cypriot one, decisions of the Supreme Court stand on a higher ground than all other decisions; they stand firmly as precedents. Nevertheless, while the IPAC decisions do not form precedents, they still have a vital role to play and they are invaluable for any lawyer seeking to appear before the IPAC.
For example, the IPAC, as any other first instance court, still has authority to decide whether a pending case falls within the ambit of an established precedent and which one that is. Further, in cases that IPAC finds no established precedent to apply, its authority enhances even more. In such cases, the IPAC has discretion to decide a new situation as it sees fit by drawing inspiration from established case-law but not necessarily being bound by it. It is in such ‘unprecedented’ cases that the IPAC, and the lawyers arguing before it, can most make a difference by paving the way for the establishment of new judicial practices and precedents. Nevertheless, the IPAC differs from other first instance courts, since the sheer subject matter it deals with, that is asylum seeker cases, is wholly characterized by the continuous appearance of unprecedented arguments and situations to be tried – and this enhances the importance of its decisions.
As such, the decisions of the IPAC, a newly established Court with newly established judges, are of vital importance, as they exhibit and seek to inform lawyers on a number of issues. For example, they showcase the stances these newly established judges have taken, and the criteria which they have employed, in deciding whether a pending case is covered by a precedent. This process involves the weighing of similarities and dissimilarities of a situation to those covered by precedents, usually through syllogisms and analogies, and it highlights which considerations these judges employ and what factors are likely to influence their opinions.
Most importantly, though, the IPAC case-law allows one to discern the practices the IPAC has created in dealing with unprecedented/novel cases. It provides a source to research which situations have been heard by the IPAC and, thus, are not unprecedented per se. Further, one can find which arguments have been examined by the IPAC, which ones have been rejected and why. This is critical for the work of a lawyer who relies on arguments. This case-law allows a lawyer to see which arguments he should not waste his time on and, if he still chooses to rely on arguments previously rejected, he can see why they were rejected, in order to produce a pre-emptive reply on why they should not be rejected in the present case.
Without such case-law lawyers are probably trapped in continuously repeating, amongst themselves, already rejected arguments believing them to be new or wholly original. Consequently, the absence of the IPAC judgments should be seen as a disservice to the legal profession and society as a whole. Moreover, though, it could possibly furnish an infringement of the right to a fair trial – an infringement perhaps capable of voiding the decisions of the IPAC.
The Right to a Fair Trial:
This right is protected both on the national and European level – see art.30 of the Cypriot Constitution and art.6 of the European Convention on Human Rights. The right to a fair trial is of course an extremely multidimensional right that produces a myriad of different safeguards; ranging from the collection of evidence, the rights of the accused, the obligations of the prosecution etc – applying equally to the civil, criminal, and administrative limbs of law. One often overlooked aspect of this right, though, focuses on the accessibility and publication of Court decisions.
For example, a note attached to art.30(2) of the Cypriot Constitution notes that court decisions need to be properly justified and public. While certain limitations are added upon this right, such as in the interest of the security of the Republic, public morality, the rights of minors etc., it makes it clear that such limitations can only function as an exceptional measure, and not as a common practice. The European Court of Human Rights (ECHR), on the other hand, as early as 1983 (see Pretto and others v Italy) sought to protect the publicity of court proceedings and decisions under art.6(1), as a way to enable public scrutiny. Further, in Fazliyski v. Bulgaria (2013), the ECHR clarified that what is important is not that decisions are publicly pronounced, but that they are made accessible to the public in at least some form. The test is whether the judgement was made available to everyone – and Cyprus might be in violation.
From another perspective, the Venice Commission of the Council of Europe notes, in ‘The Rule of Law Checklist’ (2016), that although limitations can be affected upon the publicity of court decisions, their accessibility is protected as a part of the legal certainty that the rule of law guarantees. Similar conclusions may be drawn from the realm of EU law, where the concept of the rule of is explicitly protected under art. 2 of the Treaty on European Union and has been recognized as a general principle underpinning the development of EU law – which is itself linked to the overall ‘right to a fair trial’. More specifically, the requirements of the rule of law have been recognized as a ‘prerequisite for the protection of fundamental rights’, while in its ‘Les Verts’ judgement (1986) the Court of Justice explicitly noted that:
‘the European Economic Community is a Community based on the rule of law, inasmuch as neither its Member States nor its institutions can avoid a review of the question whether the measures adopted by them are in conformity with the basic constitutional charter, the Treaty.’
From this perspective, matters involving the rule of law are never of secondary importance. Furthermore, another layer is added once another principle, protected under the right to a fair trial, comes into play: the principle of ‘equality of arms’.
Equality of Arms:
This principle underpins the equal opportunities of each party to a trial to present their case, thus ensuring procedural equality. While it has been formulated primarily for criminal proceedings, as is the wider right to a fair trial, it equally applies to civil and administrative cases. An important aspect of this principle is the protection of equal access of both parties to relevant case documents. Usually this principle is of pivotal importance whenever one party has access to case documents, however this could work equally well in cases where only one party has access to relevant court judgment. Further, we can also safely assume that the principle is a Court cites in its judgment a previous judgment which neither parties have access to.
Nevertheless, it is important to note that in this case it is not true that both parties lack access. As is common practice amongst almost every private legal office, the counsels, who work at the Attorney General’s Office for the Republic of Cyprus, and appear before the IPAC, circulate amongst themselves important decisions – especially those which deal with questions of law. As a result, lawyers who represent the Republic, against those that represent asylum seekers, have access to a pool of information that the private sector does not. Thus, and to the extent that access to such case-law, in a common law tradition, is one of the most important arms in the hands of a lawyer, there is a clear inequality of arms and the principle is, thus, prima facie violated.
Obviously, the responsibility lies, on a first instance, with the IPAC and its administration. It is the Court’s obligation to ensure that its decisions are accessible. Further, given the independency of the judiciary, and the role of the Supreme Court to oversee lower Courts and the judiciary as such, we can assign responsibility, on a second instance, to the Supreme Court itself.
However, coming on to the third instance, and given the length of time this omission has been taking place, this responsibility can be assigned to the whole Cypriot legal body for standing by idle; in essence accepting and legitimizing this state of affairs. It is unacceptable that lawyers have been appearing, and furthering their cases, in light of this omission; especially without protest. This is clearly a violation of both the rights of those seeking judicial review and a violation of the obligations of a lawyer to its clients. Cypriot lawyers at the IPAC have been arguing, against the counsels of the Republic, with one hand tied behind their back; uninformed of the practices established by the IPAC judges.
Further, responsibility lies also with the CBA – an association tasked with protecting and promoting the legal profession. CBA has an obligation to step up and help its members assert their rights. It is inexcusable that Cypriot lawyers are put at such a disadvantaged position when arguing against the counsels of the Republic, while CBA stands and stares. Furthermore, with a letter dated 20/09/20, the current author sought to bring this matter to the attention of CBA and its (then) president. Nevertheless, the CBA has not replied, has not taken any action to remedy this situation, nor has it sought to inform or protect its members.
Last, but not least, responsibility can be attributed to the Cypriot academic community. As legal academics, and as legal researchers, we have an obligation to inform the wider legal profession when such a severe violation of its rights and obligations has taken place; and we have an obligation to be part of the solution. The fact that no articles have been written criticising this omission, showcases the infringement of this (primarily moral) responsibility.
The way forward:
As highlighted above, the continuous existence of this problem can be attributed to collective acts and omissions; as such there is collective responsibility to be shared amongst the competent authorities and the legal profession as a whole. Likewise, any solution must also be a collective endeavour. As lawyers, and until the decisions of the IPAC are made public and accessible, we should refuse to advance our cases before the IPAC. Without access to these decisions, any lawyer that continues to represent asylum seekers before the IPAC is in violation of the lawyers’ code of conduct and is further aiding in the violation of their client’s human rights. As a response, what lawyers could, and should, do is appeal any decisions of the IPAC because they could very much be in violation of the right to a fair trial. The present author hopes that this article has managed to successfully raise this possibility.
Furthermore, as academics we should be more vocal in speaking out about these systemic problems as we are the most adept to put the actions of the judiciary under public scrutiny, and we have an obligation to inform both legal profession and the wider public. Closing, it should be noted that no collective action of the Cypriot legal community can effectively take place without supervision and coordination of the CBA. As such, CBA has an obligation to recognize this problem, inform its members, and aid them in achieving a collective response – a responsibility the CBA continues to implicit deny with its inaction. This is a matter of immediate and urgent concern. While the publication of the IPAC’s past decisions will not remedy the human rights violations that have already taken place, it will protect future applicants – and this is a worthy end in itself. As such, the present article concludes by raising an alarm: there are serious human rights violations plaguing the Cypriot legal system; we should, thus, act and we should act fast.
Posted in Rule of Law