Posted on June 11, 2020
Dr. Demetra Loizou, Lecturer in International law and Legal Skills, School of Law, UCLan Cyprus
Dr. Despina Christofi, Lecturer in International Commercial Arbitration and Investment law School of Law, UCLan Cyprus
The authors would like to thank Prof. Stéphanie Laulhé Shaelou, Professor of European Law and Reform and Head, School of Law, UCLan Cyprus, for the review of this blog post.
The COVID-19 outbreak did not find the Cypriot legal system in an idle state. On the contrary, the judicial system of the Republic of Cyprus is under review since 2017, and the whole project is supported by the Structural Reform Support Service of the European Commission (SSRS). The crisis immediately enhanced chronic challenges faced by the Cypriot legal system, most prominently in terms of achieving greater efficiency in the face of acute delays and backlogs. The Supreme Court’s response to the unprecedented health crisis followed suit the Ministerial Council’s measures for preventing the spread of the virus and protecting public health.
Covid-19 responses on the operation of the Cypriot courts
The Supreme Court unanimously decided to temporarily suspend the adjudication and further promotion of all cases in all the courts, of every level and jurisdiction, between 16 March 2020 and 30 April 2020, with the exception of those cases deemed urgent. Urgent cases included among other applications for interim injunctions, appeals concerning auctions of immovable property, extradition procedures, prerogative writs, cases where the liberty of individuals was at stake, cases which concerned the Contagious Diseases Law and the relevant decrees issued by the Minister of Health and urgent appeals etc. On several occasions, the determination as to the urgency of the matter was left at the discretion of the Court. Filings to the courts’ registries were likewise limited to specific categories of documents and actions, where again the urgency of the matter was a prevalent consideration. Notably, the Supreme Court’s decision suspended all the deadlines provided by the Procedural Rules and the set deadlines for the conduct of court proceedings. The Supreme Court’s approach was one of caution, demonstrating an awareness on the part of the most senior court in the country of the systemic limitations affecting the administration of justice in Cyprus. Consequently, the Supreme Court decided that the way forward in responding to the pandemic would necessarily involve adjourning most cases.
Following the Government’s decision to start easing restrictions from 4 May 2020 onward, the Supreme Court decided that the courts would reopen on the same date, subject to strict restrictions in line with the decrees of the Ministry of Health. Significantly, the first instance courts of all jurisdictions were instructed to proceed with the scheduling and further promotion of the cases before them, taking into consideration the existing particularities and needs of each jurisdiction, including the existing buildings and premises. A similar approach was also taken as regards the operation of the Court Registries. On the matter of first appearances, the Supreme Court decided that they would be rescheduled to avoid overcrowding in the courts. Notably, the Supreme Court decided to limit the courts’ summer recess to the month of August to process the delays caused by the adjournment of the cases. Hence, the Cypriot courts have resumed operations under the strict conditions imposed by the Ministry of Health. A perusal of the lists of cases issued by the different courts on a daily basis, from the beginning of May 2020 onwards, demonstrates that significant obstacles remain in the administration of justice. The progress of cases is contingent on a number of factors such as the stage of the proceedings, the urgency of the matter, the condition of the court buildings and the need to comply with the relevant decrees of the Ministry of Health in curbing the impact of COVID-19. Consequently, as things stand, and in the absence of digital trials, a substantial number of court cases are hampered by further postponements and delays.
The Rule of Law and effective judicial protection
Inevitably, crises exacerbate problems; still, they may also provide a fertile ground for accelerating judicial reform. This opportunity for reflection and change should not take place in vacuum; it should take into consideration the indispensable role of the Cypriots courts in upholding the Rule and Law, and for that matter, their place within the broader judicial network in Europe and beyond. The Rule of Law is one of the founding principles of the European Union (Article 2 TEU). The core of the Rule of Law is effective judicial protection, which encapsulates the independence, quality, and efficiency of national justice systems. In particular, the notion of effective judicial protection comprises numerous specific rights, including access to justice, the right to an effective remedy, the right to a fair trial and due process. Since individuals are fundamentally entitled to enjoy judicial protection of their EU law rights, such a right establishes a general principle of EU law. The CJEU has discussed the right of effective judicial protection in various cases, such as in 1985, when effective judicial protection was described as a principle ‘which must be taken into consideration in Community law’ as it ‘underlies the constitutional traditions common to the Member States and […] is laid down in Articles 6 and 13 of the European Convention for the protection of human rights and fundamental freedoms’.
The Lisbon Treaty gave to the principle of effective judicial protection a Treaty basis of its own, whereas until then it constituted a ‘mere’ general principle deriving primarily from the constitutional traditions of the Member States. The principle of effective judicial protection is now enshrined in primary EU law at two levels: firstly, as an obligation for the Member States (Article 19(1) TEU) and, secondly, as a fundamental right of individuals (Article 47 EU Charter of the Fundamental Rights).
In its July 2019 communication, as part of the EU’s initiative to strengthen the Rule of Law in the Union and promote a ‘Rule of Law culture’, the European Commission advanced the idea of establishing a ‘Rule of Law Review Cycle’. The proposed review cycle would monitor the compliance of the Member States with the Rule of Law. To that end, the European Commission expressed its intention to publish an annual Rule of Law Report that would outline the situation in Member States. Significantly, the 2020 EU Justice Scoreboard will imbue the annual Rule of Law Report. In this respect, the European Commission includes the EU Justice Scoreboard as part of the EU’s toolbox for strengthening the Rule of Law in Member States. More recently, the European Commission President issued a statement referring to the emergency measures adopted in Member States in the context of the COVID-19 crisis. According to the European Commission, even during these challenging times, Member States must uphold the founding principles of the EU – including the Rule of Law – and respect for human rights. In this respect, the European Commission will monitor closely the emergency measures adopted by EU governments in response to the crisis. In particular, any measures adopted must be necessary, strictly proportionate, temporary, and subject to regular scrutiny. The government of the Republic of Cyprus, along with the majority of EU governments, has welcomed the initiative of the European Commission in this respect.
Information Communication Technologies in court proceedings: EU and Cyprus
The use of information communication technologies (ICT) forms a key element of the EU Justice Scoreboard assessment. This is because the use of technology pertains to, among others, electronic submission of claims, online access to information about a case, case management and monitoring, and electronic communication between courts and lawyers etc. According to the 2017 EU Justice Scoreboard, the use of electronic communication between courts and lawyers in Cyprus was among the lowest ones in the EU, accounting for less than 10% of correspondence (figure 24). Notably, in the context of the 2018 European Semester, Cyprus was among the five Member States to receive country-specific recommendations from the Council as regards their justice system. The Council referred to the ‘low digitalisation of courts’ as one of the most critical problems in the Cypriot justice system and recommended stepping up efforts in developing ‘a fully operational e-justice system’. The lack of ICT features prominently in the Functional Review of the Courts System of Cyprus. Notably, unavailability of ICT is identified as a challenge during all stages of a case, from the initiation of a claim at first instance and its progression to the hearing stage and judgment, up until the completion of an appeal. The introduction of digital audio recording (DAR) is among the recommendations of the Functional Review Report. The use of DAR in the court proceedings would deal with the constraints caused by the current system of stenography. Pursuant to this recommendation, a feasibility study was conducted in 2019, with the support of SRSS, on the introduction of DAR in the Cypriot courts. The feasibility study came to two conclusions. Firstly, that the current arrangements for recording court proceedings are ‘not fit for purpose’. Secondly, the report concluded that: ‘Despite the challenges and constraints facing the Supreme Court, it is feasible to introduce DAR as the standard method of recording court proceedings in Cyprus.’
At the same time, absence of ICT is coupled with complete reliance on paper and manual-based systems. The eventual implementation of the proposed E-Justice Project is expected to bring about an overhaul to the daily administration of the courts. A budget of 9 million euro has been allocated to the E-Justice Project. Since 2017, the development of the project has essentially consisted of carrying through the tender evaluation process. Before the COVID-19 outbreak, a tentative implementation date was set for June 2021. Pending the eventual realisation of the project, intermediary solutions have been put forward by various stakeholders to deal immediately with the ongoing technological challenges posed by COVID-19.
Beyond the remit of the Cypriot legal system, the need for modernisation must be situated within the broader EU legislative framework on matters of cross-border judicial cooperation and assistance. In response to this requirement, various EU Regulations have been implemented, with the most recent of them explicitly acknowledging the use of videoconferencing or other forms of communication technology both in civil/commercial and criminal matters. In particular, EU instruments provide for the taking of evidence in civil and commercial matters (article 10), a European Small Claims Procedure (articles 8 and 9), mutual assistance in criminal proceedings (article 10) and the issuance of a European Investigation order (EIO) in criminal matters (articles 24 and 25). More recently, the advantages and great potential of videoconferencing technology were explicitly acknowledged by the Council Recommendation on ‘Promoting the use of and sharing of best practices on cross-border videoconferencing in the area of justice in the Member States and at EU level’. In particular, the Council Recommendation called on the Member States to implement a set of measures with the aim of improving the interoperability for videoconferencing between Member States. Significantly, while these instruments encourage the use of ICT for the purpose of conducting oral hearings and taking evidence, they are, among others, conditioned on the fact that the requested State has the ‘technical means’ for doing so.
The ongoing COVID-19 crisis brought into view the unpreparedness and lack of capacity of the Cypriot Courts for making use of ICT in the conduct of judicial proceedings and the extent to which the digitalisation of Cypriot justice lags behind its EU counterparts. This situation reflects the results contained in the latest EU Justice Scoreboard. In particular, according to the 2019 EU Justice Scoreboard, there is no availability of ICT with respect to submitting and following claims online and case management systems in Cyprus (figures 23 and 40). The consequences of the lack of ICT became evident with the outbreak of COVID-19 and the decision of the Supreme Court to limit the psychical presence of lawyers and visitors in the courts, in an effort to prevent the spread of the virus. Notably, the draft Guidelines for the reopening of the courts by the Epidemiological Surveillance Unit of the Ministry of Health recommend the promotion of teleconferencing to the extent possible.
Comparative analysis with other common law jurisdictions
A brief navigation to the immediate responses of other selective jurisdictions to the current global extraordinary circumstances will help to underline the indisputable necessity of bringing the Cypriot courts at pace with technological developments. The comparative analysis is pursued by focusing on other common law jurisdictions, with whom Cyprus shares the same adversarial system and similar civil procedure rules. What is important to emphasise is that in all the countries referred to below, ICT was already used, at least for some part of the court proceedings, so the judiciary and the lawyers were already familiarised, at least to some extent with the digitalisation of justice.
The UK also responded immediately in adjusting the court proceedings, by offering trials via Skype, in order to avoid interruption of the court proceedings during the pandemic. On March 23, 2020, the UK Supreme Court issued a statement informing the public that the hearings will be held by teleconference and the hearings will be broadcast live, as is usually the case, while recognising that ensuring the operation of courts and tribunals ‘is an essential public service’. It is noteworthy here that the President of the Cyprus Bar Association, with a letter to the Supreme Court dated 16 April 2020, requested that the Courts should be declared to be essential services, as was announced in the UK some days later, and suggested the trial of cases which do not require the physical presence of the parties and/or lawyers should continue and/or the full operation of criminal courts for all cases.
Guidance from the senior judiciary has encouraged the use of telephone and video to support hearings. The decision as to how a hearing is conducted is a matter for the judge, magistrates or panel, who will determine how best to uphold the interests of justice, by taking into consideration aspects such as the nature of the matters to be heard, the effects of the use of video/audio technology on participants of the hearing, any individuals’ needs; and any matters relevant to public access to the hearing and transparency. Comparatively, this approach is much different from the one Cyprus courts implemented, where judges were given the discretion to choose what cases to hear and to give new hearing dates for the rest of them, causing further delay of justice. All the efforts of the UK Government to respond to the pandemic, have been introduced with the adoption of the Coronavirus Act 2020, which, regarding the delivery of justice, expands the availability of video and audio link in court proceedings. In particular, specific civil applications in the magistrates’ court are now allowed to take place by phone or by video. Furthermore, the use of video and audio link is now allowed in criminal proceedings, including fully video and audio hearings in certain circumstances. Finally, and in line with the principle of transparency of court proceedings which is a fundamental element of the Rule of Law, the public can now participate in court and tribunal proceedings through audio and video.
Moving to the case of New Zealand, the Supreme Court and Court of Appeal Remote Hearings Protocol established that all hearings will continue virtually, with the use of a web browser-based video conferencing system. It must be underlined that New Zealand already had established a legal framework for the use of audio-visual participation in court proceedings, according to the Courts (Remote Participation) Act 2010. Like the UK, the principle of judicial transparency is protected, by allowing the media to attend virtual hearings.
Finally, in Ireland, court cases are heard remotely through video links, in order to ensure that the justice system continues to function despite the pandemic. In a recent statement, the Court of Appeal announced that some appeals would be heard remotely, with its first remote hearing taking place on 20 April. Also, Supreme Court proceedings will be conducted remotely, as detailed in a practice direction which is applicable during the pandemic. Irish Supreme Court had already an e-filing system which now facilitates remote proceedings even more. As per Mr Justice Barnville, remote hearings are ‘a way of tiding us over until we get back to physical hearings’, and underlying that the idea that ‘the whole thing is shut down and closed for business is not good – not good for the judges, not good for the courts, not good for the system’.
The aforementioned examples evidence the efforts of various jurisdictions to preserve effective judicial protection, a foundation of the Rule of Law, by reducing as much as possible delays in the administration and delivery of justice and alleviating the impact on claimants, defendants and witnesses. It is not the first time that the Rule of Law is under challenge; the crucial importance of the preservation of the Rule of Law was well proved during the global financial crisis of 2007. In essence, the same lesson is drawn every time the States must deal with a matter of emergency: upholding the Rule of Law in times of crisis is of vital significance. All jurisdictions discussed share the same origin, as they are all members of the Commonwealth and their legal systems were established and developed through the years in parallel. This common past reinforces the need for Cyprus to follow their efforts and act fast in order to adjust to the current challenges and beyond them.
The unpredictable duration of the postponement of the judicial proceedings and the interrelation of judicial systems worldwide underline the necessity for the development of an e-trial environment. This is much more evident when considering international commercial litigation. Undeniably, the current health crisis will have adverse impact on states’ and the Union’s economy. Therefore, making any reasonable efforts to protect and encourage commercial activities is of essence. Among these efforts is the continuance of judicial proceedings, so as to ensure that commercial interests are and will be legally protected by the courts uninterruptedly. Although some technical problems may indeed arise, advanced technology applications and the unparalleled need for justice command that any effective alternative must be considered and tried.
Lessons to be learned should take on board, firstly, the urgent need to modernise judicial proceedings in Cyprus and secondly, the ability of the Cypriot justice system to respond swiftly and effectively to cross-border requests for assistance and cooperation in judicial matters. Interestingly, the latter was also included in the Memorandum of Understanding on Specific Economic Policy Conditionality (MoU), signed back in 2014. In particular, among the requirements, for the improvement of the pace of court case handling, was the introduction of electronic filing of new documents, a requirement with which Cyprus did not comply.
Bringing the Cypriot courts at pace with technological developments would contribute towards the creation of an effective justice system, capable of providing uninterrupted access to justice and upholding the Rule of Law. Hence, any developments are of relevance beyond the duration of the COVID-19 crisis. The argumentation of this blog post is not limited to the period of COVID-19 crisis, since, sooner or later, the pandemic will finish. These unprecedented and hard times can be seen, however, as a good opportunity for long-term changes and the permanent improvement of the operation of Cypriot courts, which will enhance effective judicial protection and will contribute to the protection of the Rule of Law in the country.
Posted in Rule of Law