Cyprus

The judicial faction of the Supreme Council of the Judicature consists of all judges of the Supreme Court, rather than judges from various levels of the judiciary, elected by their peers from among themselves. The government has indicated that the Constitution requires the Supreme Court to be the Supreme Council of Judicature, and the Council’s composition cannot be changed without breaching the Constitution. This model does not allow for the broad participation of judges and, as a result, the Council is not pluralistic. This is contrary to the European standard, which calls for the democratic election of judge members of councils from all levels of the judiciary. The Council of Europe’s Venice Commission recommended, in a 2021 opinion, to consider having judge members elected by their peers, instead of selecting them on the basis of seniority.

The Constitution does not envisage non-judgesin the Council either, but comprehensive judicial reforms introduced over the past few years allowed for the participation in the Council’s work of the attorney general, the president of the Bar Association, and two experienced lawyers, albeit without voting rights, to secure the Council’s democratic legitimacy. The Venice Commission warned against giving voting rights to the attorney general. Arguably, because judges are still in the majority and non-judge members have no voting rights, the risks of political interference are minimised.

The European Commission marked only some (presumably insufficient) progress in adjusting the composition of the Council, but still left this item out in the list of recommendations for its 2023 Rule of Law Report. The concern remains, however.

The recent reforms changed the procedure for appointing judges to top courts. It split the Supreme Court into Supreme and Supreme Constitutional Courts, and gave the president power to appoint the judges of both of those courts. This change took effect on 1 July 2023. As a consequence, there are two distinct appointment procedures, one for the top court judges and one for all other judges. In the latter case, the Superior Council of Judicature is in charge. As pointed out by the Venice Commission, such duality of appointment procedures is not necessarily uncommon or contrary to the European standards. Neither is it automatically inappropriate to let the executive power, the president of the republic appoint the judges.

Prior to the reform, the president of the republic appointed new Supreme Court judges upon the recommendation of the members of the current Supreme Court. The Supreme Court recommendations were usually based on seniority. The president was not legally obliged to follow those recommendations, but typically did (with one exception, in 1997). Under the setup in place since 1 July 2023, the president is still in charge of appointing the presidents and judges of the Supreme and Supreme Constitutional Courts – the two separate courts created as a result of splitting the Supreme Court. An Advisory Judicial Council – a body distinct from the Supreme Council of Judicature – prepares a non-binding list of the most suitable candidates in an alphabetical order. The president of the republic is not formally bound to appoint a person from the list of the proposed candidates. The Venice Commission expressed concern regarding this, noting that “[o]ne can retain the right of the President to make the final choice but to emphasise in the law that whatever the Council says is merely advisory vis-a-vis the President is to devalue the evaluation of the Council.” Another concern is that the final decisions of the president are not open to judicial review.

The government took into account some of the Venice Commission’s recommendations, such as that requiring the evaluation of candidates by the Advisory Council, based on pre-defined criteria. The government argued, however, that the Constitution did not allow for the integration of other elements recommended by the Venice Commission, including the requirement for the president of the republic to provide reasons for deviating from the Advisory Council’s recommendations. For the European Commission, the revised system will be unproblematic only if the president always follows the proposed list in practice. In view of these remaining concerns, it is unclear why the European Commission marked the reform as “significant progress”, and removed the item from its list of recommendations.

The Constitution gives the attorney general discretionary power to institute, conduct, take over, continue, or discontinue any criminal proceedings. The attorney general’s decision not to prosecute or discontinue proceedings cannot be reviewed. Cyprus is the only EU member State where no form of review of such decisions, either judicial or hierarchical, is provided. There is a need to establish adequate checks on unlimited prosecutorial discretion.

The Prosecution Service is part of the Law Office of the Republic, headed by the attorney general. As emphasised by the European Commission, the draft law on the reform of the Law Office did not provide a clear distinction between its advisory and prosecutorial roles, between the staff entrusted with advisory tasks and those with prosecutorial tasks. In 2016, the Council of Europe’s Group of States against Corruption (GRECO) expressed concern that the prosecution service may be seen to operate in an environment that is not fully free from potential or real risk of improper influence. GRECO’s report recommended that reforms provide a higher degree of independence to the prosecution service as part of the Law Office, and that the prosecution staff be given more autonomy in conducting their duties. In its most recent assessment, in 2022, GRECO concluded that there was no tangible progress and, hence, the recommendation could not be considered as implemented. The European Commission reported in July 2023 that the draft law tabled in the parliament still does not provide a clear distinction between its advisory and prosecutorial roles.

Challenges remain regarding the level of digitalisation, particularly regarding digital solutions to initiate and follow proceedings, and the availability of tools and adequate infrastructure at the disposal of judges, prosecutors, and judicial staff.

Excessive length of proceedings continues to be an issue in Cyprus. The time needed to resolve civil and commercial cases at first instance courts remains the highest in the EU, as it reached 947 days in 2021. For administrative cases, the disposition time in 2021 remained at a high level of 844 days (863 days in 2020). The disposition time at second instance courts reached the worrying level of 3,132 days in 2021 (2,688 in 2020). The government has attributed the accumulation of the backlog of cases to structural problems, and reported a number of measures meant to address those problems.