SECOND SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 73797/01 by Michalakis KYPRIANOU against Cyprus

The European Court of Human Rights (Second Section) , sitting on 7 May 2002 as a Chamber composed of

Mr J.-P. Costa , President , Mr A.B. Baka , Mr Gaukur Jörundsson , Mr L. Loucaides , Mr C. Bîrsan , Mr M. Ugrekhelidze , Mrs A. Mularoni , judges , and Mrs S. Dollé , Section Registrar ,

Having regard to the above application introduced on 9 August 2001 and registered on 13 September 2001,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Michalakis Kyprianou , is a Cypriot national, who was born in 1937 and lives in Nicosia. He is represented before the Court by Mr C. Clerides , Mr L. Clerides , Mr M. Triantafyllides , Mr E. Efstathiou , Mr A. Angelides , Mrs E. Vrahimi , lawyers practising in Nicosia, and Mr B. Emerson and Mr M. Muller, lawyers practising in the United Kingdom.

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

The applicant is a lawyer who has practised for forty years. He is a former advocate at the Office of the Attorney-General and an ex-member of the Cypriot House of Representatives.

The complaints made in this application arise from the applicant’s conviction for contempt of court. On 14 February 2001 the applicant was involved in a murder trial, defending an accused before the Assize Court of Limassol .

The applicant was conducting the cross-examination of a prosecution witness, a police constable. After the applicant had asked an important question to the witness, the court interrupted him saying: “We are of the opinion that you are entering into a more detailed cross-examination than can be carried out at the present stage ...”.

The applicant felt aggrieved by this statement and sought permission to withdraw from the case. The following dialogue took place between the applicant and the court:

“Applicant : I stop the cross-examination....

Court: Mr Kyprianou ...

Applicant: If the Court considers that I do not perform my duties correctly in defending my customer, I seek permission to withdraw from the case.

Court: The question to grant permission to a lawyer to withdraw from a case is a matter falling within the margin of appreciation of the court. Having regard to what we have heard, we do not grant such permission. We refer to the case Kafkaros and Others v. the Republic and we do not give permission.

Applicant: Since you prevent me from continuing my cross-examination on points which I consider as crucial for the defence, then my role here does not serve any purpose.

Court: We consider your persistence...

Applicant: I am sorry but when I was cross-examining the witness, the members of the Court were talking to each other and were exchanging notes (“ ravasakia ”), which is not compatible with allowing me to continue the cross-examination with the necessary conviction, as I knew that the cross-examination was under the secret scrutiny of the Court.

Court: We consider that what Mr Kyprianou has just said and in particular his tone towards the Court is a contempt of court. Mr Kyprianou has the alternative either to retract or to maintain what he has said and be subject to a penalty. We give him this alternative exceptionally. Article 44.1 (a) of the Courts of Justice Law 1960 fully applies in the present case.

Applicant: You can try me.

Court: Would you like to add anything?

Applicant: I saw with my own eyes the small notes going from one judge to the other when I was cross-examining, in a way not very flattering for the defence. How can I find the stamina to defend someone who is accused of murder?

Court (Mrs Michaelidou ): There is no question of right of Mr Kyprianou when members of the Court exchange in writing views as to the issues and the manner Mr Kyprianou handles the case. I consider this conduct of Mr Kyprianou utterly unacceptable.

Court (Mr Fotiou ): We shall interrupt the hearing and look at the matter. In the meantime, the accused should be detained.

Court: We examined the matter during the adjournment and continue to believe that what Mr Kyprianou said, the content, the manner and the tone of his voice, constitute a contempt of court as provided in Article 44. 1 (a) of the Courts of Justice Law 14/60, that is non-respect of the court by way of words and conduct. We have asked Mr Kyprianou if he has to add anything before we pass on sentence to him. If he has something to add, let’s hear him, otherwise the Court should go on.

Applicant: Mr President, during the break, I wondered what was the offence which I had committed. The events took place in a very tense atmosphere. I defend a very serious case; I felt that I was interrupted in my cross-examination and said what I said. I have been a lawyer for forty years, my record is unblemished and it is the first time that I face such an accusation. That is all I have to say.

Court: We shall adjourn for ten minutes and shall continue for pronouncing a sentence.”

After a short adjournment the Assize Court, by a majority, sentenced the applicant to five days’ imprisonment.

The Court held:

“His gestures towards the court not only created an unacceptable picture for a civilised place and especially a court but obviously had the intention of creating an atmosphere of terrorism and fear for the court. We are not at all exaggerating when we say that Mr Kyprianou was roaring and gesturing towards the court.”

The applicant served the sentence.

On 15 February 2001 the applicant filed an appeal with the Supreme Court, which was dismissed on 2 April 2001. The Supreme Court stated that the relevant constitutional provisions of the Cypriot law on contempt of court reflected the principles of the English law. It relied on Article 162 of the Constitution which establishes the jurisdiction of any court to sanction contempt. It held that Article 44.2 of the Courts of Justice Law is legally authorised by Article 162. Finally, it concluded that it was the applicant who created a tense atmosphere with his disdainful attitude and by undermining his mission.

B. Relevant domestic law and practice

1. The Courts of Justice Law 1960

Article 44.1 (a) reads as follows:

“Any person who ... on the premises where any judicial proceedings are being held or taken, or within the precincts of the same, shows disrespect, in speech or manner, of or with reference to such proceeding or any person before whom such proceedings are being held or taken... is guilty of a misdemeanour and is liable to imprisonment for six months or to a fine not exceeding one hundred pounds, or to both such imprisonment and fine.”

Article 44.2 provides as follows:

“When any offence against paragraphs (a), (b), (c) or (I) of sub-section 1 is committed in full view of the court, the court may cause the offender to be detained in custody and, at any time before the rising of the court on the same day, may take cognisance of the offence and sentence the offender to a fine of seventy-five pounds or to imprisonment of one month, or to both such imprisonment and fine.”

2. The Constitution

Article 162 of the Constitution reads as follows:

“The High Court shall have jurisdiction to punish any contempt of itself, and any other court of the Republic, including a court established by a communal law under Article 160. It shall have the power to commit any person disobeying a judgment or order of such court to prison until such person complies with such judgment or order, and in any event for a period not exceeding twelve months.

A law or a communal law, notwithstanding anything contained in Article 90, as the case may be, may provide for the punishment of contempt of court.”

COMPLAINTS

1. The applicant complains under Article 5 § 3 of the Convention that he was not afforded the opportunity of making an application for bail.

2. The applicant complains under Article 5 § 4 of the Convention that he had no means of challenging the lawfulness of his detention because he was dealt with summarily by the Assize Court and sent to prison forthwith.

3. The applicant complains under Article 5 § 5 of the Convention that he had no means of ascertaining whether his detention was in contravention of the law and enforcing any right of compensation he may have had.

4. The applicant complains under Article 6 § 1 of the Convention that his case was not heard by an impartial court because the same tribunal before which the alleged contempt was committed also found him guilty and sentenced him.

5. The applicant complains under Article 6 § 1 of the Convention that he was denied the opportunity of inspecting the documents which were passed between the judges of the Assize Court and was thus placed at a substantial disadvantage vis-à-vis the court who also acted as a prosecutor.

6. The applicant complains under Article 6 § 2 of the Convention that he was presumed guilty from the time of his initial objection to the Assize Court’s conduct.

7. The applicant complains under Article 6 § 3 (a) of the Convention that the court failed to inform him in detail of the accusation against him.

8. The applicant complains under Article 6 § 3 (b) of the Convention that he was given no opportunity to instruct a lawyer to represent him or to prepare his own defence.

9. The applicant complains under Article 6 § 3 (d) of the Convention that he was denied the opportunity of calling his own witnesses.

10. The applicant complains under Article 7 of the Convention that the provision under which he was convicted was unconstitutional and unlawful, and the punishment was thus imposed outside the law.

11. The applicant complains under Article 10 of the Convention that his conviction for contempt of court constituted an unjustified interference with his right to freedom of expression.

12. The applicant complains under Article 13 that the appeal to the Supreme Court against his conviction for contempt of court did not provide him with an effective remedy.

THE LAW

1. The applicant alleges a violation of Article 5 § 3 and Article 5 § 4 which provide as follows:

“3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”

“4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”

The applicant submits that there was no consideration of the issue of bail by the Assize Court at any stage and that he was not afforded the opportunity of applying for bail. He further submits that he had no means of challenging the lawfulness of his detention.

The Court notes that the applicant was convicted and sentenced to five days’ imprisonment by the Assize Court for contempt of court after a short adjournment of the proceedings concerning the trial in which the applicant was defence counsel. He immediately appealed against the conviction to the Supreme Court. In these circumstances the Court sees no appearance of violation of Article 5 §§ 3 and 4.

It follows that these complaints are manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.

2. The applicant alleges a violation of Article 5 § 5 which provides as follows:

“Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.”

The Court recalls that the right to compensation under this provision presupposes that a violation of one of the paragraphs 1 to 4 of Article 5 has been established, either by a domestic authority or by the Court. As this is not the case in the present application, the Court considers that this complaint is also manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.

3. The applicant alleges a double violation of Article 6 § 1 which, insofar as relevant, reads as follows:

“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal...”

At the outset the Court agrees with the applicant that Article 6 applies in the present case. In contrast to the case of Ravnsborg v. Sweden ( judgment of 23 March 1994, Series A no. 283-B), the Court notes that in the present case the domestic classification of the offence, the nature of the offence and the nature and degree of severity of the penalty indicate that the offence can be classified as “criminal”. Paragraphs 1 and 2 of Article 44 of the Courts of Justice Law provide for the imposition of a fine and term of imprisonment of up to six months. Furthermore, Article 44.2 applies to “any person” who commits the prohibited acts in full view of the court and not only to the participants in the proceedings. Finally, the applicant was convicted and sentenced to five days’ imprisonment, which he served.

(a) Firstly, the applicant contends that he was not heard by an independent and impartial tribunal. The same court before which the alleged contempt was committed found him guilty and sentenced him. In this respect the Assize Court prosecuted the offence, was the sole witness in that prosecution, tried the offence and pronounced sentence.

The Court considers that it cannot, on the basis of the case-file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

(b) Secondly, the applicant maintains that there has been a breach of the principle of equality of arms because he was denied the opportunity of inspecting the documents which were passed between the judges of the Assize Court.

The Court considers that this complaint is unsubstantiated because the applicant was convicted for contempt of court and the content of those documents had no bearing on the conviction.

It follows that this complaint is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.

4. The applicant alleges a violation of Article 6 § 2 which provides as follows:

“Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”

The applicant submits that he was in fact presumed guilty as of his initial objection to the Assize Court’s conduct. He was in essence only expected to provide mitigation on his own behalf before the delivery of the court’s final ruling.

The Court considers that this allegation is closely interwoven with that relating to the impartiality of the Assize Court and, therefore, should also be notified to the Government, in accordance with Rule 54 § 3 (b) of the Rules of Court.

5. The applicant alleges a violation of Article 6 § 3 (a) which provides as follows:

“Everyone charged with a criminal offence has the following minimum rights:

(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;”

The applicant contends that the Assize Court failed to inform him in detail of the accusations against him. In its decision on sentence, the Assize Court held that the gestures of the applicant towards the court “obviously had the intention of creating an atmosphere of terrorism and fear for the court”. The applicant claims that he could not have known of the court’s fears and that this accusation should have been specifically put to him.

The Court considers that it cannot, on the basis of the case-file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

6. The applicant alleges a violation of Article 6 § 3 (b) which provides as follows:

“Everyone charged with a criminal offence has the following minimum rights: ...

(b) to have adequate time and facilities for the preparation of his defence; ...”

The applicant submits that he was given no opportunity to instruct a lawyer to represent him or to prepare his own defence. The court stated that it regarded his conduct as contemptuous and offered him the opportunity to speak. No adjournment was granted so that the applicant could take legal advice, prepare arguments or contact character witnesses. The fact that the applicant stated, “You can try me”, did not amount to a waiver of his right. The charge of contempt was a complex one and required time for proper preparation.

The Court considers that it cannot, on the basis of the case-file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

7. The applicant next alleges a violation of Article 6 § 3 (d) which provides as follows:

“Everyone charged with a criminal offence has the following minimum rights: ...

(d) to examine or 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; ...”

The Court notes that the applicant did not ask the Assize Court to call witnesses on his behalf and does not specify what would have been the usefulness of examining any witnesses in the circumstances of the case.

It follows that this complaint is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.

8. The applicant alleges a violation of Article 7 which provides as follows:

“1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.

2. This article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations.”

The applicant challenges the constitutionality of Article 44.2 of the Courts of Justice Law 1960. He contends that the procedures adopted under this provision are contrary to Articles 6 and 10 of the Convention and Article 30 § 2 of the Constitution. He submits that he has been convicted unlawfully.

The Court recalls that it is not its task to rule on the applicant’s criminal responsibility, that being primarily a matter for assessment by the domestic courts Its function is to consider, from the standpoint of Article 7 § 1 of the Convention, whether the applicant’s acts at the material time constituted possible offences defined with sufficient accessibility and foreseeability by Cypriot law ( Streletz , Kessler and Krenz v. Germany , [GC] n° 34044/69, 35532/97 and 44801/98, CEDH 2001, § 51).

The Court notes that the applicant was accused and convicted on the basis of the existing legislation concerning the offence of contempt of court, namely Article 44.1 and 2 of the Courts of Justice Law 1960 and Article 162 of the Constitution, which are both accessible, and thus the offence was foreseeable.

It follows that this complaint is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.

9. The applicant alleges a violation of Article 10 which provides insofar as relevant as follows:

“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. ...

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society ... for maintaining the authority and impartiality of the judiciary.”

The applicant alleges that the interference with his right to freedom of expression was not prescribed by law and that the imposition of a fine and a term of imprisonment were disproportionate to the legitimate aim pursued.

The Court considers that it cannot, on the basis of the case-file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

10. Finally, the applicant alleges a violation of Article 13 which provides as follows:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

The applicant submits that the appeal to the Supreme Court did not provide him with an effective remedy because he did not have the opportunity of challenging the factual basis upon which the Assize Court reached its decision.

The Court notes  that the applicant appealed to the Supreme Court against the judgment of the Assize Court and that the Supreme Court extensively examined the facts on which the offence had been established in the minutes of the proceedings before the Assize Court. Furthermore, it expressed its own opinion on the impugned facts and concluded that it was the applicant who had created a tense atmosphere with his disdainful attitude and by undermining his mission. In this respect, the Court reiterates that the assessment of facts is primarily a matter for the domestic courts.

The Court concludes that the Supreme Court remedy sufficed for the purposes of Article 13 of the Convention in the circumstances of the present case.

It follows that this complaint is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant’s complaints concerning Article 6 §§ 1, 2, 3 (a) and (b) and Article 10 of the Convention;

Declares inadmissible the remainder of the application.

S. Dollé J.-P. Costa Registrar President