Published on 6 April 2021

THIRD SECTION

Application no. 60277/19 Loukis LOUCAIDES against Cyprus lodged on 18 November 2019

communicated on 16 March 2021

STATEMENT OF FACTS

The applicant, Mr Loukis Loucaides, is a Cypriot national, who was born in 1937 and lives in Nicosia. He is a retired lawyer who served as the Deputy Attorney General of the Republic of Cyprus between 1975 and 1998.

The facts of the case, as submitted by the applicant and as can be seen from the case file, may be summarised as follows.

Private prosecutions (nos. 15419/2013, 15270/13 and 15420/13) were brought against the applicant (defendant no. 2) and his clients S.F. (defendant no. 1) and E.F. (defendant no. 3) before the Larnaca District Court (hereinafter “the court”).

On 28 February 2014 the prosecution withdrew the case against E.F.

By a letter dated 26 March 2014 the applicant requested the Attorney General to issue a direction of no prosecution ( nolle prosequi ) in respect of the pending criminal proceedings against himself and his two clients .

In reply, by a letter of 9 April 2014 headed “ Private Criminal Cases no . 15419/13, 15270/13 and 15420/13 of the District Court of Larnaca ” the Attorney General informed the applicant that he had decided to suspend the prosecution of the said cases (“... αποφάσισα να αναστείλω την ποινική δίωξη των εν λόγω υποθέσεων ”).

The above letter was accompanied by an official nolle prosequi form issued by the Attorney General on 9 April 2014, headed “ Direction of no prosecution (Nolle prosequi) in accordance with Article 113.2 of the Constitution and Section 154(1) of Cap. 155” . According to this form, the criminal prosecution was suspended in respect of the applicant himself. No mention was made of S.F. or E.F.

The nolle prosequi form and the letter of 9 April 2014 were forwarded to the registrar of the court and were placed in the court ’ s case files.

On 10 April 2014 the court dismissed the cases pending against the applicant as a result of the nolle prosequi and he was acquitted on all charges.

The verbatim record of the proceedings on 10 April 2014, for all three cases, reports the following exchange (translation):

“Parties appearing:

Ms K. appears for the prosecution.

Mr Loucaides appears for defendant no. 1 [S.F.].

Defendant no. 2 [Mr. Loucaides] appears for himself.

Defendants 1 and 2 are present.

Ms K: As regards defendant no. 3, the case against her has been withdrawn as from 28.02.14. As regards defendant no. 2, the case will be discontinued (θα διακοπεί) by the Attorney General ’ s instructions. I present the relevant letter.

Court: The criminal prosecution as regards the second defendant is discontinued (διακόπτεται). Defendant no. 2 is discharged (απαλλάσσεται). Please read the charges to defendant no. 1.

The charges concerning defendant no. 1 (namely charges 1,4,7) have been read to the defendant and he pleads not guilty.

Court: The case concerning defendant no. 1 is set down for hearing on 7.10.2014 at 11 a.m. The defendant should sign a bond of € 2,000.”

The cases therefore continued to run against S.F. and were subsequently set for a hearing on 7 October 2014, 11 February 2015 and 14 July 2015.

By letter of 14 July 2015 the applicant informed the registrar of the criminal division of the court that the case of S.F. seemed to have been erroneously scheduled for a hearing, as according to the letter of 9 April 2014 , following the applicant ’ s letter of 26 March 2014 the Attorney General had decided to suspend the prosecution of all three cases. The applicant requested that the registrar inform the court of the above, stating that if necessary he could come to the court and provide any additional clarifications, although the content of the documents had been self-evident (“ παρόλο που τα έγγραφα μιλούν από μόνα τους ”). He also attached his letter of 26 March 2014 and the Attorney General ’ s letter of 9 April 2014, without the nolle prosequi form.

On the same day, S.F. appeared alone before the court with the letters of 9 April 2014 and 14 July 2015. According to the court records of 14 July 2015, S.F. had informed the court that he had secured a nolle prosequi through his lawyer. Relying on the letters, the court dismissed the case which was pending against S.F.

On 10 September 2015 a new private prosecution (no. 8629/15) was brought against the applicant and S.F. for, inter alia , interfering with judicial proceedings. According to the indictment, through his letter of 14 July 2015 the applicant had informed the registrar that a nolle prosequi had been granted for all three cases, although he was aware that this information was false, as the official nolle prosequi form only concerned the applicant himself.

A trial took place before the Larnaca District Court in which the court heard, inter alia , the applicant, S.F., the complainants and the registrar of the court.

On 16 November 2018 the court issued a decision finding the applicant guilty of interfering with judicial proceedings. According to the decision, the applicant ’ s position throughout the trial had been that the Attorney General ’ s letter of 9 April 2014 constituted the true direction of no prosecution and that the nolle prosequi form had been sent to him in excess. He had based this position on the fact that through his letter of 26 March 2014 he had requested a nolle prosequi for all three defendants, not just for himself, and that in his reply of 9 April 2014 the Attorney General had granted his request with reference to all three cases. He insisted that the Attorney General ’ s letter of 9 April 2014 led to the logical conclusion that he had entered a nolle prosequi for all three defendants.

The court noted the following inconsistencies and/or gaps in the applicant ’ s testimony. While he originally denied having sent the letters of 9 April 2014 and 14 July 2015, he later confirmed that he had indeed been the one who had sent them to the registrar. During his cross-examination he admitted that, as a Deputy Attorney General for thirty years, he had signed nolle prosequi requests in the absence of the Attorney General and was well aware of the procedure. When asked whether the nolle prosequi form was the real and true direction of no prosecution he avoided replying and eventually said that “it is that too” (“ είναι και αυτό ”). The applicant also testified that he had sent the letter of 14 July 2014 because it appeared that the court had not noticed that the nolle prosequi also concerned S.F. When asked why he had not mentioned this fact earlier, he replied that if the Attorney General had made a mistake it had not been his fault. The court noted that despite the fact that the applicant had been representing S.F. he claimed during his cross-examination that he had not been aware of the reason why between 9 April 2014 and 14 July 2015 the case against S.F. continued to be scheduled for a hearing. The court also noted the applicant ’ s insistence that the case pending against E.F. had been dismissed as a result of the nolle prosequi , whereas the prosecution had withdrawn the case pending against her already on 28 February 2014.

The court further held, inter alia, that having served as a Deputy Attorney General for years, the applicant knew that the letter of 9 April 2014 did not constitute the direction of no prosecution. The nolle prosequi had only concerned the applicant himself and he had been aware of this fact, because on 10 April 2014 when a hearing had been held in the cases, he had been the only defendant out of the three to be acquitted by the court. Moreover the court held that, while continuing to represent S.F., the applicant had never, within the fifteen-month period that had elapsed up to 14 July 2015, raised the point that the case against S.F. ought to have been dismissed as a result of the nolle prosequi . Had the applicant believed that the Attorney General ’ s letter constituted the actual nolle prosequi he would have been expected to have used it as of 10 April 2014.

The court concluded that the applicant ’ s testimony had not been reliable, that he had evaded answering questions and that his and S.F. ’ s acts had sought to influence the judicial process. The letter of 14 July 2015 made reference to a “mistake”, while the letter of 9 April 2014 which accompanied the applicant ’ s letter made reference to the three criminal cases. If a person had seen only the letter of 9 April 2014, without the nolle prosequi form, it was possible that he or she would believe what the applicant stated to be the truth in his letter of 14 July 2015. The court lastly noted that the applicant had never admitted or let it be understood that he had made a bona fide mistake, or a mistake of fact, without the intention of interfering with the court procedures when sending the letter of 14 July 2015. Had he taken this position from the outset, namely that he had by mistake confused the letter of 9 April 2014 with the true nolle prosequi form, the court ’ s finding would possibly have been different.

On 23 November 2018 the court sentenced the applicant to four months ’ imprisonment, suspended for three years.

On 26 November 2018 the applicant filed an appeal (no. 5/19) with the Supreme Court. He raised two grounds of appeal: the first challenging his conviction and the second challenging the sentence. He claimed primarily that there had been no proof that he had acted deceitfully. Specifically, he had requested a nolle prosequi for all three defendants; the Attorney General had sent two letters dated 9 April 2014: the first informing him of the decision to suspend the prosecution of all three cases and the second informing him of the decision to suspend the prosecution against him. The “second letter” had therefore been unnecessary and sent in excess. In any event, the applicant submitted that a nolle prosequi form was not necessary as it could also be entered orally. As soon as he had been informed by S.F. that the latter ’ s case was ongoing, he had sent the letter of 14 July 2015; that was why the court had erred in convicting him due to his delay in sending the letter of 14 July 2015. Lastly, the applicant observed that when he had served as Deputy Attorney General in the past, he had merely signed the nolle prosequi and had not taken any action to forward them to the court as this had been the secretaries ’ task.

On 19 July 2019 the Supreme Court, with reference to domestic case-law, upheld the findings of the court as being objective and well ‑ founded, and dismissed the appeal.

Taking into account the applicant ’ s prior experience as Deputy Attorney General as well as the facts of the case as a whole, it dismissed as unfounded the applicant ’ s argument as to the “second letter”, meaning the nolle prosequi form, having been sent in excess. The Supreme Court held that as a former Deputy Attorney General the applicant knew or ought to have known that the letter of 9 April 2014 had only been an informative letter and that the true nolle prosequi had been the form – headed “Direction of no prosecution (Nolle prosequi) in accordance with Article 113.2 of the Constitution and section 154(1) of Cap. 155” – which made specific mention of the applicant ’ s name. Therefore, according to the Supreme Court, the applicant ’ s position that the nolle prosequi could also have been granted orally was unfounded and in any event did not apply in the present case. The Supreme Court lastly held that the most glaring evidence of the applicant ’ s knowledge that the nolle prosequi applied only to himself was the fact that, according to the court records of 10 April 2014 concerning the three cases, the applicant, who had been present in court both as a defendant and as counsel for S.F., had been aware on that date that the prosecution had been suspended solely in respect of himself only, while the case against S.F. had been scheduled for another hearing .

Article 113 § 2 of the Constitution provides as follows:

“The Attorney General of the Republic shall have power, exercisable at his discretion in the public interest, to institute, conduct, take over and continue or discontinue any proceedings for an offence against any person in the Republic. Such power may be exercised by him in person or by officers subordinate to him acting under and in accordance with his instructions.”

Section 154(1) of the Criminal Procedure Law provides as follows:

“In any criminal proceedings and at any stage thereof before judgment, the Attorney General may enter a nolle prosequi , either by stating in Court or informing the Court in writing that the Republic intends to discontinue the proceedings and thereupon the accused shall be at once discharged in respect of the charge or information for which the nolle prosequi is entered.”

Section 122 of the Criminal Code provides the following:

Deterrence of judges, etc. and interference with judicial proceedings

“122. Any person who commits any act –

(a) ...

(b) calculated, or which is likely, to obstruct, or in any way interfere with, any judicial proceedings, is guilty of a misdemeanour and is liable to imprisonment for three years.”

COMPLAINT

The applicant complain s under Article 6 § 1 of the Convention that the criminal proceedings against him, for interference with judicial proceedings, were unfair.

QUESTIONS TO THE PARTIES

Did the applicant have a fair hearing in the determination of the criminal charge against him, in accordance with Article 6 § 1 of the Convention? In particular, did the domestic courts ’ judgments result in manifestly unreasonable or arbitrary decisions in his case, as regards in particular:

(a) the establishment of the facts of the case in the light of, inter alia, the applicant ’ s letter of 14/07/2015;

(b) having regard to the fact that the nolle prosequi form, solely in the applicant ’ s name, had been in the domestic case files of the three criminal cases which the District Court could have consulted; and

(c) the domestic courts ’ interpretation and application of the nolle prosequi procedure ?