Communicated on 6 December 2016

THIRD SECTION

Application no. 48781/12 Zacharias KOULIAS against Cyprus lodged on 23 July 2012

STATEMENT OF FACTS

THE FACTS

The applicant, Mr Zacharias Koulias , is a Cypriot national who was born in 1950 and lives in Larnaca . He is represented before the Court by Mr A. Angelides, a lawyer practising in Nicosia.

A. The circumstances of the case

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

The applicant is an advocate and a Member of Parliament of the Republic of Cyprus.

On 26 May 2006, during a live political talk show entitled “First Programme” (“ Proti Ekpompi ” – “ Πρώτη Εκπομπή ”) on Radio Proto ( Ράδιο Πρώτο ) the applicant made, inter alia , certain remarks about a politician, C.Th ., former Minister and high-ranking member of a political party. In particular, in so far as relevant, he stated:

“ From what I carefully heard from colleagues of the Democratic Rally party, I say the following. What was the first act of this man? To visit whom, if you please? The leader of the occupied area. A significant personality for our national cause. So I say unequivocally that it is a stab in the back to the national cause of our country and our people. Because he is a man who governed the country for ten years. A man who immediately after the elections in which the party to which he belonged and led [the campaign] promoting party loyalty so that people supported it and which received 30.6% of the votes – what was his first political act? To visit whom? The occupation leader in the so-called presidential palace. And this is really a stab in the back for the laws and rights of our people. That is to say, only naive people cannot understand the political messages imparted by this unacceptable act, and indeed who was he accompanied by? By Mr C.Th . who to remind you incidentally, recently received a respectable sum of 7,000 Cyprus Pounds from a Turkish company and the next day went to a television station and stated that there was no pseudo-state. And I also want to note that this in essence constituted an up-grade of the pseudo-state which the English and the Americans seek. By whom? By our own people. And this constitutes huge support for Turkish intransigence. Why should the Turks change their positions when our own people and especially people who hold office with the approval of our people hold these views? That is to say, if we were in the position of the Turks would we change our views? Namely, when you see people who acted in this way and swore on the Holy Bible that the Annan plan be accepted because it was manna from heaven. They must be crazy to change their attitude and positions.

And let me say something more. The people who applied to UNOPS for financial aid, such as Mr S., were those whom party loyalty in DISY rewarded so that they received the most preference votes. These are the messages received by the Turks and the Turks know their job very well. And I think now the responsibility has to be emphasised of all these people who due to their naivety believe that party loyalty is above the interests of the country and the people. We must first preserve the party and let the country go where it will. And become Turkish. And when Mr C. went accompanied by Mr T. and his daughter yesterday, he certainly went also accompanied by all these thousands of votes received by this gentlemen . It is a very sad development”.

C.Th . brought an action for defamation against the applicant before the District Court of Nicosia (civil action no. 3775/06) under section 17 of the Civil Wrongs Act (Cap. 148). His complaint focused on two of the applicant ’ s remarks: the allegation that he had received money from a Turkish company; and the remark about his position with regard to the “pseudo state” [1] .

On 23 January 2013 the District Court dismissed the action with costs. It held that the two remarks in question were not connected and were not defamatory of the plaintiff, whether considered together or separately. Despite that finding, for reasons of completeness the court also examined the applicant ’ s defence of fair comment, which it upheld.

The plaintiff lodged an appeal before the Supreme Court (civil appeal no. 297/2008).

Following the submission of written observations by the parties but prior to the hearing of the appeal, the plaintiff/appellant changed lawyer.

On 24 January 2012 the Supreme Court upheld the appeal.

The court first noted that the main issue for examination was whether the remarks had been defamatory or not. The parties had agreed that in the particular circumstances of the case, the question of fair comment did not arise. The Supreme Court held that the first-instance court had been correct to hold that there should be a relaxation of the right of protection of reputation vis-à-vis the need for disclosure to the general public of acts or omissions of politicians when this was done through the mass media. Persons who dealt with public matters, such as politicians, put themselves in a particular category. Their acceptance on a political level was judged from their acts and their words, the position they took on serious issues which concerned the general public and their behaviour in general. Consequently, they had to accept criticism of what they said, which was a necessary manifestation of democracy. Referring to its case-law, the Supreme Court noted the recent trend of restricting the right to protection of a person ’ s reputation for the benefit of the right to freedom of expression, which was recognised by the Supreme Court as being of high value.

The Supreme Court further held that the act of receiving money attributed to the plaintiff/appellant and his appearance on television could only be characterised as one act and not as two, as found by the first-instance court . The innuendo inferred from the language used could give rise to separate legal proceedings, based on an extended interpretation of the words used, possibly combined with other circumstances which would have to be proved. Consequently, the main issue in the case was not the meaning of the language used in relation to the actions attributed to the plaintiff, but whether it was justified to link the two remarks made by the applicant. The Supreme Court ruled that t he combination of both the above actions, together with the words used and the synthesis made by the applicant, left no room for any interpretation other than that i t suggested that the plaintiff/appellant had acted as alleged, after receiving money from the Turkish company. Such conduct, in the context of the situation in Cyprus, the Turkish invasion and occupation of the northern part by Turkish troops, could create in an average reasonable reader, in the absence of any other reference, feelings of hatred, contempt and derision of the plaintiff/ appellant. The Supreme Court concluded that the remarks were defamatory of the plaintiff.

As the trial court had not made a finding on the issue of damages, the Supreme Court ordered a retrial of the case by another trial judge in so far as the award of damages was concerned.

After the judgment of the Supreme Court had been given, the applicant discovered that the plaintiff/appellant ’ s new lawyer was the founding partner of the firm for which the son of the presiding judge on the Supreme Courts ’ bench, Judge C., worked.

On 10 February 2012 the newspaper Phileleftheros published an article concerning the case in which the applicant ’ s lawyer stated that either the judge or the lawyer in question should have revealed the connection between them, as this raised the issue as to whether Judge C. should have been excluded from the case.

On 14 February 2012 the Supreme Court issued a statement through the Cyprus News Agency:

“Prompted by the article in the newspaper ‘ Phileleftheros ’ dated 10/2/2012, the Supreme Court announces that the matter of the relationship between judges [and] lawyers for the purpose of adjudicating cases is settled and regulated by judicial practice and that the participation of the judge in the adjudication of the case referred to in the article was fully in accordance with the relevant judicial practice in force over the years”.

On 23 January 2013 the District Court of Nicosia awarded the plaintiff 25,000 euros (EUR) in damages for defamation, together with statutory interest from the date of the lodging of the action until payment. It also awarded the plaintiff costs.

On 22 February 2013 the applicant lodged an appeal with the Supreme Court (civil appeal no. 79/2013). These proceedings are still pending.

B. Relevant Domestic Law

1. The Constitution

In so far as relevant, Article 19 of the Constitution of the Republic of Cyprus provides:

“(1) Every person has the right to freedom of speech and expression in any form.

(2) This right includes freedom to hold opinions and receive and impart information and ideas without interference by any public authority and regardless of frontiers.

(3) The exercise of the rights provided in paragraphs 1 and 2 of this Article may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary only in the interests of the security of the Republic or the constitutional order, public safety, public order, public health, public morals or for the protection of the reputation or rights of others, or for preventing the disclosure of information received in confidence or for maintaining the authority and impartiality of the judiciary.”

2. Legislative provisions

The Civil Wrongs Law (Cap. 148) sets out the law of defamation. Section 17(1) provides:

“ Defamation consists of the publication by any person by means of print, writing, painting, effigy, gestures, spoken words or other sounds, or by any other means whatsoever, including broadcasting by wireless telegraphy, of any matter which –

(a) imputes to any other person a crime; or

(b) imputes to any other person misconduct in any public office; or

(c) naturally tends to injure or prejudice the reputation of any other person in the way of his profession, trade, business, calling or office; or

( d ) is likely to expose any other person to general hatred, contempt or ridicule; or

( e ) is likely to cause any other person to be shunned or avoided by other persons.

For the purposes of this subsection, “crime” means any offence or other act punishable under any enactment in force in the Republic and any act wheresoever committed, which, if committed in the Republic, would be punishable therein.”

COMPLAINTS

1. The applicant complains under Article 6 § 1 of the Convention of a lack of impartiality, whether on the basis of the objective or subjective test, in view of the connection between one of the Supreme Court judges and the plaintiff/appellant ’ s lawyer.

2. Furthermore, the applicant complains of a violation of his right to freedom of expression, protected by Article 10. He claims, in particular, that the interference with his right was neither necessary in a democratic society nor proportionate, arguing that the statements at issue were made in the context of an important political debate of public interest and concerned a politician who had put himself in a highly controversial position, exposing himself to criticism for his actions.

QUESTIONS TO THE PARTIES

1. In dealing with the applicant ’ s case on appeal, was the Supreme Court impartial, as required by Article 6 § 1 of the Convention, given that the son of Judge C., one of the judges on the bench, worked for the firm of the plaintiff/appellant ’ s lawyer?

2. Has there been an interference with the applicant ’ s right to freedom of expression, contrary to Article 10 § 1? If so, was that interference justified under Article 10 § 2 of the Convention ?

The parties are further requested to inform the Court of any developments in the appeal proceedings before the Supreme Court concerning the award of damages (civil appeal no. 79/2013).

[1] Highlighted in the text above in bold.