JOINT DISSENTING OPINION OF JUDGES PAVLI AND KRENC

1. We regret that we are unable to share the majority’s conclusion that the lack of reasoning in the matter of the tie vote and the absence of any clear conclusion on the applicant’s appeal did not infringe the requirement of Article 6 § 1 of the Convention that judgments must give sufficient reasons.

2. Section 27(2) of Cypriot Law 14/1960 provides that where the Supreme Court is comprised of an even number of judges who reach a tie vote, the judgment will be issued against the party who has the burden of proof (paragraph 25 of the judgment). According to the case-law provided by the Government, the burden of quashing a conviction in criminal appeals rests with the appellant, while the burden of showing that there has not been a substantial miscarriage of justice despite an error in the trial court judgment rests with the prosecution (paragraph 28 of the judgment).

3. As the majority rightly stressed (paragraph 43 of the judgment), the Court had to establish in the present case whether the Supreme Court’s judgments resulting in the dismissal of the applicant’s appeal contained sufficient reasons to allow the applicant to understand why the dismissal was the result of the operation of section 27(2), and whether that decision was clear enough as to its conclusion and outcome.

4. In the present case, three separate “judgments” were issued. We must say at the outset that, while perhaps uncommon, we do not consider that the existence of three separate and apparently co-equal judgments infringes per se Article 6 § 1 of the Convention. We also concur with the majority that a tie vote situation in appeals before an apex court does not per se raise any issues of access to court under the same Convention provision.

5. In our opinion, Article 6 § 1 of the Convention has been violated in the present case, as none of these three judgments contained, not even in brief terms, any reasoning explaining the operation of section 27(2) in relation to the tie vote, or a clear conclusion as to the outcome of the case (compare with the domestic case of Nicolaou and another v. Nicolaou and another (No. 2), paragraph 30 of the judgment). No reference whatsoever was made, in the judgments provided to the parties, to the said section of the 1960 Law, or to the fact that the appeal was dismissed because of the tie vote, not even in the simplest of terms. We find these omissions rather perplexing.

6. We wish to recall that the main purpose of providing reasoned decisions is to enable an accused person to understand the reasons for his or her conviction or, as in the present case, the dismissal of his or her appeal against a conviction. A reasoned decision prevents any doubt about arbitrariness. One should not lose sight of the fact that the applicant’s appeal concerned a serious prison term imposed by the lower court.

7. We also note that domestic case-law provides that a reasoned judgment must include a clear judicial pronouncement indicating the outcome of the case (paragraph 29 of the judgment).

8. In this regard, we observe that the Supreme Court was aware of the possibility of a “misunderstanding” or “misinterpretation” of the multiple judgments handed down in the applicant’s case. This transpires from the President’s announcement and the subsequent press release.

9. In our view, neither the oral announcement by the President of the Supreme Court that the appeal was dismissed as a consequence of the tie vote, nor the issuing of a press release, can be considered sufficient for the purposes of the requirement under Article 6 § 1 of the Convention that judgments must give sufficient reasons. To our knowledge, this is the first time that the Court has made such an assertion, which can be viewed as weakening the guarantee of properly reasoned decisions. Judgments should be able to speak for themselves, rather than having to be “complemented” through oral announcements or external communications, which are of dubious legal value and may not be relied upon in any future proceedings. Lastly, we would note that not even did the President’s announcement contain any references to section 27(2) of the 1960 Act (paragraph 16 of the judgment).

10. We are fully aware of the differences that may exist between various legal systems and traditions in the European legal area, including as to the formalities of judgment delivery. We have no intention of denying this diversity. But this could not justify the deprivation of one of the fundamental guarantees of the right to a fair trial in criminal proceedings.

[1] On this principle, see D. Rietiker, “The Principle of ‘Effectiveness’ in the Recent Jurisprudence of the European Court of Human Rights: Its Different Dimensions and Its Consistency with Public International Law – No Need for the Concept of Treaty sui generis ”, Nordic Journal of International Law 79, 2010, pp. 245-277; and Georgios A. Serghides, The Principle of Effectiveness and its Overarching Role in the Interpretation and Application of the ECHR: The Norm of all Norms and the Method of All Methods, Strasbourg, 2022, in passim.

[2] See ‎ ‎ Lupeni Greek Catholic Parish and Others v. Romania [GC], no. 76943/11, § 86, 29 November 2016.

[3] Lupeni Greek Catholic Parish and Others , cited above, § 86, and Deweer v. Belgium , 27 February 1980, § 48, Series A no. 35.

[4] See, respectively, Menesheva v. Russia , no. 59261/00, §§ 105, 107, ECHR 2006-III; Kakabadze and Others v. Georgia , no. 1484/07, §§ 99-100, 2 October 2012.

[5] See Nölkenbockhoff v. Germany [GC], 10300/83, 25 August 1987; Commission’s report of 9 October 1985, DR 31, p. 12, § 4 I; and Konstas v. Greece, no. 53466/07, §§ 35-36, 24 May 2011.