Evagoras Prokopiou
The President of the Pancyprian Bar Association Dr. Christos Clerides talks to Forbes about the obstruction of some parties in Parliament on the issue of justice reform. It also refers to the flexibility shown by law firms in innovation matters and expresses the strong view on the proportionality of government decisions on the pandemic.
At the moment, a great effort is underway to reform the Judiciary in order to make it faster and more efficient. What are the positions of the club in this big chapter?
The positions of the Pancyprian Bar Association (PDC) as approved by the Council are the following:
(a) The reform has been too late and that is to the detriment of the citizen. Let me remind you that the bills of Iona Nikolaou were approved by the Council of Ministers in May 2019 and were submitted to Parliament. Therefore, they are pending for 2 years before the House of Representatives. Every passing day is to the detriment of the citizen because the system provided by the reform for the adjudication of appeals by the new Court of Appeal and the new Supreme and Supreme Constitutional Court is not activated. Once the system is up and running, it is expected that in three to four years at most, the backlog of around 5,000 appeals will be heard. Now it is very likely that new cases will be stacked, something that is detrimental to the interests of the citizen and justice in general. So the reform should have been done yesterday.
(b) Return to the Constitution as soon as possible, ie to a new Supreme Constitutional Court that will hear cases of public law and to a new Supreme Court for criminal and civil lawsuits which will be mutually reviewed for disciplinary and further to the Supreme Constitutional Court. against appointments and promotions of judges to be made by another body, the new Supreme Judicial Council.
(c) Creation of a 16-member Court of Appeal with specialized sections of judges. The reform provides for the appointment of specialized judges at all levels in order to achieve speed and quality.
(d) Establishment of a new Advisory Council to advise the President on the appointment of judges of the Supreme and Supreme Constitutional Courts.
(e) New Judicial Council with the participation of judges from all levels and judges of the Supreme Court as well as the Attorney General and the President of the Pancyprian Bar Association. It is time to “break” the image that appointments and promotions are made behind “closed doors”. In the 21st century, transparency in justice is a “must”.
(f) Activation of Article 144 of the Constitution conditionally so that there is a possibility of referring constitutional issues directly to the Supreme Constitutional Court.
(g) Establishment of a new commercial court and naval court.
(h) Introduction of new institutions of civil procedure.
(i) Electronic justice.
(j) New autonomous institutional service for the operation of the courts.
The bills for the reform of the judiciary, after four years of consultations, are in the hands of the Parliament. How are things going on the issue of justice reform?
I find that in Parliament there are some party forces reluctant to immediately push for reform as proposed. They refer to some concerns expressed by the Supreme Court, which, however, regarding the creation of the three courts at the highest level, do not raise issues of constitutionality. Issues of possible unconstitutionality are raised for the participation of the General Assembly and the President of the PDS, something that in previous decisions of the Supreme Court seems to have been clarified with the first reform of 1964. The system worked and was considered constitutional for many years. However, the Parliament cannot delay the adoption of the legislation for fear of any unconstitutionality. In other cases, on manifestly unconstitutional issues, he did not hesitate to make political decisions. The former Attorney General, Costas Clerides and the current one, George Savvidis, have expressed the view that there is no question of unconstitutionality without of course being absolute. The issue of whether it arises will be decided in the future by the competent Court. The wish of the Supreme Court is that, regardless of the concerns, the reform should proceed.
Is there some form of “opposition” between the bar association and the judiciary in the reform chapter but also in matters relating to the legal profession?
There is no “opposition” between the Bar Association and the judges in the chapter on reform or other issues. There is a constant dialogue and all the problems I can say since I took over the presidency of the Association are solved through good cooperation. There is excellent co-operation on the new rules of civil procedure, on the need for reform, and I can say that the pandemic has been greatly improved as the views of the GPA are heard to a greater extent. Problems exist such as e.g. in the application areas of the pilot program for the backlog, however, there is an open dialogue on these issues as well, and I am sure that they will be resolved. Judges and lawyers are both ministers of justice. Judges are also former lawyers. Justice is based on the good relationship of all justice officials and cooperation. I believe that things are moving in the right direction and there will be continuous improvement
THE LAW FIRMS ARE FLEXIBLE
Can law firms keep up with the opportunities and challenges of the future, but also the big changes in their profession that reform and technology will bring?
Law firms have proven to be very flexible and adaptable to some changes. Already, on the issue of reform in the field of rules of civil procedure in full cooperation with the Director of the School of Judges and Reform, Mr. George Erotokritou, the PDS is training lawyers and will follow the training of the entire bar. In the first phase, the involvement of the Council of Europe, the European Union, Mr. George Erotokritos and His Excellency is crucial. The training will continue over time so that once the Dyson rules are implemented, the bar will be able to absorb any vibrations. The same has been done and is being done with e-justice i-justice and will continue with e-justice. The PDS undertook the training of lawyers in an unprecedented zoom meeting in which more than 800 lawyers participated and followed and continue to provide assistance to lawyers at the local level. By decision of the PDS, the Local Associations appointed expert lawyers in places and the Undertaking of the costs was requested from the Ministry of Research, Innovation and Digital Policy and the Undersecretary Mr. Kokkinos. For innovative legislation and reforms, the PDS organizes high quality training seminars and lawyers receive continuous training. The same has been done in matters of reform and technology and will continue to be done.
THE “ISLAND” OF LEGAL
Do you think that there is an overabundance of lawyers or jurists in Cyprus? Can the Cypriot market absorb them?
It is a fact that there is a very large number of lawyers in Cyprus. The number of lawyers is approaching 4,500. Lawyers who do not practice law but have been registered in the register of lawyers, ie they have completed their course and passed the examinations of the Legal Council and completed their twelve-month practice, may be 10,000. This category, which will soon be called upon to maintain its registration in the register to pay a flat fee of 100 euros per year, is scattered in companies, the public, banks and other sectors of the economy. Since the rule once an advocate, always an advocate applies, these lawyers, even if they do not practice law, are subject to the disciplinary control of the Disciplinary Board, and therefore are not considered strangers to the bar. Each market of course has its limits which are determined by economic terms. Each purchase reaches a point where it can not absorb other additional lawyers. But the range of services that a lawyer can provide outside of court is very large. The creation of Law Schools and Law Departments in Cypriot universities certainly gave a big boost to the numbers. Righteous ministers in a state governed by the rule of law are the shield of democracy and the spearhead of civil rights. Therefore, I am not worried about the number of lawyers who, due to the education they provide, their education and culture, can offer a lot to the country even if they do not practice law. But for those who want to stay on the ramparts the level will have to be upgraded further. But also for the new entrants already, in the Legal Council, with my suggestion, a radical change of the exams is promoted, possibly the practice, so that, after completing the study cycle, the lawyer obtains the guarantees for the practice of law.
Apart from being the President of the Bar Association, you are also the President of the Law School of Frederick University and from time to time you have expressed yourself strongly on issues such as the examinations of trainee lawyers? Do you think that some changes are needed in the way trainees are treated?
As I mentioned above, the Legal Council examinations need to be radically reviewed. There has been an upgrade by the Legal Council examiners who undertake the training of practicing lawyers and determine the examination material. There has been a shift from solving theoretical issues to solving practical problems. There is a fairly high failure rate in the first exam but at the end of the day with the repeat exams almost everyone passes. The aim of the Legal Council is of course to upgrade the level and quality of teaching and examinations. We are moving to review the material of the teaching method and the exams. There is thought that the exercise period should be increased to 18 months, some did not support the position that it could be extended to 24 months. However, various problems arise as the European Union finances the payment of the salaries of trainee lawyers on the basis of 12 months of training and the necessary arrangements should be made. There is a willingness and therefore solutions are expected to be found very soon, possibly by the end of this year. Trainee lawyers must take advantage of their internship period which must be real, which means that they will have to learn to sue, give opinions, conduct legal research, see and advise the client, handle the case with securing a testimony and of course being prepared to present it in court. As a university student, I have written the book published by the Law Library “Law in Cyprus”, in which I deal with all these topics that I teach at Frederick University, as you mentioned in your question.
Your vision, as you said, is for the Bar Association to be transformed into a scientific body. What urgently needs to change for lawyers right now to upgrade the profession?
I believe that the implementation of the new rules of civil procedure will greatly improve the quality of services provided by lawyers. The new institutions of civil procedure presuppose that no case will be taken to court if it has no chance of success. It will now be necessary for lawyers, before going to court, to exhaust through mediation, negotiations, all the possibilities of finding a compromise solution. What is needed in Cyprus is the modernization of the law as a whole. Apart from the reform, of course, which concerns not only the highest level of justice but also the primary, where there are the longest delays, apart from the introduction of new institutions, e-justice and the creation of a new court service, we are lagging behind in its modernization. of law. We are trying to modernize the system but the substantive law is far behind. Modernization has certainly taken place with our accession to the European Union and the need to adopt European regulations and directives. However, key aspects of law, such as contracts, company law, criminal law, civil offenses, family law, we are left behind. Ad hoc modifications and “crunches” are made. The problem stems from the fact that we do not have a standing committee for the modernization and review of law, which includes academics, lawyers, judges and other economic actors. We need a standing committee of this kind which through its reports and public debate will be able to suggest modernization by drafting laws which it will be able to send to Parliament directly or indirectly. Services in this area need to be reviewed and strengthened. In this effort, the PDS has proceeded with the establishment of 15 specialized committees which help in the elaboration of bills or proposals of law with modernizing content. The profession will be upgraded when lawyers regain society's trust in the operation. We are on the right track.
THE PROFESSION WAS WRONGLY ASSOCIATED WITH CORRUPTION
The public debate on corruption in Cyprus is also intense and focuses on the legal profession. Under this theme, what is the position of the Association? What do you think about the creation of an Independent Anti-Corruption Authority?
In my opinion, corruption was wrongly linked to the legal profession. It is an unfair connection and we as a Council are trying to reconstruct the impressions. Rotten apples are in every basket which should be removed and discarded. Out of a total of 6,000 naturalizations, a very small number of lawyers were involved. In fact, about 15 law firms applied for more than 50 each and a total of about 200 law firms made a much smaller number of applications than 1-10 applications each with a total involvement of 200 law firms out of a total of 4,500 lawyers. According to the findings to date, of these offices, a small number may not have complied with ethics and rinsing rules. The audits at the main law firms have been completed, the reports have been prepared by the PDS Supervisory Team, the study of the reports has begun, indictments are being drawn up and by the end of the year where there is an alleged irregularity or case will be brought before a Council . Some cases are pending before the Disciplinary Committee.
THE “CONSTITUTIONAL” SIDE OF THE PANDEMIC
You had strong positions on how decisions were and are being made by the government during the pandemic. On what points did you disagree through the prism of law?
I had and still have strong views on the issues of the pandemic. To tackle the pandemic, the protection of public health on the one hand and the protection of fundamental individual rights in accordance with the Constitution and the European Convention are on the balance sheet.
From the outset, I had publicly stated the need to ensure that any action taken is not disproportionate and goes beyond proportionality. I considered and still believe that the lockdowns that were applied horizontally exceeded the proportionality measure in some cases such as e.g. the blockades of the provinces of Limassol and Paphos or the restrictions of office workers. In addition, I believe that excessive importance and importance has been given to the imposition of indirect compulsory vaccination.
The government has taken measures in this regard which in my view were disproportionate to the aim pursued. The horizontal application of the safe pass in addition, may violate the principle of proportionality. I also considered and still believe that such measures cannot be taken by ministerial decrees but should be adopted by the House of Representatives in extraordinary sessions of it and its Committees. Only if a state of emergency was declared could the state operate by decree. In the field of justice, I fought with the Council so that the courts and the registry offices could be declared essential services. It was one of my initial suggestions. The same goes for law firms.
The government through the Minister of Health was convinced of this and we have the promise of the new Minister that, in case of a new lockdown, justice as a whole will be an essential service. Many of the issues are before the courts. But because the gears of justice are lagging behind, we will not have final decisions very soon. The first decisions in favor of the legality and constitutionality of the measures are not final. They concern criminal cases and decisions that have been appealed, or decisions in interim applications and do not decide the substance of the case. In other countries, such as Spain, for example, lockdowns have been declared unconstitutional. Aspects of lockdown have also been declared unconstitutional in some courts in Germany, the Netherlands and even the US Supreme Court. These issues are not easy. Even in the cases I mentioned, the decisions were not unanimous but in many cases were by a majority of one vote. We had to deal with unprecedented situations. My concern is that the media lead and guide public opinion where they want and how they want. The role of lawyers and jurists is in these and similar cases, to assist with their knowledge in the public debate to limit extremes. In such cases they must act like the Socratic horse fly, which is annoying but at the end of the day ends up being helpful.
