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Next Delivering court documents outside jurisdiction HOME • INSIDER • ECONOMY • Delivering court documents outside jurisdiction
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Before reaching a decision, the Court must hear all the parties involved. For this reason they should be given the opportunity to be informed that any case is pending against them. In order to obtain the correct information, the service of the writs is required. It is important that the service procedure is carried out correctly because the person to whom the service is served must be aware of the legal proceedings concerning him so that he can attend and defend his interests before the Court and thus ensure the correct how to award & nbsp; justice. Service is, therefore, the official delivery of court documents by the bailiff (or private bailiff) to the person listed in the writs. Extrajudicial documents are also served in those cases where this is necessary.
Usually, the practice followed regarding the service of court documents is simple. The bailiff will personally locate the person and the court documents (for example, the writ of summons, summonses, etc.) will complete the service. He will then proceed to complete the proof of service and the relevant affidavit which he will enter in the case file so that the service can be justified in writing. In general, service within Cyprus is done as follows.
It is important to note that there are further details and different issues regarding performance, but this article will address service outside of jurisdiction, in particular in countries that are not members of the European Union, nor are they members of the Hague Convention and have not concluded a relevant bilateral agreement with the Republic of Cyprus. & nbsp; & nbsp;
Usually, for service outside the jurisdiction, we would follow the Institutions of Civil Procedure, in particular Order 2 institution 2 for service outside the warrant, Order 5A and Order 6. More specifically:
D.2 i.2 “No summons for service outside Cyprus, or for which notice will be given outside Cyprus, will be sealed without the permission of the Court or Judge” However, in cases where there are two or more Defendants in a Lawsuit, some of which are located in Cyprus, the prior permission of the Court is not required for the registration of a writ of summons if at least one of the parties is within the jurisdiction.
D.5A “Any application to the Court or a judge for an order for replacement or other service or replacement of the service notice must be accompanied by an affidavit stating the reasons for which the application is made. “
D.6 i.1 “Without prejudice to Article 15 of the Law on Courts, Chapter 11, service outside the jurisdiction of a writ of summons or summons may be authorized by the Court or by the Judge when:
a. & nbsp; & nbsp; & nbsp; & nbsp; & nbsp; & nbsp; & nbsp; & nbsp; & nbsp; & nbsp; The whole object of the lawsuit is real estate located in Cyprus.
b. & nbsp; & nbsp; & nbsp; & nbsp; & nbsp; & nbsp; & nbsp; & nbsp; & nbsp; & nbsp; Any act, will, contract, obligation or liability that affects immovable property of any kind located in Cyprus, which is sought to be interpreted, corrected, annulled or enforced in action.
c. & Nbsp; & nbsp; & nbsp; & nbsp; & nbsp; & nbsp; & nbsp; & nbsp; & nbsp; & nbsp; & nbsp; Any relief is sought against any person who resides or has a habitual residence in Cyprus.
The above orders and institutions will & nbsp; further analyzed below. The full list of conditions for extrajudicial service can be found in the Institutions of Civil Procedure D.6 i.1. & Nbsp;
Performance in Member States of the European Union is regulated by the Regulation of the European Union, EC. 1393/2007 on Service in the Member States of Judicial and Extrajudicial Acts in Civil or Commercial Matters (“service of acts”). Therefore, the principles of & nbsp; Cyprus, as a Member State may, on the basis of the above Regulation, proceed to performance in all other countries – members of the European Union.
However, there are several lawsuits that have as parties persons who are neither residents of Cyprus nor any other member state of the European Union. In these cases, service is governed by the Hague Convention. Members of the Hague Convention, ie countries that have signed, ratified or entered into one or more individual Conventions, are a total of 91. The Republic of Cyprus is one of them. There are still 65 countries, which are considered as related parties and are in the process of joining as full members of the Convention. & Nbsp; It is therefore possible to serve outside the jurisdiction in approximately 156 countries following the relevant procedure.
But there are a total of 195 independent countries, according to data released by the United Nations. & Nbsp; Therefore, there is a gap in this point which is regulated by the bilateral agreements concluded by the countries separately. That is, the Republic of Cyprus can conclude a relevant bilateral agreement with a third country, so that the relevant service process can be allowed and regulated in detail.
But what happens when a country does not belong to the European Union, has not signed the Hague Convention and has not concluded a bilateral agreement with the Republic of Cyprus? It's quite a rare case but – not unlikely. That is, one of the parties must be a resident of a country that does not participate in any such regulatory framework. The principle of reciprocity (mutual reciprocity) is considered as a solution. According to the principle of reciprocity, this includes the authorization to apply the legal effects of special legal relations, when these effects are equally accepted by these foreign countries.
That is, if in the Republic of Cyprus service has the same legal effect as e.g. and in the Islamic Republic of Iran, which is such a non-aligned country, then based on the principle of reciprocity, these results must be accepted in Iran as well. In international law, reciprocity means ensuring conditions/conditions of equality in terms of facilities/rights provided and mutual respect between states. This principle has been used as a basis for mitigating the application of the principle of territoriality of law. In theory, for service in third countries, a law firm can contact the Ministry of Foreign Affairs of the Republic of Cyprus and request that it promote service in the third country through diplomacy.
However, it is worth noting that the invocation of the principle of reciprocity is general and without a specific legal basis. The effectiveness of the principle is rather uncertain and may not even bring about what is required is formal service to the party, as it depends on several factors. One of them is whether, for example, service has the same legal effect in Iran as in the Republic of Cyprus. Another factor is whether the country's competent authorities will agree to promote performance in their country.
It is useful to note here that, in addition to invoking the principle of reciprocity, service to non-EU countries that have not signed the Hague Convention and have not concluded a bilateral agreement with the Republic of Cyprus may to proceed if a relevant order is issued by the Court. This can be done through an Application to the District Court requesting the service outside the jurisdiction of the warrant or the warrant of the warrant through the Cyprus Post or through the EMS DATAPOST service.
The Application will now be legally based on Orders 2 Institution 2, Δ.5 Θ.1,9,10, Δ.5Α, Δ.6, Δ.39, Δ.48 Θ.1-3, 8 (1) (e ) (f), (2), as well as in Article 3 of the Law on Civil Procedure Chapter 6 and Article 21 of the Law on Courts Law 14/1960. & nbsp; In this case the difference is that the Ministry of Foreign Affairs has no role in the whole process. The package of documents is simply sent either by Post or by the EMS DATAPOST service. But the similarity in both cases is that there is no guarantee that the performance will be successful. The documents may not be served due to the inability to locate the persons listed at that address and, in that case, they will simply be returned. . The slightest indication that the party was not located or did not appear in court to receive the court documents, as is the case in some jurisdictions, will result in the documents being returned to the sender with the note: “service not possible”. Ability to control and immediacy are two of the main factors that play an important role in effective performance, factors that weaken a performance outside jurisdiction.
Konstantinos Kaousliadis, lawyer, Elias Neokleous and SIA DEPE
