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Monday, February 6, 2023

I. Nikolaou: Here and now separation into Supreme – Constitutional

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Defends the need for reform in the Judiciary now as well as all the changes that have been put forward and are before the Legislature in the last mile before approval, at a time when there are once again objections.

Ionas Nikolaou worked with the stakeholders on the proposed amendments and chose to respond one by one to all the objections that are now being raised. In a letter dated May 27, to the chairman and members of the parliamentary Committee on Legal Affairs, the former minister notes that it is three years since the changes in the field of Justice, after the meetings of the President of the Republic and the then Minister of Justice with the Supreme Court and the Cypriot Justice continues to slip/collapse according to the latest reports of the Commission and the “EU Justice Scoreboard”.

Recalls that during the consultations with the President and the Members of the Supreme Court it was agreed that with the reform of the structure of the courts we return to what is provided by the 1960 Constitution, ie the reopening of the Supreme Constitutional Court and the Supreme Court, as well as the recommendation of the Court of Appeal and the Commercial Court and the Maritime Court. In addition, during his last meeting with the Supreme Court, he states that the philosophy and legal background of the changes, the powers, the establishment, the establishment and the operation of these courts were discussed and agreed upon, as well as the bills passed in the House of Representatives. The bills, in cooperation with the ministers and the bodies involved, have undergone improvement changes without altering their philosophy and legal background, a fact that gathers the reaction of well-known lawyers who try with arguments, published in the daily press, to overturn the institutional changes in the structure of the courts and to maintain the Supreme Court, as it was formulated in 1964.

READ ALSO: & nbsp; Justice reform in Plenary

Ionas Nikolaou cites facts and arguments that determined or influenced the reform and responds that “reports that the system was” abolished as legally unacceptable “or that their reopening will” overturn the law of necessity “correspond to the terrible aphorism widely attributed to Win Churchill that 'there is no good tax' “. He emphasizes that: & nbsp;

“The reform was based on studies by experts, academics and distinguished lawyers, the Supreme Court study of 2016 and the report of the Irish experts, delivered in March 2018. Special and specialized issues were studied, preceded by a special study on the law of necessity. the establishment of the Administrative Court and the reopening by law of the Supreme Constitutional Court and the Supreme Court./p>

& gt; & gt; EFFECTIVENESS – Many of the arguments against the proposed changes stem from the school of thought that has kept our judiciary intact for sixty years, with the Supreme Court as established in 1964. However, the current requirements of the rule of law Principles to operate in a transparent, democratic manner and to be overseen by independent judicial institutions, to ensure the principle of effective judicial protection by independent and impartial courts, to provide effective judicial oversight and to establish respect for individual rights. The difficulties encountered in our judicial system, the inefficiency and apparent delays in the administration of justice, the low level of perceived independence of the judiciary and the requirement for their independent and impartial review and the observance of strict and transparent rules of ethics Committee on Legal Affairs due to the crisis in the field of justice in 2019. The report of the Commission (2021) on the rule of law indicates that the general public perception of the independence of the Cypriot judiciary is at the lowest level and slips after being reduced by 7 percentage points compared to 2020. And the delays in the Cypriot Justice, according to the latest report “The 2022 EU Justice Scoreboard”, have surpassed all previous ones as the time required for the adjudication of civil, commercial and administrative cases is seven times from the average time of 22 Member States. At the same time, the Commission's reports point out that structural changes and reforms, such as the creation of new specialized courts and the establishment of the Supreme Constitutional Court and the Supreme Court, aim at the efficiency and quality of the judicial system. “

& nbsp; & gt; & gt; ADMINISTRATIVE TRIAL which were conferred on the Single Supreme Court in 1964. The transfer of this jurisdiction to a court other than the Single Supreme Court and the establishment for this purpose of a new Administrative Court were not only decided by the full Plenary Session of the Supreme Court (2018) that but that the tribunal is functioning effectively and removing the difficulties that have arisen in the administration of justice due to their adjudication by the single Supreme Court. the transfer of jurisdiction to the single Supreme Court can no longer be constitutional order because they were granted by the Constitution exclusively to the Supreme Constitutional Court and the law of necessity is not open to any dispute and therefore can not be overturned. In addition, the plenary decision confirmed that the operation of the new justice system imposed under the law of necessity in 1964 could legally be amended as in the Imbrahim judgment its operation was not foreseeable as a matter of strict law. & Nbsp;

Therefore, what are the blows to the Judiciary and where is the state diversion when the Supreme Court in plenary and unanimously ruled that its jurisdiction could be legally transferred to a new court (the Administrative Court) which was not provided for in the Constitution of 1960? The same applies to the Court of Appeal, which as a new court will take over the appeal of the appeals that are currently subject to the single Supreme Court and which is also not provided for in the Constitution of 1960 “.

& gt; & gt; SEPARATION OF THE SUPREME AND THE CONSTITUTIONAL – Why not consider the reopening of the Supreme Constitutional Court and the Supreme Court and the restoration of their powers, as provided for in the 1960 Constitution, a rational treatment? The allegations that with the reform it is possible to “overturn the law of necessity” and “to destroy the very regime of the Republic of Cyprus” constitute a risk which is overturned by the decision of the Plenary. By adopting these positions no reform or change would be permissible in state institutions operating under the law of necessity and in essence the functioning of the state would be trapped. & nbsp;

The decision & nbsp; Imbrahim, as reported by the Plenary, considered the establishment of the single Supreme Court legal, although it was not provided for in the Constitution and the provisions of Law 33/1964 were not in accordance with the letter of the provisions of the & nbsp; Constitution. This was because there was a need to find a mechanism to resolve the & nbsp; problem that due to the departure of the Turkish judges was no longer possible to operate the two Courts provided for in the Constitution. Finally the law of necessity & nbsp; imposed the operation of a new justice system and the conclusion of Imbrahim, as Professor de & nbsp; Smith & nbsp; in Constitutional Lawyers in & nbsp; Revolutionary & nbsp; Situations 7 & nbsp; Western & nbsp; Ontario & nbsp; Law & nbsp; Law & nbsp; 196 & nbsp; ), “Was not necessarily foreseeable as a matter of strict law”. It is therefore unfounded in legal circles that the reform could overturn the law of necessity, when the Plenary Decision (2018) confirmed the principle that this could not be legally challenged as a matter of constitutional order and that the functioning of the single Supreme Court would could be legally amended by law. & nbsp;

It is therefore pointed out that the powers and function of the existing Supreme Court are not governed by strict law, ie they can be modified by invoking the law of necessity and for the reasons deemed necessary. The invocation of the law of necessity in the preamble of the bills, according to the Plenary Session of the Court, is legally imperative to establish the real and legal data for passing laws without the vote of the Turkish MPs and the importance of the law of necessity & nbsp; these issues. The need and purposes that are also listed in the preamble of the bills and are not controlled by the court are considered different. Therefore, no confusion or dispute arises from the preamble, when the importance of the law of necessity is clearly distinguished from the need and the purposes that require the passing of bills. The reference in the preamble of the bills to the two main sections of the issues that make the administration of justice difficult, namely the serious problems of delays and the necessary mutual control at the highest level of its structure, does not constitute an act of questioning the law of necessity “. & Nbsp;

According to the former Minister: “The reopening of the two courts and in particular the functioning of an independent Supreme Constitutional Court is fully in line with modern legal systems, is found in the judicial systems of most EU Member States and is an institution in democracies with a Constitution. These courts are endorsed and endorsed by the European institutions, as stated in special reports by the Commission and Greco, as they aim at the quality of justice. the country's Constitutional Court no longer meets the requirements of an independent and impartial tribunal as required by the Treaty. “

Ensuring specialization – Faster decisions

Ionas Nikolaou also emphasizes that: “The reopening of the Supreme Constitutional Court also ensures the specialization of judges in matters of constitutional and administrative law, since as is well known the judges of the single Supreme Court are called to decide on serious issues before public law. Their lack of specialization, unfortunately all these years, has also created quality problems, such as the issuance of contradictory decisions, especially in the field of Administrative Law, and the analysis of very serious constitutional issues is often so concise. which do not reflect the seriousness of the issue under discussion.

Centralism in a single body, such as the Supreme Court, limits the transparency and confidence of the citizen. As judges of the Supreme Court have rightly pointed out, the reopening of the two courts at the highest level of Justice, which will function as equal and independent courts, balances their function and increases the citizen's trust in the institution, but also in the democratic exercise of the judiciary. power. & nbsp;

There is also a need for the Supreme Constitutional Court to be able to rule constitutional matters more directly, more quickly and in a valid and clear manner, without having to exercise this control only on appeal and after many years. That is, the trial court will be able to secure from the Supreme Constitutional Court a valid and clear decision in the form of an opinion on a constitutional issue that is essential for the diagnosis of the case before it and it is deemed appropriate to examine it immediately. Clearly identifying the legal issues on which the opinion is sought, the actual facts supporting the questions and the reasons why the referral is deemed appropriate allows the references to be checked to avoid their misuse. “During the drafting of the new regulation of Article 144 of the Constitution, the findings of the judges during the four years of its application were taken into account, in order to avoid unjustified referrals, delays, obstacles and expenses”. & Nbsp;

“Important – for the former Minister – & nbsp; will also be the contribution of the reopening of the two supreme courts in speeding up the proceedings and the implementation of the rule of law. the reopening of the Supreme Constitutional Court and the Supreme Court will provide an opportunity to resolve outstanding issues more directly, more quickly and cases and determined by the lower courts. & nbsp;

It is indicative of the powers of these courts to adjudicate, after referral by the Court of Appeals, an appeal to a court decision, on matters of major public interest or general public importance or for purposes of coherence of law on conflicting or contradictory decisions of the Court of Appeal. As well as their responsibilities to decide in the third and last instance, on legal issues arising from the decision and related either to a change in established case law or to the need for proper implementation or interpretation of a substantive provision of law or to a major issue of public interest or general public importance. either for the purpose of coherence of the law on conflicting or contradictory decisions of the Court of Appeal, or with issues deemed by the Court of Appeal to be considered by the Court. It is well known that such issues are ultimately decided late today and only in the context of an appeal, as was the case with the cases concerning the reduction of salaries and pensions in 2011, which took nine years to be heard in full plenary, while No appeal has been lodged in a civil court case in the case of the haircut for the reorganization of credit institutions and the securities that have been pending since 2013. our courts causing problems both in the judicial time and in the credibility of our courts “. & nbsp; & nbsp; & nbsp;

” In addition to dealing with the backlog and setting up the Court of Appeal, the reopening of the two courts at the highest level of justice and the necessary self-control, substantially contribute to the preservation of the independence and integrity of our judicial system, as the cornerstone of the citizens' trust in our courts “. & nbsp;

Source: www.philenews.com

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