The Supreme Court annulled a decree disclosing data of 2020 that had been issued against the Bank of Cyprus for the closed period of 2013, finding that the legal basis of the decree to determine the commission of an offense was insufficient.
Specifically, as set out in the decision of the Supreme Court issued on June 4, 2021, on December 2, 2020, the applicants were granted permission to register this application with the requested treatment, the issuance of a privileged certificate certiorari to cancel the Disclosure Decree dated. 6.11.2020, issued by the District Court of Nicosia in the context of application 379/20.
The suspension of the decree in question was also ordered.
“It should be noted that a number of applications were submitted together with the same purpose, which concerned the same decree but other applicants, other banking institutions”, it is reported.
“Taking into account all the evidence given in the application, the offenses are identified during the period when the Governor of the Central Bank imposed a temporary suspension of banking operations, in view of the Eurogroup decision dated 15.3.32013 which led to a” bail in “in the banks. deposits. Specifically, on March 16, 2013, the Governor decided, among other things, the temporary suspension of the payment and transaction systems maintained by the banking institutions “, it is reported.
This decision, it is added, was notified to the Banks on the same day by a letter from the Governor. The Governor called on all financial institutions to “faithfully implement and comply” with the notified instructions in order to “protect the public interest to ensure the stability of the financial system.”
The period of time (hereinafter referred to as the “closed period”) during which the banks suspended their operations and in particular the payment and trading systems lasted from 16.3.13 until 28.3.13, the date on which the relevant Decisions were now revoked. /Instructions.
It is also noted that by letter of the Governor dated 19.3.13, the Banks could obtain prior approval from the Central Bank for selective, exceptionally, payments under specific conditions, criteria and cases.
According to the declarant, the decision continues, “there was a decrease in deposits and outflows of funds were found, between 8.3.2013 and 15.3.2013. It was considered that the transactions took place after 15.3.2013 but had a date prior to 15.3.2013, in an attempt by the banks to transfer funds outside Cyprus, in violation of the Decision dated. 16.3.2013 and the Central Instructions, known as “backdated” transactions with a date prior to 15.3.2013 “.
On the other hand, it is stated, in the same oath, there is a wide reference to the previous period and the underlying perception, that there was a real problem of the economy and that a haircut of deposits would follow. In fact, reference is made to a relevant article in the Financial Times that was published on 10.2.2013 and that since then there have been huge outflows of funds, according to the former Governor of the Central Bank.
“It is clear from the above that the disputed and dominant decision is that of the Governor of the Central Bank on 16.3.2013. Consequently, the question arises as to what legally constitutes this decision, its notification, and in the final analysis, whether its alleged violation constitutes a criminal offense “, it is noted.
Elsewhere in the decision, the Supreme Court finds that despite the plethora of laws mentioned in the Police request, it appears that only a possible breach of the letter – item 3, may lead to an “investigated offense”, always meaning that it is a criminal offense”.
It is clear from the articles themselves that refer to the letter of the Governor of the Central Bank that it is in the provisions (and the consequences of violation) of this Law that we should focus on, to determine if a criminal offense is created, it is mentioned.
“It would be contrary, in any sense of the law, to seek criminal sanctions in other laws that did not constitute the pedestal of the Governor's power, when he invoked a specific Law and a violation of it. “The recipient of the letter should not be subject to possible sanctions other than the Law being invoked”, it is added.
Therefore, he finds the Supreme, “based on the Law on the Central Bank of Cyprus and art.48 (3) invoked by the Governor in the letter, we can only talk about administrative sanctions [art.48 (4)] and it is not it is possible to prove criminal liability, in combinations of articles and laws, as the suggestion of the defendants the application, which were never the basis of the letter of the Commander and the related authority “.
“With all due respect, this certainly did not concern the lower Court nor the Police in the disputed oath,” it is noted.
“In addition, Article 65 of the Law on the Central Bank of Cyprus, speaks directly for violation of the provisions of the Law (not letters) in order to have a criminal sanction. With due respect, another view would jeopardize the office of “nulle poena sine lege”, as otherwise the “letter” could create a risk of criminal sanctions “, it is added.
Furthermore, it is stated, “while I agree with the defendants the request that publication in the Official Gazette of the Republic is not a direct prerequisite for the validity of the decision, but this should be done as soon as possible after sending the letter. The ineffectiveness of the decision contained in the letter is visible as a possibility, if in the end its content is never published in the Official Gazette “.
However, it is noted, “the issue is not final since, in this case, my view on the inadequacy of the legal basis of the decree in question, in order to be judged an” offense “inevitably, leads to the success of the application on this point”.
“The lower court without the determination of an offense, as above, exceeded its authority by issuing the said decree”, the Supreme Court rules in its decision.
Jordan Kuwait PLC had a similar claim for the same decree on the same date.
