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The Law Office of the Republic welcomes the issue, today, of the final
judgment of the English Court of Appeal in the case of Meletis Apostolides
against Charles and Linda Orams.
It should be recalled that this case concerned Mr Apostolides’ application
for the judgments of the District Court of Nicosia, which held that the
Orams were committing trespass on Mr Apostolides´s property in Lapithos and
ordered the said couple to pay damages, proceed with demolition of the
premises erected thereon and deliver vacant possession of the said property
to Mr Apostolides, to be recognised and enforced in England. A first
instance English Court had found that the judgments of the Cypriot Court
could not be recognised in England because Regulation (EC) No. 44/2001, on
the basis of which recognition was sought, had been suspended, together with
the remaining EU acquis, “in relation to” those areas of the Republic of
Cyprus in which the Government of Cyprus does not exercise effective
control. Besides, the said first instance Court was of the opinion that,
even if the Community Regulation were applicable, the present case fell
within the exception set out in Article 34(2) thereof in relation to
judgments issued in default.
Mr Apostolides filed an appeal against the first instance judgment and, in
order to clarify the multiple issues of European Community Law raised in the
case, the Court of Appeal referred to the European Court of Justice (ECJ) a
number of questions for a preliminary ruling. On 18th December 2008, the
Advocate General of the ECJ, Mrs Kokott, issued her Opinion to the Court.
The role of the Advocate General of the ECJ is to assist the Court by means
of a reasoned Opinion which, albeit non binding, the Court takes seriously
into account. Advocate General Kokott’s Opinion fully supported the
arguments presented before the ECJ by Mr Apostolides and the Republic of
Cyprus which, as a Member State of the EU, intervened as of right before the
Court.
On 29/4/2009 the European Court of Justice (Grand Chamber) issued its
judgment on the preliminary reference, completely overturning the findings
of the first instance English Court and upholding the positions of Mr
Apostolides and the Republic of Cyprus.
What remained, therefore, was for the English Court of Appeal to issue its
judgment as to the substance of the appeal Mr Apostolides filed against the
first instance English judgment. The national courts are bound to follow the
judgments of the ECJ on preliminary references. Therefore, the Orams couple
did not seek to dispute the substance of the ECJ judgment, but raised the
following two issues before the Appeal Court:
(I) Whether the judgments of the District Court of Nicosia were prevented
from being recognised and enforced in England because such enforcement would
be contrary to an alleged “international public policy” (a matter which,
according to the Orams, was not examined by the ECJ).
(II) Whether the judgment of the ECJ on the preliminary reference is
affected by an alleged “objective appearance of bias” on the part of the
President of the ECJ, Mr Vasilios Skouris.
(I) “International Public Policy”
In the context of this first issue, the English Court of Appeal, in addition
to the arguments presented by the Orams, had also before it the written
intervention allowed to be made on behalf of an affected group of British
“buyers” (British Residents Society – BRS), who claimed that the judgments
of the District Court of Nicosia are contrary to customary international law
which, supposedly, does not recognise State jurisdiction over territory in
respect of which the State does not exercise effective control. Before
examining the Orams’ arguments, the Court devoted a single paragraph of its
judgment to reject the submissions put forward in the BRS intervention.
According to the Court, these submissions do not add anything at all to the
Orams’ arguments and, to the extent that they challenge the ECJ’s judgment
on the preliminary reference, they cannot succeed as the said judgment is
binding upon the English Court of Appeal.
The Court then turned to the arguments raised by the Orams, the essence of
which is that litigation over issues regarding immovable property in the
occupied areas cause tension between Greek Cypriots and Turkish Cypriots and
jeopardize efforts to resolve the Cyprus problem, which all nations have an
obligation, under international law, to support. Therefore, the recognition
and enforcement of such judgments by the United Kingdom would, according to
the Orams, be contrary to the United Kingdom’s international obligation to
support the efforts for a peaceful resolution of the Cyprus problem.
Focussing on the Orams’ arguments, the Court firstly recorded its
disagreement with the characterisation of the ECJ’s judgment as “thin”,
commenting, with full respect to the ECJ, that it dealt clearly and cogently
with the issues put before it.
As to the substance of the Orams’ arguments, the Court held as follows:
Accepting that there is an international consensus that every encouragement
must be given to achieve a peaceful solution to the Cyprus problem, the
Court added that it is a very large step to proceed from that acceptance to
accepting the proposition that it would be manifestly contrary to the public
policy in the United Kingdom to recognise judgments of the Cyprus Courts.
Stressing that the role of the Courts is to apply the rule of law, the Court
noted that international support to the efforts for a solution to the Cyprus
problem does not impose a duty upon an English Court to assess whether a
court judgment is helpful or not in the efforts for peace on the island.
Despite the fact that, with the above analysis, the Court dismisses the
Orams’ argument, it goes on to further examine whether it would be right or
even helpful for the peace process not to recognise judgments of the
District Court of Nicosia. In this regard it determines that non-recognition
of a lawfully made judgment by a lawful court of a Member State of the
European Union would inflame the situation.
Furthermore, the Court recalls the obligation arising from a number of
Resolutions of the Security Council of the United Nations for respect of the
territorial integrity and single sovereignty of the Republic of Cyprus,
which clearly includes the obligation to respect the Courts, the judicial
arm of the sovereign State. As for the United Kingdom, the Court
acknowledges the additional obligations emanating from the Treaty of
Guarantee.
Consequently, the Court concludes, even if the English Courts were under a
duty to determine what “international public policy” entails , balancing the
importance of the peace process in Cyprus on the one hand and the
obligations of the United Kingdom, under the Treaty of Guarantee and the
Security Council Resolutions, to respect the sovereignty, independence and
territorial integrity of the Republic of Cyprus, on the other hand, they
would come to the conclusion that the judgments of the Cyprus Courts must be
enforced in the United Kingdom.
(II) Alleged “objective appearance of bias” of the President of the ECJ, Mr
Vasilios Skouris.
The Orams, in their attempt to avoid the application of the unfavourable to
them ECJ judgment, alleged that the President of the ECJ, Mr Vasilios
Skouris, because he was decorated by the Republic of Cyprus, visited our
country several times and met with Cypriot politicians not only in Cyprus
but also at the Court’s seat in Luxemburg, did not appear to have the
objective guarantees of impartiality that would allow him to preside over
the Court’s composition that tried their case.
The English Court of Appeal, stressing the particularities of the ECJ as a
common Court to all the Member States of the European Union and, also,
recognising the role of the President of such Court, which is to ensure the
widest possible dissemination of knowledge as to the role and operation of
the Court, examined the Orams’ complaints against Mr Skouris, one by one,
and rejected them. It concluded that an objective observer would find that
there was no possibility that the President of the ECJ would be influenced
by his decoration and by any other contacts he had with Cyprus. Concluding,
the Court of Appeal stressed that the present case was to be determined and
was determined by the Grand Chamber of the ECJ on the basis of legal
principles alone.
The judgment of the English Court of Appeal is significant on multiple
levels. Primarily, the Court emphasises the United Kingdom’s obligation to
respect the sovereignty, independence and territorial integrity of the
Republic of Cyprus. Also, the jurisdiction of the Cyprus Courts to determine
cases concerning immovable property in the occupied areas and the obligation
of the English Courts to recognise and enforce such judgments of the Cyprus
Courts is now recognised, at a final level, by the highest competent English
Court. Furthermore, with this decision the property rights of refugees
displaced from the occupied areas are more effectively protected, because
their civil rights under EU Law against individual usurpers of their
property are fully safeguarded. Therefore, the said judgment can constitute
a significant element in discouraging further unlawful exploitation of Greek
Cypriot properties in the occupied areas. |