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Cyprus / Supreme Court, Primary jurisdiction / 95/2015

Application of Nicolas Kyriakou Ypermachou for the issue of a Certiorari Prerogative Order
Policy area
Justice, freedom and security
Deciding body type
National Court/Tribunal
Deciding body
Supreme Court of Cyprus
Decision date

Харта на основните права на Европейския съюз

  • Cyprus / Supreme Court, Primary jurisdiction / 95/2015

    Key facts of the case:

    The applicant applied for a certiorari order to cancel a decision of the district court regarding the extension of two European arrest warrants issued against him, which had been requested by the Greek authorities. The certiorari application alleged violation of the principles of natural justice and particularly of the right of an accused person to be heard in a judicial procedure in which he is involved as a party, as an essential element of a fair trial. The applicant had been initially handed to the Greek authorities on the basis of a European Arrest Warrant. He was tried in Greece and was sentence to imprisonment but was subsequently released after having paid the total amount of his sentence, as specified in the judicial document submitted in support of this application. Following his release from jail, he was arrested again for offences committed before the issue of the above European Arrest Warrant. The Greek authorities submitted a request to the District Court in Cyprus for consent in order for the applicant to be tried in Greece for these offences. This application however was examined without prior service to the applicant and without informing the applicant’s lawyer, even though the latter had represented the applicant in all previous procedures and had submitted a statement to the same district court that in the event of an application for the extension of the European Arrest Warrant he was willing to appear and represent the applicant. 

    Through this application, the applicant challenged the decision of the district court to hand him to the Greek authorities without having given him the opportunity to be heard. The respondents argued that the legal provision regarding the extension of the European Arrest Warrant does not require that the wanted person be present during the hearing and be represented by a lawyer. The applicant claimed that the right to be heard, to be represented by a lawyer and to appeal against a decision affecting him is inherent in all procedures under the law on the European Arrest warrant, because the application of the provisions of this law cannot have as a result the violation of the obligation to respect fundamental rights, in accordance with article 6 of the Treaty for the European Union.

    Outcome of the case:

    The Court concluded that this provision amounts to a fundamental principle that needs to be taken into consideration in the process of examining every aspect of the law and must be applied in the light of the provisions of article 6 of the Treaty and particularly of paragraphs 1 and 3 of article 6 which provide that the Union recognises the rights covered by the Charter which has the same legal status as the Treaties. Given that article 47 of the Charter provides for the right to a fair trial, this also applies to the procedures concerning the European Arrest Warrant. The Court further pointed out that the law on the European Arrest Warrant was adopted in order to implement the provisions of Framework Decision 2002/584 and therefore the law must be interpreted in accordance with this Framework Decision, articles 6 and 8 of which stress the judicial nature of the procedure at every stage where a judicial authority is involved, thus rendering the provisions of the law on the European Arrest Warrant subject to judicial review by the same judicial authority that examines the relevant application. It follows that the procedure for the extension of the European Arrest Warrant is of a judicial nature and therefore no deviations from the respect for human rights can be tolerated in this process. The Court also referred to CJEU case law that established that the implementation of Framework Decision 2002/584 does not preclude member states from applying their own constitutional rules and particular the respect for the right to a fair trial and the right to be heard is an important prerequisite of the right to a fair trial.

    The Court concluded that the district court decision to grant the request of the Greek authorities without hearing the applicant was erroneous and had to be annulled. The decision of the applicant to file for certiorari rather than file an appeal against the district court decision was deemed to be correct in light of the fact that the law on the European Arrest Warrant does not explicitly provide for the right to an appeal and the general provision found in the Courts of Justice Law may not have sufficed to secure the cancellation of the challenged district court order.

  • Paragraphs referring to EU Charter
    It follows that any further examination within the same framework of provisions like those in Article 30.3 of the Constitution, in Article 6.1 of the ECHR and in Article 47 of the Charter for Fundamental Rights of the European Union which, each in its own particular way, provide for the right to a fair trial, must be conducted without exception on the basis of the binding provision of article 2(2) of Law N. 133(I)/2004.