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Cyprus / Supreme Court of Cyprus, Appeal Jurisdiction / Civil appeals No. 2/2018 and 3/2018

Eliades v. Republic of Cyprus; Bank of Cyprus Public Company Ltd v The Republic of Cyprus

Policy area:
Economic and monetary affairs
Deciding Body type:
National Court/Tribunal
Deciding Body:
Supreme Court of Cyprus, Appeal Jurisdiction
Type:
Decision
Decision date:
12/09/2018

Key facts of the case:

They appealed their conviction on a number of grounds including the principle of lex mitior as enshrined in article 15(1) of the International Covenant on Civil and Political Rights, recognised in the CJEU ruling in Silvio Berlusconi et al[2]  and codified in article 49(1) of the Charter. Τhe appellant argued that the lower court had applied the 2005 law on market manipulation, however this law had meanwhile been replaced by a subsequent law in 2016 which is more favourable to him. The 2005 law had transposed the Market Abuse Directive (MAD) which gave the member states discretion to decide whether to introduce criminal sanctions. Cyprus exercised this option and did introduce criminal sanctions, which were embodied in the 2005 law. In 2014 a new Directive was adopted, namely 2014/57 known as MAD II in combination with Regulation 596/2014. In order to transpose the new legal order of the EU, in 2016 the national law of 2005 was replaced with the new law transposing MAD II[3] which introduced additional criteria in order for an act to be classified as criminal market manipulation: the act must have been committed with intent, the case must be serious including having a serious impact on the integrity of the market and the dissemination of the information must be aimed at deriving a personal benefit. The appellant argued that the criteria introduced by the 2016 law were not met in his case and therefore his conviction had to be quashed.


[1] Cyprus, Law on the actions of persons in possession of confidential information and on actions of market manipulation (market abuse) of 2005 [O περί Πράξεων Προσώπων που Κατέχουν Εμπιστευτικές Πληροφορίες και των Πράξεων Χειραγώγησης της Αγοράς (Κατάχρηση Αγοράς) Νόμος του 2005], Ν. 116(Ι)/2005 available at http://cylaw.org/nomoi/arith/2005_1_116.pdf

[2] CJEU, Joined cases C-387/02, C-391/02 and C-403/02, Criminal proceedings against Silvio Berlusconi et al, 3 May 2005.

[3] Cyprus, Law on market manipulation of 2016 (O περί Κατάχρησης της Αγοράς Νόμος του 2016) Ν. 102(Ι)/2016, available at www.cylaw.org/nomoi/arith/2016_1_102.pdf

 

Key legal question raised by the Court:

Whether the principle of lex mitior may extend beyond the confines of the imposition of the penalty, in order to reverse a trial court decision which had convicted the appellant of a criminal offence. The appellant argued that under the 2016 law, which was adopted four years after he had made the misleading statement to the shareholders, the criminal offence for which he was convicted could not be established as the prerequisites of the 2016 law were not met.

Outcome of the case:

The Court did not endorse the appellant’s argument that the principle of lex mitior extends beyond the penalty, to cover the entire criminal classification of the act. Instead, it found that neither article 49 of the EU Charter nor article 7 of the ECHR was interpreted as meaning that lex mitior could be used to annul a criminal offence except where this is explicitly provided for in the law. 

The principle of lex mitior acquires retrospective force as far as the penalty is concerned, leading to the conclusion that the lesser penalty foreseen in the 2016 law may be imposed even if the offence took place in 2012. In support of this conclusion, the Court also cited: article 15(1) of the International Covenant of Civil and Political Rights which was ratified in 1969; interpretation of article 49(1) of the EU Charter offered by the CJEU in the Berlusconi case;[1] the interpretation of article 7 of the ECHR offered by the ECtHR in the Scoppola case, which had established that the state’s failure to grant the applicant the benefit of a more lenient penalty, foreseen in a law which had come into force after the commission of the offence, amounted to a violation of article 7(1) of the ECHR;[2] and the interpretation of article 29(1) of the EU Charter offered by the CJEU in the Berlusconi case.[3]   

Nevertheless, although rejecting the argument that the conviction should be quashed on the basis of the lex mitior principle, the Court found another ground for quashing the conviction, which had not been invoked by the appellant. It concluded that the appellant’s action lacked the subjective element of a guilty conscience, known in law as mens rea, as his statement before the shareholders was not intended to manipulate the market but rather to respond to pressing questions put to him in the context of an explosive environment. The Court found that the appellant’s statements were intended to appease everyone and especially the shareholders in order to avoid negative reactions or market repercussions. Therefore although the statement was knowingly false and misleading, it was not intended to manipulate the market. The Court allowed the appeal and quashed the appellant’s conviction.

The decision was endorsed by two of the three judges on the bench. The third judge delivered a dissenting opinion, disagreeing with the other two judges on the lack of mens rea. Instead, the dissenting judge found that the appellant’s statement to the sharesholders was intentionally misleading and specifically intended to manipulate the market projecting inaccurate data intentionally presented as accurate.


[1] CJEU, Joined cases C-387/02, C-391/02 and C-403/02, Criminal proceedings against Silvio Berlusconi et al, 3 May 2005.

[3] CJEU, Joined cases C-387/02, C-391/02 and C-403/02, Criminal proceedings against Silvio Berlusconi et al, 3 May 2005.