CASE OF KORELLIS v. CYPRUS
Preliminary objection joined to merits (ratione materiae);No violation of Art. 6-1
G. Pikis
8. The applicant was born in 1953 and lives in Nicosia. 9. He was accused of rape and committed for trial before an Assize Court. 10. At the commencement of the hearing of the case before the Assize Court, the defence requested discovery of a number of relevant documents in the prosecution’s possession. The defence further requested that a forensic examination of the complainant’s knickers be carried out and that swabs taken from her vagina be analysed. The prosecution objected. After hearing argument from both sides, the Assize Court granted the requests on 19 March 1998. This order was made pursuant to the provisions of Articles 12(5)(b), and 30.2 of the Cyprus Constitution, Articles 6 §§ 1 and 3 b) of the Convention and the notion of a fair trial as developed in the recent case-law of the English courts. The Assize Court also relied on Article 7(1) of the Cyprus Law of Criminal Procedure, Cap. 155, as amended. 11. The Attorney General immediately applied for judicial review of the order by means of a writ of certiorari. The grounds invoked were lack of jurisdiction and error of law on the face of the record. The application was made ex parte and it came before Justice Artemides, a member of the Supreme Court. He granted leave and suspended the enforcement of the order. Thereafter, on 15 May 1998, after hearing the parties, Justice Artemides granted the application and quashed the Assize Court’s order for excess of jurisdiction. 12. The applicant’s appeal (no. 10227) against this decision was heard by the plenary of the Supreme Court consisting of nine judges. The judges included Justice Gavrielides who, as it transpired towards the end of the subsequent trial, had been actively involved in the investigation that preceded the filing of the indictment against the applicant, in his capacity as senior attorney attached to the Legal Service of the Republic, i.e. the prosecution. However, at the time of the hearing of the certiorari appeal, the defence had been unaware of this fact and, therefore, no objection was taken to his participation in the proceedings. Neither the prosecution nor Justice Gavrielides referred to the matter. 13. On 24 September 1998 the appeal was dismissed by a majority of 7 to 2. Justice Gavrielides was part of the majority. 14. In the course of the subsequent proceedings before the Assize Court, the prosecution provided several of the documents which the defence had previously requested. However, it objected to the defence having an opportunity to carry out forensic tests. The applicant claims that the latter was of the utmost importance for his defence since Vaseline was found on the knickers which the prosecution and the Assize Court treated as strong corroborative evidence of his guilt. 15. The applicant was found guilty by the Assize Court on 10 March 1999 and sentenced to three years’ imprisonment. He appealed against his conviction to the Supreme Court. The appeal (no. 53/99) was referred to a division of the Supreme Court consisting of three judges. The first ground of appeal concerned Justice Gavrielides’ participation in the certiorari proceedings, in violation of the applicant’s right to a fair trial by an independent and impartial tribunal. The appeal was accompanied by a plea, followed by a petition, that the certiorari judgment of the Supreme Court of 24 September 1998 be vacated having regard to the principles enunciated in a recent decision of the House of Lords in the case of R. v. Bow Street Metropolitan Stipendiary Magistrate and others ex parte Pinochet Ugarte (No 2) (1999). Vacation of the said judgment was a precondition for the determination of the applicant’s first ground of appeal. 16. At the beginning of the appeal hearing, it was pointed out to the defence that the court could not review the validity of a previous judgment of the Supreme Court in the context of an appeal. The defence then filed a separate petition to the plenary of the Supreme Court to vacate its previous judgment. The hearing of the appeal was accordingly adjourned pending the determination of the petition. 17. The petition was examined by the plenary of the Supreme Court consisting of nine judges, including the three judges before whom the applicant’s appeal was pending. The court was presided over by Justice Artemides. An objection to the participation of Justice Artemides was taken by the defence given his previous involvement in the case. It was claimed that his participation at this stage would render him a judge in his own cause and offend against the rule of impartiality. However, the objection was rejected. 18. The application to vacate was dismissed on 19 July 1999 by a majority decision delivered by Justice Artemides, on the ground that the Supreme Court lacked jurisdiction to re-open the proceedings and examine the validity of its previous judgment. 19. Following dismissal of the petition, the hearing of the appeal was resumed. The appellate division of the Supreme Court indicated to the defence that, in view of the dismissal of the application to vacate, the first ground of appeal was left in a vacuum. The defence was then left with no option but to withdraw this ground of appeal as it could no longer be determined. 20. A hearing of the remaining grounds of appeal which the applicant had made then followed. The hearing was completed on 2 November 1999, and judgment was reserved. The Supreme Court dismissed the appeal on 18 January 2000, thereby re-affirming the applicant’s conviction.