A Re-Evaluation of the Law of Contempt by Advocates in Light of Recent Cypriot

Jurisprudence
Achilles C. Emilianides1

Introduction

Contempt of court is defined as an act or omission, which interferes with the due
administration of justice.2 As such, contempt is a criminal offence; even more so, it is a
sui generis criminal offence. Not only is the power of contempt, one of uncertain scope,
unlike any other criminal offence, but it is also exercised according to an, otherwise
unknown, summary procedure. The power of contempt has always been regarded as an
inherent power of the courts, a power, which is founded upon immemorial usage. It could
thus be accepted, that the offence of contempt and all the peculiarities associated with it,
are ‘as ancient as any part of common law’,3 since it has probably existed in English law
since the twelfth century.4

Despite this fact, the law of contempt is no longer as untouchable as it once was; the
influence of the case - law of the European Court of Human Rights has led to a re -
evaluation of the general principles, which govern the law of contempt. Any interference
with the right to freedom of expression must be necessary in a democratic society,
according to article 10 of the European Convention of Human Rights. Consequently,
there must be a reasonable relationship of proportionality between the legitimate aim
pursued, and the means which are deployed in order to achieve that aim; the contempt of
court must be necessary in a democratic society for maintain the authority of the judiciary
and the due administration of justice.5

1
Associate Professor, Head of the Department of Law, University of Nicosia.
2
For a general introduction to the problem of contempt of court see Arlidge, Eady and Smith on Contempt,
3rd Ed, London: Sweet & Maxwell, 2000, Borrie and Lowe’s Law of Contempt, 4th Ed, London:
LexisNexis, 2010, C. J. Miller, Contempt of Court, 2nd Ed, Oxford: Clarendon Press, 2000.
3
R v. Almon (1765) Wilm 243, at 254.
4
J. Fox, The History of Contempt of Court, Oxford: Clarendon Press, 1927,
5
Sunday Times v. United Kingdom, Judgment of 26 April 1979; (1979) 2 EHRR 245, Goodwin v. United
Kingdom, Judgment of 27 March 1996; (1996) 22 EHRR 123.

1
Two fairly recent Cypriot-related judgments, namely the judgment of the Grand Chamber
of the European Court of Human Rights in Kyprianou v. Cyprus6 and the judgment of
the Supreme Court of Cyprus in the case of Loukis Loucaides,7 give rise to a re-
evaluation of the principles governing the most straightforward and notorious cases of
contempt; those where the offence is committed in the face of the court and in particular
by advocates. The aim of this paper is to examine the implications of the Kyprianou and
Loucaides judgments, in so far as the right to a fair trial and freedom of expression is
concerned. The first Part of the paper shall provide an introduction to the problem of
contempt in the face of the court, while the subsequent Parts shall analyse in depth the
judgments of Kyprianou and Loucaides and their implications.

1. Contempt in the Face of the Court

1.1. Defining Contempt in the Face of the Court

The law of contempt has always been considered as a direct outcome of the need to
safeguard the orderly administration of justice from improper interference,8 and to
safeguard the public’s trust in a fair and unimpeded trial.9 According to such approach it
is not the dignity of the judge, which is offended by the contempt, nor is the dignity of the
court; rather it is the fundamental supremacy of the law which is challenged.10 Criminal
contempt is usually divided in two categories; those which are committed in the face of
the court, and those which are committed outside the court. In common law such
distinction maintained its importance due to the different extent of the inherent
jurisdiction of superior and inferior courts, in the sense that superior courts of record
could normally punish both forms of contempt, while inferior courts of record could only
punish contempt if it was committed in their face.

6
App. 73797/01, Kyprianou v. Cyprus, Judgment of 15/12/2005.
7
Re Loukis Loucaides Advocate, Application 45/2011, Judgment of 16/5/2011.
8
See Phillimore Committee, Report of the Committee on Contempt of Court, Cmnd. 5794, 1974 (cited in
this paper as Phillimore Committee), para. 1.
9
A – G v. Times Newspaper Ltd [1974] AC 273, HL, at 315.
10
A – G v. Leveller Magazine Ltd [1979] AC 440, HL, at 459.

2
The exact meaning of contempt in the face of the court was analyzed in the leading
English judgment of Balogh v. St Albans.11 Lord Denning specified that such an
expression was never confined to conduct, which a judge saw with his own eyes. It is
therefore, not necessary that all the circumstances of the offence are in the personal
knowledge of the court.12 On the contrary; a judge could always act on his own motion
and punish summarily, even if the contempt was reported to him by officers of the court,
or by others. Contempt in the face of the court should be considered to be the same thing
as contempt which the court can punish of its own motion As a result, Lord Denning
distinguished between three forms of contempt in the face of the court: contempt which is
committed in the sight of the court, contempt which is committed within the court room
but which is not seen by the judge, and contempt which is committed at some distance
from the court.

It could be argued that such an interpretation of contempt in the face of the court is wider
than it ought to be. Why should the court’s power to punish contempt of its own motion,
necessarily be equated to contempt in the face of the court? The phrase ‘contempt in the
face of the court’ implies that the location of the offence is essential; an offence
committed at some distance from the court should thus, not be considered to be an
offence, which is committed in the face of the court. Furthermore, it could be argued that
if the contempt is committed within the court room, but not seen by the judge, it should
not be considered as contempt in the face of the court. While it is true that under such
circumstances, the necessary element of location would be satisfied, it is still
questionable whether there such an offence could be considered to be committed in the
face of the court; despite the fact that it was committed within the court room, the judge
was not a witness to it. Consequently, there would be no actual difference from an
offence, which was committed outside the court room.

It is suggested that a narrower interpretation of the phrase ‘contempt in the face of the
court’ would be preferable, not only so far as technicalities are concerned, but mostly

11
Balogh v. St Albans Crown Court [1975] QB 73, CA.
12
This was the position of Laskin J in his dissenting judgment in McKeown v. R (1971) 16 DLR (3rd) 390,
at 408.

3
because the power of contempt is a great power, and is to be exercised ‘with scrupulous
care and only when the case is clear and beyond reasonable doubt’, as Lord Denning
himself has admitted13 In summary proceedings, the judge appears to assume the role of
prosecutor and judge in his own cause, especially where the insult is directed against him
personally. Furthermore, the contemnor usually has little or no opportunity to defend
himself or make a plea in mitigation. A narrower interpretation of contempt in the face of
the court would restrict the power of the lower courts to punish summarily to those cases
where it was imperative for the judge to act immediately; in all other cases, it should be
left to the Attorney - General, or the party aggrieved to make a motion in accordance with
the rules.

There are many examples of what could constitute contempt in the case of the court. An
exhaustive list would be beyond the scope of this article. It would be sufficient to observe
that the offence could cover any type of conduct which may seriously disrupt court
proceedings; the most common cases of contempt in the face of the court deal with
circumstances under which persons were assaulted or threatened in court during
proceedings,14 or where the court, or jury, or solicitors were insulted15.

1.2. Comparative Views on Contempt

a. England

The Phillimore Committee, which was appointed to consider whether any changes were
required in the law relating to contempt of court, recommended that the practice, whereby
the judge deals with contempt in the face of the court himself, should continue. The
Committee observed that the judge would be in the best position to deal with the matter,
since he had witnessed what had taken place; furthermore, he would be more inclined to
take a lenient view after a period of reflection, than another judge who would simply read
the transcript and would be anxious to protect his brother judge. The Committee

13
Balogh v. St Albans Crown Court [1975] QB 73, CA, at 85.
14
Morris v. Crown Office [1970] 2 QB 114.
15
See e.g. R v. Davison (1821) 4 B & Ald 329.

4
recommended, however, that the judge should always ensure that the contemnor is in no
doubt about the nature of the conduct, which constitutes an offence. The judge should
always let the contemnor explain, or deny his conduct, and allow him to call witnesses; in
addition, the contemnor should be entitled to make a plea in mitigation of his sentence. In
order to defend himself, the contemnor should be entitled to legal representation, and the
court should have the power to grant legal aid immediately for the purpose, where
appropriate. In those cases where the contempt also amounts to a criminal offence, the
judge should consider referring it to the prosecuting authorities, unless reasons of
urgency or convenience require that it be dealt with summarily.16

Recent developments concerning contempt in the face of the court were influenced by the
recommendations of the Phillimore Committee; recent cases have emphasized that the
courts follow a more restrictive approach,17 which balances the need for urgency during
summary contempt proceedings, with the application of natural justice principles. In R v.
Moran,18 it was held that the judge had acted too precipitately, had not given the
contemnor the opportunity to apologize, and had not invited any counsel in court to offer
advice. The Court of Appeal quashed the order for committal and noted that a judge
should always reflect carefully, whether or not to imprison a man for contempt; giving a
contemnor the opportunity to apologize should be one of the most important aspects of
contempt proceedings.19

In other recent cases, the Court of Appeal quashed the conviction, because there was no
urgency to justify use of the summary procedure. In R v. Stafforce Personnel20, the Court
of Appeal held that a summary procedure was unnecessary, especially since it was based
only on hearsay evidence; the matter ought to have been referred to the Attorney –
General, in order to ensure that the case was determined on a proper evidential basis. In R

16
Phillimore Committee, para. 95.
17
See the brief, albeit correct comment of T. Rees and D. C. Ormerod, ‘Trial: Contempt of Court’ [2001]
CrimLR, at 589.
18
R v. Moran (1985) 81 Cr App R 51, CA.
19
For a rather different approach, see e.g. R v. Newbury Justices ex p Pont and Others (1984) 78 Cr App R
255.
20
R v. Stafforce Personnel Ltd, 24 November 2000, CA.

5
v. Griffith,21 the appellant was convicted for contempt on court for threatening witnesses
outside the court. The Court of Appeal held that the court had jurisdiction to employ the
summary process, since the process of intimidation had continued up to the door of the
court. However, the judge should not have chosen the summary procedure, due to the fact
that the actions of the appellant had not prevented any witness from testifying, and there
was no danger of any future intimidation, since the appellant was taken into custody;
consequently, the actual risk of postponing the summary process until after the trial was
insignificant.

The Court of Appeal has also held that when a witness refuses to testify, it is advisable
that the matter is dealt with at the conclusion of the trial, or at the very soonest at the end
of the prosecution case.22 The most prominent example of the new approach of the Court
of Appeal, however, is evidenced in R v MacLeod.23 The Court of Appeal stated that
article 6 of the European Convention does not add to, or alter the normal requirement of
English law that proceedings should be conducted fairly before an independent and
impartial tribunal. The Court thus, held that the trial judge was entitled to deal himself
with the intimidation of witness, which had occurred in a corridor outside the court room.
It was held that there was no reason why the judge should not be regarded as an
independent and impartial tribunal for the purposes of contempt proceedings, since he
had not ‘himself observed what had taken place in the corridor’24. The new approach of
the Court of Appeal, as stated in MacLeod, would seem to suggest that a judge should not
try summarily a case of contempt, to which he was a witness, and was therefore,
committed in the face of the court in the narrow sense.

The practice, whereby the judge deals with contempt in the face of the court himself, was
eventually partially abandoned. The Lord Chief Justice issued the Practice Direction of 5

21
R v. Griffith (1989) 88 Cr App R 63, CA.
22
Thus, in R v. Phillips (1983) 78 Cr App R 82, CA, the judge should not have tried the offence at an
earlier stage, especially since the evidence provided by the witness would have added little, or nothing by
way of weight, support, or confirmation of other witnesses. See also R v. Montgomery [1995] 2 Cr App R
23, CA, where the Court of Appeal set out sentencing guidelines in respect to witnesses who refuse to
testify.
23
R v. Calum Iain MacLeod, 29 November 2000, CA.
24
Ibid.

6
June 2001,25 outlining the powers of the Magistrates’ Courts to deal with contempt in the
face of the court. Where the contempt is not admitted by the alleged offender, the justices
should not make any findings against the offender; their powers are limited to making
arrangements for a trial to take place, before a bench of magistrates other than those
before whom the alleged contempt occurred. The offender is entitled to call and examine
witnesses where evidence is relevant, and should be allowed an opportunity to apologize
for his contempt, or to make representations. If the justices choose to exercise their
powers to commit to custody, they must take into account any time spent on remand and
the nature and gravity of the contempt; any period of committal should be for the shortest
period needed in order to satisfy the interests of preserving good order in the
administration of justice.

When the contempt is admitted, the justices should ask the offender whether he has any
problem with them dealing with the matter. If there is an objection, then a differently
constituted panel should hear the proceedings. If there is no objection, then the bench
may deal with the matter, so long as the offender’s conduct was not directed to the
magistrates; if, however, the offender’s conduct was directed towards the magistrates, it
would not be appropriate for the same bench to deal with the matter. In all circumstances,
legal aid should generally be granted to cover representation, and the offender must be
afforded adequate time and facilities in order to prepare his case.

The Practice Direction marks a turning point of the law of contempt for Magistrates’
Courts. Judges should no longer try those cases which were dealt in the face of court, if
the conduct was directed towards them. Even in those cases, where the conduct was not
directed towards the bench, the judge should only try the case, if the offender admits the
contempt, and has no objection to the judge dealing with the matter. However, the
Practice Direction expressly provides for the possibility of derogating from the Direction
in a minority of exceptional cases, where the application of the Direction will not be,
under the circumstances, consistent with the aim of achieving justice.

25
[2001] 2 Cr App R 17.

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 The developments described above, show that there is a continuous effort to reform the
summary procedure, which is followed in cases of contempt in the face of the court, in a
manner that will effectively safeguard the protection of human rights. Despite this fact,
the practice whereby the judge deals with contempt in the face of the court himself, was
not completely abandoned yet. In Wilkinson26 the Court of Appeal observed that in many
cases it would be preferable for a judge, who had witnessed contempt in the face of the
court, to refer the summary trial of the matter to a colleague; despite this fact, the choice
of the trial judge to hear the case herself, was not wrong since there was no dispute as to
the essential facts of what had taken place and given the fact that a fair minded observer
could not have concluded that there was a real possibility of bias.

b. United States

The scope of the summary power to punish contempt in US Federal Courts was severely
limited by the 1831 Act,27 mostly to cases where the misbehaviour occurred in the
presence of the court, or so near thereto so as to obstruct justice. The Supreme Court held
that the phrase ‘so near thereto’ should be construed in a narrow and geographical
sense,28 thus restricting the application of summary procedure even further. It was
eventually established that in cases of contempt in the face of the court, a public hearing
before another judge is required. In Mayberry v. Pennsylvania,29 it was held that the trial
judge should have disqualified himself from dealing with the contempt, since he had been
subjected to personal vilification and abuse. It was observed, however, that it is not every
attack on a judge that disqualifies him from dealing with the contempt.

In the leading case of Bloom v. State of Illinois,30 the Supreme Court re – examined the
issue of summary punishment in cases of contempt. It was held that the independence of
the judiciary and the effective functioning of the courts do not depend upon the power to
26
Wilkinson v. Lord Chancellor’s Department [2003] 2 All ER 184, CA. See also HT Advocate v. Tarbett
[2003] SLT 1288.
27
Following the Lawless – Peck case. See F. Frankfurter, J.M. Landis, ‘Power of Congress over Procedure
in Criminal Contempts in Inferior Federal Courts’ (1924) 37 Harvard Law Review 1010, at 1024 - 1029.
28
Nye v. United States 313 US 33 (1941)
29
Mayberry v. Pennsylvania 400 US 455 (1967).
30
Bloom v. State of Illinois 391 US 94 (1968).

8
punish contempts summarily; therefore, summary proceedings in any contempt trial
subjected to severe punishment, were held to be unacceptable. Summary proceedings in
contempt cases are permissible only insofar as they concern petty offences, which is a
general exception to jury trial under United States’ law.

c. European Court of Human Rights

Prior to the Kyprianou case, the European Court of Human Rights did not have the
opportunity to examine in depth the relationship between the right to a fair trial and the
summary procedure in cases of contempt in the face of the court. In Ravnsborg,31 the
applicant had been ordered by the relevant courts on three different occasions, to pay
fines for improper statements, which were made in his written observations. The orders
were made in the form of decisions. The applicant claimed that the absence of an oral
hearing in any of the proceedings relating to the fines, violated article 6 of the
Convention.

The Court initially examined whether the proceedings related to a ‘criminal charge’
against the applicant within the meaning of article 6. The Court observed that the formal
classification under Swedish law was open to differing interpretations; however, after
examining the nature of the offence, the Court concluded that the conduct for which the
applicant was fined fell outside the scope of article 6, since the measures ordered by the
Swedish courts were more akin to disciplinary powers, than to the imposition of a
punishment for commission of a criminal offence. Furthermore, the nature and degree of
the severity of the penalty was not sufficiently important to warrant classifying the
offences as criminal. Consequently, the Court held that article 6 did not apply to those
proceedings, and was therefore, not violated. It should be stressed that the European
Court did not decide on the matter whether a summary procedure in a criminal case,
concerning contempt of court, would violate article 6; it was simply held that in the
specific case, the proceedings relating to the fines were not criminal, and therefore, article
6 did not apply.

31
Ravnsborg v. Sweden, Judgment of 23 March 1994, Series A, No. 283 – B; (1994) 18 EHRR 38.

9
II. The Kyprianou case

A. The Procedure before the Cypriot Courts

Michalakis Kyprianou is an advocate; he has been in practice for more than forty years
and he is a former member of the House of Representatives. On 14 February 2001,
Kyprianou was defending two accused for murder before the Assize Court of Limassol. 32
Kyprianou was conducting the cross - examination of a prosecution witness, when the
Court interrupted his questioning, holding that his cross - examination went beyond the
extent it could go at that particular stage of the main trial. In response, Kyprianou
declared that he stops his cross - examination, and he asked for leave to withdraw from
the case on the basis that the Court seemed to consider that he was doing his job properly
in defending the accused; his request was denied. At that point, Kyprianou protested that
the Court prevented him from conducting his cross - examination in an efficient manner;
Kyprianou alleged that while he was cross - examining the witness, the three members of
the Court were talking to each other and sending ‘ravasakia’ to each other.33

The Assize Court considered that the words spoken by Kyprianou, and particularly the
manner in which it was spoken, constituted contempt in the face of the court, and
suggested that the advocate should decide whether he wanted to insist on what he said;
Kyprianou replied that they could try him and argued that watching the small pieces of
paper going from one judge to another while he was cross – examining, deprived him
from any stamina to defend the accused. The Assize Court had a short break in order to
consider the matter, and upon returning announced that Kyprianou’s was unanimously
held guilty of contempt. The Court asked Kyprianou whether he had anything to add
before passing sentence on him, to which he responded that he was defending a very
serious case in a very tense atmosphere and felt that he was interrupted in his cross –

32
Criminal Case 7119/00 (in Greek).
33
Ravasakia is a Greek word, which can define either a short and secret letter, or a love letter, or even a
short written message with unpleasant results.

10
examination. After a short break, the Assize Court, by majority, sentenced the applicant
to five days imprisonment.

Kyprianou filed an appeal with the Supreme Court.34 Kyprianou challenged the
constitutionality of Section 44 § 2 of the Courts of Justice Law 14/1960, as amended by
Law 166/1987, which provided that when an offence of contempt is committed in full
view of the court, the court may take cognizance of the offence and sentence the offender
to a fine of seventy - five Cypriot pounds, or to imprisonment of up to one month, or to
both imprisonment and a fine.35 He argued that such provision was contrary to article 30
§ 2 of the Constitution of Cyprus, which safeguards the right to a fair trial; article 30 § 2
corresponds to article 6 of the European Convention of Human Rights. It was contended
that the Assize Court acted as both prosecutor and judge, as both witness and judge;
therefore, the court was not independent, nor impartial. Furthermore, the appellant
complained that he was presumed guilty as soon as he objected to the Assize Court’s
conduct, and that he was not informed in detail of the accusations against him.

The Supreme Court rejected all grounds of the appeal. The Court observed that the
appellant had created a tense atmosphere, and showed disrespect to the Assize Court,
both by words and conduct. By referring to English law of contempt, on which Cyprus
law is based, the Supreme Court held that the power of courts to punish contempt is
connected with the normal function of the courts, and its aim is the protection of judicial
institutions, which is essential in order to safeguard a fair trial. Section 44 § 2 of the
Courts of Justice Law was lawfully authorized by article 162 of the Constitution, and was
therefore, not unconstitutional. The appellant’s approach betrayed a fundamental
misunderstanding of the nature of proceedings for contempt in the face of the court, since
the judges are not parties to such proceedings; their objective is to safeguard the integrity
of the judicial system and not their persons.

34
Criminal Appeal n. 7065, Regarding the Issue of the Conviction of Michalakis Kyprianou for Contempt
of Court, 14 February 2001 (in Greek).
35
With respect to the Cypriot law of contempt prior to the Kyprianou judgment see S. Stavrinides,
‘Contempt of Court in Cyprus’ [1991] 2 Cyprus Law Tribune 167 (in Greek).

11
It should be noted that the Supreme Court referred in some length to the judgment of the
European Court in Ravnsobrg v. Sweden,36 and to the English Court of Appeal’s decision
in R v. MacLeod;37 the Supreme Court seems to have accepted that both of these cases
supported the view that article 6 of the European Convention did not contravene the right
of the judge to deal with cases of contempt in the face of the court. This point of view,
however, is not correct. MacLeod, as explained above, would seem to suggest that a
judge should not try summarily a case of contempt to which he was a witness, while in
Ravnsborg it was held that article 6 of the Convention did not apply, due to the fact that
the proceedings relating to the fines were not criminal. None of these authorities could
actually support the view adopted by the Supreme Court.

B. The Judgment of the European Court

Kyprianou eventually lodged an application with the European Court of Human Rights
against the Republic of Cyprus, alleging violations of article 6 and article 10 of the
Convention in relation to his conviction and imprisonment for contempt in the face of the
court.38 The applicant contended that he had not been heard by an impartial and
independent tribunal, in violation of article 6 §1, that he had been presumed guilty as
soon as he had objected to the Assize Court’s conduct, in violation of article 6 § 2, and
that the Assize Court failed to inform him in detail of the accusations against him, in
violation of article 6 § 3.

The Government submitted that there was no violation of article 6 of the Convention.
They argued that the proceedings for contempt in the face of the court in common law
jurisdictions are not adversarial, in the sense that one person is opposed to another; rather,
they concerned with the integrity of the judicial system, and as such they were an
indispensable element of a fair trial. Thus, the judges of the Assize Court were not acting
in their personal capacity in trying the applicant. Moreover, if contempt proceedings were
to be tried before a different bench, undesirable consequences would occur; the judges

36
Ravnsborg v. Sweden, Judgment of 23 March 1994, Series A, No. 283 – B; (1994) 18 EHRR 38.
37
R v. Calum Iain MacLeod, 29 November 2000, CA.
38
The complaints were declared admissible with the Admissibility Decision of 8 April 2003.

12
would have to testify and their credibility would have to be scrutinized by their peers.
Consequently, the very integrity of justice was at stake. Furthermore, the Government
submitted that the presumption of innocence of the applicant had been upheld, and that it
was sufficient that the applicant was informed of the offences with which he was
charged.

The European Court did not accept the submissions of the Cyprus Government.39 To
begin with, it was held that article 6 was fully applicable in the case, due to the criminal
nature of the offence, a fact which the Government had not disputed. As a result, the
Court ought to examine whether the Assize Court was an impartial tribunal, under article
6 § 1 of the Convention. According to the established case - law of the European Court,
there are two aspects to the requirement of impartiality; the tribunal must be impartial,
both from an objective and a subjective point of view. Thus, the tribunal must offer
objective sufficient guarantees to exclude any legitimate doubts;40 it must also be
subjectively free of personal prejudice or bias.41

In the Kyprianou case, the court which convicted the applicant was constituted by the
same judges, before whom the contempt was allegedly committed; this was enough to
raise legitimate doubts, which were objectively justified as to the impartiality of the
court. Moreover, the European Court did not accept the submissions of the Cyprus
Government that the judges were not acting in their personal capacity; it held that judges
are also human, and their personal feelings, as well as their perception and evaluation of
the facts, may interpret a certain type of behaviour as contempt in the face of the court.
The Court observed that there was an increasing trend in a number of common law
jurisdictions acknowledging the need to use a summary procedure in respect of contempt
of court sparingly, after a period of careful reflection and with appropriate safeguards.
Consequently, there was a violation of article 6 § 1 of the Convention; the European

39
App. 73797/01, Kyprianou v. Cyprus, Judgment of 15/12/2005 (first instance Kyprianou v. Cyprus,
Judgment of 27 January 2004).
40
See e.g. Sander v. United Kingdom, Judgment of 9 May 2000; (2001) 31 EHRR 1003, Hauschildt v.
Denmark, Judgment of 24 May 1989, Series A, No 154; (1990) 12 EHRR 266.
41
A tribunal is presumed to be free of personal prejudice or partiality. See Le Compte, Van Leuven and De
Meyere v. Belgium, Judgment of 23 June 1981, Series A, No 43; (1982) 4 EHRR 1.

13
Court considered that the confusion of roles between complainant, witness, prosecutor
and judge could self-evidently prompt objectively justified fears as to the conformity of
the proceedings with the principle that no one should be a judge in his or her own cause
and, consequently, as to the impartiality of the bench.

Furthermore, the European Court held there was a breach of the principles of impartiality
on the basis of the subjective test; the Court considered as proof of such lack of
impartiality, the eagerness of the judges to try the applicant summarily for the criminal
offence of contempt in the face of the court without availing themselves to other less
drastic measures, the severity of the punishment, and the observations of the judges that
their persons were insulted gravely. The Court was also not convinced that any defect in
the proceedings of the Assize Court was rectified on the subsequent appeal to the
Supreme Court, since the Supreme Court had declined to quash the decision, although it
had the power to do so. Consequently, there was a breach of article 6 § 1 of the
Convention, on the basis of both the objective and subjective tests.

At first instance, the European Court also found that there was a violation of article 6 § 2
of the Convention; it was held that the Assize Court had formed and expressed an opinion
during its discussion with the applicant, which amounted to a conclusion that it
considered him guilty of contempt in the face of the court. Therefore, the Assize Court
violated the principle of the presumption of innocence. The European Court also held that
there was a violation of article 6 § 3 of the Convention; the applicant was informed about
the nature and cause of the accusations against him, only after the Assize Court had
already formed its opinion that the applicant was guilty. In addition, the applicant was not
informed of the material facts which influenced the court’s decision, namely the
interpretation that the court chose for the word ‘ravasakia’, the court’s objections
regarding the applicants voice and his gestures to the court, and the fact that according to
the court’s view, the applicant had accused the court of restricting him, and of ‘making
secret justice’.42

42
Under the circumstances, the Court did not consider that it was necessary to examine separately whether
article 10 of the Convention had been also violated.

14
However, the Grand Chamber held that no separate issue arose under Article 6 § 2 or § 3
of the Convention. On the contrary, the Grand Chamber considered that a separate
examination of the Applicant’s complaint under Article 10 was called for, despite the fact
that such had not been examined at first instance. It was held that, albeit discourteous, the
Applicant’s comments were aimed at and limited to the manner in which the judges were
trying the case, in particular concerning the cross-examination of a witness he was
carrying out in the course of defending his client against a charge of murder.
Accordingly, the Court considered that the penalty imposed was disproportionately
severe on the applicant and was capable of having a "chilling effect" on the performance
by lawyers of their duties as defence counsel. The Court's finding of procedural
unfairness in the summary proceedings for contempt served to compound that lack of
proportionality. Thus, it was held that the Assize Court failed to strike the right balance
between the need to protect the authority of the judiciary and the need to protect the
applicant's right to freedom of expression. The fact that the applicant only served part of
the prison sentence did not alter that conclusion.

The Kyprianou judgment is of extreme importance for the law of contempt.43 Prior to
Kyprianou, the European Court had only dealt with the law of contempt in relation to the
right to freedom of expression; following Kyprianou, the law of contempt must be also
examined in relation to the right to a fair trial, under article 6 of the Convention, as well
as the right of freedom of expression of an advocate under Article 10 of the Convention.
The practice, whereby the judge deals with contempt in the face of the court - in the
narrow sense of the term - himself, must be completely abandoned, since it violates
article 6 § 1 of the European Convention. Such a violation will be found, even if the trial
judge is held to be subjectively unbiased; the fact that the judge who convicts the
contemnor is the same, before whom the offence was allegedly committed, is enough to
raise objective legitimate doubts as to the impartiality of the court.
.

43
A. Emilianides, ‘Contempt in the Face of the Court and the Right to a Fair Trial’ (2005) 13 European
Journal of Crime, Criminal Law and Criminal Justice 401-412.

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II. The Loucaides Case

Section 44 of the Courts of Justice Law 14/60 was amended by Law 36(I)/2009 following
the Kyprianou judgment.44 The amended provision 44 stipulates that while Cypriot courts
still have the power to punish for contempt committed in the face of the court, if the act
constituting the contempt is committed against the person of the judge, they cannot
adjudicate the matter personally, but they have to refer the matter, including the minutes
of the Court, to the President of the Supreme Court who may appoint another judge to
adjudicate the matter. The Court referring the matter to the President of the Supreme
Court should inform the alleged perpetrator of the act or words which constitute contempt
and of the penalties provided in the law (currently imprisonment for up to six months or a
fine not exceeding €768.87, or both imprisonment and a fine); if the alleged perpetrator
has apologized in a satisfactory manner, the Court may refrain from referring the matter.

If the judge appointed by the President of the Supreme Court in order to adjudicate the
offence, holds that an offence has been committed, before imposing penalty, he/she shall
balance between the need to safeguard the integrity of the judiciary on the one hand and
the right of freedom of expression on the other. Especially with regard to advocates,
Section 44 § 9 provides that words or behaviour by an advocate who appears before the
Court and examines or cross-examines witnesses, or expresses statements or arguments
on behalf of the party he/she represents, do not constitute a criminal offence, but could
only constitute a disciplinary offence; such provision aims at safeguarding both the
freedom of expression of the advocate, as well as the right to a fair trial of his/her client.

Supposedly this was the end of the matter, since the Cypriot legislator complied with the
ratio of the European Court of Human Rights’ judgment in Kyprianou, that no person
should be a judge of his own cause in contempt proceedings and further specifically
provided for the rights of advocates. However, a recent case gives rise to further

44
See also K. Ebeku, ‘Revisiting the Acquittal of 10 Policemen: Issues of Judicial Independence, Trial by
Media and Fair Trial in Cyprus’ (2010) 18 European Journal of Crime, Criminal Law and Criminal Justice
1-42.

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reconsideration of the law of contempt when applied against advocates. The former
Cypriot Judge of the European Court of Human Rights and currently advocate, Loukis
Loucaides, was considered by a Superior District Court Judge to have behaved and
expressed words in a manner giving rise to contempt in the fact of the court. The
aggrieved Judge referred the case to the President of the Supreme Court who appointed
the President of the District Court to adjudicate the case. Loucaides argued that the
President of the District Court had no jurisdiction to adjudicate contempt proceedings
against him; however, his objections were dismissed. Loucaides then filed an application
for a writ of certiorari before the Supreme Court of Cyprus.

The Judge of the Supreme Court Photiou granted a certiorari and quashed the contempt
proceedings.45 It was held that since Loucaides was representing a client in the
proceedings before the District Court, Section 44 § 9 of Law 14/60 precluded the
application of criminal proceedings of contempt; the matter should be examined by the
Disciplinary Board of the Cyprus Bar Association and accordingly the District Court
lacked jurisdiction on the matter. It was further considered that Section 44 § 8 of Law
14/60 explicitly provides that the President of the Supreme Court may appoint a judge to
adjudicate the alleged contempt in accordance with the procedure provided for in a
procedural regulation issued by the Supreme Court; since the Supreme Court had never
issued such procedural regulation, it was held that the appointment of the President of the
District Court by the President of the Supreme Court was not legally permitted, and that
accordingly, the President of the District Court lacked jurisdiction to adjudicate the
matter.

Conclusion

It is submitted that while the Kyprianou judgment had finally put to sleep the practice
that a judge can deal with contempt in the face of the court himself, the Loucaides
judgment has ensured that advocates are not to be subject to criminal contempt
proceedings for any acts or words expressed during representation of their clients; in such

45
Application 45/2011, Loukis Loucaides, Judgment of 16/5/2011 (in Greek).

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cases advocates are subject only to disciplinary proceedings by the appropriate
disciplinary body. In addition, in his decision to grant leave for an application of
certiorari, Judge Photiou had also considered additional parameters of the case, which, in
view of his conclusions, he did not consider necessary to finally pronounce upon.46 It was
noted that there is no prosecutor in contempt proceedings, and that the judge essentially
acts as both prosecutor and judge contrary to the fundamental principles governing a
criminal trial. In addition the trial was to be held in accordance with the minutes prepared
by the aggrieved judge which had been disputed by the accused; furthermore, the accused
did not have the right to cross-examine witnesses with respect to the facts supporting the
case against him. It is considered that these are serious issues which might influence the
manner in which the law of contempt is exercised by the courts, also in cases which do
not concern advocates.

In the past, the need to protect the judicial authority from any acts which interfere with
the due administration of justice would be considered as the primary focus of the law of
contempt; in a modern legal system, however, the protection of individual fundamental
rights is considered to be equally important. The law of contempt must take into
consideration the right of the accused to have a fair trial; in that manner

‘genuine respect, which alone can lend true dignity to our judicial establishment, will be
engendered, not by the fear of unlimited authority, but by the firm administration of the
law through those institutionalized procedures which have been worked out over the
centuries’.47

46
Application 37/2011, Loukis Loucaides, Judgment of 23/3/2011 (in Greek).
47
Bloom v. State of Illinois 391 US 94 (1968).

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