Cyprus: Supreme Court Decides On Acquittal And Right To Appeal

The need for clear and reliable guidelines to determine whether a first-instance criminal court judgment can be appealed arose in a recent application to the Supreme Court.1


The Supreme Court was called on to decide on two points of law arising from the judgment delivered by the Nicosia District Court in a private criminal case. The first-instance case had been brought by the applicant against the defendant (who subsequently became the respondent in the Supreme Court case) advancing charges of:

  • fraud in breach of Articles 29 and 300 of the Criminal Code; and
  • obtaining goods by false pretences in breach of Articles 29, 298(1) and 299 of the code.2

The first-instance court accepted the defendant's objection that the person bringing the case (the applicant in the Supreme Court proceedings) did not have the right to bring the private criminal prosecution, which concerned alleged wrongdoings against a company in which the applicant was a shareholder. It therefore dismissed the case.

The appellant initially applied to the first-instance court, objecting to the judgment on the grounds that it was erroneous on points of law and asking leave of the court to set out the facts and grounds on which its decision was based for the opinion of the Supreme Court regarding the following points of law:

  • If two individuals (A and B) hold 50% of the shares in a company (X) and B has committed a crime against X and abstracted assets belonging to X in favour of another company (Y) of which B is the sole shareholder, can A file a private criminal case against B for criminal wrongdoing against X which also affects A's rights?
  • In a private criminal case with facts similar to those described above, can the principles of derivative action proportionately apply in such cases? Namely, can they apply in cases where a company needs the consent of its shareholders in order to take any action if A advances a private criminal case as a complainant against B, given that the company itself is prohibited from advancing a private criminal case against the wrongdoer (ie, shareholder B), irrespective of the fact that A's rights have been directly affected?


These points of law were brought before the Supreme Court under the process set out in Article 149 of the Criminal Procedure Law,3 which provides as follows:

"(6) The Supreme Court shall consider and determine the question arising on the case submitted to it under this section and may-

  1. set aside, confirm or amend the decision in respect of which the case has been stated;
  2. remit the matter to the Judge with the opinion of the Supreme Court thereon;
  3. if the case stated related to an acquittal, itself convict and pass such sentence as ought to have been passed at the trial;
  4. cause the case to be sent back for amendment, in which case the same shall be amended accordingly and judgment shall be delivered after it shall have been amended;
  5. make such other order as justice may require."

Before examining the above questions, the Supreme Court raised the preliminary question of whether an application under Article 149 of the Criminal Procedure Law was ruled out by Article 131(2) of the Criminal Procedure Law, which provides that there should be no appeal from an acquittal except with the attorney general's written permission. The appellant responded that he had used the Article 149 procedure because the option of filing an appeal had been unavailable. In order to decide whether the option of filing an appeal had been unavailable in the circumstances of the case it was necessary to consider the first-instance verdict.

The appellant's argument in support of his position that an appeal had not been an available option was based on the fact that the phrase used by the first- instance court when dismissing the prosecution was "the defendant is dismissed". In the absence of explicit words saying that the defendant had been acquitted and dismissed, the appellant argued that he had not had the right to file an appeal by reason of the wording of Article 25(2) of the Courts of Justice Law, which provides that an appeal can be filed against an acquittal judgment, conviction or sentence imposed following a conviction.4

The Supreme Court rejected this argument. It stated that even though the word 'acquittal' was not explicitly used, the first-instance verdict was clearly a de facto acquittal and dismissal of the criminal case.5 Thus, the option of filing an appeal was available in that instance, confirming that Section 149 of the Criminal Procedure Law was not applicable under the circumstances. The Supreme Court also stressed that use of the Article 149 procedure would contravene Article 131(2) of the Criminal Procedure Law.


This decision provides essential clarity not only on an important procedural matter, which in a criminal case affects a person's freedom, but also on the strategy to be followed in such cases. By making an application under Article 149 instead of an appeal, the applicant not only lost the right to appeal, but also found his case dismissed by the Supreme Court without any examination of its substance.


1 Alexander Rubtsov v Dimitri Ivantchenko, Case 370, February 2 2018.

2 Cap 154.

3 Cap 155.

4 Law 14/1960.

5 The court referred to Attorney General of the Republic of Cyprus v Gavriel ao (2004) 2 JSC 596 and Kone v Flouri ao, Criminal Appeal 209/13, March 5 2015.

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