Article 155. 4 of the Constitution provides exclusive jurisdiction to the Supreme Court to issue prerogative writs including certiorari and prohibition. The nature and limits of this jurisdiction stem from the principles of English Law as emphasized by the Supreme Court in its decisions during the exercise of that authority. In Cyprus, privileged orders are limited to the field of Private Law, in contrast the privileged orders in England are expanded and to the field of Administrative Law.
Particularly, the aim of Certiorari is the legal framework of lower courts (District Courts) to be examined by the Supreme Court. Nevertheless, certiorari cannot be used as a tool to review the procedure or the practice followed by the lower court nor to check the correctness of a decision, but only the decision's legality. As for Prohibition, its purpose is to terminate an order issued by a lower court which has no jurisdiction to issue. It is worth noting that the Supreme Court has granted this exclusive power so that the legitimacy of the courts decisions is ensured.
Certiorari is a court process where a higher court (the Supreme Court in Cyprus) examines the decisions or the orders of a lower court about legality. On the contrary, prohibition aims to prevent the lower court from proceeding further to the adjudication of a case. However, rarely the Supreme Court has granted an order of Certiorari or Prohibition since it is not common for lower courts to have acted in such a way that have met the required conditions.
Certiorari as well as prohibition orders can be issued in relation to both, criminal and civil cases.
Process for Certiorari or Prohibition in Cyprus
In terms of process, it is a prerequisite that the Applicant first applies requesting the permission of the Supreme Court for the submission of an application requesting the issuance of a Certiorari or Prohibition privileged order, except when applying for the prerogative order of habeas corpus. At this stage the applicant must satisfy the Supreme Court that it has a "prima facie case or a debatable issue" in order to secure the permission. The Supreme Court will not grant permission to the applicant to proceed with its certiorari / prohibition application in case there is an alternative remedy available to the Applicant; especially when the Applicant could appeal or object the order. If the Supreme Court grants leave for certiorari or prohibition, it will then proceed with examining whether the decision of a lower court should be annulled or not.
In terms of timing for submission, there are no regulations in place with respect to deadline for submission of any kind of prerogative writs in Cyprus. Therefore, in the absence of such regulations, each case should be considered in its own context, and as a result the court may refuse to grant leave for certiorari/prohibition if there is unjustified and long delay. For this reason, the application must be submitted as soon as the circumstances allow.
Reasons for filing a certiorari or prohibition order in Cyprus
Generally, the main reasons for which such privileged orders are issued could be identified in Cyprus case law. The Supreme Court may issue a privileged order where:
- There is obvious lack of jurisdiction by the district court
- Ultra vires on the district court (i.e. acted beyond its power)
- Error of law apparent on the face of the record
- Prejudice or interest by the judge who issued the order
- Courts decisions taken either by intention or perjury
- Violation of the Natural Justice Rules
Some examples from relevant case law where the Supreme Court of Cyprus annulled orders of lower courts with certiorari/prohibition or grant the leave for certiorari/prohibition are where:
- The urgency of issuing an interim order was not proved as the order was postponed for 3 weeks for service without justified reason (Valentina Theophanous (2010) 1A CLR 234);
- Applicant was not given the opportunity to be heard; therefore, there was a violation of the Natural Justice Rules (Victor Korovel and others (2007) 1 CLR 1221);
- Failure to serve or notify the parties about the proceedings (?piphaniou Andreas (2010) 1 CLR 1682);
- Ultra vires and error of law apparent on the face of the record (CAC CORAL LIMITED (2020) CLR 204).
On the other hand, the Supreme Court did not grant leave for certiorari/prohibition or the orders were not annulled where:
- Another remedy was available; the applicant may have filed an appeal or objection (?nthimou (1991) 1 CLR 41).
- During an interim order process, the district court issued a decree absolute because the lawyer representing the respondent failed to appear on time; thus there were no exceptional circumstances to grant leave of certiorari (Hellenic Bank Ltd (2004) 1C CLR 1438).
- It was argued by the applicants that the orders had drastic effects on their clients' business operations; nevertheless, it was not considered to constitute exceptional circumstances in order to grant leave for certiorari (Starport Nominees Ltd (2010) 1? CLR 1271).
- Although leave for certiorari was granted, due to an alleged violation of the Natural Justice Rules that the Applicant was not given the right to be heard because the lower court did not allow her lawyer to finalise its closing speech, upon examination of the case merits the Supreme court rejected the request for certiorari on the ground that the lawyer's failure to finalise its closing speech does not oblige the court to adjourn the case to a new date so that the lawyer may finalize the speech. As a result, the court dismissed the application. (PJSC T PLUS (2020) CLR 27).
In conclusion, undoubtedly the prerogative writs and especially the certiorari/prohibition constitutes exceptional cases for achieving annulment of an order; it is nevertheless a very significant tool for the parties to succeed annulment of a lower court decision provided that any of the above-mentioned grounds can be proved.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.