Excessive Formalism as a Breach of Article 6 ECHR
Article 6 of the European Convention on Human Rights (ECHR) guarantees the right to a fair trial, which includes the right of access to a court. The European Court of Human Rights (ECtHR) has repeatedly warned against excessive formalism in domestic procedures. While procedural rules serve vital functions—ensuring legal certainty, equality of arms, and efficiency—the Court has held that when courts adopt a disproportionately rigid approach, they risk undermining litigants' access to justice.
In Zubac v. Croatia (2018), the Grand Chamber made clear that excessive reliance on formality, especially where it prevents judicial examination of the merits of a claim or appeal, may violate Article 6. Likewise, in Savvidis v. Cyprus (2021), the Court found a violation where an appeal was dismissed solely because the title of the appeal form did not include the correct reference to the "Family Court of Appeal"—a minor irregularity that did not prevent the court registry or the parties from understanding the nature of the appeal.
The guiding principle is that procedural rules must not be transformed into barriers that defeat substantive justice. Where formal defects do not prejudice the opposing party, legal certainty, or the proper administration of justice, rejecting a claim or appeal on such grounds amounts to disproportionate formalism contrary to Article 6.
The Culture of Formalism in Cyprus
Cyprus, operating for decades under the pre-2023 Civil Procedure Rules, often displayed a strict adherence to procedural technicalities. Even minor drafting errors in pleadings or appeals could prove fatal to a litigant's case. This formalistic culture, while aimed at consistency and order, carried the risk of shutting the door of the court for reasons unrelated to the merits of a dispute.
The Remedy: New Cyprus Civil Procedure Rules (2023)
The new Civil Procedure Rules (CPR), in force since September 2023, have introduced a structural shift towards substantive justice over procedural technicalities, explicitly reflecting the jurisprudence of the ECtHR.
- Part 1 (Overriding Objective) requires courts to deal with cases justly, at proportionate cost, and in ways that ensure access to justice.
- Part 3.8 empowers courts to correct procedural errors. It provides that:
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- a procedural error does not automatically invalidate the step taken, unless the court so orders;
- the court may issue orders to rectify the defect; and
- annulment of a procedural step will only occur if the error is serious and cancellation is necessary in the interests of justice, considering the overriding objective.
Case Law under the New Rules
Recent appellate decisions confirm the practical application of these principles:
- In Zurab Jincharadze v. CBR Capital Ltd (E39/2019, 12.9.2024), the Court stressed its power under Part 3.8 to cure irregularities where justice so required, noting that even late or careless applications for amendment should be allowed if fairness is served.
- In Robert Mucinic v. Sky CAC Ltd (E1/2019, 7.6.2024), the application was filed on the correct Form 34, but the section setting out the relief sought was left blank. The Court acknowledged this as a procedural defect but held that it did not affect the essence of the application or prejudice third parties. Applying the Overriding Objective and Part 3.8, the Court refused to strike out the application, thereby ensuring that substantive justice prevailed over technical omission.
- By contrast, in Miltiades Neophytou Civil Engineering Contractors & Developers Ltd v. Municipality of Paphos (E5/2018, 16.1.2024), the Court dealt with an application filed using the wrong form (not Form 34). Even in this scenario, the Court adopted a pragmatic approach and preserved the proceedings, again emphasising that rigid proceduralism must give way to the fundamental aim of fair access to justice.
- Similarly, in A.G. Paphitis & Co LLC (112/2023, 22.9.2023), the Court avoided striking out an application filed with technically inappropriate forms, reasoning that the application contained all necessary information and did not prejudice any party, thus falling within the scope of Part 3.8.
Conclusion
The evolution of Cypriot civil procedure reflects a clear alignment with Strasbourg jurisprudence. The old culture of strict formalism is being replaced with a flexible, justice-oriented approach under the new CPR. By empowering courts to cure procedural defects and emphasising the overriding objective, the new rules act as a safeguard against violations of Article 6 ECHR.
In this way, Cyprus courts are now better equipped to strike the right balance between procedural order and the fundamental right of access to justice.
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