Case Summary and Outcome

The Grand Chamber of the European Court of Human Rights held Cyprus responsible for violating the European Convention on Human Rights after convicting a lawyer for contempt of court. The lawyer was sentenced to five days’ imprisonment after a court found that his cross-examination of a witness was contemptuous. After challenging the conviction in the domestic courts, the lawyer approached the European Court, which held that the conviction was disproportionate. The Court emphasized that the sanction would have a “chilling effect, not only on the particular lawyer concerned but on the profession of lawyers as a whole” and violated not only the lawyer’s right to freedom of expression but the client’s right to a fair trial [para. 175].

Facts

On February 14, 2001, Michalakis Kyprianou, a Cypriot lawyer, was interrupted during his cross-examination in a murder trial by the judges hearing the case. The judges – sitting in the Limassol Assize Court – indicated that: “We consider that your cross-examination goes into detail beyond the extent to which it should go at this stage of the main trial regarding questions” [para.17]. Kyprianou had more than forty years of experience and was a former member of the Cypriot House of Representatives and an advocate at the Office of the Attorney-General.

Kyprianou was offended and requested the Assize Court’s leave to withdrawn from the case, and after the parties’ interventions further escalated, the Court took a break and then sentenced Kyprianou to five days’ imprisonment for contempt of court. The Assize Court held that Kyprianou’s declarations attempted to create a climate of intimidation and that the penalty of imprisonment was the only adequate response to his gesturing and shouting to the Court’s members. Nonetheless, the president of the Assize Court emphasized that imposing a fine of 75 Cyprus pounds would have sufficed in the present case. After the hearing, Kyprianou was required to serve his sentence immediately but was released from custody before the completion of his term.

On February 15, 2001, Kyprianou filed an appeal to the Supreme Court arguing, inter alia, that sentencing a lawyer to the penalty of imprisonment must be reserved for the most severe cases and dire circumstances and that his statements during the hearing could not be regarded as contemptuous of the Court. On April 1, 2001, the Supreme Court dismissed the appeal, holding that sections 44(1) and (2) of the Courts of Justice Law 1960 and Article 162 of the Constitution confers on domestic courts an absolute discretion in convicting and punishing any person disrupting a judicial proceeding or refusing to comply with a Court’s order or judgment. The Supreme Court held that Kyprianou’s conduct amounted to contempt of court as per the wording of section 44(2) of the Courts of Justice Law of 1960.

On August 9, 2001, Kyprianou lodged a complaint with the European Court arguing that his conviction amounted to a violation of Articles 5 (Right to liberty and security), 6 (Right to a fair trial), 7 (No punishment without law), 10 (Freedom of expression), and 13 (Right to an effective remedy) of the European Convention on Human Rights. On January 27, 2004, a chamber of the Court delivered a judgment holding Cyprus responsible for the violation of Articles 6(1), 2, and 3(a) of the Convention while also establishing that it was not necessary to examine Article 10 of the Convention independently considering that “…the essential issues raised by the applicant had been examined under Article 6” [para. 149]. On April 19, 2004, the Government asked the Grand Chamber to hear the case, and on June 14, 2004, the Grand Chamber accepted Cyprus’s request.

Decision Overview

The Court delivered a majority judgment of eleven. Judges Bratza and Pellonpää, Judge Zupančič and Judges Garlicki and Maruste all delivered concurring judgments. Judge Costa delivered a partly dissenting judgment. The central issue for determination was whether the restriction of Kyrpianou’s freedom of expression through the conviction and penalties for contempt of court was necessary in a democratic society.

All parties accepted that convicting Kyprianou for contempt of court constituted an interference with his right to freedom of expression enshrined in Article 10(1) and that it was prescribed by law and pursued the legitimate aim of preserving the judiciary’s authority.

Kyprianou argued that the penalty of imprisonment was disproportionate considering the seriousness of the offense and his position as a lawyer. He submitted that “to impose a prison sentence on an advocate who had been promoting what he had perceived (rightly or wrongly) to be in his client’s best interests was likely to have a ‘chilling effect’ on the conduct of advocates in court” [para. 154]. He argued that other less severe measures were available that could have achieved the same result and so the penalty of imprisonment was not necessary in a democratic society, particularly as the incident had lasted minutes.

The Cypriot Government argued that lawyers’ freedom of expression within a courtroom could be restricted to preserve the judiciary’s authority. It maintained that the penalty of imprisonment was proportional to the insults and Kyprianou’s contemptuous conduct towards the Limassol Assize Court, and that the sentence respected the scope of the State’s margin of appreciation. The Government stressed that the penalty was decided upon due consideration of his former membership to the Cypriot House of Representatives and his former position as an advocate at the Office of the Attorney-General, and so, based on his professional profile, if Kyrpianou’s intemperate attack went unpunished he could have jeopardized the Assize Court’s authority.

The governments of the United Kingdom and the Republic of Ireland were admitted as third-party intervenors.

The Court emphasized that when determining whether a restriction is necessary it must ascertain if the interference responded to a “pressing social need” [para. 171]. States parties to the Convention are afforded a certain margin of appreciation in determining these social needs, but this must be exercised under European supervision. The Court asserted that “[i]n particular, the Court must determine whether the measure taken was ‘proportionate to the legitimate aims pursued’” [para. 171]. It also listed the fairness of the proceedings, the procedural guarantees and the nature and severity of the penalties as factors to be considered.

With reference to the case of Nikula v. Finland App. No. 31611/96, the Court noted that lawyers must be afforded more comprehensive protection due to their contribution to the administration of justice, as intermediaries between courts and clients and that, even if lawyers’ freedom of expression is not unlimited, it can only be restricted under certain circumstances to avoid constraining other lawyers’ right to express themselves freely. The Court held that “[t]he imposition of a custodial sentence would inevitably, by its very nature, have a ‘chilling effect’, not only on the particular lawyer concerned but on the profession of lawyers as a whole.” [para. 175]. It also noted that this chilling effect affects not only the lawyers’ rights to freedom of expression but also the client’s right to a fair trial.

The Court found that, even though Kyprianou did not complete his sentence, the penalty of five days imprisonment was disproportionate to the offense. The Court commented that Kyrpianou’s comments were expressed in the course of a murder trial in which he merely questioned the way the Assize Court was conducting the proceeding, notably the cross-examination of a witness. The Court also took notice of the fact that Kyprianou was required to serve his term immediately and that the Supreme Court dismissed his appeal.

Accordingly, the Court held that less restrictive measures were available to the Assize Court that could have achieved the same result and that there had been a violation of Article 10 as the Assize Court failed to balance Kyprianou’s freedom of expression as a lawyer with the need to protect the judiciary’s authority.

Judges Bratza and Pellonpää agreed with the majority on most counts except that there was subjective bias on the part of the Assize Court’s judges when sentencing the Applicant to five days’ imprisonment. The Judges stated that “the fact that the Assize Court took a different view of the gravity of the case – and one which was shared by the Supreme Court – cannot in our view serve as evidence of a lack of subjective impartiality on its part” [p. 52].

In his concurring opinion, judge Zupančič contributed to clarifying why a “personal involvement” on the part of a judge must be construed as a “negation of impartiality” [p. 53]. The Judge emphasized that “the legitimacy of legal truth-finding depends completely and totally on the legitimacy of the procedure followed by the courts … In legal matters, because it is impossible to ascertain a past historical event, the so-called ‘truth’ can easily, as it did in witch trials, become a self-referential and non-falsifiable myth” [p. 54].

In their concurring opinion, Judges Garlicki and Maruste added that lawyers do not represent themselves but the best interest of their clients in a courtroom and so their right to exercise their freedom of expression within a courtroom can be limited and must be assessed within such limitations. In this connection, judges Garlicki and Maruste asserted that Article 10 protects the form as well as the content of expression and that in “court proceedings it has always to be kept in mind that the form – choice of pleadings, strategy, and manner of presentation of arguments – is always essentially dependent upon the defendant’s defense position, and only secondly upon lawyers’ personal preferences, etc” [p. 58].

In his partly dissenting opinion, Judge Costa admitted he was hesitant to find a violation of Article 10 and to attach importance to the leading judgment Nikula v. Finland, which was cited by the majority several times. Judge Costa commented that freedom of expression was only the backdrop to this case since the parties’ submissions dealt primarily with defense rights, but as freedom of expression is one of the cornerstones of democracy, he agreed it was pertinent for this case to emphasize lawyers’ right to have their freedom of expression guaranteed and protected within a courtroom. For these reasons, Judge Costa supported the other judges’ opinions on holding Cyprus responsible for violating Article 10 of the Convention, even if the chamber of the Court that examined the case before found no infringement of such right.