’ fi The Role of the Cyprus Attorney General s Of ce in Prosecutions: Rhetoric, Ideology and Practice Despina Kyprianou The Role of the Cyprus Attorney General’s Office in Prosecutions: Rhetoric, Ideology and Practice DrDespinaKyprianou Cyprus [email protected] [email protected] ISBN978-3-642-01920-3 e-ISBN978-3-642-01921-0 DOI10.1007/978-3-642-01921-0 SpringerHeidelbergDordrechtLondonNewYork LibraryofCongressControlNumber:2009928620 #Springer-VerlagBerlinHeidelberg2010 Thisworkissubjecttocopyright.Allrightsarereserved,whetherthewholeorpartofthematerialis concerned,specificallytherightsoftranslation,reprinting,reuseofillustrations,recitation,broadcasting, reproductiononmicrofilmorinanyotherway,andstorageindatabanks.Duplicationofthispublication orpartsthereofispermittedonlyundertheprovisionsoftheGermanCopyrightLawofSeptember9, 1965,initscurrentversion,andpermissionforusemustalwaysbeobtainedfromSpringer.Violationsare liabletoprosecutionundertheGermanCopyrightLaw. Theuseofgeneraldescriptivenames,registerednames,trademarks,etc.inthispublicationdoesnotimply, evenintheabsenceofaspecificstatement,thatsuchnamesareexemptfromtherelevantprotectivelaws andregulationsandthereforefreeforgeneraluse. Coverdesign:WMXDesignGmbH,Heidelberg,Germany Printedonacid-freepaper SpringerispartofSpringerScience+BusinessMedia(www.springer.com) Tomyfamily Foreword Attorney General, Republic of Cyprus It is with great pleasure that I foreword the book of Dr Despina Kyprianou’s for manyreasons:ThefirstoneisthatbooksonanyareaofCyprusLawisparticularly welcomed as there are limited studies which focus on this field and reveal the singularitiesandspecialfeaturesofCyprusLaw.Thesecondoneisthatthisbookis abouttheAttorneyGeneral’sOffice,anofficethatIhaveservedforalmostthirty- five years and have personal knowledge of its crucial role not only regarding prosecutionsbutalsoregardingawide varietyofotherlegalissues. Thethird and most important reason is that this is an excellent work and a thought-provoking contribution to our understanding of the Role of the Cyprus Attorney General’s OfficeinProsecutions.ThelastreasonthatIamveryhappytocommendthisstudy isthefactthat,afewyearsago,IwastheonethatgrantedaccesstotheLawOffice forDrKyprianou’sresearch.Thepublicationofthishighlyinformativebookisthe bestconfirmationthatIwasrightindoingso. The Republic of Cyprus was established as an independent sovereign republic with a presidential regime on 16 August 1960, when its Constitution came into forceandBritishsovereigntyoverCyprusasaCrownColonyceased.Thepostof the Attorney General, which existed throughout British rule, was retained by the Constitution and has been recognised as one of the great offices of the State. The AttorneyGeneral,aswellastheDeputyAttorneyGeneralwhoservesonthesame terms,isappointedbythePresidentoftheRepublicfromamongpersonswho are qualifiedforappointmentasJudgesoftheSupremeCourt.Heholdsofficeunderthe same terms and conditions as a Judge of the Supreme Court and is not removed fromofficeexceptonthelikegroundsandinthelikemannerassuchJudgeofthe Supreme Court. He is the Head of the Law Office of the Republic, which is an independentofficeandisnotunderanyMinistry. Among the other roles that the Attorney General is entrusted with, the Constitution recognises him as the head of the prosecution system with ‘power exercisableathisdiscretioninthepublicinterest,toinstitute, conduct,takeover, vii viii Foreword and continue or discontinue any criminal proceedings for an offence against any person in the Republic’ (Article 113.2 of the Constitution). It is true that the prosecutorial power and the discretion that is afforded to the Attorney General is wideanditisalsocorrect,asDrKyprianouremarks,thatasfarasprosecutionsare concerned, the Attorney General’s role in the process appears broader and more multifarious than that of his counterpart in England and Wales. However, the constitutional position of the Attorney General and his independent status, unlike thepoliticalnatureoftheequivalentpostinEnglandandWalesandotherCommon Law Jurisdictions, as well as the terms of his appointment, constitute important safeguardsfortherightexecutionofhispowers. DrKyprianou’sbook,interalia, makes asignificantcontributiontothediscus- sion of this argument, since it provides a comprehensive account of the legal framework regarding the role of the Attorney General’s Office in prosecutions, whilehighlightingthesingularitiesofitsstatus.Furthermore,basedonuniqueand originaldata,itdescribesthedevelopingfunctionsandpowersoftheOfficethrough timeandthewaythesepowersareexecutedinpractice.Thebookplacesparticular emphasisupontheworkloadoftheLawOfficeanditsrelationshipwiththepolice, the role it acquires during investigations and its role in the formulation and application of prosecution policies and principles. Dr Kyprianou organises and analyses her data with skill, drawing conclusions which I am certain that they will be of interest not just to scholars, but to all lawyers and practitioners in the field.ThesearethereasonsthatIcommendthisbookwholeheartedly. February2009 MrPetrosClerides AttorneyGeneraloftheRepublic Foreword Reader, Law School, University of Warwick IfirstbecameawareofDespinaKyprianou’sresearchontheprosecutorialfunction of the Attorney General of Cyprus, when invited to examine her thesis on this subject which had been presented to the University of London for the degree of PhD. I opened the thesis with some interest, since, like many English lawyers, I knew something of Cyprus’s recent troubled history but little about its legal system. The research, based on an extensive ethnographic observation within the Attorney General’s Office and detailed interview with former incumbents of that office, provides a fascinating insight into the operation of small legal system emergingfromcolonialrootsanddevelopingitsowndistinctivecharacter. The study will be consulted within Cyprus by lawyers and others wishing to understandtheprosecutionprocessandwillnodoubtbethefirstpointofreference of future Attorney Generals. However, its impact will not be restricted to that jurisdiction. The work embodies a valuable addition to comparative socio-legal studiesandwilladvanceunderstandingofthemannerinwhichhistorical,political andideologicalfactorsshapetheformandfunctionsofprosecutionsystems. I am delighted to hear that Dr Kyprianou’s work is to be published as a monographandIamgreatlyhonouredtobeassociatedwithitinsomemodestway. February2009 RogerLeng Reader LawSchool UniversityofWarwick ix Preface In all criminal justice systems there is a public prosecuting authority which, on behalfofthesocietyandinthepublicinterest,isresponsiblefortheprosecutionof alleged offenders. As expected, the particular status and the exact functions and powersoftheseauthoritiesarenotidenticalinallcountries,sincetheyarerootedin the legal and political culture of the jurisdictions in which they are found. The ConstitutioninCyprus,whilerecognisingtherighttoprivateprosecutions,entrusts the Attorney General with the overall responsibility for all prosecutions and with verybroadpowersintheexecutionofhisfunctions. However, the exact parameters of the broad role of the Attorney General have not been specified in detail in respect of a series of issues including (a) the categories of cases that he is closely dealing with (in contrast to the rest of the cases where he only exerts an overall control); (b) the specific powers exercised regarding them (and specifically the extensive role the Attorney General acquires during investigations); (c) the criteria/policies applied and the formulation of policiesforotherprosecutingagencies. Therefore,thecentralobjectiveofthisbookhasbeentodevelopourknowledge andunderstandingoftheroleoftheCyprusAttorneyGeneral’sOfficeinprosecu- tions, an undertaking lamentably neglected so far on both the theoretical and the empiricallevel.Onamoregenerallevel,though,itishopedthatthisstudywillalso shed light on the choices of the Cyprus prosecution system in some of the most debatable issues regarding prosecutions in many jurisdictions. Questions concerningthedesirabilityofprosecutorsandpolicehavingamoreclearlyhierar- chical constitutional relationship; the giving of direct investigatory functions to prosecutors;theretentionbythepoliceofthepowertofiltercasesoutofthesystem withoutanycontrolfromtheprosecutingauthorities;andtheinstitutionresponsible forformulatingtheprosecutionpolicyinthejurisdictionhaveconstitutedthemost controversial topics ofdiscussion among academics and practitioners and are still included in the reform agenda of various commissions. Cyprus prosecutorial arrangements make up a system which reflects the influence of the English legal model during its early development, but one which has been refined according to xi xii Preface localneedsandhasalsoincorporatednumerouscharacteristicsassociatedwiththe inquisitorialratherthantheadversarialtradition This book is mainly based on my PhD thesis, submitted to the University of London(LSE)inDecember2006.Thecompletionofthisresearchprojectneededthe support and encouragement of many people and, therefore, there is a long list of peoplethatIowethanksto.Firstofall,Iwouldliketothankmydoctoralsupervisor, ProfJillPeay,notonlyforherconstantsupportandvaluableguidancebutalsoforher patience and understanding when family emergencies delayed the progress of my research.IwouldalsoliketoexpressmythanksandappreciationtoDrRogerLeng, of University of Warwick and Dr Mary Vogel, of University of London (King’s College), my doctoral external examiners, for their constructive comments on my thesisandthefascinatingdiscussionwehadduringmyvivavoceexamination. IalsoexpressmygreatgratitudetotheCommonwealthScholarshipCommission and the British Council who generously funded my research and invested their moneyinaprojectmostlyrelatedtoaforeignjurisdiction.Thanksarealsoowedto A.G.LeventisFoundationfortheirfinancialcontributiontoadditionalexpensesof theproject. Thisstudywouldnothavebeenpossiblewithoutthecooperationofthepeople I‘researched’:LawOfficers,andalsotheadministrativestaffattheLawOffice,as well as police officersand defence lawyers who Iinterviewed, allhave been very kind and helpful throughout the whole project, despite their lack of any previous experiencewithsimilarresearchstudies.Iamindebtedtotheserving–atthetime ofmyfieldwork–AttorneyGeneralMrMarkides,aswellastotheothertwopost- holders,MrTriantafyllidesandMrNikitas,whoservedofficebeforeandafterMr Markides, respectively. Mr Markides gave me permission to carry out research at his office and all of them agreed to be interviewed and share with me their knowledge and great experience. Very special thanks are owed to Mr Clerides, the Deputy Attorney General at the time of my main research, who is the present Attorney General of Cyprus. An empirical study – including observation and interviews - was something totally new not only for the Law Office but also for anybranchoftheCypruscriminaljusticesystem.MrClerideswasthefirstperson thatopenedthegatesoftheLawOfficeformyresearch,supportedthisproject,and, certainly,mademytimeattheLawOfficemucheasier. ThehelpofallmyteachersandfriendsatLSEisgreatlyappreciated,aswellas thatofmyteachersandfriendsattheLawSchooloftheUniversityofThessaloniki andtheInstituteofCriminologyoftheUniversityofCambridge.Icertainlyowea specialmention,alongwithmygratitude,toProfNicolaLaceyandProfAngelika Pitsela. In London, Nick Foundoukos, Siew Moh Wong, Olympia Mitaftsi, Jerry Liang, Miguel Castro, Spyros Messomeris, Michalis Foundoukos and Michalis Kritikos, have been valuable friends that supported me all the way. In Cyprus, Xenis Xenophontos, Katie Polycarpou, Maria Marda, Kleio Xatzigianni, Athina Papamichael, Despina Lambrou, Loukia Samata, Polina Efthivoulou, Neophytos Demosthenous and Angelos Kyratzis tolerated my nagging and offered their encouragementwhenIwasdesperate! Preface xiii Inturningmythesisintoabook,theassistanceofMrsAnkeSeyfriedofSpringer Publications, as well as the helpfulness and support of many new friends and colleagues, is greatly appreciated and the insightful comments of Mr Efstathios Efstathiouare,asalways,valued. Finally,mybiggestdebtistoallmyfamily and,aboveall,myparentsandmy brother. Only they and I know how much they have sacrificed in order for me to realisemydreams.Idedicatethisbooktothem,asaverysmallcompensationforall that this research project took from them: most importantly, my ability to stand constantlybythemwhentheyreallyneededme. May2009 DrDespinaKyprianou