PRIVATE LAW SECTOR Private law is a range of rules that regulate legal relations among individuals who do not exercise state power. It is perhaps the broadest area of law, including Civil law, Family law, Commercial law and Labour law. The Republic of Cyprus, in addition to exercising its state power (acta jure imperii), also acts as an individual (fiscus) by participating in private transactions (acta jure gestionis). Disputes arising from the private activity of the State are resolved by the civil courts, where the Republic of Cyprus is represented by the Attorney General of the Republic of Cyprus, in accordance with Article 57 of the Law on Courts (Law 14/60). The Private Law Sector of the Law Office of the Republic of Cyprus has primarily, the responsibility of engaging in proceedings before courtw in relation to disputes that fall within its scope, initiated by and against the State. District Courts adjudicate at first instance all civil disputes such as claims, general and specific applications, referrals, and arbitrations with the exception of cases that fall within the jurisdiction, of the Rental Control Court, the Labour Court and the Family Court which also fall within the domain of private law and are heard in other courts. In addition to court proceedings, lawyers in the Private Law Sector are asked to consult the State by providing opinions and assist in the resolution of private disputes of the State by out-of-court settlement on matters that fall within its scope. The cases brought against the State, concern a variety of issues such as breach of contractual obligations, civil wrongs, such as medical negligence, malicious prosecution, trespass, nuisance, breach of human rights, labour law disputes, family law disputes, claims deriving by Turkish Cypriots claiming property rights, claims for compensation for remittance against the State, determination of compensations due to property acquisition and judicial review of the Director of the Department of Lands and Surveys. Private Law sector, also represents the State in various European and International Committees/Forums and Cooperation networks such as thw European Judicial Network a.o.. Reference is made below to some of the main issues handled by the Private Law sector and to the Civil Procedure rules which apply in such court disputes. The Law Office of the Republic has actively taken part to the proposed reform of the rules, through the Head of the sector, Mrs Theano Mavromoustaki Senior Counsel of the Republic of Cyprus who is a member of the Rules Committee and a facilitator during the lawyers training. CIVIL PROCEDURE RULES The current Civil Procedure Rules were introduced in the 1950s. Since then several attempts have been made to review them, but they did not materialize into anything concrete. The Backlog of cases increased sharply, the system was collapsing and could not cope with the increasing demands of the economy and society. The Supreme Court, in its Report in 2016, codified the difficulties of the Courts and managed to secure Technical Assistance from the European Commission for their reform. One of the projects undertaken was the review of the Civil Procedure Regulations which urgently needed a fundamental revision. The group of experts drafting the recommended Rules was led by Lord Dyson, who had a close contact with the eleven-member Rules Committee appointed by the Supreme Court, consisting of Judges, a representative of the Attorney’s General Office, lawyers and a Registrar. A public consultation was arranged, and several lawyers from private practice as well as ordinary citizens sent their views. The Dyson Rules proposed by the team, which were drafted in English, were completed, and submitted to the Supreme Court in June 2019. The Supreme Court accepted the proposed Regulations, thus paving the way for the Rules Committee to review and oversee the translation of the Rules from English to Greek. To ensure that the Rules are reviewed and updated on an annual basis, a suggestion will be placed before the Supreme Court that the Rules Committee be evolved into a Permanent Rules Committee. The modernisation of the Rules of Civil Procedure will improve the efficiency of the justice system and the speedy trial of disputes. Civil Procedure Rules: http://www.cylaw.org/cpr.html Proposed Regulations: http://www.supremecourt.gov.cy/judicial/sc.nsf/All/710FF654395AF83EC22586610042B97F/$file/FULL%20VERSION%20CPR%2014.12.2020.pdf CIVIL WRONGS Negligence: The law on civil wrongs includes amongst others negligence. Negligence constitutes the breach of duty of care, which is one of the elements of the aforementioned offense. What constitutes of an act or omission as negligent determined on the circumstances of each case. During the determination of such duty, it is examined whether a duty of care exists, whether such duty has been breached, who bares the burden of proof, if a causal link exists between the harm suffered and the act or omission and the available remedies which the party suffered is entitled to. Medical Negligence: The legal framework regulating medical negligence is defined, amongst others, by article 51 of Civil Liability Statute, Cap 148, as amended, which deals with negligence in general and by the Protection of Patients’ Rights Law of 2005, L.1(I)/2005 which provides for the patients’ rights. Medical negligence is constituted by an act or omission the ordinary skilled man exercising and professing to have that special skill, wouldn’t’ have done. The Republic of Cyprus as the employer of the doctors/nurses in public hospitals, curries vicarious liability for the act or omission of the aforementioned personnel. According to article 113 of the Constitution and in compliance with Courts Law, L.14/1960, as amended, Cyprus Republic is represented by the Attorney General. The Law on Civil Wrongs (Cap. 148) http://www.cylaw.org/nomoi/enop/non-ind/0_148/full.html The Protection of Patients’ Rights Law of 2005, L.1(I)/2005 http://www.cylaw.org/nomoi/enop/non-ind/2005_1_1/index.html Contracts: The Sector of Private Law of the Attorney General’s office also handles cases for breach or protection of rights, or for compensation/damages, which emanate from contracts that the State draws up with third parties. The contractual duty which arises from the terms of such contracts, regulates the relationship of the parties, determining their obligations and rights The Law on Contract (Cap. 149) http://www.cylaw.org/nomoi/enop/non-ind/0_149/full.html IMMOVABLE PROPERTY MATTERS The State is involved, either directly or indirectly, in matters affecting immovable property which fall within the realm of private law. The most important of these are the following: A. Determination of Compensation due to Compulsory Acquisition and Requisition As it is known, the deprivation of immovable property is possible through the acquisition process in accordance with the provisions of Article 23(4) of the Constitution and the Law on Compulsory Acquisition 15/62 (as amended). The State is also entitled to requisite immovable property in accordance with the provisions of Article 23(8) of the Constitution and the Law on Requisition 21/62 (as amended). Unless the legality of administrative acts of the acquisition and requisition is challenged and/or if they are ultimately deemed lawful by the Court, what remains to be determined is the compensation to be received by the owner and/or any other person affected by the affected immovable property. In case of disagreement as to the amount of compensation, it is resolved by the competent District Court, as a Special Court for Determining Compensation. In the case of acquisition, the remedy by which the proceedings begin determining compensation is the Referral Notice and the whole process is governed by the Compulsory Compensation Procedure Regulation of 1956 and, in part, by the institutions of Civil Procedure. As part of the process, the Court is called upon to decide the amount of the fair and equitable compensation based on the principles of Section 10 of the Law 15/62, but also the principles that are developed by case law. In case of a requisition, the remedy by which the proceedings begin the determination of compensation is the claim for compensation and the whole procedure is governed by the Notification of Compensation Claim for Purposes of Defence Regulations and the General Court Compensation for Defence Purposes Regulations. In the context of this procedure, the Court is required to decide the amount of compensation payable for the requisition of the immovable property based on the provisions of Section 8 of the Law 21/62, as well as guidelines developed by case law. Article 23 of the Constitution http://www.cylaw.org/nomoi/enop/ind/syntagma/section-scae7c7805-d311-9aa8-10d7-c658273cc114.html Law on Compulsory Acquisition 15/62 (as amended) http://www.cylaw.org/nomoi/enop/non-ind/1962_1_15/full.html The Compulsory Acquisition Regulation of 1956 http://www.cylaw.org/nomoi/kanon/non-ind/1956_1151/full.html The Law on Property Requisition 21/62 (as amended) http://www.cylaw.org/nomoi/enop/non-ind/1962_1_21/full.html The Notification of Compensation Claim for Defense Purposes Regulations The General Court Compensation Regulations Β. Decisions of the Director of the Department of Lands and Surveys The Department of Lands and Surveys is the competent Department in which all the procedures relating to the rights governing immovable property are carried out. The Director of the Department of Lands and Surveys, exercising the powers provided by the legislation, and mainly the Immovable Property (Tenure, Registration and Valuation) Law, Cap 224 (as amended), but also the Law on Transfer and Mortgage 9/65 (as amended), may influence private interests in real estate with the decisions it makes. Relevant Legislation: The Immovable Property (Tenure, Registration and Valuation), Cap 224 http://www.cylaw.org/nomoi/enop/non-ind/0_224/full.html The Immovable Property (Transfer and Mortgage) Law 9/65 (as amended) http://www.cylaw.org/nomoi/enop/non-ind/1965_1_9/full.html The decisions of the Director are considered as simulated decisions of a court at first instance, which are subject to review by the competent District Courts under Sections 80 of Cap 224 and 51 of Law 9/65. The remedy by which a person affected by the Director's decision in the District Court can be appealed is called an Application/Appeal and the procedure is governed by the Immovable Property (Tenure, Registration and Valuation) Law of 1956. Relevant Legislation: The Immovable Property (Tenure, Registration and Valuation) of 1956 http://www.cylaw.org/nomoi/kanon/non-ind/1956_622/full.html In the context of this procedure, the Court may examine both the legality and the validity of the Director's decision, having the power not only to ratify or annul it, but even to amend the decision if it deems it fair. C. Procedure based on Section 67 of the Town and Country Planning Law 90/72 Section 67 of the Law on 90/72 enables the owners of immovable property, who are affected by planning decision taken under this law and there is material decrease of the economic value of immovable property, may claim compensation by reference to Court. The procedure to be followed by the person claiming compensation under section 67 of Law 90/72 is provided for in the (Compensation) Regulations of 1990 (KDP 56/90). Relevant Legislation: The Law on Town and Country Planning Law 90/72 http://www.cylaw.org/nomoi/enop/non-ind/1972_1_90/full.html Town and Country Planning (Compensation) Regulations (KDP 56/90) http://www.cylaw.org/KDP/data/1990_1_56.pdf The claim for compensation based on section 67 of Law 90/72 is raised with a lawsuit in the competent District Court and in order for a compensation to be awarded, a ‘’material economic decrease’’ of the economic value of the immovable property must be proved. The rules of assessment under section 10 of the Law on Compulsory Acquisition 15/62 are taken into consideration for the compensation. Labour Law: A Labour dispute, is the dispute that arises between the employer and the employee founded on the terms and/or conditions of the employment. Despite the fact that labour disputes derive from the private sector, the terms of employment of public employees (with the below mentioned designated contracts) are determined according to their contracts and subject to the respective legislative provision in place, hence there are also associated with private law. The cases include amongst others contracts of indefinite duration or fixed term contracts, contract of services, contracts of the government with hourly employees and matters that arise due to equal treatment between male and female employees. Guidance on the issues raised can be found in Cypriot legislation, case law and through the European Regulations, Directives and case law from the EU Court of Justice. Relevant legislation: The Termination of Employment Law 1967 (Law 24/1967) http://www.cylaw.org/nomoi/enop/non-ind/1967_1_24/full.html The Laws on Annual Leave with Remuneration of 1967 (Law 8/1967) http://www.cylaw.org/nomoi/enop/non-ind/1967_1_8/full.html The Law on the Regulation of the Employment of Indefinite Employees and Fixed-Term Employees in the Public Sector (Law 70(I)/2016) http://www.cylaw.org/nomoi/enop/non-ind/2016_1_70/full.html The Law on Secondment of Indefinite Employees of The Public Sector and Public Law Organizations of 2019 (Law 99(I)/2019) http://www.cylaw.org/nomoi/enop/non-ind/2019_1_99/full.html The employees with fixed term employment (Prohibition of Discriminatory Treatment) Law of 2003 (Law 98(I)/2003) http://www.cylaw.org/nomoi/enop/non-ind/2003_1_98/full.html The part time employees (Prohibition of Discriminatory Treatment) Law (Law 76(I)/2002) http://www.cylaw.org/nomoi/enop/non-ind/2002_1_76/full.html The Equal Treatment of men and women in Occupational Social Security Plans Law of 2002 (Law 133(I)/2002) http://www.cylaw.org/nomoi/enop/non-ind/2002_1_133/full.html The Equal Treatment of men and women in employment and vocational training Law (Law 205(I)/2002) http://www.cylaw.org/nomoi/enop/non-ind/2002_1_205/full.html The Convention for the Revision of the Convention of the Protection of Maternity (Revised) (Ratification) Law of 2004 (Law 54 (III)/2004) http://www.cylaw.org/nomoi/arith/2004_3_054.pdf The Protection of Maternity Law of 1997 (Law 100(I)/1997) http://www.cylaw.org/nomoi/enop/non-ind/1997_1_100/full.html The Protection of Wages Law of 2007 (Law 35(I)/2007) http://www.cylaw.org/nomoi/enop/non-ind/2007_1_35/full.html Department of Labour Relations, Ministry of Labour, Welfare and Social Insurance, relevant law and regulations http://www.mlsi.gov.cy/mlsi/dlr/dlr.nsf/page17_gr/page17_gr?OpenDocument Legal Aid Legal aid is a public funding that provides necessary help for those who cannot afford the cost of legal services. When an application of legal aid is filed, a notification to appear, is given to the Attorney General, who is the legal advisor of the State. Leave is granted by the Court, only if the circumstances of the application fall within the Scope of the Legal Aid Law and provided that a socioeconomical report, prepared by the Social Welfare Office, justifies it. According to Article 3 of Law 165 (I) of 2002 on Legal Aid, as amended, free legal aid is provided for proceedings that fall under Articles 4, 5, 6, 6Α, 6Β, 6C, 6D and 6Ε of the Law. In particular, an application for legal aid is approved if it falls under the following proceedings: · Article 4. Criminal Proceedings · Article 4A. European Arrest Warrant Proceedings · Article 5. Proceedings for a Human Right Violation · Article 6. Proceedings before a Family Court · Article 6A. Legal Aid to Cross Border Cases · Article 6B. Legal Aid to Applicants and Persons entitled to International Protection · Article 6C. Legal Aid to Illegal Residents, Citizens of third countries · Article 6D. Legal Aid to Victims of Human Trafficking and to Children-Victims of solicitation for sexual purposes, child pornography, child sexual exploitation and/or abuse · Article 6E. Legal Aid for the proceedings concerning the sale of a mortgaged property · Article 6F. Legal Aid to European Union’s citizens and to their family members Relevant Legislation: Law 165 (I) of 2002 on Legal Aid http://www.cylaw.org/nomoi/indexes/2002_1_165.html Procedural Regulations on Legal Aid (i) of 2003 http://www.cylaw.org/nomoi/kanon/indexes/2003_3.htm Family Law The issues that pertain to Family Law and are handled by the Law Office of the Republic of Cyprus, concern the child as an individual, its best interests and the safeguard of its rights. The cases heard before the Family Court, in which the Attorney General is a party to the proceedings are: A. Matters relating to Parental Responsibility Parental Responsibility cases concern applications for the removal of parental responsibility in its whole or in part from both parents by the Director of Social Welfare Services and its assignment to the Director or to a person authorised by the Director according to the Law on Parent and Children Relations of 1990, No. 216/ 90 and its amendments, always guided by the best interests of the child, namely, any physical, material, spiritual, mental, moral interest. Examples that arise from the abusive exercise of parental care, such as, physical and mental abuse of the child, refusal of consent to emergency medical treatment, preventing the child from pursuing studies that correspond to the child’s inclinations and abilities, and using the child’s property for self-serving purposes. Also cases that concern, purely objective inability, and weaknesses to exercise parental responsibility, for reasons that cannot be controlled by the parents, such as an incurable disability or death. Relevant Legislation: Law on Parent and Child Relations of 1990, No. 216/90 Law on the Children (Relative and Legal Status) of 1991, No. 187/1991 B. Abduction The Convention on the Civil Aspects of International Child Abduction, drafted in Hague on the 25th of October 1980, ratified by the Ratification Law of the Convention on the Civil Aspects of International Child Abduction Law 11(ΙΙΙ) of 1994. Additionally, after the accession of Cyprus to the European Union, the EU REGULATION 2019/1111 OF THE COUNCIL of June 25, 2019, is in force, regarding matters of international child abduction. The Minister of Justice and Public Order is the Central Authority of Cyprus for the purposes of the Convention and is represented in Court by the Attorney General’s Office, as the authorised party by the parent-applicant. The object of the convention is to secure the prompt return of children – up to the age of 16 years - wrongfully removed to or retained in any Contracting State, and to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States. The Court’s Decision concerns only the wrongful removal or retention of the child. The Court decides only whether the child will return to the place of its habitual residence and shall not decide on the merits of rights of custody. Relevant Legislation: Convention on Civil Aspects of International Child Abduction concluded in The Hague on 25 October 1980. EU REGULATION 2019/1111 OF THE COUNCIL of June 25, 2019 https://eurlex.europa.eu/legalcontent/EL/TXT/PDF/?uri=CELEX:32019R1111&from=DE C. European Regulation (EC) no. 4/2009 – Matters relating to maintenance The Attorney General of the Republic of Cyprus represents the Minister of Justice and Public Order as the authorised party by the parent-applicant before the Family Court, in cases concerning European Regulation (EC) no. 4/2009, and aim at the effective and immediate security of maintenance. Τhe Hague Convention Protocol of 2007 determines the law applicable to maintenance obligations. Namely, a judgment on maintenance that is issued by a Member State may be enforced in all Member States. Pursuant to Article 41 of the European Rules of Procedure, enforcement of judgments given in another Member State is governed by the law of the Member State of enforcement. Article 40 of the Law on Parent and Child Relations of 1990, No. 216/90, determines the procedure by which maintenance orders can be enforced as monetary fines in accordance with the provisions of the Law on Criminal Procedure Rules or any other law that repeals or amends it (Summons 124 (A) of the Criminal Procedure Rules, Chapter 155). Relevant Legislation: EC Regulation 4/2009 and the Hague Protocol of 2007 Various other cases Since 2013, various cases concerning claims deriving from the financial crisis were filed and are now heard before the Courts. They mainly concern depositors who lost their deposits or holders of banking products the value of which was diminished. Also, there is a large number of cases claiming breach of human rights due to acts of the Government. Guidance is derived from ECHR jurisprudence and the Constitution of Cyprus and the Convention on Human Rights. As mentioned above, what is described in this document in only part of what private law includes and reference cannot be made to all cases handled by tis section of the Law Office.