International Law

Northern Cyprus, Applying ECJ Judgments in National Courts and Claims of Bias in Case C-420/07

By Bartolus

Here's a very unusual and odd case which the English Court of Appeal had to deal with recently. In Meletios Apostolides v. Orams and Orams, the Court of Appeal had to decide whether or not a judgment of the Court of Justice should be applied or not when one of the parties to the national proceedings made the allegation that the President of the Court of Justice was apparently (not actually) biased and should have recused himself.

The Court of Justice had handed down its judgment in Case C-420/07 Meletis Apostolides v David Charles Orams and Linda Elizabeth Orams, referred by the English Court of Appeal, on whether Regulation No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters applied to a judgment given by a Cypriot court sitting in the area of the island effectively controlled by the Cypriot Government, but concerning land situated in areas not so controlled (Northern Cyprus).

As a consequence of that judgment, the proceedings resumed before the English courts. But then, surprise, counsel for the respondents in the national proceedings (including, incidentally, Ms Cherie Booth, the wife of the former British Prime Minister, Tony Blair) submitted, amongst other things, that President Skouris, who presided over the Grand Chamber formation that handed down the judgment in Case C-420/07, was apparently biased and should have recused himself. As a result, the respondents claimed the English courts should take no account of the Court of Justice's ruling.

The respondents claimed President Skouris was apparently biased, but not actually biased, because he had received and met with Cypriot judges and parliamentarians, because he had attended a dinner at which the President of Cyprus was present and gave a speech, because he had attended a conference organized by the University of Cyprus and also because he had received an honour conferred upon him by the President of Cyprus. All that, according to the respondents, created an "insuperable problem" of apparent bias.

The Court of Appeal examined each allegation made in some detail. It came to the firm conclusion that President Skouris was not in any position to be biased. Lord Justice Pill concluded roundly:

"As President of the court, the President can be expected to wish to promote knowledge of the court and its workings in Member States, and in particular new Member States. Making official visits and receiving visiting delegations is a valuable and appropriate part of the office of President. That approach is likely to be reciprocated by Member States, including new Member States. Further, any commendation of the Republic of Cyprus in the presence of the President must be seen in the context of numerous international instruments calling for respect for its territorial integrity and independence. In that context, commendation is of the sovereign entity as a whole.
In my judgment, no appearance of bias arises from the visit of the President, together with other judges, to Cyprus in May 2005. [...] No appearance of bias arises from the political nature of a speech said to have been made by the President of Cyprus during the visit. There is no suggestion that the President adopted or approved the sentiments expressed. The same applies to the President of Cyprus's speech when the honour was conferred on the President in November 2006. The reasonable informed observer would have no fears that the remarks might influence the President or other judges in their judicial capacity. Nor does the fact that the honour was conferred by a Head of State, rather than by a head of the judiciary, create a fear that the President might be influenced in his judicial capacity. Such honours will normally be conferred by the Head of State and concern based on a distinction between executive and judicial honours (Bangalore 38(d)) has little relevance.
The purpose of the President's visit to Cyprus in February 2009 was to attend a conference organised by the University of Cyprus. Neither his presence, nor the company he kept, creates an appearance of bias in the President of the judicial organ of the Union which is concerned to promote in Member States of the Union understanding of its role. His meeting, in March 2009, with a delegation of Cypriot MPs to discuss the role of the court does not demonstrate an attempt by the delegation to influence the President, still less does it create an appearance that he may be influenced by the delegation. It was the role of the court that was under discussion and not political issues or particular cases.
The present case was to be decided, and was decided, by a Grand Chamber according to legal principles. The perception of the reasonable and informed observer would be, as is my perception, that there was no real possibility that the President would be influenced by the honour he received or by his other contacts. The judgment of the court is in no way tarnished by those contacts, considered either individually or cumulatively. The judgment may be applied and no further reference is appropriate."

Full post as published by EU Law Blog on February 21, 2010 (boomark / email).

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