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The Mixed Legal System of the
Republic of Cyprus
Symeon C. Symeonides"
Cyprus---a county with a recorded history that spans eight millennia, the last two of
wich are marked by long periodsof foreign occupation-hasa legal system whose diversity
reflects that history Because the United Kingdom was Cypruss most recent foreign ruler,
Cyprus has received and retainedmost of the essential elements of the English common law
tradition, especially in the areasofprocedure and methodology However, Cyprus has also
retained significant elements of Roman-Byzantine law and Ottoman land law, and since
winning its independencein 1960, has borrowedheavily from GreekandFrench administrative
law,andpubliclaw in general With accession to the European Unionscheduled forMay 2004,
Cyprus has also harnonizedits public andprivate law with that of the Union. Thus, in the
course of the last four decades, the Cypriot legal system has gmdualfy moved closer to the
Continental cM law traditin, although it remains very much a 'nixed" system not unlike
many of the other systems discussedin this issue of the Review. Tis Aiicle provides a brief
historicalbackgroundanda basicintroductionto thissystem.
I.
INTRODUCTION .............................................................
44 1
II.
BEFORE INDEPENDENCE ............................................
443
A.
FromAntiquiiy to the End of the HellenisticPeriod
B.
(58 B .C ) ...................................................
443
The Roman-ByzantinePeriod(58 B. C-1191A.D.) .........
443
C
D
The Franco-Venetian Peiod(1191-1571) .........................
445
The Ottoman Period(1571-1878) ...............................
446
E.
The BritishPeriod(1878-1960) ...................................
447
HI. AFTER INDEPENDENCE (1960) .....................................
449
IV
A.
TransitionandAnglicization.....................................
449
B
Remixing and Ciiization ...................................
450
THE DIVERSITY OF CYPRIOT LAW: PROBLEMS AND
OPPORTUNITIES ................................
I....................................
453
I.
INTRODUCTION
Voltaire once said that, in traveling from one end of France to
the other, one changed laws as often as one changed horses. He was
describing the diversity of French laws and customs during the pre*
Dean and Professor of Law, Willamette University College of Law; LL.B.
(Private Law), LL.B. (Public Law), University of Thessaloniki (Greece); LL.M., S.J.D.,
Harvard Law School. The author acknowledges the constructive comments of Ms. Eleni
Symeonidou, a Cypriot Barrister.
442
TULANE LA WREVIEW
[Vol. 78:441
revolutionary era when Roman law prevailed in the south, Germanic
law prevailed in the north, and regional or local customs occasionally
displaced both laws. That diversity was eliminated at the beginning
of the nineteenth century with the enactment of the Code Napoleon
and the other four French-based codes.
Cyprus is too small a country (less than 5000 square miles) to
have geographically dispersed legal diversity.' However, Cyprus has a
different type of legal diversity-by subject matter. Paraphrasing
Voltaire, one could say that in Cyprus one changes laws as often as one
changes subject matter. Indeed, the law of Cyprus resembles the
beautiful mosaics that adorn so many of its ancient Byzantine
churches 2-it is a colorful plurilegal mosaic. It is so diverse in terms
of sources, legal traditions, and applications as to be insusceptible of
being neatly classified as a member of either the common law or the
civil law legal families. It is a prime example of what is known as a
"mixed" legal system.' Nevertheless, it is a decidedly European legal
system.
As is the case with many other countries, this diversity is born out
of Cyprus's tortured political history, a history that spans eight
millennia,' the last two of which are marked by long periods of foreign
occupation. This report does not purport to provide even a brief sketch
of this history Rather, it peruses with lightning speed the last two
1.
Cyprus is the third largest island of the Mediterranean, after Sicily and Sardinia.
Since 1974, the northern thirty-seven percent of Cyprus has been under Turkish military
occupation. This report does not discuss the legal regime of the occupied area during this
period.
2.
For the legal adventures of one such set of mosaics, see Symeon C. Symeonides,
On the Side of the Angels.- Choice ofLaw and Stolen CulturalProperty,in PRIVATE LAW IN
THE INTERNATIONAL ARENA 747 (Jurgen Basedow et al. eds., 2000) (discussing a case
involving the recovery in an American court of mosaics that were stolen from the Turkishoccupied part of Cyprus and then sold to an Indiana art dealer in Switzerland).
3.
For the many definitions of, and literature on, mixed legal systems, see William
Tetley, Mixed Juis&ctions: Common Law v Civil Law (Codifiedand Uncodiied),60 LA.
L. REv. 677, 684 (2000).
4.
Cyprus's recorded history begins in the sixth millennium B.C. See VASSOS
KARAGEORGHIS, EARLY CYPRUS: CROSSROADS OF THE MEDITERRANEAN (2002).
5.
For readings on the history of Cyprus in the English language, see, inter alia,
DoRos ALASTOS, CYPRUS N HISTORY:
A SURVEY OF 5,000 YEARS (1955); KATIA
HADJIDEMETRIOU, A HISTORY OF CYPRUS (Costas Hadjigeorgiou trans., 2002); GEORGE HILL,
A HISTORY OF CYPRUS (2d prtg. 1949-1972) (1940-1948); VASSOS KARAGEORGHIS, CYPRUS:
FROM THE STONE AGE TO THE ROMANs (1982); CosTAs P KYRRIS, HISTORY OF CYPRUS (1985);
FRANz MAtER, CYPRUS FROM THE EARLIEST TIMES TO THE PRESENT DAY (1968); STAVROS
PANTELI, A NEW HISTORY OF CYPRUS: FROM THE EARLIEST TIMES TO THE PRESENT DAY
(1984); A.T. REYES, ARCHAIC CYPRUS: A STUDY OF THE TEXTUAL AND ARCHAEOLOGICAL
EVIDENCE
(1994);
CONSTANTINOS SPYRIDAKIS, A BRIEF HISTORY OF CYPRUS
(1974). See also
2003]
REPUBLIC OFCYPRUS
443
millennia in an effort to provide a modest historical background for
understanding today's Cypriot law.6
II.
BEFORE INDEPENDENCE
A.
FromAntiquity to the End of the HellenisticPeriod(58B.C.)
The first known settlements on Cyprus date back to the sixth
millennium B.C., but our knowledge about the legal institutions of
ancient Cyprus is incomplete, at least until the middle of the second
millennium B.C.7 At that time, Achaean Mycenaeans colonized
Cyprus and brought with them their laws and customs.' Before the
end of that millennium, Cyprus was completely Hellenic, and the
Cypriot city states maintained close relations with the city states of
mainland Greece, especially Athens.9 One example of these relations
is the fact that the Cypriot kingdom of Aepia commissioned the
Athenian lawmaker Solon to draft its laws. One can safely assume
that, throughout the first millennium B.C., the laws of Cyprus were
no different than those in mainland Greece. At the same time, given
Cyprus's geographic position adjacent to the Middle East, one should
not rule out the possibility of Phoenician and Egyptian law influences
on Cypriot transactional law.
B.
The Roman-Byzantine Period(58B.C -1191 A.D)
With the Roman conquest of Cyprus in 58 B.C., Cyprus
followed the same fate as Greece, which had succumbed to the
CLAUDE BAURAiN, CHYPRE ET LA MEDITERRANEE ORIENTALE AU BRONZE RECENT: SYNTHIESE
HISTORIQUE (1984).
6.
For an extensive discussion of this subject and for all the necessary
documentation, the reader is referred to SYMEON SYMEONIDES, INTRODUCTION TO CYPRIOT
LAW (Univ. of Thessaloniki Press 1977), reprintedin PHOCION FRANCESCAKIS ET AL., DROITE
COMPARE [COMPARATIVE LAW] 347-482 (1978). Hereinafter all references are to the latter
publication. For other general readings on the law of Cyprus, see LouKIs LOUCAIDES, TopiCs
OF CYPRIOT LAW (1982) (in Greek); ANDREAS NEOKLEOUS, INTRODUCTION TO CYPRUS LAW
(2000); GEORGE PiKs, ASPECTS OF CYPRIOT LAW (1981) (in Greek); CRITON G. TORNARJTIS,
CYPRUS AND ITS CONSTITUTIONAL AND OTHER LEGAL PROBLEMS (2d ed. 1980); ANDREAS
NICOLA LOIZOU & GEORGE MICHAEL PIKJS, CRIMINAL PROCEDURE IN CYPRUS (1975); ZAIM
M. NEDJATI, ADMINISTRATIVE LAW (1974); Erik Jayme & Symeon Symeonides, Zypern, in
INTERNATIONALES EHE- UND KINDSCHAFTSRECHT 1 (Bergmann & Feid eds., 6th ed. 1989).
For a comprehensive discussion of the international status of the Republic of Cyprus, see
KYPROS CHRYSOSTOMIDES, THE REPUBLIC OF CYPRUS:
A STUDY IN INTERNATIONAL LAW
(2000). For a comprehensive bibliography on Cyprus, see PASCHALIS M. KITROMILIDES &
MARIOS L. EVRIVLADES, CYPRUS (1982).
7.
See HADJIDEMETRIOU, supm note 5, at 5-29.
8.
See id at 32.
9.
See id at 36.
444
TULANE LA W REVIEW
[Vol. 78:441
Roman legions almost a century earlier, in 146 B.C.'" With the
Roman legions came Roman law, as in the rest of the Empire. With
the separation of the Empire into east and west in 330 A.D., Cyprus
became a province, or Thema, of the Eastern Empire and remained
subject to Roman-Byzantine law for at least twelve centuries."
The Roman-Byzantine law of Cyprus is preserved in a thirteenthcentury manuscript that bears the interesting title Hellenic Laws.2
Although this particular manuscript was written during the Frankish
period, it was a copy of an earlier manuscript of the Byzantine period.'3
The Hellenic Laws were a simplified version of Byzantine substantive
and procedural law intended for the use of the Episcopal Court of the
Cypriot district of Arsinohe-Paphos."' They contained provisions of
family and succession law, as well as agricultural and maritime law.'5
The manuscript was written in Greek with several elements of the
Greek Cypriot dialect, which suggests that the author was a Cypriot. 6
The Hellenic Laws bear some resemblance to the Hexabiblos of
Harmenopoulos,which was written in the Greek city of Thessaloniki
about fifty years later and which played a significant role in the
preservation of Byzantine law during the period of the Ottoman
occupation in Greece.
The Episcopal Courts of Cyprus functioned as voluntary arbitral
tribunals for the resolution of disputes among Christians well before
the official christianization of the rest of the empire in the year 330
A.D.' 7 In that year, Emperor Constantine recognized these tribunals
and accorded their judgments the same executory force as those of the
secular courts.' 8 Episcopal Courts adjudicated disputes from the whole
spectrum of private law, although their jurisdiction depended on the
consent of both parties.'9 Emperor Justinian later increased the
importance of these courts by granting them a supervisory role over
the administration of justice by secular courts." Towards the end of the
10.
See idat 94.
11.
See id at 110.
12.
See
ACHILLEUS AIMILIANIDES, THE "HELLENIC LAWS" OF CYPRUS AND THE
"HEXABIBLOS" OF ARMENOPOULOS (1951).
13.
See SYMEONIDES, supm note 6, at 348-50.
14.
Id
15.
Id
16. Id
17. See CRToN ToRNARTs, THE ECCLESIASTICAL CouRTS ESPECIALLY IN CYPRUS
(1976), available athttp://www.Kypros.org/Documents/Tomaritis/docs/eccles.html.
18.
See SYMEONIDES, supra note 6, at 350-53.
19.
Id
20.
Id.
REPUBLIC OFCYPR US
2003]
445
Byzantine period, the jurisdiction of the Episcopal Courts was
separated from that of the secular courts, with the former retaining
compulsory jurisdiction over all matters of family law and personal
status while also continuing to function as voluntary arbitration
tribunals for other matters of private law.2' The Episcopal Courts
managed to survive all of the subsequent foreign occupations and to
preserve the Roman-Byzantine law of Cyprus well beyond the end of
the Byzantine era."
C
The Franco-Venetian Period(1191-1571)
The Byzantine period was succeeded by a period of Frankish
domination (1191-1489)3 and then Venetian domination (14891571).24 Although both the Franks and the Venetians undertook an
intensive campaign to suppress and/or assimilate the Cypriot
Orthodox population,25 they did not succeed in uprooting the local
Roman-Byzantine law. Their failure in this regard can be attributed
to the following reasons.
The first reason was that the law the Franks imported to Cyprus,
notably the crusaders' Assizes ofJerusalem (1189), now renamed the
Assizes of Jerusalem and Cyprus, was in large part based on RomanByzantine law, with a few adjustments for local conditions. 6
The second reason was that the Franks adhered to the principle of
personality (as opposed to territoriality) of the laws, which for certain
subjects allowed different ethnic groups to be governed by their own
law." For example, the Assizes provided that "from whichever law is
21.
Id.
22. Id
23. The Frankish period was preceded by a brief interlude during which Cyprus was
ruled by England's King Richard Coeur de Lion. He then sold Cyprus to Frank, Guy de
Lusignan, King of Jerusalem. See PETER EDBURY, THE KINGDOM OF CYPRUS AND THE
CRUSADES, 1191-1374 (1991); EXCERPrA CYPRIA: MATERIALS FOR A HISTORY OF CYPRUS
(Claude Cobhan trans., Kraus ed. 1986) (1908). For the Lusignan period, see LouiS DE MAS
LATR1E, HiSTOIRE DE LISLE DE CHYPRE SOUS LE RtGNE DES PRINCES DE LA MAISON DE
LUSIGNAN (Paris 1861).
24.
The last queen of the Lusignan dynasty, Catherine Cornaro, ceded Cyprus to
Venice in 1489. See LATRE, supranote 23, at 435.
25.
See MILTIADES B. EFTHIMIOu, GREEKS AND LATINS ON CYPRUS IN THE THIRTEENTH
CENTURY 26, 79-87 (1987); Nicholaos Svoronos, Questions sr ]a Situation Socia/e et
Juridique des Grecs Chyprotes Pendant ]a Domination Franque, 15 INT'L CONGRESS OF
BYZANTiNE STUDIES (1976).
26.
See SYMEONIDES, supranote 6, at 354.
27.
See id at 360.
446
TULANE LA WREVIEW
[Vol. 78:441
the defendant, from that law must be the evidence and the witnesses
because it is so provided in the imperial law."28
Finally, the third reason for the preservation of Byzantine law was
the continuing existence and functioning of the Episcopal Courts.8
Despite official efforts to minimize their role, these courts retained
their compulsory jurisdiction over family law disputes between
Orthodox Cypriots."° More importantly, these courts retained and
expanded their role as arbitration tribunals to which litigants
voluntarily resorted for other private law disputes." In both their
official and unofficial functions, the Episcopal Courts applied RomanByzantine law and thus contributed immensely to the preservation of
that law until the end of the Venetian period. 2 By that time, RomanByzantine law had completed fifteen centuries of continuous and
uninterrupted existence in Cyprus. Very few other European countries
can claim a longer record.
D
The Ottoman Period(1571-1878)
More than a century after conquering Constantinople, in 1571,
the Ottoman Turks conquered Cyprus. Thus began the Ottoman
occupation, which lasted for three centuries. For the purposes of this
Article, the Ottoman period can be divided into the following two
sub-periods.
1. The first sub-period, from 1571 to 1839, is characterized by
the implementation of harsh measures to consolidate the Ottoman
occupation. One of these measures was the massive introduction of
Islamic law, which replaced the Assizes.4 The only area of Cypriot
law that Islamic law did not displace was the law of personal status
over which the Orthodox Church of Cyprus retained exclusive lawmaking and judicial jurisdiction. 5 The Episcopal Courts continued to
function as courts of compulsory jurisdiction for status matters and as
voluntary arbitration tribunals for other private law matters." In both
categories of cases, these courts continued to apply Roman-Byzantine
law.
28.
29.
30.
31.
32.
33.
34.
35.
36.
For documentation and Greek original, see id.at 360.
See id. at 357-60.
Id
Id.
Id at 361.
See id.at 361-69.
See id at 366-68.
See id. at 369.
See id at 369, 372-73.
20031
REPUBLIC OFCYPR US
2. The second sub-period, from 1839 to 1878, is characterized by
a series of legal and administrative reforms brought about by a
convergence of both internal and external forces. 37 Among the legal
reforms was the introduction to Cyprus of certain Ottoman imperial
laws based on European models, such as the Commercial Code of
1850, the ImperialPenal Code of 1858, the Maitine Code of 1863,
the Ottoman Land Code of 1858, and the Ottoman Civil Code
(Medjelle) of 187638
The first three codes were based on
corresponding French codes. They remained in force in Cyprus until
1930, 1928, and 1960, respectively. 9 The last two codes adopted the
style and structure of a Continental code, but their substantive
solutions were derived from Islamic law.4" The Medjelle remained in
force in Cyprus until 1930, while the Land Code remained in force
until 1946.' Even thereafter, however, the latter code continued to
govern real rights acquired before that year.
Thus, by the end of the Ottoman period, one could say that,
because of the above reforms, many sectors of Cypriot law had begun
to reapproach European law. Yet, one is reminded of the difference
between the law in the books and the law in action. In a confidential
memo sent to the London Foreign Office at the end of the Ottoman
period, the British Consul of Cyprus said: "In Cyprus, it is not the
laws that are bad, but the way in which they are applied.' "3
E.
The BritishPeriod(1878-1960)
The Turkish rule over Cyprus ended in 1878 when, by the Treaty
of Constantinople of June 4, 1878, Turkey ceded Cyprus to Britain.
Britain annexed Cyprus in 1914. The Britons began a gradual
replacement of Ottoman law with English law, which they completed
in 1935. 4' For this reason, the British period can be divided into two
sub-periods, pre- and post-1935.
From 1878 to 1935, Ottoman law remained generally in force,
except in cases in which it was specifically replaced by English law."
However, Ottoman law was applied by English judges, trained in the
common law and following the English procedure that had already
37.
38.
Seeid at 369-74.
See id at 373.
39.
40.
Seeid at 373-74.
Id.
41.
42.
Id.at 374.
4 HILL, supra note 5,at 26.
43.
44.
See SYMEONIDES, supranote 6, at 375-82.
See id.
at 375-76.
448
TULANE LA W REVIEW
[Vol. 78:441
been introduced in 1882. 4" This was a very interesting phenomenon
because all too often these judges resorted to English law to fill the
real or imaginary gaps of Ottoman law.
English law officially replaced Ottoman law as the general and
residual law of Cyprus in 1935.46 Cyprus became a member of the
common law family as of that year. In addition to the common law,
Cyprus was now subject to all of the special British colonial
legislation, as well as those statutes of the British parliament that were
4
of "general" (as opposed to local) charactery.
However, this should not
give the impression that the 1935 law brought to Cyprus all of the real
or perceived advantages of a well-developed, democratic legal system
or that it succeeded, or even tried, to eliminate the diversity of sources
that comprised the law of Cyprus.
With regard to the first matter, it suffices to say that the British
never introduced the jury system for either civil or criminal trials in
Cyprus.48 In addition, through a series of special statutes, the British
authorities ensured that the Cypriots would be specifically denied
some of the most fundamental rights enshrined in the common law.
Examples of such statutes are the Subversive Publications Laws of
1921 and 1932, the Censorship Law of 1932, and the Detention of
Persons Laws of 1955-59.
With regard to the second matter, legal diversity was not
eliminated, inter alia, because:
1. Ottoman law was partly preserved: (a) by retaining in force
the Ottoman Land Code and the Maitime Code (which was at least
partly French); and (b) by recognizing the jurisdiction of the Moslem
Religious Courts to adjudicate pursuant to their law matters of
personal status of the Muslim inhabitants of the island;5' and
2. Byzantine law was preserved through the recognition of the
jurisdiction of the Episcopal Courts and the law-making authority of
the Orthodox Church for matters of personal status of the Greek
inhabitants.5
45. See id. at 377-80.
46. See id. at 388 (providing the text ofthe statute).
47. See id. at 386-94.
48. Seeid.at 389-90.
49. See id.
at 390.
50. See Courts of Justice Law, 1953, CAP. 8, § 34 (Cyprus), reprintedin Jayme &
Symeonides, supra note 6, at 34.
51.
See Courts of Justice Law, 1953, CAP. 8, § 44 (Cyprus), reprintedin Jayme &
Symeonides, supra note 6, at 36.
REPUBLIC OFCYPRUS
2003]
449
More importantly, even some of the statutes that the colonial
authorities enacted during this period increased rather than decreased
the diversity of Cypriot law. For example, two statutes, one on contract
law and the other on the sale of goods, were supposed to be
codifications of the English common law in those respective areas.
However, strangely-but not
This was true to some extent.
surprisingly-these statutes also contained elements of Indian,
including Hindu, law. Why? Because they were copies of "codifica3
tions" undertaken in India, another British colony, a few years earlier.
Understandably, therefore, the use of Hindu or at least Indian sources
became necessary in the interpretation of these laws." Similarly, the
law of intestate succession drew from provisions of the Italian Civil
Code,5 while the law of horizontal ownership of buildings was based
on a corresponding Greek statute.56
Thus, for better or worse, even by the end of the British period,
Cypriot law was neither entirely English nor entirely unified.
(1960)
III.
AFTER INDEPENDENCE
A.
TransitionandAnglicization
With the founding of the Republic of Cyprus in 1960, Cyprus
had its first opportunity in centuries to decide the future of its legal
system. Of the many options that were available under such
circumstances, the 1960 Constitution chose the most practical one.
Article 188 of the Constitution provided that the laws that applied to
Cyprus in 1960 would remain in force to the extent they did not
contravene the Constitution, and until replaced by new laws. In the
meantime, the pre-1960 laws were to be interpreted consistently with,
Thus, the
and when necessary adapted to, the Constitution."
52. See SYMEONIDES, supranote 6, at 391-93.
53. See id
54. See id at 391-92; Eliades v. Petrides, 1 C.L.R. 5, 13 (1972) (Cyprus); Cyprus
Agricu. & Transp. Co. v. Attorney Gen., 1 C.L.R. 267 (1971) (Cyprus); Papadopoulou v.
Polykarpou, 1 C.L.R. 352, 356 (1968) (Cyprus).
55. See Tano v. Tano, 9 C.L.R. 100, 112-14 (1910) (Cyprus); SYMEONIDES, supra
note 6, at 414.
56.
See SYMEONIDES, supa note 6, at 417.
57. The other options would be to return to the law that was inforce before the
foreign occupation, or to replace the existing law with borrowings from one or more other
modern legal systems. For an analysis of the advantages and disadvantages of these options,
none of which were considered in Cyprus, see SYMEONIDES, supranote 6, at 397-400.
CYPRUS CONST. art. 188.
58.
59. Id.
TULANE LA W REVIEW
[Vol. 78:441
Constitution provided the necessary legal continuity without
prejudging the future legal orientation of the Republic.
However, four months after the founding of the Republic, an
inexperienced House of Representatives passed a statute that went
much further than the letter and spirit of the Constitution, and sought
to tie the legal system of Cyprus surreptitiously and permanently to the
English common law. Law 14 of 1960, which was drafted by a wellknown former servant of Her Majesty's government, provided inter
alia that, when not otherwise provided by applicable statutes, the courts
of Cyprus would continue to apply the English "common law and the
principles of equity."'
What was striking about this provision was that, unlike other
provisions of the same law,6 ' it contained no temporal limitations.
Thus it authorized the application of not only the pre-independence
common law, but also of the post-independence common law.
Furthermore, this provision made the post-independence common law
binding, not just persuasive, on the courts of Cyprus, subject only to
the self-evident principle of compatibility with the Republic's
Constitution. This meant, inter alia, that a post-1960 decision of the
House of Lords would be binding on the courts of Cyprus, and-what
is more-even if a subsequent statute of the British Parliament had
superseded that decision.6 ' Thus, this provision of the 1960 law raised
the specter of Cyprus law becoming more English after independence
than it had become during the relatively short British period of 1935 to
1960.63
B.
Remixing and Civilizaion
Nevertheless, more than four decades after independence, the
danger of further anglicization of Cypriot law does not seem to have
materialized and, if anything, the law has become more mixed than
60. See Courts of Justice Law No. 14, 1960, § 29(1)(c) (Cyprus), reprintedin Jayne
& Symeonides, supm note 6, at 33.
61.
See section 29.1 (e) of Courts of Justice Law No. 14 of 1960, which provides that
only the pre-1960 statutes of the British Parliament would remain applicable in Cyprus. Id
§ 29.1(e). Section 29.2(b) of the same law, provides that, in maritime law matters, the
applicable law would be the law that the English High Court of Justice applied before 1960.
Id.
§ 29.2(b).
62. This is because post-1960 English statutes are not applicable in Cyprus. See id.
§ 29(1)(c).
63. For this reason, and for many others, this author was the first to criticize in
writing courts of Justice Law No. 14 of 1960. See SYMEONIDES, supm note 6, at 402-10.
20031
REPUBLICOF CYPRUS
before. The following are some of the reasons that contributed to this
phenomenon.
1. Cypriot courts have asserted the right to subject the
common law to the condition that it be
application of the English
"suitable for Cyprus."' This was similar to the position that American
courts took during the formative period of American law before
importing the common law of England.65 The difference is that, in
Cyprus, there is no statutory authorization for imposing this condition,
although, as in the United States, there is ample justification in logic.
As one Cypriot court noted, "[T]he Common Law must be planted
here as a living growth which can be pruned by judicial decision to suit
local conditions [because] ... the intention of the country's legislator
was the service of people in this country.""
2. Cypriot courts have exercised a quasi-legislative power in
dealing with pre-1960 statutes that were found unconstitutional. In
such cases, the courts have not confined themselves to the option of
simply refusing to apply the particular statute, but have also employed
the option of either abolishing the statute or "amending" it so as to
make it consistent with the Republic's Constitution. 7
3. The statutes enacted by the Cypriot legislature since its
inception in 1960 do not seem to be inspired by English law and, even
when they are, their very enactment has reduced commensurably the
scope of operation of the common law. Cypriot courts may have
reduced this scope even further by being rather quick to infer a
legislative intent to displace the common law whenever a post-1960
64. Paikkos v. Kontemeniotis, I C.L.R. 50, 73 (1989) (Cyprus). Colonial courts had
asserted the same right before independence, see SYMEONIDES, supra note 6, at 387-89, but
post-independence courts have invoked it more frequently.
See LAWRENCE FRIEDMAN, A HIsTORY OF AMERICAN LAW 93-100 (1973);
65.
ROSCOE POUND, THE FORMATIVE ERA OF AMERICAN LAW 6-9 (1960).
66. Paikkos, 1 C.L.R. at 73; see also Protopapas v. Gunther, [1974] 10 J.S.C. 981,
1006 (1971) (Cyprus) ("We have to view this rule of English Law in the light of the local
conditions, as we see no reason why an anomalous situation the existence of which has some
justification in another jurisdiction must be introduced in the law of this country.").
See, e.g., Fekkas v. Elec. Auth., 1 C.L.R. 173 (1968) (Cyprus); Christodoulou v.
67.
Republic, 3 C.L.R. 691 (1967) (Cyprus) (modifying Pensions Law, CAP. 311, to be consistent
with Article 22 of the Constitution). Article 188 of the Constitution authorized this power by
providing that these statutes "shall ... be construed and applied with such modification as
may be necessary to bring them into conformity with this Constitution" CYPRUS CONST. app.
D., pt. 13, art. 188. However, Courts of Justice Law No. 14 of 1960 seemed to narrow this
power by providing that these statutes shall be applied "provided they are not repugnant to or
incompatible with the Constitution." Courts of Justice Law No. 14, 1960, § 29(1)(e)
(Cyprus), repdntedinJayme& Symeonides, supa note 6, at 33.
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statute has made "other provision[s]" 68 -not just a contrary
provision-from the common law.
4. The Cypriot legal profession is no longer as tied to England
as it was before and shortly after independence. Although many
Cypriots continue to study law in England, they are outnumbered by
those who study in Greece. Many of the latter now serve as judges in
the lower courts, and some are expected to rise to the higher courts in
the next decade. The bar examination is now far more sophisticated
than in the first pre-independence years, and, during their one-year
apprentice-ship, law graduates attend a series of Cypriot law classes
taught by local judges. The establishment of the first Cypriot law
school at the University of Cyprus in 2005 will continue and gradually
complete the emancipation of the Cypriot legal profession.
5. After a slow start,69 the Greek language has gradually
replaced English as the working language of the courts and litigants.
Justice George Pikis of the Supreme Court of Cyprus led the way, and,
by 1989, all court decisions were published in Greek. Additionally,
most of the important pre-independence Cypriot statutes have been
translated into Greek.
6. In at least two areas of public law, the Supreme Court of
Cyprus has drawn and continues to draw from non-English sources.
The first area is that of administrative law. Article 146 of the
Republic's Constitution provides that the Supreme Court has
jurisdiction to review administrative acts and to annul them if it finds
them unconstitutional, illegal, or ultra vires. Because Article 146 owes
its origin to Continental legal sources, but also because English law
has little to offer on the subject, the Supreme Court of Cyprus has
turned to Greek and French academic and judicial authorities,
including the decisions of the Greek and French Conseil d'tat
Once adopted by the Cypriot Supreme Court, these authorities become
binding on that Court as well as on the lower courts, since Cyprus
adheres to the doctrine of stare decisis.71 This gave rise to the creation
of a whole new corpus of Cypriot law derived from Greek and French
sources. A similar, but less pronounced, borrowing from non-English
sources has also taken place in the area of constitutional law,
particularly individual rights.72 Here again, English law was not
68.
69.
70.
71.
72.
Paikkos, 1 C.L.R. at 72.
See SYMEONIDES, supr note 6, at 410-14.
See id at 418, 466-68.
Seeid at475-76,480-81.
See LOUCAIDES, supranote 6, at 31.
2003]
REPUBLICOFCYPRUS
453
particularly helpful given the absence of a written constitution in
England. This explains, at least in part, why in dealing with certain
constitutional issues the Supreme Court of Cyprus has occasionally
turned to the jurisprudence of the United States Supreme Court.73
7. Finally, the preservation of both the law-making and
adjudicatory authority of the Christian and Muslim communities of
Cyprus for matters of personal status in the Constitution ensured the
survival of both Byzantine and Ottoman law in those matters.74
All together, the above developments and borrowings contributed
to turning the law of Cyprus into a fascinating legal mosaic where the
English common law coexists with Greek and French administrative
law, European and American constitutional principles, RomanByzantine law, and Ottoman law. The fact that this diverse law is
applied and reshaped by Cypriot judges, some of whom have been
trained in the common law tradition and increasingly more of whom
have been trained in the Greek and Continental tradition, makes the
Cypriot amalgam one of the most interesting legal systems within the
Western legal family. In short, it is very much what we comparatists
call a "paradise of comparative law."
WV
THE DIVERSITY OF CYPRIOT LAW: PROBLEMS AND
OPPORTUNITIES
This paradise, however, may be full of incongruities, tensions,
"Interesting" and "good" are not
and outright contradictions.
For example, the fact that principles
terms.
synonymous
necessarily
of Greek and French administrative law receive the sanction of the
doctrine of stare decisis once they are incorporated into decisions of
the Supreme Court of Cyprus may be interesting to a comparatist, but
may also be problematic for all sorts of reasons.75 The fact that the
English law of evidence continues to be applied in Cyprus, although
Cyprus has never had a jury system, creates an incongruity of the
highest magnitude.76 The fact that pre-1960 British statutes continue
to be applied in Cyprus even after their repeal by the British
Parliament is as preposterous as the converse phenomenon, namely
73. See id.
See CYPRUS CONST. arts. 86-87, 111(1), 152(1), 160(1). For discussion and case
74.
law, see SYMEONIDES, supm note 6, at 415-17, 469-72; Jayme & Symeonides, supra note 6, at
21-87.
See SYMEONIDES, supm note 6, at 475-76, 480-8 1.
75.
Seeid at 389-90.
76.
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the continuing application of the pre-1960 common law that has been
modified by post- 1960 British statutes."
Returning to the metaphor employed earlier, the reason for which
the Cypriot church mosaics are so beautiful is because their
components have been carefully and skillfully arranged so as to
produce a coordinated and aesthetically pleasing whole. In contrast,
the diverse elements that compose the law of Cyprus owe their origin
and survival to its troubled political history. They are accidents of
history. Whether or not these diverse elements produce a workable
whole is debatable but, if they do, this, too, would be an accident of
history. For no conscious, much less coordinated, effort to that effect
has been undertaken.
While such an undertaking would have been difficult in the first
few years after independence, there are fewer and fewer excuses for
this inertia four decades later. Law 14 of 1960 might have been
tolerable as a temporary measure, but its retention into the twenty-first
century inexcusably confirms the ancient Greek saying that "nothing is
more permanent than the temporary." More generally, there is little
excuse for the fact that, so many years after independence, no serious
effort has been undertaken for a comprehensive streamlining and
modernization of the law of Cyprus.
Somehow, however, there may be a silver lining in all of this.
Sometimes, inertia has its rewards. For example, if a modernization of
Cypriot law had been undertaken at an earlier time, much of that effort
would have been duplicated now in the context of the process of
harmonizing Cypriot law with European law in preparation for
Cyprus's upcoming accession to the European Union. The duplication
will now be avoided, and modernization and harmonization can be
combined in one project.
More importantly, there is reason to hope that a modernization
undertaken now will be more successful than an earlier modernization
effort would have been. Indeed, there is reason to suspect that, had
such an effort been undertaken during the first or second decades of
the Republic's existence, it might not have been done properly.
Cypriot legal science was perhaps too young for such an undertaking,
77. For example, according to article 3 of the Evidence Act of 1946, CAP. 9, Cyprus
courts were to apply the evidence rules applicable in England on November 5, 1914.
Needless to say, the English rules of evidence have changed significantly since 1914.
Nevertheless, the above Act, which remains applicable in Cyprus, continues to require
observance of the pre-1914 law. See TA ds ELIADES, THE LAW OF EVIDENCE: A PRAcrncAL
APPROACH (1994).
2003]
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455
not to mention the fact that it was then dominated by English-educated
lawyers. This is less true today. More and more Cypriots study law in
Greece and a smaller number in other Continental countries. Legal
monographs and other legal publications that were virtually
nonexistent then are now becoming increasingly common. Further,
the establishment of the first Cypriot law school appears to be closer
than ever before. All of these are ingredients of a rapidly maturing, if
not mature, legal culture. This culture is now capable of undertaking
and successfully discharging the task of modernizing Cypriot law and
harmonizing it with European law.