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By Tom Lawrence
Last week, the Supreme Court sat for three days to hear the appeal in the case of the State v. Rikkos Erotokritou, Andreas Kyprizoglou, Panayiotis Neocleous and Andreas Neocleous law firm LLC.
The prosecution largely repeated what it had said in the trial, trying to build a case that efforts made primarily by Maria Kyriacou and Andreas Neocleous of the Neocleous law firm to ensure that the raid on the Providencia trust did not go unpunished, proved there was a conspiracy between former Deputy-Attorney General Erotokritou and Panayiotis Neocleous over Erotokritou’s application to have his loan written off.
In February this year, the
Erotokritou was sentenced to 3.5 years, Panayiotis Neocleous was sentenced to 2.5 years, while Andreas Kyprizoglou, a partner in the Erotokritou law firm, received a suspended sentence of 1.5 years.
The defence’s case essentially boiled down to three key questions: what constitutes corporate criminal liability, whether the court acted wrongly as an “expert witness” and whether the prosecution breached the constitution in acting against Erotokritou while he still held office. Related to all of these, the defence also made a number of points about the right to a fair trial.
Corporate criminal liability
The first issue, and the one which was least understood by the local media, relates to corporate criminal liability, in particular the circumstances under which a firm may be found criminally liable for the actions of its employees.
It should be remembered that in
Representing the law firm, Giorgos Papaioannou and Nicholas Tsardelis diplomatically referred to “mistakes” made by the first court. Citing case-law and quoting Archbold (the criminal lawyer’s “Bible”), as well as Pinto and Evans on corporate criminal liability, Papaioannou talked about the “doctrine of identification”.
It involves “a two-step identification [that] first identifies the perpetrator of the crime and then asks whether he or she is the person who can be said to embody the company’s mind and will”, Papaioannou quoted.
This implies that the Andreas Neocleous law firm could only be convicted if the individual who incorporates the controlling mind was first found guilty.
In the first court, the prosecution had argued that the chairman, Andreas Neocleous, was the “controlling mind” (mens rea) of the firm. However, Andreas Neocleous was not indicted, so was not among the accused.
Ignoring the prosecution, the court decided that Panayiotis was also a controlling mind of the firm, and convicted the firm on that basis.
This, the defence argued, was contrary to the principles of a fair trial. A prosecution is obliged to provide details for every charge under Article 6 of the European Convention on Human Rights. If the defence is right, it means that the court essentially moved the goalposts on the defendant.
The prosecution said that this is not what the first court had done, and argued instead a case of collective corporate responsibility.
Emails and expert witness issues
The case against Panayiotis Neocleous rests on three emails that the police had not found in their investigation, but which the defence submitted to the court during the trial.
They are particularly important because, the defence argued, they demonstrated that the reason why Panayiotis had not appeared in Erotokritou’s loan case was because of a mix-up in filing.
The court decided that the emails were false. When the Supreme Court president asked if the first court had sought expert testimony to establish that they were false, he was told that it had not. The defence therefore argued that the court had assumed the role of “expert witness”, something which courts are not supposed to do according to a bulk of case-law.
Arguing the case for Panayiotis, former Attorney-General Alecos Markides said that it was his suggestion to present the emails in court once they had been discovered. He said he was “particularly angry with the criminal court and the Attorney-General,” and the suggestion that he, having spent eight years as an Attorney-General himself, and more years than he could remember as a lawyer, would allow a client to submit false documents.
The prosecution argued in the Supreme Court that the burden of proof was on the accused to prove that the emails were genuine.
Right to a fair trial
The defence also made a number of additional observations about the right to a fair trial for the Deputy Attorney-General, Erotokritou. Unusually for a common-law country, the Attorney-General is both the government’s legal adviser and the chief prosecutor.
In this particular case, Costas Clerides was a witness for the prosecution and prosecutor at the same time, in a case that concerned him personally. These multiple hats gave him access to witness statements before anyone else, the power to disallow witnesses for the defence and to appoint additional investigators to strengthen the case.
The defence noted that he had also talked to the media a great deal before the trial and that although he had appointed non-state lawyers to handle the case, he kept in touch with them throughout the investigation and the trial.
Immunity from prosecution
What might be the biggest weakness of the case, however, is the issue of immunity from prosecution, also referred to as the “habeas corpus” issue.
Article 112(4) of the Constitution says: “The Attorney-General and the Deputy Attorney-General of the Republic shall be members of the permanent legal service of the Republic and shall hold office under the same terms and conditions as a judge of the High Court other than its President and shall not be removed from office except on the like grounds and in the like manner as such judge of the High Court.”
Article 153(10) says: “No action shall be brought against the President or any other judge of the High Court for any act done or words spoken in his judicial capacity.”
This suggests that the Deputy Attorney-General is immune from prosecution. While Erotokritou had been removed from his post by the start of the trial, the investigation was launched while he was still in office.
Today, the Supreme Court will decide separately on the immunity case. If it finds that Erotokritou was immune, then the whole case against all the accused collapses.
If the Supreme Court finds that Rikkos Erotokritou (above) was immune from prosecution, then the whole case against all the accused, including Panayiotis Neocleous could collapse. (Photos: Courtesy Cyprus Mail)
