The Supreme Court of Cyprus issued its decisions in the matter of the Application of Rostovstev, Civil Application No. 38/2020 on 2 April 2020 and No.40/2020 on 30 April 2020, affirming the Court’s power to issue a warrant of arrest against Russian resident defendants who fail to appear in Court after a criminal indictment has been duly served. The case concerned a certiorari writ whereby the applicant sought to set aside the decision of the first instant Court which issued an arrest warrant after being satisfied that service of the criminal indictment was duly effected. The two main issues discussed by the Supreme Court were whether (i) a criminal indictment can be served to a Russian resident in the Russian Federation; and (ii) the Court can issue a warrant of arrest against a Russian resident in the case that the defendant fails to appear in accordance with the terms of the indictment.
Facts
The applicant was a Russian resident and defendant in the private criminal case pending before the District Court in Nicosia (the Defendant). He was a co-defendant along with two other persons who faced forgery charges.
The prosecutor claimed that service of the indictment had been effected in accordance with the provisions of the European Convention on Mutual Assistance in Criminal Matters which has been ratified in Cyprus by Law 200(III)/1986 (the Law) and to which the Russian Federation is also a signatory to. Specifically, the prosecutor asserted that a letter was sent from the Ministry of Justice and Public Order via post directly to the Defendant’s address in the Russian Federation. Prosecution presented a printout from the “track and trace results”. The first instance Court was satisfied that the service was duly and properly effected and issued an arrest warrant against the defendant who was not present at the Court hearing.
The Defendant filed an application seeking the issuance of a writ of certiorari to set aside (a) the judgment of the Court which found that the service was good and (b) the warrant of arrest. He claimed that the service was not affected in accordance with the provisions of the Law and the Court had thus overstepped its powers by issuing the warrant of arrest.
Conditions for proper service to Russian resident defendants
Judicial documents in criminal matters can be served in the Russian Federation pursuant to the provisions of the Law. Specifically:
- The competent authorities of Cyprus (being the Ministry of Justice) transmit a request for service to the competent authorities of the Russian Federation which in turn serve the judicial documents to the designated person.
- The Ministry of Justice of Cyprus may request the Russian authorities to directly transmit the judicial documents to the person to be served. Upon such a request, the Russian authorities may do so in accordance with its national applicable laws.
- Proof of service is given by means of (a) a receipt dated and signed by the person served or (b) a declaration made by the competent authorities of the Russian Federation.
- Alternative means of service (such as direct service via post) are only an option if a contracting state has no reservations. The Russian Federation has expressly provided a reservation for direct means of service and thus this route cannot be pursued.
In light of the above, the Supreme Court found that (a) service can only been properly effected through the competent Russian authorities and direct service is not permitted and (b) the printout from the track and trace results was not sufficient to establish that proper service had been effected. Since services was pursued directly via post to the Defendant and only a printout from the track and trace results was presented (as opposed to a receipt or declaration), this did not constitute good service.
Warrant of arrest
The Supreme Court confirmed that Cyprus Courts may issue a warrant of arrest against a Russian resident defendant provided that service has been duly effected in accordance with the provisions of the Law.
The Court underlined that Article 4(2) of the International Cooperation on Criminal Matters Law 23(I)/2001 does not prohibit the issuance of a national warrant of arrest against a Russian resident provided that service has been properly effected. The purpose of an arrest warrant is to compel the defendant to appear before the Court in relation to a pending criminal case.
Conclusion
Service of judicial documents relating to criminal matters can be effected to Russian resident defendants in accordance with the provisions of the Law and the respective national laws. Pursuant to the Law, service can be achieved through diplomatic means (i.e. the competent Cyprus authorities send their request to the competent Russian authorities who in turn proceed to service in accordance with Russian applicable laws). As far as the issuance of a warrant of arrest is concerned, Cyprus Courts have the jurisdiction to issue a warrant of arrest if the defendant is not present subject to the condition that the service is proved to have been properly effected. In the light of the above, the Supreme Court in its judgment dated 30/04/2020, annulled the (i) judgment of the District Court in which the Court found that service had been properly effected and (ii) the warrant of arrest issued against the defendant since service had not been effected pursuant to the provisions of the Law.
For more information please contact any member of our Criminal & Extraditions team.