The case of a Cypriot criminal advocate who was imprisoned by a court after rebuking judges raises human rights concerns, says Louis Charalambous

How often have you been tempted to respond intemperately in the face of judicial rudeness or lack of respect? A leading Cypriot criminal advocate, Michalakis Kyprianou, criticised a trio of judges during a murder trial after feeling his ability to represent his client had been compromised by their conduct.


Although the account may make amusing reading, the case raises some serious points and was recently pronounced on by the Grand Chamber of the European Court of Human Rights (see [2006] Gazette, 12 January, 9).


The 17-judge court ruled that consideration must be given to an advocate's article 10 right to freedom of expression when considering contempt, as well as his article 6 right to a fair trial. This judgment was made in spite of interventions from the UK, Ireland and Malta, and it affects all common law jurisdictions.


Mr Kyprianou decided he had finally had enough when asked to hurry his cross-examination of a police officer. Interrupted mid-flow, the frustrated lawyer, following an exchange with the bench, requested permission to withdraw from the case. The court refused and the advocate complained that members of the court were talking between themselves and passing 'notes' to each other. Unfortunately the word used, 'ravasakia', can also mean 'love notes', and it would appear that someone on the bench took umbrage.


The judges said the 'only adequate response' to the 'deeply insulting' comment was to sentence the lawyer to seven days behind bars, to be enforced immediately. The Grand Chamber decided that such severe summary treatment by 'personally embroiled' judges was not only a clear breach of the lawyer's article 6 rights to a fair trial but, more importantly, also a breach of his article 10 freedom of expression. The need to protect the authority of the judiciary must be balanced against an advocate's freedom to express himself. Mr Kyprianou's punishment was disproportionate and could have a 'chilling effect' on advocates in the performance of their duties.


The decision gives brow-beaten lawyers some reassurance when asserting the rights of their clients, but is not a licence for gratuitous rudeness.


In Mr Kyprianou's case, it was submitted that the matter should not have gone beyond a referral to the relevant bar council.


Although the chamber did not rule that contempts by lawyers should never be dealt with by the court, or result in a prison sentence, advocates may take some comfort from the ECHR's view that 'imposing a prison sentence in a trivial case like the present one struck at the heart of the lawyer-client relationship'.


While courtroom tantrums are on the whole best avoided, some reassurance can be gained from the chamber's indication that punishing an 'emphatic tone of voice', 'colourful language' or 'the slightest show of emotion under stress' with a significant period of imprisonment, is a breach of an advocate's human rights.


The court also accepted that otherwise, there would be a risk of advocates tailoring their conduct in court 'to the potential detriment of their client's case'.


Louis Charalambous is a partner at London law firm Simons Muirhead & Burton and acted for Michalakis Kyprianou