The Ecclesiastical Courte especially in Cyprus*)
Historical Survey

The Christian Church, for the purpose of fulfilling its mission. maintaining the proper order and ensuring compliance with its law, has been invested by its divine Creator with authority to exercise jurisdiction over its members regarding matters arising out of their religious life and behaviour and connected with contraventions of, or failure to comply with, the comands of the law of Church.

The said jurisdiction is independent of any grant or recognition by the state and originates from the Founder of the Church himself who said to his disciples -

"Moreover if thy brother shall trespass against thee. go and tell him his fault between him and thee alone; if he shall hear thee, thou have gained thy brother. But if he will not hear thee, then take with thee one or two more, that in the mouth of two or three witnesses every word may be established. And if he shall neglect to hear them, tell it undo the church; but if he neglects to hear the church, let him unto thee as an heathen man and a publication."1)

From the first centuries of the Chruch the Ecclesiastical jurisdiction was exercited by the bishops, as successors of the Apostles to whom the right of judging and pronouncing judgment on the members of the Church was granted by its Founder.2) Everything connected with the ecclesiastical life of the clergy and the laity was falling within the ecclesiastical jurisdiction. The exercise of such jurisdiction, however, has passed through many phases until it reached its present from. Thus during the first centuries when the Church was persecuted by the Romans and had no contact with the State authorities the jurisdiction of the Church was not exercised only in respect of matters relating to the ecclesiastical life and behaviour of its members but was extended to all differences arising out either of their ecclesiastical and religious or their social and civil relations. Such disputes were not referred to the non-Christian authorities for determination but were examined, solved and decided by their own ecclesiastical authorities in accordance with the Christian percepts, mainly contained in the New Testament and the religious traditions.3)

St. Paul in his First Epistle to the Corinthians reprimade those resorting to the "unjust and the unbelievers" and not to the "saints" for the settlement of other differences and directs them to submit them for solution and determination to those "esteemed in the Church".4) As it appears, however, that in the third century there was a tendency to prefer the non-Christian courts for the solution of their differences the Christians were invited by the Apostolic Commands5) to discontinue that practice. For this purpose apart from the ordinary episcopal ccourts trying offences of the clergy and disputes amongst there existed in every bishoprie a special institution (episcopalis audientia) hearing and solving the dispute amongst clergymen and laymen or amongst laymen as an arbitral court applying the jus arbitrii.6) Of course the civil authorities were not recognizing the decisions of such courts which were valid and enforceable within the ecclesiastical domain. But since the time of Constantine the Great, in the fourth century, when the Church had achieved within the Roman empire its freedom and status and the State became Christian, the Emperors allowed contesting parties to bring their disputes before the institution of the episcopal jurisdiction (episcopalis audientia) to which suitors resorted rather than to the secular judges.7) The nature of such episcopal powers remains very controversial. Some maintain that it is clearly juridical whilst others are of opinion that it continued to have its original character as a means of peaceful solution of the disputes by way of settlement.8)

But the decisions of the episcopal courts in such matters were given effect to by the secular authorities.9)

The Church, however, exercised exclusive jurisdiction over a group of persons to whom it stood in a particular relationship that is to say the clergy and in respect of matters which were entirely of its own concern such as the ecclestical life and behaviour of all its members. By the canon law express provisions were made in this respect and especially by the Ninth Canon of the Oecumenical Synod at Chalcedon the clergy were restricted from restorting to the secular courts.10)

As there were matters which were the concern both of the ecclesiastical and secular authorities and the line of demarcation between the two was not very clear Justinian by various of his Novellae11) defined the extend of the jurisdiction of the ecclesiastical and secular courts.

Thus -

a)all the ecclesiastical differences and any disputes regarding the administration of ecclesiastical property were within the exclusive jurisdiction of the ecclesiastical court;

b)any layman having a claim against a clergyman could invoke the aid of the bishop who had jurisdiction on the clergy enjoying the so called privilegium fori. An appeal could lie, against the decision of the ecclesiastical ourt, within ten days to the secular judge except when the decision of the ecclesiastical court was delivered in a case submitted to it by the empeor or other high officer12) when the appeal would lie to them;

c)regarding criminal cases both courts had concurrent jurisdiction subject to certain procedural rules. By the canon law of the Church provision was made for certain offences of the laymen triable by the ecclesiastical court;13)

d)any cases between bishop, either of an ecclesiastical or of a civil nature, were within jurisdiction of the metropolitan synod of the respective diocese, subject to appeal to the patriarch;

e)the bishop could sit with the secular judge and try a case at the request of the litigant when the secular judge was not enjoying the confidence of the litigant.14)

The jurisdiction of the ecclesiastical and civil courts were further regulated by subsequent byzantine legislation and especially by the Novellae of Alexios Comnenos, by which cases of a spiritual nature and disputes relating to betrothals marriage and adoptions were brought within the exclusive jurisdiction of the ecclesiastical court.15) As, however, the relations of the Church and State were becoming closer and closer in the Byzantine empire the demarcation line between the two jurisdiction was made less and less clear and either Church od Ftate exerted a manifest influence on the exercise of the respective jurisdiction of the other.16) The influence of the Church on the exercise of the jurisdiction of the civil courts on its members was made more obvious particularly by the recognition of the right of asylum (jus asyli, immunitas localis ecclesiasticarum) under which a member of the Church under trial or convicted and sentenced by a secular court and taking refuge in a church could not be expelled therefrom by force and could under certain conditions escape trial and punishment by the secular ccourts.17)

The canon law provides with particular accuracy about the ecclesiastical courts and their jurisdiction. Canon of the Second Oecumenical Synod provides for the procedure in ecclesiastical cases and Canon of the Fourth Oecumenical Synod provides for the cases of clergymen of a private nature.18) It is provided that there would be three juridical authorities the episcopal, the metropolitan and the patriarchal19) and in accordance with the fundamental basis of the constitution of the Church, as every other power, the juridical power is functioning on the synodical system.20)

After the Latin occupation of the Byzantine Empire the ecclesiastical courts preserved their previous position and expanded their jurisdiction as the people having no confidence in the civil courts were resorting to ecclesiastical courts for the determination of most of their dispute, including those referring to claims of property and inheritance. The political power, following the previous prevailing rules that each one was at liberty to invoke the aid of the ecclesiastical court, was not interfering with such a course.

This was the state of affairs when Constantinopole was conquered by the Turks.21)

The Ottoman conqueror Mohammed the Second on proclaiming as Patriarch George Scholarios (renamed as George Gennadios the Second) conferred upon him certain so called "privileges - "22) which were contained in the Berat23) given to him, the contents of which, though its original was lost, may be interred from subsequent Berats granted to each successive patriarch.

Irrespective, however, of the contents of the Berats the recognition of the Patriarch as head of the emitent race of the Romans ( ) and as an Ethnarch and Lord Despot ( ), resulted in the exercise by the Patriarh of an extensive sovereignty and jurisdiction over all the Christians of the ottoman Empire. In that capacity the patriarch, and through him the various episcopal courts, exercised juridical jurisdiction not only in respect of the administration of the ecclesiastical property and the spiritual matters of the Christians but also with regard to disputes and other matters covering the whole field of private law and to a certain extent even of criminal law. The Christians preferred to resort to the religious courts of their own religion than to the secular courts. The Moslem sacred law (sheri law) did not prohibit the resort to the episcopal courts and the civil authorities were rendering assistance in the execution of judgments of such courts in secular matters.24) Of course the episcopal courts had power to inflict the spiritual penances provided by the Cannon law, which on many occassions were very effective.25)

The various privileges, however, have not always been respected by the Sultans and ottoman authorities and on many occasions patriarchas and bishops were persecuted.26)

Under increasing foreign pressure and outside factors the Ottoman State was compelled to change its policy and to adjust its administration to the model of European Powers. By two of its political laws the Hatti Sherif (1839) which was solemny read at the square of Ghulhane and the hatti Humayoun of the 18th february 1856 the ottoman government gave its solemn promise to respect the privileges of the Christians.27) The jus singulare of the Christians so far recognised under the principles of the sheri law was officially recognized by the state law.

With special reference to Cyprus

Amongst the first ountries in which Christianity was introduced was Cyprus. Apostles Paul and Barnabas began to preach the new gospel in A.D. 4528) and the Church of Cyprus was founded by Apostle Barnabas, its patron saint, as an independent and autocephalous Church.

The autocephaly of the Church of Cyprus was, however, challenged in the fifth century by the Patriarch of Antioch, who claimed the right to ordain the bishops of Cyprus putting forward the allegation that Cyprus administratively was subjected to Antioch.29) The matter was resolved in favour of the independence of the Church of Cyprus by Eighth Canon of the Third Oecumenical Synod at Ephesus (431 A.D.)30) and re-affirmed by the grant by the Emperor Zeno of the various privileges to the Archbishop of Cyprus.31) The Church of Cyprus was finally onfirmed as autocephalous by the Canon of the Oecumenical Synod at Troulli in 691 A.D.32)

When Cyprus became a Byzantine province and constitued a the ecclesiastical courts were functioning in the same way as in the other parts of the Byzantine empire and were governed by he same law applicable to such courts.33)

Particular reference may be made to the degradation of the Bishop of Amathus Ioannis during the reign of Manuer the First Comnenos (A.D. 1143 - 1180) by a Synod consisting of eleven bishops presided over by the then Archbishop Ioannis Kritikos of Constantins. The bishop of Amathus by a recourse brought the matter to the Emperor in Constantinople who referred it to the Patriarch of Constantinople Loukas Chrysovergis and to his Synod. As a result of the consideration of the recourse by the Synod and the Imperial Senate the Degradation of bishop Ioannis was annulled as contrary to Canon IB of the Sixth Synod at Carthage (495 A.D.) requiring the presence of at least twelve bishops for the degradation of a bishop.34)

During the Frankish period and especially the Lusignan dynasty though the autocephaly of the Cyprus Church was materially effected nevertheless the functioning of the ecclesiastical courts continued. Under the Constitutio Cypria or Bulla Cypria of the 3 July 1260 of Pope Alexander IV35) the four Cypriot bishops (of Solea, Arsinoe, lefkara and Karpasia), to which number the fourteen existing bishops were reduced, owen allegiance and were subjected to the Latin Archibishop and the three Latin bishops respectively but they were allowed to try the matrimonial causes36) in which both parties were members of their own Church, subject to a right of recourse by a litigant to the Latin bishop or Archbishop. The decisions of the greek ecclesiastical ccourts were subject to review by the Latin bishops and Archbishop respectively and to appeal to the Pope.

The law applied by the ecclesiastical courts continued to be the byzantine lae.37) Very pertinent to this point is, amongst others, the decision of the ecclesiastical court of Solea of the year 1306 A.D., which, applying the byzantine provisions relating to betrothals of minors of Novellae of Leo the Sixth the Sage and Novellae of 1084 and 1092 of Alexius the First Comnenos and folloving the procedure laid down in the , declared the betrothal as null and void and of no effect.38)

The (hellenic Laws of Cyprus) is a compilation of byzantine law, both substantive and procedural, apparently based on previous collections of byzantine law such as the Novellae of the Byzantine Emperors, the collection of the Laws of the Dynasty of Isaurs, subsequent collections, the Syrian Codes and others. It does not fall within the purview of this study the detailed examination of such compilation39) but it may be pointed put that their part relating to the substantive law does not materially differ from previous collections of such law and their part relating to procedure, though it may appear to be at variance with that followed in other parts of the Byzantine empire nevertheless on the whole, appears to be substantially the same.40)

After the Turkish occupation of Cyprus (1571 A.D.) its Greek Orthodox Church regaigned its position whilst the Latin lost its supremacy on the Greek Church. The Orthodox Archbishop was allowed to return to Nicosia and the other three bishops to their old sees.41)

The privileges - granted to the Archbishop of Cyprus and its ethnarhical capacity were similar to those conferred on the Partiarch of Constantinopole and were granted for the same reasons.42)

It appears, therefore, that what was happening in other parts of the ottoman empire regarding the jurisdiction of the ecclesiastical authorities, especially on matters relating to the personal status of members of their own Church, was also taking place in Cyprus.

Tthat matrimonial causes and generally civil disputes of members of the Greek Orthodox Church in Cyprus, fell within the jurisdiction of the ecclesiastical courts apart from historical information43) is also inferred from official documents and especially from the berat issued to the last Archbishop of Cyprus during the Turkish occupation Sophronios III, which is presumed to be similar to those issued to former Archbishops.44) From that berat it appears that all the powers and privileges conferred on the Archbishop were not described in detail as oten reference is made to powers already enjoyed and exercised ab antiqup but emphasis was laid on those powers which the local officials, in the particular circumstances, had a duty to respect and enforce.

We may onclude that during the Turkish occupation the ecclesiastical courts, as in other parts of the Ottonal empire, were not only dealing with matrimonial causes and cases relating to personal status of members of their own Church but also with disputes relating to inheritance and generally civil disputes of such members which the parties referred to the ecclesiastical court for determination.45)

When under the Convention concluded at Constantinopole on the 4th June 1878 the island of Cyprus was assigned by Turkey to be occupied and administered by England the situation regarding the ecclesiastical courts has not been changed in spite of the seeming contrary provision of section 10 of the High Court of Justice Law 1879.46) That Law was of a temporary nature and was replaced by the Court of Justice Order in Council 1882 under which to the courts established thereby it was transferred all the jurisdiction exercised by the Ottoman Courts (Nizam Courts) and the Queen's High Court of the Justice (cl. 21 and 22). As no such jurisdiction was until then exercised by the last mentioned courts it follows that theecclesiastical courts were not deprived by the jurisdiction heretofore exercised in matrimonial matters. The position was not changed by the Courts of Justice Order in Council 1927 and it was been cleared by the Courts of Justice Law 1935.47) But even before the last mentioned law the jurisdiction of the ecclesiastical courts of the Greek Orthodox Church was recognized by the decided cases of the Supreme Court of Cyprus.48) The aforesaid provision of the Courts of Justice Law 1935 regarding the existence and functioning of the ecclesiastical courts has been repeated and expanded in subsequent legislation and has been finally recognized by Article 111 of the Consitution of the Republic of Cyprus.49)

The present position of the ecclesiastical courts

1.The ecclesiastical courts in Cyprus after the Turkish occupation and until the year 1914 were functioning as ab antiquo in accordance with the customs of the Greek orthodox Church50) and the prevailing Church practice. The law administered by such courts was the law of the Greek Orthodox Church, which was mainly based on Byzantine Law, especially as set out in the Hexavivlos of Armenopoulos51) and in the administration of that law the ecclesiastical courts in Cyprus were guided by the decisions and practice of ecclesiastical courts in other parts of the Greek Orthodox Church and especially iin the Partiarchate of Constantinople.52)

2.After the rtoration in 1910 of the ecclesiastical peace, which was disturbed during the ten years electoral struggle for the filling of the vacant office of the Archbishop, the newly established Holy Synod at its meeting of the 28th April 1910 decided that a Charter for the Holy Apostolic Church of Cyprus be drafted and for this purpose a drafting Committee was appointed.53)

The Committee submitted its draft which was discussed at various meetings of the Holy Synod and was finally approved at its meeting of the 21st May 1914.54)

The "Charter of the Most Holy Church of Cyprus" was published by the Encyclical of the Holy Syned dated 21st May 1914.55)

3.By the Charter 0f 1914 the following ecclesiastical courts have been established -

d)the Holy Synod as an ecclesiastical court of first intence for all cases not falling within the jurisdiction of the Episcopal Courts including disputes of clergymen or laymen with their Bishop. (Article 10).

From the working of Article 10 it appears that he Episcopal Courts referred to therein is the Bishop who under Article 33 of the Charter is vested with jurisdiction to try cannonical offences and impose the punishmente provided therein. Such offences may be committed either by clergymen or laymen (Article 34). Furthermore it also appears that the jurisdiction exercised by the Holy Synod in the first instance under Article 10 relates to canonical offences and the imposition of the punishments provided in Article 11.56)

It is noteworthy that under Article 9( ) the Holy Synod is vested eith the exercise of "the supreme ecclesiastical jurisdiction in the Island in respect of canonical offences of the clergy and the laity".

In the original criminal jurisdiction conferred upon the Holy Synod it is also included jurisdiction to try Bishops or canonical offences and impose as punishments those provided in Article 11 including the punishment of degradation or desfrocking but in such a case the decision should be taken unanimously by all members taking part in the trial (Article 14).

The last provision of Article 14 being inconsistent with the Canons od Oecumenical Synods applicable throughout the Orthodox Church and particularly with Canon IB of the Synod of Carthage approved by Canon A of the Fourth Oecumenical Synod and B of the Oecumenical Synod is ultra vires and of no effect.57) It appears from Articles 1 ans 2 of the Charter that the Orthodox Church of Cyprus is governed by the Apostolic and Synodical Canons and the Holy Traditions of the Orthodox Church and that the provisions in the Charter are based on such Canons and Traditions. It follows, therefore, that in case of any conflict between the Canons and the provision of the Charter the former prevail.58)

e)the Holy Synod as an appellate court in respect of appeals brought against decisions of the Bishops exercising criminal jurisdiction under Article 33 of the Charter (Article 10). As already stated and for the reasons explained above the "episcopal couets" referred to in Artcile 10 could not be an other court than that of the Bishop exercising criminal jurisdiction under the Charter.59)

The Holy Synod on the hearing of any appeal may either confirm or set aside the judgment appealed against and further, confirm, increase or reduce the punishment imposed.

The Holy Synod in the exercise of its original or appellate jurisdiction takes its decisions by majority of its members taking part in the session. All the decisions of the Holy Synod should be reasoned with reference to the relevant Holy Canons or Article of the Charter or any Regulations made thereunder (Article 12).

The Holy Synod, and no other authority in the Church, has the prerogative of pardon by seting aside or reducing any punishment imposed by it if satisfied that the punishment served its purpose which is the correction of the person convicted. (Article 13).

f)the Episcopal Cpurts which are two fold -

(i) the Bishop in the exercise of his criminal jurisdiction within his See in respect of canonical offencees committed eiher by clergymen or by laymen, under Article 33 of he Charter, when he may impose any of the punishments therein set out.60)

The decision of the Bishop, except those imposing the punishment of suspension ( ) under three months or reprimand ( ) are appealable to the Holy Synod.

In the administration of the ecclesiastical criminal justice, the Episcopal Courts and the Holy Synod apply the provisions of the criminal canon law of the orthodox Church.61)

(ii) those constitued by the Bishop under Articles 71 and 72 of the Charter for the purpose of dissolution of marriage which consist of the Bishop or his representative, who should be a clergyman, and two other clergymen nominated by the Bishop. In the same episcopal area there may function more than one Episcopal Court if the needs of the episcopal area so require.

By the procedure of the Ecclesiastical Court in Cyprus ( )62) power is given to the Bishop by his decision to constitute in each episcopal area one or more Episcopal Courts, and to determine the local jurisdiction of each one of them.

The constitution of such Episcopal Courts is the same as he one stated above.

The two members of the Court other than its president have a consultative vote but in case the Court is not presided by the Bishop its decision has to be approved by the Bishop.63)

There shall be a secretary of each Court appointed by its president.

The jurisdiction of the Episcopal Courts conferred under the provisions of the Procedure ( ) is extnded not only to the dissolution of marriage but also to other matrimonial causes such as cases of betrothal, validity of marriage or temporary separation of the spouses with all their ensuring legal consequences.64)

The Episcopal Courts for the trial of matrimonial causes are contemplated and reognised by Article 111 of the Constitution.

The decision of any Episcopal Court cannot become final unless thirty days have elapsed from their communication. Within such period the persons concerned have the right either to ask the Court for a review of the case ( )65) ot to appeal from that decision.

Such appeal is made to the Holy Synod except in the case of an appeal from an Episcopal Court trying a martimonial case when the appeal lies to a Court consisting of the Bishop again as president and two clergymen other than those who took part in the trial.66)

4.The law administered by the Episcopal Courts in dealing with matrimonial causes is the law relating to marriage and divorce provided by the Charter (articles 67-69) supplemented by the canon law.

For the valid celebration of a marriage appart from the other canonical requirements67) a licence of the competent Bishop is required otherwise the marriage celebrated without such licence is void.68)

Regarding the impediments to the celebration of a valid marriage those due to relationship are provided by Article 70. Under that Article the relationship by blood up to the sixth degree, the relationship by affinity up to fifth degree and the relationship by threeford gender ( ) up to the third degree constitute an impediment to the marriage. With regard to the spiritual relationship the marriage is prohibited between the god-father and the god-daughter or her mother or daughter and between the son or father of the god-father and the aforementioned three persons.69)

A marriage of an Orthodox with a member of another Christian Church is only permitted on condition that the ceremony of marriage will take place in accordance with the rites of the Orthodox Church and be governed by its law and furthermore that a declaration by the persons to be married will be field with the Bishopric to the effect that the children will be christened in accordance with the Orthodox dogma (Article 68) of the Church.70)

The marriage is dissolved by a dicision of the competent Ecclesiastical Court.

The grounds for divorce are laid down in Article 75 of the Charter. Each of the spouse. may apply for divorce for seven grounds. the husband for four grounds and the wife for three ground. All such grounds are based on the canon law of the Orthodox Church. Among such grounds for which the husband may apply for divorce are the defloration of the wife reported to the Bishop on the following day of the marriage71) the persistent refusal of the wife to return to the matrimonial home after an invitation of the Bishop in this respect72) and the passing the night by the wife in a house not belonging to a relative except when she is turned out from the matrimonial home by the husband and there existed no house belonging to a relative.73) A wife may apply for divorce among other grounds and on the ground of an unsuccesful charge for adultey was brought against her.74)

From what is has been said it follows that the grounds of divorce need review as as to correspond to the conditions now prevailing and for the avoidance of resorting to grpunds purely artificial in order to obtain justice.

And though an improvant was made by the new provisions in Article 98 of the Charter of 1929 nevertheless it cannot be said that the grounds for divorce fill the needs of the modern society about forty years after that Charter.75)

5.A question has arisen as to the legal nature of the decisions of the ecclesiastical courts. Are they judicial decisions determining an existing dispute or are they simply acts of an administrative nature or the maintenance of good order in the Church?

In Greece the prevailing opinion mainly based on the provisions of section 1 of Law 5383/1932 for the ecclesiastical tribunals and the procedure before such tribunals is in favour of the second view and to the effect that the ecclestiastical local tribunals are not courts.76) But in Cyprus the ecclesiastical courts, as established by the Charter of the Church of Cyprus, are real courts determining inter alia matters relating to personal status.77)