The Accused's Right to the Last Word in Cyprus Criminal Proceedings: A Critical Analysis

 Written by George Kazoleas, Lawyer

The right of the accused to speak last (the "Last Word Right") within criminal proceedings is a fundamental manifestation of the presumption of innocence and is enshrined in the criminal procedure systems of the vast majority of legal orders worldwide.

The utility of this procedural rule is evident: it aims to achieve equality of arms by balancing the positions of the two parties – the prosecutor/complainant and the accused – before the court's final verdict. In Cypriot criminal procedure, a recent amendment sought to improve an anachronistic procedural provision that critically undermined the accused's right to defence.

The Prior Legal Framework

Before the amendment introduced by Law 130 of 2023, Article 74(2) of the Criminal Procedure Law stipulated the following:

"In every trial, the prosecutor and the accused or their respective lawyers may introduce their case by explaining it in general terms, and at the end of the trial, the side which last called a witness may address the court and the other side may then reply:

Provided that, when a Law Officer appears for the prosecution, such officer shall have the right of reply in all cases."

According to this patently unconstitutional provision, the prosecuting authority effectively had the last word in closing arguments if the accused did not call any witnesses, or if a Law Officer appeared for the prosecution. This imbalance significantly disadvantaged the defence.

The 2023 Amendment

With the enactment of Law 130 of 2023, Article 74(2) of the principal law was replaced with the following subsection:

"In every trial, the prosecutor and the accused or their respective lawyers may introduce their case by explaining it in general terms, and at the end of the trial, the closing arguments shall be made in the following order: (a) The prosecutor or their lawyer shall address first; (b) the accused or their lawyer shall address second; and (c) the prosecutor or their lawyer shall have a right of reply to legal arguments concerning the violation of the principle of fair trial and the abuse of process:

Provided that, with the leave of the Court, the prosecutor or their lawyer shall have a right of reply to any legal argument raised by the accused or their lawyer and to any factual position put forward which is not supported by the evidence adduced."

Analysis and Shortcomings of the Amendment

The reordering of the closing arguments (with the prosecutor speaking first and the accused second) undoubtedly constitutes a positive, and indeed self-evident, development, correcting a procedural anachronism that was in force until Law 130/2023.

However, the legislator, in an attempt to accommodate the unsubstantiated objections of the Legal Service of the Republic of Cyprus during the drafting process of the amending bill, added provisos that ultimately tip the scales back against the accused's defence, effectively granting the last word once again to the prosecutor or their lawyer.

Even if one accepts the prosecutor's right to reply to legal arguments concerning the violation of the principle of fair trial and the abuse of process, or, with the court's leave, to any legal argument or factual position not supported by evidence, there should have been an explicit provision for the accused's right to a final rejoinder to the prosecutor's reply. In any case, a concluding clause could have been added stating that the accused or their lawyer always retains the right to speak last. Only with such an addition could the right to the "last word" be truly realised as fundamental to the right of defence.

Comparative Legal Systems

The minutes of the committee that processed the amending bill [1] provide illuminating comparative data for other legal systems:

  • In twenty-one (21) Member States of the European Union that responded to the relevant questionnaire from the European Centre for Parliamentary Research and Documentation (ECPRD), either the accused or their counsel is granted the right to speak last through relevant legislation (except for one Member State where this right is granted under established practice), or it is explicitly provided that the accused or their counsel always speaks last.
  • Furthermore, in eight (8) Member States, it is stipulated that the accused has the final word, even after their counsel's closing argument.
  • According to the current legislative framework of the United Kingdom, the prosecution addresses first, followed by the defence.

In the Greek legal system, Article 367(1) of the Code of Criminal Procedure (CCP) states: "When the evidentiary process is concluded, the presiding judge shall give the floor to the prosecutor, then to the party supporting the prosecution, who may not extend to the matter of the penalty to be imposed, and finally shall give the floor to the accused." 

Article 367(2) specifies that "the right of rejoinder belongs to the prosecutor and the accused or their counsel. The rejoinder must be limited to rebutting opposing arguments and may not last more than half an hour. The prosecutor and the parties have the right to reply to the rejoinder." Finally, Article 367(3) explicitly states: "the accused or their counsel always has the right to speak last."

According to Greek Supreme Court  (Areios Pagos) Decision 224/2018, this provision mandates that the presiding judge must give the floor to the prosecutor and the parties, in the prescribed order, and to the accused or their counsel last, even if not requested. Violation of this provision results in absolute nullity, pursuant to Article 171(1)(d) of the CCP, because it concerns the defence of the accused and the exercise of rights expressly established by law, for which (violation) a ground for annulment of the decision is established, in accordance with Article 510(1)(A) of the CCP (Supreme Court 934/2017, Supreme Court 32/2017) [2].

Conclusion

The amendment to the Cypriot criminal procedure law, which rearranges the order of arguments in a criminal trial, undoubtedly moves in a positive direction, correcting the procedural anachronism that prevailed until the enactment of Law 130/2023. However, it has not fully resolved the problem, as it has deprived the accused or their lawyer of the right to a final rejoinder. In all cases, the accused or their lawyer should be the last to be heard in the courtroom before the court's decision is announced, to ensure the full realization of the fundamental right to defence. 


George Kazoleas is Lawyer, qualified both in Greece and Cyprus.

Contact: gkazoleas@legalexpertscy.com



______________

[1] Source: House of Representatives of Cyprus (www.parliament.cy)

[2] Source: Areios Pagos (www.areiospagos.gr)

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