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Eg Phd, Mphil, Dclinpsychol This thesis has been submitted in fulfilment of the requirements for a postgraduate degree (e.g. PhD, MPhil, DClinPsychol) at the University of Edinburgh. Please note the following terms and conditions of use: This work is protected by copyright and other intellectual property rights, which are retained by the thesis author, unless otherwise stated. A copy can be downloaded for personal non-commercial research or study, without prior permission or charge. This thesis cannot be reproduced or quoted extensively from without first obtaining permission in writing from the author. The content must not be changed in any way or sold commercially in any format or medium without the formal permission of the author. When referring to this work, full bibliographic details including the author, title, awarding institution and date of the thesis must be given. 1 JUDICIAL PUNISHTECTURE AND MERCYING IN CYPRUS NICHOLAS GEORGE SANTIS DOCTOR OF PHILOSOPHY THESIS IN LAW THE UNIVERSITY OF EDINBURGH 2010 2 ABSTRACT The thesis unveils how judges decide sentences in Cyprus and how they employ mercy to contour their judgments by determining at the same time whether these decisions are reached within or on the basis of a consistent legitimising framework founded in or derived from moral legal theory. The study professes a degree of originality in that it deals with the academically unexplored ground of the Cypriot sentencing reality and investigates the role of mercy not only as a component (or not) element of justice but, additionally, as a purposive ingredient of judicial discretion in the determination of sentence. It emphasises positive rather than normative analysis. It concentrates on how Cypriot judges sentence, and not on how they should or ought to sentence, by depicting and explaining the judges’ method of reaching their sentencing decisions in substance and in form (or their punishtecture as it will be characterised), including the demonstration on their part of mercy to certain defendants at the sentencing stage (or mercying as it will similarly be referred to). Following a discussion of relevant conceptual and empirical literature the thesis present and analyses a substantial body of data generated from a series of tête-à-tête semi-structured interviews conducted by the researcher with the majority of the Cypriot judiciary between 2007 and 2008. The research yields the judges’ views on the nature of the sentencing process and the conceptions, design, structuring, and utterance of their resultant judgments within the criminal justice context in which they find themselves acting. It presents what they have said about the choice of punishment and mercy and reconstructs what they may be taken to have meant by saying it; their aims and purposes in sentencing; the constraints under which they operate; the way they exercise their penal choices; and the use (or dismissal) of mercy as an etiological foundation of sentencing rationales. 3 DECLARATION This thesis has been composed by me, is my work, and has not been submitted for any other degree or professional qualification. ____________________________ Nicholas George Santis 4 ACKNOWLEDGMENTS I would like to thank my research supervisors, Professor Richard Sparks and Dr. Claudio Michelon, as well as my initial supervisor Professor Victor Tadros, now at the University of Warwick, for their invaluable guidance and encouragement. I would also like to thank Professor Niamh Nic Shuibhne and Mr. James Chalmers, for their valuable and constructive comments as members of the Assessment Panel in July 2007, which recommended that my PhD registration be confirmed. I also would like to thank the Supreme Court of Cyprus for allowing me to pursue doctoral studies on a part-time basis while a full-time member of the Cypriot Judiciary, and my fellow judges who participated in the study. Last but not least, I thank my wife Katia and three children, George, Marios, and Constantinos for the patience and understanding they have shown all these years. However, special thanks go to my eldest son George Santis (aged 11 when I embarked on the PhD venture) for all his technical assistance and advice on computer related matters – and the times I needed him were literally innumerable. 5 TABLE OF CONTENTS ABSTRACT ......................................................................................................2 DECLARATION ................................................................................................3 ACKNOWLEDGMENTS ...................................................................................4 CHAPTER 1: INTRODUCTION ......................................................................11 1.1 The Justification for Making the Cyprus Judiciary the Subject Matter of the Thesis ..................................................................................................15 1.2 The Perturbed Field of Punishment Practice .......................................19 1.3 The Feasibility of Research on Judicial Sentencing Decision - Making ........................................................................................................................24 1.3.1 Earlier Research on Judicial Sentencing Decision-Making .............27 1.4 The Chapter Taxonomy of the Thesis ...................................................31 1.5 Conclusions.............................................................................................32 CHAPTER 2: METHODOLOGY .....................................................................34 2.1 The Judicial Participation.......................................................................34 2.2 The Research Design..............................................................................35 2.2.1 Qualitative Research Methodology ....................................................35 2.3 The Research Method (In-Depth Interviews) ......................................36 2.3.1 Open or Closed Questions..................................................................36 2.3 2 The Questions ......................................................................................37 2.3.3 The Interview Process .........................................................................39 2.3.4 The Thematic Analysis of the Interviews...........................................43 2.4 A Few (Supplementary) Cautions..........................................................44 2.5 Conclusions.............................................................................................50 CHAPTER 3: THE CYPRUS LEGAL AND CRIMINAL JUSTICE SYSTEM..52 3.1 The Historical Origins of the Cypriot Legal System ............................52 6 3.1.1 The Turks ..............................................................................................53 3.1.2 The British ............................................................................................54 3.2 The Modern Organisation of the Criminal Courts of Justice in Cyprus ........................................................................................................................59 3.2.1 The District Court.................................................................................60 3.2.2 The Assize Court..................................................................................61 3.2.3 The Supreme Court..............................................................................62 3.2.4 The Office of the Attorney General and the Deputy Attorney General of the Republic ..............................................................................................64 3.2.5 The Cyprus Prison System .................................................................66 3.3 A Précis of the Criminal Trial and Sentencing Procedure in Cyprus 68 3.4 Law Reporting in Cyprus........................................................................72 3.5 The Criminal Statistical Portrait of the Cypriot Society ......................73 3.6 A Panorama of Forty-Eight Years of Criminal Sentencing Appeals (1960-2008).....................................................................................................80 3.7 Conclusions.............................................................................................87 CHAPTER 4: THE QUESTION OF PUNISHMENT'S JUSTIFICATION ........89 4.1Immanent and Radical Criticism as an Explanatory Tool of Punishment Practice.....................................................................................89 4.2 The Disconcerting Need for Legal Punishment ...................................92 4.3 The Need for Punishment Justification ................................................97 4.4The Interrelationship between Punishment Theory and Sentencing Practice ........................................................................................................100 4.5 Judicial Discretion in Sentencing and the Doctrine of Separation of Powers .........................................................................................................102 4.6 The Doctrine of Separation of Powers ................................................103 4.7 The Controversy of Judicial Discretion ..............................................104 4.8 Conclusions...........................................................................................116 7 CHAPTER 5: THE THEORETICAL DEBATE ON LEGAL PUNISHMENT..117 5.1 The Distinction Between General Justification of Punishment and its Purposes......................................................................................................117
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