A letter to the editor published Cyprus Mail – Monday, June 7th 2010
The Attorney-general’s decision not to prosecute the developers in the O’Dwyer house case (December 21) is both astonishing and disturbing. Your article quotes his decision as stating that “It has been ascertained that no criminal offence has been committed”. His Counsel stated that “it was not a case of fraud” until such time as a civil court could decide who the real owner of the house is and whether Mr O’Dwyer had been wrongfully and intentionally deprived of his money and his house.
It seems that the Attorney-general has decided that in Cyprus criminal law is now subordinate to civil law, whereas the long-standing position has been the reverse, as in English law. Where there is prima facie evidence of criminal activity, then criminal procedures should take precedence over civil. Indeed, it is standard for civil cases to await the outcome of related criminal cases so that a higher standard of proof (beyond reasonable doubt) has been tested. In the O’Dwyer case, there is the prima facie evidence of intentional fraud in that allegedly his house has been sold again to a third party without his prior knowledge or permission and his £75,000 sterling has not been returned to him.
Cyprus law references e.g. Neocleous (2000) state that in determining whether actions are fraudulent, the authorities ‘must concentrate on the acts committed and determine whether the taking was deliberate and intentional’. The general ‘lack of intent’ exemption from criminal liability therefore does not apply in this case since the developers allegedly (a) sold O’Dwyer’s property again after he had already paid, and (b) appear to be arguing that they have deliberately hung on to his money for all this time partly in order to punish him for daring to argue about terms in the contract. They have not, as far as we know, indicated any intention of returning his money.
An Attorney-general is supposed to ensure an unbiased administration and delivery of justice. Why this Attorney-general made this particular decision we will never know. However, this latest twist in the O’Dwyer case has not improved Cyprus’s bad reputation as an unsafe and insecure destination for investment, immovable property or otherwise.
Dr Alan Waring, Larnaca