In a decision that includes critical remarks about the process followed in obtaining the search warrant for Clerides’ residence, office and vehicles, the court granted leave to file an application for the issuance of a prerogative writ of certiorari. The aim of Clerides’ side is the annulment of the search warrant carried out in the context of the police investigation into the 'Sandy' case.
With yesterday’s ruling, the court effectively recognised that there is a prima facie case, meaning that the conditions set out in case law are met for the application to be filed and examined.
In the 44‑page ruling by Supreme Court Judge Elena Efrem, references are made to the content of the search warrant, the reasoning relied upon by the police, as well as issues relating to legal professional privilege.
There are extensive references to the investigator’s sworn testimony read before the Nicosia District Court, which issued the search warrant. Among other things, the ruling refers to statements given by 'Sandy,' who admitted that the messages presented in a post by Makarios Drousiotis and related events did not correspond to reality. It is further stated that 'Sandy' said she used the 'Call Assistant' application to create the messages on her mobile phone and that the conversations she also fabricated were sent to the applicant, Nicos Clerides, falsely claiming that their content was genuine. The ruling also describes, based on the investigator’s oath, how 'Sandy', according to her account, gave Clerides the phone from which the messages were created, purportedly for her own safety.
Among other findings, the Supreme Court stresses that the lower court should have satisfied itself that there was reasonable cause to believe that the items sought were located at the premises to be searched. “Based on the content of the warrant, it is not recorded that the lower court was satisfied there was reasonable cause to believe that the items sought were located at the premises in respect of which the search was requested and authorised. The lower court merely stated expressly that it was satisfied that the items would provide evidence for the investigation of the offences, and not that the facts of the case, as emerging from the investigator’s oath, rendered the issuance of the warrant necessary, proportionate and desirable, without specific reference to being reasonably satisfied of the connection between the items sought and the premises to be searched,” the ruling states.
The court also notes that “based on the content of the oath, there was indeed immediate cooperation by the applicant in responding to the police request to appear and give a written statement, as well as to hand over a USB which, according to his claim, contained all the material sent to him by ‘Sandy.' At the same time, it emerged that the applicant refused to immediately surrender his mobile devices and email details, stating that he would consider the matter at a later stage. This picture does not appear to present the applicant as refusing all cooperation with the police.”
Legal professional privilege
On the issue of legal professional privilege, the court stresses that “given that the search concerned a law office and a lawyer, I consider that at this stage an arguable issue arises as to whether the specific terms and restrictions provided adequate protection for safeguarding private communication, lawyer–client confidentiality and professional secrecy.”
Next steps
Following yesterday’s decision, the way has been opened for the filing of the application and the issuance of a prerogative writ of certiorari seeking the annulment of the search warrant carried out at the home, office and two vehicles of Nicos Clerides. The application is expected to be filed in the coming days. Once filed, a decision by the Law Office is awaited, as it has the right to submit an objection. If no objection is lodged, the Supreme Court will examine the application and decide whether or not to issue the writ of certiorari.
