Criminal Decision [ECHR]

Art 2 Prot 7  Right of appeal in criminal matters

1 Everyone convicted of a criminal offence by a tribunal shall have the right to have his conviction or sentence reviewed by a higher tribunal. The exercise of this right, including the grounds on which it may be exercised, shall be governed by law.

2 This right may be subject to exceptions in regard to offences of a minor character, as prescribed by law, or in cases in which the person concerned was tried in the first instance by the highest tribunal or was convicted following an appeal against acquittal. Galstyan v Armenia confirms that a clear definable appeal procedure consistently available is required. The procedure for review offered was not sufficient.

Art Prot 7 Compensation for wrongful conviction

When a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed, or he has been pardoned, on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to the law or the practice of the State concerned, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him.

Art 4 Prot 7 – Right not to be tried or punished twice

1 No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State.

2 The provisions of the preceding paragraph shall not prevent the reopening of the case in accordance with the law and penal procedure of the State concerned, if there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings, which could affect the outcome of the case. 34 3 No derogation from this Article shall be made under Article 15 of the Convention.

Sergey Zolotukhin v Russia A confirms that the article prohibits prosecution and trial for a second offence arising from identical facts are facts that are substantially the same and the guarantee comes into play when a new set of proceedings instituted after a prior acquittal or conviction has acquired the status of res judicata.

Tribunal established by law I

Guðmundur Andri Ástráðsson v. Iceland concerned the applicant’s allegation that the new Icelandic Court of Appeal (Landsréttur) which had upheld his conviction for road traffic offences was not a tribunal “established by law”, on account of irregularities in the appointment of one of the judges who heard his case.

The Court held that there had been a violation of Article 6 § 1 of the Convention, finding that the applicant had been denied his right to a tribunal established by law on account of the participation in his trial of a judge whose appointment had been undermined by grave irregularities which had impaired the very essence of that right.

In particular, given the potential implications of finding a violation and the important interests at stake, the Court took the view that the right to a tribunal established by law should not be construed too broadly such that any irregularity in a judicial appointment procedure would risk compromising that right. It thus formulated a three-step test to determine whether irregularities in a judicial appointment procedure were of such gravity as to entail a violation of the right to a tribunal established by law.

Controls on ministerial power had been further intensified in connection with the appointment of judges to the newly established Court of Appeal, where Parliament had been tasked with approving every candidate proposed by the Minister of Justice, in order to enhance the legitimacy of this new court. However, as found by the Icelandic Supreme Court, this legal framework had been breached, particularly by the Minister of Justice, when four of the new Court of Appeal judges had been appointed. While the Minister had been authorised by law to depart from the Evaluation Committee’s proposal, subject to certain conditions, she had disregarded a fundamental procedural rule that obliged her to base her decision on sufficient investigation and assessment

Xero Flor w Polsce sp. z o.o. v. Poland This case concerned proceedings brought by the applicant company claiming compensation for damage to its property, and its complaint about the appointment of one judge in particular to the Constitutional Court which had examined its case. The applicant company complained in particular of the domestic courts’ refusal to refer legal questions to the Constitutional Court. It also alleged that the bench of five judges of the Constitutional Court which had examined its case had been composed in violation of the Constitution. In particular, one judge had been elected by the Sejm (the lower house of the Parliament), despite that post having already been filled by another judge elected by the preceding Sejm.

The Court held that there had been a violation of Article 6 § 1 of the Convention as regards the right to a fair hearing and a violation Article 6 § 1 as regards the right to a tribunal established by law. It found in particular that – despite the applicant company’s repeated raising of the matter – the domestic courts had not answered its arguments that the law applied in its case had been incompatible with the Constitution and, consequently, had failed in their duty under the Convention to provide reasoned decisions. The Court furthermore adjudged that the actions of the authorities in appointing one of the judges who had been on the bench in the applicant company’s case and the ignoring of the Constitutional Court’s judgments in that connection had meant that the panel that had tried the case had not been a tribunal established by law.

Reczkowicz v. Poland The applicant, a barrister who had been suspended for three years following several incidents when she was representing a client, submitted that the Disciplinary Chamber of the Polish Supreme Court, which had decided on a case concerning her, had not been a “tribunal established by law” and had lacked impartiality and independence.

The Court held that there had been a violation of Article 6 § 1 of the Convention, finding that the Disciplinary Chamber of the Supreme Court, which had examined the applicant’s case, was not a “tribunal established by law”. It noted, in particular, that the procedure for appointing judges to the Disciplinary Chamber had been unduly influenced by the legislative and executive powers. That amounted to a fundamental irregularity that adversely affected the whole process and compromised the legitimacy of the Disciplinary Chamber.

Tribunal established by law II

Juszczyszyn v. Poland, judgment of 6 October 2022 Advance Pharma Sp. z o.o. v. Poland This case concerned a complaint brought by the applicant company that the Civil Chamber of the Supreme Court, which had decided on a case concerning it, had not been a “tribunal established by law” and had lacked impartiality and independence.

The Court held that there had been a violation of Article 6 § 1 of the Convention, finding that The Civil Chamber of the Supreme Court was not an “independent and impartial tribunal established by law” within the meaning of the Convention. It noted, in particular, that the procedure for appointing judges to the Civil Chamber of the Supreme Court had been unduly influenced by the legislative and executive powers.

Grzęda v. Poland concerned the removal of the applicant, a judge, from the National Council of the Judiciary (NCJ) before his term had ended and his inability to get judicial review of that decision. His removal had taken place in the context of judicial reforms in Poland. The applicant complained in particular of having been denied access to a court.

The Court held that there had been a violation of Article 6 § 1 of the Convention, finding that the lack of judicial review in the case had impaired the applicant’s right of access to a court. The Court emphasised, in particular, that it was fully aware of the context of the case – the weakening of judicial independence and adherence to rule-of- law standards brought about by Government reforms. In particular, successive judicial reforms had been aimed at weakening judicial independence, starting with the grave irregularities in the election of judges of the Constitutional Court in December 2015, then, in particular, the remodelling of the NCJ and the setting up of new chambers of the Supreme Court, while extending the Minister of Justice’s control over the courts and increasing his role in matters of judicial discipline.

The Court also referred to itsjudgments related to the reorganisation of the Polish judicial system, as well as the cases decided by the Court of Justice of the European Union and the relevant rulings of the Supreme Court and Supreme Administrative Court of Poland. It held that as a result of these successive reforms, the judiciary had been exposed to interference by the executive and legislature and its independence had been substantially weakened. The applicant’s case was one example of this general trend.

Żurek v. Poland The applicant in this case, a judge, was also spokesperson for the National Council of the Judiciary (NCJ), the constitutional body in Poland which safeguards the independence of courts and judges. In that capacity, he had been one of the main critics of the changes to the judiciary initiated by the legislative and executive branches of the new Government which came to power in 2015. The case concerned his removal from the NCJ.The Court held that there had been a violation of Article 6 § 1 and a violation of Article 10 (freedom of expression) of the Convention in the present case. Following the same reasoning as in the case Grzęda v. Poland (see above), it found that the lack of judicial review of the decision to remove the applicant from the NCJ had breached his right of access to a court. The Court also found that the accumulation of measures taken against the applicant – including his dismissal as spokesperson of a regional court, the audit of his financial declarations and the inspection of his judicial work – had been aimed at intimidating him because of the views that he had expressed in defence of the rule of law and judicial independence. In finding these violations, the Court emphasised the overall context of successive judicial reforms, which had resulted in the weakening of judicial independence and what has widely been described as the rule-of-law crisis in Poland.

Independence

Toni Kostadinov v. Bulgaria 27 January 2015 concerned the pre-trial detention of the applicant, a former officer of the national police, who had been arrested on suspicion of being part of a criminal gang, and respect for his right to be presumed innocent. The applicant alleged in particular that remarks made by the Minister of the Interior at a press conference, unequivocally identifying him as one of the most influential members of a gang of burglars, had breached his right to be presumed innocent.

The Court held that there had been a violation of Article 6 § 2 (presumption of innocence) of the Convention, finding that the remarks by the Minister of the Interior had breached the applicant’s right to be presumed innocent.

No intervention by parties to the dispute

Beg S.p.a. v. Italy 2021 concerned the arbitration of a dispute involving a hydroelectric-power agreement for power generation in Albania involving the applicant company and ENELPOWER, a company which had been spun off from ENEL, the former State power company. It related to, in particular, the impartiality of the arbitration panel, as one of its members (N.I.) had been on the board of ENEL and had worked as that company’s lawyer.

The Court held that there had been a violation of Article 6 § 1 of the Convention on account of the lack of impartiality of the arbitration panel in the present case. It noted in particular that N.I. had been acting as ENEL’s lawyer when appointed arbitrator, and that that company had owned 100% of ENELPOWER and had had close ties at that time. In the light also of N.I.’s having previously been vice-chairman and on the board of ENEL, the Court considered that the applicant company’s fears concerning the impartiality of N.I. had been objectively justified.

Military criminal courts

İbrahim Gürkan v. Turkey 2012 The applicant was convicted by a military criminal court, during his military service, for wilfully disobeying a superior. He alleged that his case had not been heard by an independent tribunal because the court was made up of a military officer with no legal background and two military judges.

The Court held that there had been a violation of Article 6 § 1 of the Convention, finding that the military criminal court that had convicted the applicant could not be considered to have been independent and impartial. Noting in particular that participation of lay judges as such was not contrary to Article 6 of the Convention, the Court did not consider that the military officer’s lack of legal qualifications had hindered his independence or impartiality. However, he was a serving officer who remained in the service of the army and was subject to military discipline. He had also been appointed to the bench by his hierarchical superiors and did not enjoy the same constitutional safeguards as the other two military judges.

Security of judicial tenure

Baka v. Hungary case concerned the premature termination of the mandate of the applicant, President of the Hungarian Supreme Court, following his criticism of legislative reforms and the fact that he was unable to challenge that decision before a court.
6 § 1 of the Convention, finding that Hungary had impaired the very essence of the applicant’s right of access to a court. It noted in particular that the premature termination of the applicant’s term of office had not been reviewed by an ordinary tribunal or by another body exercising judicial powers, nor was it open to review.

The Court considered that this lack of judicial review had resulted from legislation whose compatibility with the requirements of the rule of law was doubtful.

Broda and Bojara v. Poland concerned the applicants’ complaint that they did not have any remedy allowing them to challenge the decisions of the Minister of Justice to put a premature end to their term of office as vice-presidents of the Kielce Regional Court. The applicants alleged in particular that their removal had been unlawful and arbitrary and that there had been no specific judicial remedy enabling them to challenge the decision.

The Court held that there had been a violation of Article 6 § 1 of the Convention in the present case. As the premature termination of the applicants’ term of office as court vice-presidents had not been examined either by an ordinary court or by another body exercising judicial duties, the Court found that the respondent State had infringed the very essence of the applicants’ right of access to a court.

Civil or criminal liability of judges

Sergey Zubarev v. Russia concerned the national courts’ refusal to accept a defamation claim brought by the applicant, a lawyer, against a judge on grounds of judicial immunity. The courts subsequently refused to accept the applicant’s claim for consideration because of the judge’s judicial immunity from liability in her professional capacity as presiding judge of the civil case.

The Court held that there had been no violation of Article 6 § 1 of the Convention, finding that, in the exercise of their responsibility to regulate the conduct of the civil proceedings, the national authorities had not exceeded their margin of appreciation in limiting the applicant’s access to a court, and that a reasonable relationship of proportionality could be said to have existed between the judicial immunity in the course of the administration of justice and the legitimate aim pursued in the public interest. The Court noted in particular that judicial immunity was a legal practice that existed in some form in many States Parties to the Convention.

Impression of independence

Findlay v. The United Kingdom The applicant, who served in the army, complained that the martial court, that had sentenced him to two years’ imprisonment, demoted him to the rank of guardsman and dismissed him from the army, had not been an independent and impartial tribunal, because, inter alia, all the officers appointed to it were directly subordinate to the convening officer who also performed the role of prosecuting authority.

The Court held that there had been a violation of Article 6 § 1 of the Convention, finding that, on account in particular of the central role played by the convening officer in the organisation of the court martial, the applicant’s misgivings about the independence and impartiality of the tribunal which had dealt with his case had been objectively justified.

Concurrent judicial functions in the same case

Wettstein v. Switzerland 2000 The applicant complained of the lack of impartiality of two judges (lawyers acting as part-time judges) in administrative proceedings to which he was a party. The judges had acted either directly as lawyers, or through their office partner, against the applicant in separate proceedings.
The Court held that there had been a violation of Article 6 § 1 of the Convention as regards the requirement of an impartial tribunal. It noted in particular that, while there was no material link between the applicant’s case and the separate proceedings in which the two lawyers had acted as legal representatives, there was in fact an overlap in time, since the latter proceedings were still pending before the Federal Court when the former were instituted and indeed only ended two months before the Administrative Court’s judgment..

Fazli Aslaner v. Turkey 2014  concerned administrative proceedings in which judges at the Turkish Supreme Administrative Court had been involved on more than one occasion, in the context of successive appeals on points of law.

The Court held that there had been a violation of Article 6 § 1 of the Convention, finding that the applicant’s concerns regarding the impartiality of the General Assembly as it was composed in the instant case could be regarded as objectively justified. It noted in particular that the fact that certain judges had previously formed an opinion did not in itself suffice to conclude that the impartiality of the general assembly of administrative divisions had been affected.

Judicial or administrative role of public prosecutors

Moulin v. France The applicant, a lawyer, was arrested and placed in police custody on suspicion of breaching the secrecy of judicial investigations concerning a case of drug trafficking.

The Court held that there had been a violation of Article 5 § 3 (right to be brought promptly before a judge or other officer authorised by the law to exercise judicial power) of the Convention in respect of the applicant. It noted in particular that deputy prosecutors, who were not irremovable, were members of the ministère public (prosecuting authorities) under the authority of the Minister of Justice, a member of government, and therefore that of the executive. The hierarchical relationship between the Minister of Justice and the prosecuting authorities was at the time a subject of debate in France and it was not for the Court to take a stance in a debate which was a matter for the domestic authorities.