Independent Courts [ECHR]

General

It is a basic principle that the decision-maker cannot be biased or have the appearance of bias. It is not enough that the decision-maker’s decision might be overturned on appeal. The guarantee extends to bias and the appearance of bias. Most cases concern circumstances where a party might reasonably doubt the impartiality of the decision-maker.

In civil law systems, the judge may be involved in the investigatory phases of the proceedings. This is permissible provided it is supervisory. However, if the nature of the participation involved the risk of pre-judgement, Article 6.1 is breached.

Jury Bias

In Pullar v UK a former employee of a key witness was a juror who had been dismissed. However, the European Court did not consider that the juror would be biased in favour of his testimony.

In Holm v Sweden, a number of members of the jury party against the permanently material in question was directed. Although the normal jury selection procedures in law had been followed the European court held their remained questions over their independence and potential bias.

In Sanders v UK   a jury member informed the judge that two jury members had made racist jokes in a case involving an Asian defendant. The judge asked the jury to reflect overnight on whether they could discharge their duties without prejudice. The jurors confirm they could, and one anonymous member indicated he may have been the person who made racist remarks and apologise. The European court held that this was not sufficient to dispel the fear of racist bias.

In Hanif & Khan v UK a police officer on the jury knew a police officer testifying, professionally but not socially. The judge questioned the police officer but was happy to proceed. The European court held here was a violation as the police evidence was critical to the case and there were objective grounds to apprehend bias.

Established by law

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.

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.

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.

In Ettl v Austria the court indicated that the presence of governmental civil servants on a tribunal did not of itself breach the guarantee provided there were safeguards for their independence from interference in the decision.

Appointment

Xhoxhaj v. Albania concerned a Constitutional Court judge who had been dismissed from office following the outcome of proceedings commenced in relation to her, as part of an exceptional process for the re-evaluation of suitability for office of all judges and prosecutors in the country, otherwise known as the vetting process2. The applicantcomplained, inter alia, that the vetting bodies had lacked independence and impartiality, in particular its members’ lacking the requisite professionalism and experience, having been appointed without any involvement of the judiciary.

The Court held that there had been no violation of Article 6 § 1 of the Convention as regards the alleged lack of independence and impartiality of the vetting bodies. The Court further noted that, once appointed, the vetting bodies had not been subject to any pressure by the executive during the examination of the applicant’s case. That their members had not been drawn from the corps of serving professional judges had been consistent with the spirit and goal of the vetting process, specifically in an attempt to avoid any individual conflicts of interest and to ensure public confidence in the process. The fixed duration of their terms of office was understandable given the extraordinary nature of the vetting process. The Court was also satisfied that the domestic legislation had provided guarantees for their irremovability and for their proper functioning.

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.

Removal

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.

Juries

In Pullar v UK a former employee of a key witness was a juror who had been dismissed. However, the European Court did not consider that the juror would be biased in favour of his testimony.

In Holm v Sweden, a number of members of the jury party against the permanently material in question was directed. Although the normal jury selection procedures in law had been followed the European court held their remained questions over their independence and potential bias.

In Sanders v UK   a jury member informed the judge that two jury members had made racist jokes in a case involving an Asian defendant. The judge asked the jury to reflect overnight on whether they could discharge their duties without prejudice. The jurors confirm they could, and one anonymous member indicated he may have been the person who made racist remarks and apologise. The European court held that this was not sufficient to dispel the fear of racist bias.

In Hanif & Khan v UK a police officer on the jury knew a police officer testifying, professionally but not socially. The judge questioned the police officer but was happy to proceed. The European court held here was a violation as the police evidence was critical to the case and there were objective grounds to apprehend bias.

General

It is a basic principle that the decision-maker cannot be biased or have the appearance of bias. It is not enough that the decision-maker’s decision might be overturned on appeal. The guarantee extends to bias and the appearance of bias. Most cases concern circumstances where a party might reasonably doubt the impartiality of the decision-maker.

In civil law systems, the judge may be involved in the investigatory phases of the proceedings. This is permissible provided it is supervisory. However, if the nature of the participation involved the risk of pre-judgement, Article 6.1 is breached.

Military criminal courts

In Findlay v UK considered the independence of a court martial. The senior officer appointed the presiding judges and both sides’ representatives and had power to reverse the decision. The European court held there to be a breach of Article 6.1.

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.

Findlay v. The United Kingdom 1997 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.

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.

Criminal liability of judges

Sergey Zubarev v. Russia e 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.

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.