An Independent and Impartial Court under Article 6 of the ECHR

1. An Independent and Impartial Court under Article 6 of the ECHR Ireneusz Kondak, Registry of the ECHR

2. Article 6 § 1 of the ECHR • 1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. …

3. Concept of a “tribunal” • 1. The Convention does not directly regulate the organisation of State powers; however, its preamble (rule of law) and the need for effective protection of individual rights imply an obligation to provide for some form of separation of powers • 2. the notion of the separation of powers between the political organs of government and the judiciary has assumed growing importance in the Court’s case-law • 3. Article 6 § 1 expressly requires that a court must be independent and impartial

4. Concept of a “tribunal” • 4. the specific organisation of the judicial authorities is left to the discretion of the State; the only exception is the obligation to establish two levels of jurisdiction in criminal cases (Article 2 of Protocol No. 7) • 5. The Convention requires that the jurisdiction of the courts would cover all areas to which Article 6 § 1 is applicable and that the access to a court would be effective • 6. some types of cases could be first examined by non-judicial organs, provided that subsequently their decisions are subject to judicial review by courts complying with the requirements of Article 6 § 1

5. Autonomous concept • The concept of a “tribunal” is an autonomous concept under the Convention – the classification of a given authority in the domestic law is not decisive • a “tribunal” within the meaning of Article 6 § 1 could also be an authority which is not a “classic” court of law • a "tribunal" is characterised in the substantive sense of the term by its judicial function, that is to say determining matters within its competence on the basis of rules of law and after proceedings conducted in a prescribed manner (Belilos v. Switzerland, 1988)

6. 4 substantive characteristics • The Convention adopts the substantive concept of a court (tribunal) – 4 relevant characteristics in the Court’s case law • 1. the power to give a binding decision, • 2. established by law, • 3. independent, • 4. impartial.

7. 1. The power to give a binding decision • a court decision could only be reviewed within the appeals procedure • a court decision may not be altered by a non-judicial authority (e.g., a minister, Van de Hurk v. the Netherlands, § 45, 1994) • when a court has finally determined an issue, its ruling should not be called into question – legal certainty (Brumarescu v. Romania, § 61) • the power to issue advisory opinions is not sufficient (Benthem v. the Netherlands, 1985, § 40)

8. 2. Tribunal established by law • A. Structural aspect • A tribunal (court) must always be established by law • The establishment of and organisation of judicial organs must be regulated by laws emanating from parliament, and not depend on the discretion of the executive (Coëme and Others v. Belgium, 2000, par. 98) • However, it is permissible that certain matters concerning the organisation of the judicial system be regulated by the executive when such powers were delegated to the executive under the domestic law

9. 2. Tribunal established by law • “a judicial organ which has not been established in conformity with the will of the legislator, would be necessarily deprived of the legitimacy required in a democratic society to examine cases of individuals” (Lavents v. Latvia, 2002, § 114) • The legislator cannot leave the organisation of the judicial system to the discretion of the judicial authorities, but this does not exclude that courts have some latitude to interpret the relevant national legislation (Coëme and Others v. Belgium, 2000)

10. 2. Tribunal established by law • B. The jurisdiction aspect • the competence of a judicial organ to hear a case must be determined by “law”, the law defines jurisdiction of a court • a violation of the domestic law entails a breach of Article 6 § 1 • however, the ECHR may not question the interpretation of the domestic courts unless there has been a flagrant violation of domestic law • Jorgic v. Germany, 2007, §§ 64-72 (a criminal court established its jurisdiction in the case of genocide on the basis of general competence clause in the Criminal Code, and in conformity with international law and practice of other States)

11. 2. Tribunal established by law • C. procedural aspect – procedure and composition of a court • The procedure before a court should be precisely regulated in the law • The law must expressly provide for rules determining the composition of a bench in each case – a composition of the bench cannot be determined arbitrarily – objective criteria

12. Tribunal established by law • Examples: • a lay judge cannot sit on a bench beyond the period for which he was appointed (Posokhov v. Russia, 2003, §§ 39-44); • the practice of tacit extension of judges’ terms of office for an indefinite period after the expiry of their statutory term of office pending their reappointment not acceptable (Gurov v. Moldova, 2006, §§ 37-39), • The president of a court decided, acting in his administrative capacity, to reassign himself a case and to rule on it, absence of adequate rules (DMD Group v. Slovakia, 2010,

13. 3. Independent court • Fundamental and universal guarantee in a democratic society governed by the rule of law • Criteria used to assess whether a given court (authority) could be considered “independent” (Campbell and Fell v. UK, 1984, § 78) • A) the manner of appointment of its members, • B) the duration of their term of office, • C) the existence of guarantees against outside pressures, • D) whether the court (authority) presents an appearance of independence.

14. The manner of appointment of members • The ECHR does not impose any particular standard in this respect, the community of Convention States comprises different legal traditions • The Convention allows appointment of judges by the executive, the parliament or the judicial council • The CCJE and the VC have a preference for an independent judicial council • The bench does not have to be composed exclusively of professional judges; trainee judges, juries and lay judges are allowed

15. The duration of the term of office • Judges do not have to be appointed for an indefinite period of time • Recommended: tenure until retirement, • In the case of appointment for a definite period, the assessment of their independence must be thorough • With regard to non-typical adjudicative organs, the ECHR accepted a short term of office (3 years for members of prison disciplinary board)

16. The duration of the term of office • the irremovability of judges during their term of office must be considered as a corollary of their independence • In some early cases the ECHR accepted that the irremovability was based on the practice, not on the law (in respect of prison disciplinary boards) • Subsequent jurisprudence takes a view that the irremovability must be recognised in law (Urban v Poland, 2011, trainee judges) • There is no obstacles to establish special courts, having jurisdiction in specific matters, such as terrorism offences – this is accompanied by strict review of their independence

17. Guarantees against outside pressure • 1. Independence from the executive • Prohibition to receive any instructions from the executive • The appointment of judges by the executive is permissible provided that, once appointed, they are not subject to any pressure, do not receive any instructions and perform their duties with complete independence (Zolotas v. Greece, 2005, §§ 24-28)

18. 2. Independence from parliament • The fact that judges are appointed by Parliament, does not render them subordinate to the authorities if, once appointed, they receive no instructions and are not subject to any pressure in the performance of their judicial duties • Issues concerning budget of the judiciary and remuneration of judges • Prohibition of interference by the legislature with the administration of justice designed to influence the determination of a case (Stran Greek Refineries v. Greece, 1994, § 49)

19. Independence from the parties • Where a tribunal’s member include a person who is in subordinate position vis-à-vis one of the parties (a civil servant from the administrative authority, which was a party to the proceedings, sat on the bench)

20. Internal judicial independence • Implies that judges do not receive instructions and are not subjected to pressure from other judges or from persons exercising administrative responsibilities in a court (the president of the court or of the section) • See, Parlov-Tkalcic v. Croatia, 2009, § 86

21. Do judges have the right to have their own independence guaranteed by the State? • the right to an independent judge under Article 6 § 1 • the judge’s subjective right to independence under Article 6 § 1 ? • Separate opinion of Judge Sicilianos in Baka v. Hungary, 2016 – the rule of law argument

22. Impartiality • Impartiality is assessed in the context of a relationship between the judges (members of the bench) and the parties to the proceedings • Impartiality denotes the absence of prejudice or bias on the part of a judge • Kyprianou v. Cyprus, 2005, § 118 et seq. • Micallef v. Malta, 2009, § 93 et seq.

23. Impartiality • Criteria for assessing impartiality • 1) subjective test – the existence of actual prejudice on the part of a judge or tribunal • concerns the personal conviction and behaviour of a particular judge, that is, whether the judge held any personal prejudice or bias in a given case • There is a presumption in favour of the personal impartiality of a judge, until there is a proof to the contrary • It is difficult to rebut this presumption and therefore the ECHR rarely finds a violation on this account

24. Impartiality – subjective test • Lavents v. Latvia, 2002, §§ 118-119 • A judge criticised the line of defence of a defendant in the press and expressed surprise that he had not pleaded guilty

25. Impartiality • 2) objective test – whether, in a given case, the tribunal itself and, among other aspects, its composition, offered sufficient guarantees to exclude any legitimate doubt in respect of its impartiality • it must be determined whether there are ascertainable facts which may raise doubts as to a judge’s impartiality • In the great majority of cases the ECHR has focused on the objective test • in deciding whether there is a legitimate reason to fear that a particular judge or a body sitting as a bench lacks impartiality, the standpoint of the person concerned is important but not decisive. What is decisive is whether this fear can be held to be objectively justified

26. Objective test • the objective test mostly concerns hierarchical or other links between the judge and other protagonists in the proceedings • even appearances may be of a certain importance (“justice must not only be done, it must also be seen to be done”) • in a democratic society courts must inspire the confidence in the public • any judge in respect of whom there is a legitimate reason to fear a lack of impartiality must withdraw

27. Objective test • 1) personal, financial or business links between a judge and a party to the proceedings • Pescador Valero v. Spain, 2003 – a judge was also a professor at the university and heard a case against that university • Micallef v. Malta, 2009 - close family ties between the opposing party’s lawyer and the president of the court (uncle – nephew)

28. Objective test • 2) a judge’s statements about a case he or she is hearing - judges are required to exercise maximum discretion in this regard in order to preserve their image as impartial judges • Buscemi v. Italy, 1999 - the President of the Youth Court, in a press article, used expressions which implied that he had already formed an unfavourable view of the applicant’s case • Olujic v. Croatia, 2009 – members of the NJC described in disparaging terms, in a press interview, a judge whose disciplinary case they were to hear

29. Objective test • 3) functional issues - the exercise of different functions within the judicial process by the same person • It is generally excluded that a judge who examined a case at one instance would be then hearing the same case on appeal, this also covers situations of acting as a counsel or adviser at the earlier stages • Meznaric v. Slovenia, 2005 - a judge of the Constitutional Court heard a case where at the earlier stage of the proceedings he had acted as a counsel for the opposing party

30. Objective test • However, the participation of the same judge would not, normally, raise an issue where he or she had taken some auxiliary decisions • It is necessary to consider the scope and nature of the auxiliary decisions and their link with the substantive issues as well as the particular circumstances of a given case • a criminal case can be tried by the same judge who previously decided on the defendant’s pre-trial detention, unless he had made categorical statements about the defendant’s guilt (Jasinska v. Poland, 2006)

31. Objective test • The mere fact that a judge has already tried a co-accused in separate criminal proceedings is not sufficient to cast doubt on that judge’s impartiality in a subsequent case (Khodorkovskiy and Lebedev v. Russia, § 544) • It is, however, different if the earlier judgments contain findings that actually prejudge the question of the guilt of an accused in subsequent proceedings (Ferrantelli and Santangelo v. Italy, § 59)

32. Objective test • It is not incompatible that the same judge is involved, first, in a decision on the merits of a case and, subsequently, in proceedings in which the admissibility of an appeal against that decision is examined (Warsicka v. Poland, 2007) • In the case where the earlier decision is set aside, there is no obligation to send the case back to a differently composed bench