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SECOND
SECTION
CASE OF
CHMELÍŘ v. THE CZECH REPUBLIC
(Application
no. 64935/01)
JUDGMENT
STRASBOURG
7 June 2005
FINAL
12/10/2005
In the case of Chmelíř v. the Czech Republic,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Mr J.-P. Costa, President,
Mr A.B.
Baka,
Mr R. Türmen,
Mr K. Jungwiert,
Mr M.
Ugrekhelidze,
Mrs D. Jočienė,
Mr D. Popović,
judges,
and Mr S. Naismith, Deputy Section
Registrar,
Having
deliberated in private on 19 May 2005,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 64935/01) against the Czech
Republic lodged with the Court under Article 34 of the Convention for
the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Czech national, Mr Martin Chmelíř
(“the applicant”), on 12 April 1999.
- The
Czech Government (“the Government”) were represented by
their Agent, Mr V.A. Schorm.
- The
applicant alleged that his appeal had not been heard by an impartial
tribunal.
- The
application was allocated to the Second Section of the Court (Rule 52
§ 1 of the Rules of Court). Within that Section, the
Chamber that would consider the case (Article 27 § 1 of the
Convention) was constituted as provided in Rule 26 § 1.
- By
a decision of 14 September 2004, the Chamber declared the application
admissible.
- The
Government filed observations on the merits of the case and the
applicant replied in writing.
- On
1 November 2004 the Court changed the composition of its Sections
(Rule 25 § 1). This case was assigned to the newly composed
Second Section (Rule 52 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
A. Criminal proceedings against the applicant
- Criminal
proceedings had been pending since 1997 against the applicant, who
had absconded. On 12 February 1998 he was arrested by the police and
remanded in custody by the Tábor District Court (Okresní
soud).
- By
a judgment of 3 March 1999, the České Budĕjovice
Regional Court (Krajský soud) convicted the
applicant on several counts, including theft, trespass and illegal
possession of weapons, and sentenced him to eight years'
imprisonment. It also imposed a fine and disqualified him from
driving for five years. The judgment also concerned a number of
co-defendants, including V.Š. senior and V.Š. junior.
- The
applicant and the prosecutor lodged appeals before the Prague High
Court (Vrchní soud) .
- On
27 April 1999, R.T., a judge at the High Court, was allowed to
withdraw from the criminal case V.Š. and Others on the
ground that he was acquainted with V.Š.'s family.
- Mr
Chmelíř's appeal was subsequently severed from those of
his co-defendants. According to the Government, the severance was
necessary because of the applicant's numerous obstruction tactics.
The applicant disputed that allegation in his observations,
contending that his case had been severed no later than at the second
hearing in November 1999, the first having taken place at the end of
the previous summer.
- Appeals
by the applicant's co-defendants were dismissed by the High Court on
22 November 1999.
- On
1 September 2000 the High Court division, in which Judge R.T. was
sitting, dismissed the applicant's appeal as ill-founded.
- On
4 December 2000 Mr Chmelíř lodged a constitutional appeal
against the decisions of the lower courts. He complained in
particular of the lack of impartiality of two of the High Court
judges, observing that one of them knew the family of one of his
co-defendants – and had, on that ground, been ordered to stand
down from hearing the appeal lodged by the co-defendants, but not the
applicant's severed appeal – and that the other was the
defendant in an action he had brought for the protection of
personality rights.
- On
30 January 2001 the Constitutional Court dismissed the applicant's
appeal as manifestly ill-founded, as it had found no indication that
the applicant's guaranteed rights had been violated.
- On
9 July 2004 the applicant was released on licence.
B. The applications for the judge's withdrawal
- On
3 December 1999 the applicant applied for the withdrawal of M.V.,
President of the High Court division to which his appeal had been
referred, alleging that they had had an intimate relationship in
1996.
- On
20 December 1999 the High Court decided at a private sitting not to
require M.V. to stand down from the applicant's case. Noting that
M.V. had stated on 17 December 1999 that he had not been acquainted
with the applicant before the criminal case against the latter was
referred to him, the court considered that the applicant was simply
using dilatory tactics.
- On
5 January 2000 Mr Chmelíř appealed against that decision
through counsel, contending that the High Court had failed to bring
together the requisite documents. In his view, even if the objection
of bias was lacking in justification, its subject matter was so
serious that Judge M.V. should objectively have been excluded from
hearing the case.
- On
25 January 2000 the applicant's appeal was dismissed by the Supreme
Court (Nejvyšší soud) as ill-founded.
- By
a decision of 15 February 2000 given by the President of the High
Court division (M.V.) under Article 66 § 1 of the Code of
Criminal Procedure, the applicant was fined 50,000 Czech korunas
(CZK) (approximately 1,674 euros) for contempt of court, on the
grounds that he had made false allegations in his application of 3
December 1999 and that those allegations represented an insolent and
unprecedented attack on M.V. and were intended to delay the
proceedings. The applicant was warned that another similar attack
could in the future be classified as a criminal offence.
- On
24 August 2000 the applicant's appeal was declared inadmissible by
the Supreme Court, which considered that the impugned decision had
been rendered at second instance.
- On
7 February 2000 the applicant submitted a fresh application for the
withdrawal of M.V. from the case, on the ground that he had brought
an action against the judge for the protection of personality rights.
He considered that this action in itself cast doubt on M.V.'s
impartiality.
- At
the High Court hearing on 3 March 2000, the applicant learnt that his
application for the judge's withdrawal had been rejected at a private
sitting of that court on 1 March 2000. The division presided over by
M.V. considered that the applicant's request simply represented a
provocative obstruction and a fresh attack on the judge's moral
integrity. In the decision of 1 March 2000, the court stated that, in
reaching its finding, it had referred to the content of the
application for the judge's withdrawal, to the statement made by M.V.
on 17 December 1999 (during the proceedings concerning the first
application for withdrawal) and to the applicant's previous attempts
to obstruct the criminal proceedings.
-
Mr Chmelíř appealed against that decision to the Supreme
Court and also lodged a constitutional appeal in which he relied on
his right to a fair hearing.
- On
24 August 2000 the Constitutional Court (Ústavní
soud) dismissed that appeal, without examining it on the
merits, considering that it was premature.
- On
the same day, the Supreme Court declared the applicant's appeal
inadmissible, finding that the impugned decision had been rendered at
second instance (by an appeal court) and that it was therefore
unappealable.
C. Action for the protection of personality rights
brought by the applicant against Judge M.V.
- On
7 February 2000 the applicant brought an action for the protection of
personality rights before the Prague 4 District Court (Obvodní
soud) against Judge M.V. in his capacity as president of
the division to which his appeal had been referred. He alleged that
he had suffered non-pecuniary damage because M.V. had obliged him to
attend a hearing on 23 December 1999 even though the judge had
been informed of an anonymous threat concerning the presence of
explosives on the court premises.
- On
20 April 2000 the applicant was requested to submit further
particulars of his claims, failing which the proceedings would be
discontinued. He complied with the request on 8 May 2000.
- On
12 July 2000 the court discontinued the proceedings on the ground
that the submissions lacked precision.
- The
applicant appealed on 18 August 2000.
- On
23 March 2001 the Prague City Court (Městský soud)
set aside the decision of 12 July 2000, finding that cases
concerning the protection of personality rights should be heard by
the regional courts (or, in Prague, the City Court).
- On
12 February 2002 the High Court of Prague settled the dispute as to
jurisdiction by referring the case to the Prague City Court.
- On
10 October 2002 the City Court judge requested the applicant to
submit more precise claims.
- On
26 August 2003 the applicant's case was dismissed because he had
failed to provide sufficient particulars of his claims.
- On
8 March 2004 the High Court, to which the applicant had appealed, set
aside the judgment of 26 August 2003 and decided that it was
necessary to proceed with the examination of that part of the action
which concerned redress for non-pecuniary damage (evaluated by the
applicant at CZK 500,000).
- On
17 September 2004 the City Court rejected that part of the
application. The applicant intended to appeal.
II. RELEVANT DOMESTIC LAW
- The
relevant provisions of the Code of Criminal Procedure as applicable
at the material time are as follows:
Article 30 § 1
“No judge, prosecutor, investigator or police
representative may act in criminal proceedings if there is any doubt
as to their impartiality, whether because they have a connection with
the case concerned, with the persons involved therein, or with the
lawyers, statutory representatives or agents of such persons, or
because they have a connection with another prosecuting authority. No
measure taken by a disqualified person may form the basis of any
decision arising from the criminal proceedings.”
Article 31
“A decision requiring a judge to stand down for
the reasons provided for in Article 30 shall be taken, even
proprio motu, by the authority concerned. With respect to a
judge sitting in a particular division, the decision shall be taken
by that division. Such decisions shall be appealable and the matter
shall be settled by the higher authority.”
Article 66 § 1
“Anyone who ignores a warning and continues to
obstruct the course of the proceedings, or who behaves in an
insulting manner towards the court, the prosecutor, the investigator
or the police representative, or who fails to comply with an order or
formal notice issued under the present law, may be ordered by the
president of the division or, during preparatory proceedings, by the
prosecutor, investigator or police representative, to pay a
disciplinary fine of up to 50,000 Czech korunas.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant called into question the impartiality of two of the High
Court judges who heard his appeal. He alleged a violation of Article
6 § 1 of the Convention, which provides:
“In the determination of ... any criminal charge
against him, everyone is entitled to a fair ... hearing ... by an ...
impartial tribunal established by law. ...”
A. The parties' submissions
1. The Government
- The
Government, whilst remaining convinced that respect for the right to
an impartial tribunal had to be examined according to the actual
circumstances of each case, drew attention in the instant case to the
repeated attempts by the applicant to hinder the progress of the
proceedings (by putting pressure on witnesses, absconding, changing
lawyer, having hearings adjourned). It was precisely for that reason
that his appeal was severed from that of his co-defendants. The
question therefore arose whether, in those circumstances, the
national authorities could reasonably have been expected to proceed
in such a manner as to leave no doubt concerning the impartiality of
the court, even if that had been conceivable.
- In
the Government's view, it could not be asserted that the High Court
had insufficiently examined the objection raised by the applicant on
7 February 2000 alleging bias on the part of Judge M.V., even
though it had referred to the statement made by M.V. in connection
with the examination of the applicant's first objection. Moreover,
the fact that M.V. had ordered the applicant to pay a disciplinary
fine – on which the Court had invited the Government to comment
– was of no importance in this connection, in particular
because the applicant had failed to mention this aspect in his
objection. Similarly, that point could not form the subject of the
present application before the Court, for the applicant disputed
M.V.'s impartiality solely on the ground that the judge had heard his
appeal despite the fact that the applicant had brought an action
against him for the protection of personality rights. According to
the Government, the Court should not, in assessing whether the rights
relied on were respected, take into account any factual circumstances
that did not form the basis of the applicant's complaints.
- The
Government did not exclude the possibility, in general terms, that
doubts might be raised as to the impartiality of a court when a judge
was also the defendant in proceedings brought by the accused.
However, that would apply more specifically to the situation where
civil proceedings were brought prior to criminal proceedings, without
there being any direct relation between them. In this connection, the
Government referred to Tanner and Malminen v. Finland ((dec.),
nos. 42114/98 and 42185/98, 26 February 2002), where the
application was declared manifestly ill-founded.
The
Government submitted that, in the instant case, the applicant's sole
purpose in bringing an action for the protection of personality
rights was to create the conditions for raising an objection of bias,
with a view to protracting the proceedings until the time-limit for
detention had expired. The applicant had thus stated in the grounds
for his objection that the judge's impartiality was compromised by
the very existence of such an action (whether justified or not). The
Government inferred that he was not seeking the protection of his
procedural rights but, on the contrary, wished to take advantage of
such protection in order to avoid being sentenced. In this
connection, they also drew attention to the grounds of the appeal
lodged by the applicant against the dismissal of his first
application for withdrawal (see paragraph 20 above).
- In
those circumstances, the Government considered that the High Court
had proceeded in the only correct manner, that is to say without
yielding to the applicant's blackmail or pressure. Any other approach
would have provided him and other defendants with a simple means to
protract proceedings. In the Government's view, the right to an
impartial tribunal was not absolute. When ruling on objections of
bias, courts had not only to consider the rights of the defendant but
also to take into account the proper administration of justice and
the reasonable time requirement.
- Moreover,
it was not to be overlooked that the applicant's guilt was initially
established by a first-instance court, whose impartiality had not
been challenged by the applicant. Judge M.V. only intervened at the
appeal stage. The Government considered that, if it was possible to
remedy the shortcomings of first-instance proceedings by defect-free
proceedings on appeal (see, mutatis mutandis, Lešník
v. Slovakia (dec.), no. 35640/97, 8 January 2002), the
reverse had to be true, a fortiori, especially as the Court
had on many occasions found that the Article 6 § 1 guarantees
applied in the first place to proceedings before first-instance
courts. Since the High Court had simply upheld the judgment given at
first instance, the Government contended that the charges against the
defendant were determined by an impartial tribunal in proceedings
that satisfied all the requirements of fairness.
- With
respect to Judge R.T., the decision of 27 April 1999 showed that he
had been disqualified because of his connections with two
co-defendants of the applicant. After the severance of the
applicant's case, there was no apparent reason for that judge to be
ordered to stand down, as he had no connections with the applicant.
The fact that R.T. had continued to sit in the division to which the
applicant's appeal had been referred was therefore justified by the
lack of any ground to warrant his exclusion from the case.
- The
Government noted that the courts decided on the withdrawal of a judge
in private and only in cases where such a request had been submitted
to it. In the instant case, however, no such request had been made,
either by the applicant or by Judge R.T. For this reason there was no
record of any examination of the question of R.T.'s impartiality. It
could not however be claimed that the court had ignored this
question. Before ruling on a case, the division concerned would
systematically seek to establish whether there were any circumstances
that would preclude it from doing so. If there were no obstacles, the
court, as in the instant case, would continue its examination of the
case without adopting any express decision on that matter. This was
common practice, for a certain presumption of impartiality was
necessary for the proper administration of justice. It would
certainly be difficult to provide systematically for a special
procedure. In case of doubt, it was incumbent upon the defendant to
submit an application for the judge's withdrawal, which the applicant
had not done in the instant case, for he made no protest to the High
Court against the participation of R.T. In this connection, the
Government observed that any doubts as to the favourable outcome of
an application for withdrawal did not exempt the defendant from the
obligation to make use of that remedy.
- In
conclusion, the Government considered that it was appropriate in the
instant case to take into account the specific circumstances and
contended that the High Court had succeeded in maintaining a fair
balance between the right of the applicant to an impartial tribunal
and the obligation to ensure the proper administration of justice.
2. The applicant
- The
applicant rejected the Government's arguments and maintained that
they amounted to little more than speculation, for the purpose of
damaging his reputation and justifying the unlawful conduct of the
High Court. According to the applicant, the Government had thus
demonstrated that the right to an impartial tribunal was not an
absolute right afforded to all citizens.
- The
applicant also denied having any interest in protracting the
proceedings and asserted that his sole purpose was to be tried by an
impartial tribunal. Only such a tribunal could, in his opinion,
ensure that justice took its proper course. In addition, the State
had enough resources at its disposal to ensure that the proceedings
were completed within a reasonable time, without any need for courts
to adopt unlawful methods. Moreover, a few weeks were sufficient for
a judge to examine a case, even a complex one.
- With
respect to the grounds of his appeal of 5 January 2000 (see paragraph
20 above), the applicant contended that they had been drafted by his
lawyer and he had not signed them. In response to the Government's
argument that he had failed to mention in his application the fine he
had been given by M.V. (see paragraph 42 above), the applicant
explained that he had only put forward a few facts that in his view
were sufficient to show that the judge was biased, and that the fine
was part of the overall picture.
- The
applicant considered that the Government's contention that what
mattered was for the sentence to be decided at first instance by a
court that satisfied the requirements of Article 6 § 1 was
absurd. In his view, the reality was quite different, because if the
shortcomings of a first-instance court could be remedied by an appeal
court, then it was the appeal court that was expected to be
infallible because its decision was unappealable. Its impartiality
therefore had to be subjected to detailed scrutiny.
- The
applicant was quite certain that Judge R.T had sat in the division
that ruled on his appeal and had stood down from the case prior to
the severance. The applicant had never applied for his withdrawal
because he had always believed, and continued to believe, that the
judge had already been ordered to stand down, and also because such
an application would have been regarded as another tactic to delay
the proceedings. His lawyer had in fact advised him to stop
protesting against the judges who wanted to convict him at all costs
and subsequently appeal to the Constitutional Court.
Moreover,
the fact that R.T. was acquainted with two of his co-defendants had
rendered his defence practically impossible, because he had preferred
not to mention them in his pleadings even though he would have wished
to testify against them.
- Accordingly,
the applicant considered that two of the three members of the appeal
court division had not fulfilled the condition of impartiality
provided for by Article 6 § 1 of the Convention.
B. The Court's assessment
- The
Court reiterates that it is of fundamental importance in a democratic
society that the courts inspire confidence in the public and, above
all, as far as criminal proceedings are concerned, in the accused. To
that end, it has constantly stressed that a tribunal must be
impartial.
There
are two tests for assessing whether a tribunal is impartial within
the meaning of Article 6 § 1 of the Convention: the first
consists in seeking to determine the personal conviction of a
particular judge in a given case and the second in ascertaining
whether the judge offered guarantees sufficient to exclude any
legitimate doubt in this respect (see Pullar v. the United
Kingdom, judgment of 10 June 1996, Reports of Judgments and
Decisions 1996 III, p. 792, § 30).
- The
personal impartiality of judges must be presumed unless there is
evidence to the contrary (see Cianetti v. Italy, no. 55634/00,
§ 37, 22 April 2004). As to the objective test it must be
determined whether, irrespective of the judge's personal conduct
there are ascertainable facts that may raise doubts as to his or her
impartiality. In this respect even appearances may be of some
importance. This implies that in deciding whether in a given case
there is a legitimate reason to fear that a particular judge lacks
impartiality, the standpoint of the person concerned is important but
not decisive. What is decisive is whether that person's fear can be
regarded as objectively justified (see Ferrantelli and Santangelo
v. Italy, judgment of 7 August 1996, Reports 1996-III, pp.
951-52, § 58, and Morel v. France (no. 1), no. 34130/96,
§ 42, ECHR 2000-VI).
- In
the instant case, the Court is not convinced that there are
sufficient elements to establish that any personal bias was shown by
the judges who sat in the High Court division that ruled on the
applicant's appeal. In any event, it does not consider it necessary
to decide that question since it has arrived at the conclusion, for
the reasons set out below, that there was a lack of objective
impartiality.
- For
the applicant, the fear of a lack of impartiality stemmed from two
circumstances in the instant case: firstly, the president of the
appeal division was the defendant in an action brought by the
applicant for the protection of personality rights; secondly, another
member of the division who knew the family of one of the applicant's
co-defendants had, for that reason, stood down from hearing the
appeal lodged by those other defendants but continued to sit in the
applicant's severed case.
- The
Court would observe that the question whether the doubts of the
person concerned are objectively justified can be answered
differently depending on the circumstances of the case (see, mutatis
mutandis, Morel (no. 1), cited above, § 45).
Accordingly, it is appropriate to examine the applicant's complaint
in the light of all the specific facts of the case, as the Government
have moreover requested (see paragraph 41 above). Whilst the
Government is justified in wishing to take account of the allegedly
obstructionist conduct of the applicant, there are other important
elements which, contrary to their view, cannot be ignored in
assessing the impartiality of the court, such as the decision to fine
the applicant taken by the president of the appeal division on 15
February 2000. The Court considers that there is nothing to prevent
it from going beyond the applicant's allegations and establishing
whether there were any other verifiable facts that may have raised
doubts as to the impartiality of the court.
- In
this connection, the Court thus notes that, as president of the
division to which Mr Chmelíř's appeal was referred, M.V.
became the defendant in an action brought by the applicant on 7
February 2000 for the protection of personality rights. Then on 15
February 2000, M.V. ordered the applicant to pay a disciplinary fine
for contempt of court on the ground that he had made false
allegations in his application for the judge's withdrawal of 3
December 1999 and that those allegations had constituted an insolent
and unprecedented attack on his person and were intended to delay the
proceedings. Lastly, on 1 March 2000, the High Court dismissed the
applicant's second application for the judge's withdrawal, after the
action had been brought against M.V. for the protection of
personality rights.
- It
follows that on 7 February 2000, when the applicant brought an action
against M.V. for the protection of personality rights, the criminal
proceedings before the High Court – in which M.V. was sitting
as division president – were pending, as they did not finish
until 1 September 2000. The two sets of proceedings thus overlapped
for some seven months. Consequently, it cannot be ruled out that, in
the context of his criminal proceedings, the applicant may have had
reason to fear that M.V. continued to regard him as an opposing party
(see, mutatis mutandis, Wettstein v. Switzerland, no.
33958/96, § 47, ECHR 2000 XII).
- Furthermore,
in its decision of 1 March 2000 dismissing the application for the
withdrawal of its president, M.V. – an application based on the
fact that an action had been brought for the protection of
personality rights – the High Court division simply referred to
the content of that application, to the statement by M.V. in response
to the previous application for his withdrawal, and to the
applicant's previous attempts to obstruct the criminal proceedings.
It
would thus appear that M.V. did not expressly comment on the grounds
of the second application for his withdrawal or state his own views
about the action brought against him by the applicant. Even though
the said decision described that application as a “new attack
on the judge's moral integrity”, the judge made no formal
statement capable of dispelling any doubts the applicant may have had
(contrast Puolitaival and Pirttiaho v. Finland, no. 54857/00,
§ 53, 23 November 2004).
- With
respect to the Government's reference to the decision in Tanner
and Malminen, cited above, the Court would note that in that case
it criticised the applicants for not raising their objections in due
time. Moreover, their allegations of bias concerned the
first-instance court and were, like the merits of the criminal
charges against the applicants, reconsidered by the appeal court.
However, that was not the case here.
- Any
fears the aforementioned facts may have aroused in the applicant's
mind were strengthened by the decision of M.V. on 15 February 2000 to
order him to pay a fine of CZK 50,000 (approximately 1,674 euros).
- It
is true, as the Court held in Ravnsborg v. Sweden (judgment of
23 March 1994, Series A no. 283-B, p. 30, § 34), that legal
rules empowering a court to punish any inappropriate conduct before
it are indispensable to ensure the proper and orderly course of
judicial proceedings. The Court thus has no intention of depriving
courts in Contracting States of the possibility of imposing
disciplinary penalties on litigants for the purpose of protecting the
interests of justice. Once again, it is however necessary to take
into account the specific circumstances of each case.
- In
the instant case, the Court acknowledges that the applicant's conduct
as pointed out by the Government (see paragraph 41 above) may have
delayed the proceedings and complicated the task of the courts, and
that the courts might thus have needed to react accordingly. However,
it was not that conduct which led the president of the appeal
division to fine the applicant. The applicant was actually penalised
for the contempt of court constituted by the false allegations in his
application for the judge's withdrawal of 3 December 1999. Those
allegations were regarded by the judge as representing an insolent
and unprecedented attack against him with the intention of delaying
the proceedings.
- It
should not, however, be overlooked that an application for withdrawal
is a statutory remedy that is available to litigants under the Code
of Criminal Procedure. Moreover, the reasoning of that decision
suggests that the president of the division was unable sufficiently
to distance himself from the comments made about him in the context
of the applicant's first application for withdrawal. In the Court's
opinion, it would be academic to claim that the judge was acting
without any personal interest and was simply defending the court's
authority and status. In reality, courts are not impersonal
institutions and operate through the intermediary of the judges on
the bench. Since, in the instant case, the contempt of court was
constituted by an insolent and unprecedented attack on the president
of the division, this indicates that the applicant's conduct was
assessed by the judge concerned in relation to his personal
understanding, his feelings, his sense of dignity and his standards
of behaviour, since he felt personally targeted and insulted. Thus,
his own perception and assessment of the facts and his own judgment
were involved in the process of determining whether the court had
been insulted in that specific case.
Emphasis
should also be laid, in this context, on the severity of the penalty
imposed (the highest possible fine provided for by the Code of
Criminal Procedure) and on the warning to the applicant to the effect
that any similar attack in the future was likely to be classified as
a criminal offence. All these elements show, in the Court's view,
that the judge overreacted to the applicant's conduct.
- Lastly,
the Court would observe that, following the decision of the High
Court, the applicant's conviction and sentence became effective. The
applicant's constitutional appeal was declared manifestly
ill-founded, without any express ruling by the Constitutional Court
concerning the complaint of bias on the part of the court, whereas it
could have set aside the impugned decisions. In these circumstances,
the Court is not convinced that any shortcomings in the High Court
proceedings could have been redressed.
In
this connection, the Court must dismiss the Government's argument
that the guarantees under Article 6 § 1 of the Convention are
satisfied by the fact that the impartiality of the first-instance
court which established the applicant's guilt was not disputed. The
Court reiterates that, according to its case-law, it is the
intervention of a higher court which, in certain circumstances, may
remedy an earlier violation of the Convention (see De Cubber v.
Belgium, judgment of 26 October 1984, Series A no. 86, p. 19,
§ 33).
- For
the Court, these elements are sufficient to justify the objective
existence of fears in the applicant's mind, namely that M.V., as
president of the High Court division, lacked the requisite
impartiality.
Having
regard to this finding, and considering that it has already addressed
the essence of the complaints of bias on the part of the High Court,
the Court does not consider it necessary to rule on the alleged lack
of impartiality of Judge R.T.
- In
the instant case there has thus been a violation of Article 6 §
1 of the Convention with respect to the requirement of an impartial
tribunal.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article
41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- Under
the head of pecuniary damage, the applicant claimed 13,000 euros
(EUR) in respect of his “debts incurred on account and as a
result” of the judicial proceedings and his imprisonment,
together with the sum of EUR 225,000, corresponding to the damages
that he had to pay to the civil parties.
Moreover,
the applicant claimed EUR 30 for each day spent in prison and
compensation of EUR 200 per month for the next thirty years, because
of his distressing situation as a citizen with a criminal history and
the difficulties he was encountering in finding employment.
- The
Government first drew attention to amendment no. 83/2004 to the
Constitutional Court Act, which allowed applicants who had been
successful in proceedings before the Court to request, in criminal
cases, the reopening of proceedings in the Constitutional Court.
They
further considered that there was no causal link between the alleged
violation of the applicant's right to an impartial tribunal and the
pecuniary and non-pecuniary damage that he alleged.
- The
Court would note that it cannot speculate as to what the outcome of
proceedings compatible with Article 6 § 1 of the Convention
might have been (see Incal v. Turkey, judgment of 9 June 1998,
Reports 1998-IV, p. 1575, § 82). In the present case
it perceives no causal link between the breach of Article 6 § 1
and the alleged pecuniary damage. There is therefore no ground for
compensation under this head.
In
view of the circumstances of the present case, the Court further
considers that the finding of a violation constitutes in itself
sufficient just satisfaction for any non-pecuniary damage that may
have been sustained by the applicant.
B. Costs and expenses
- Lastly,
the applicant claimed EUR 26,000 in respect of the cost of his
defence in the domestic proceedings.
- The
Court reiterates that, where it finds that there has been a violation
of the Convention, it may award the applicant the costs and expenses
incurred before the national courts for the prevention or redress of
the violation (see Hertel v. Switzerland, judgment of 25
August 1998, Reports 1998-VI, p. 2334, § 63). In the
instant case, this would correspond in particular to the applications
for withdrawal and the constitutional appeals lodged by the
applicant.
On
the basis of the information in its possession and considering the
fact that the applicant did not have legal representation in the
proceedings before it, the Court awards him EUR 1,000 in respect of
the costs and expenses he incurred in the domestic proceedings.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds that the finding of a violation
constitutes in itself sufficient just satisfaction for the
non-pecuniary damage sustained by the applicant;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 1,000 (one thousand euros)
in respect of costs and expenses, to be converted into the national
currency of the respondent State at the rate applicable at the date
of settlement, plus any tax that may be chargeable;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in French, and notified in writing on 7 June 2005, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Stanley
Naismith Jean-Paul Costa
Deputy Registrar President
