European Court of Human Rights - case of Kyprianou v. Cyprus (2005) (excerpts)

 European Court of Human Rights - case of Kyprianou v. Cyprus (2005) (excerpts)

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118.  The Court reiterates at the outset 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 (see the Padovani v. Italy judgment of 26 February 1993, Series A no. 257-B, p. 20, § 27). To that end Article 6 requires a tribunal falling within its scope to be impartial. Impartiality normally denotes absence of prejudice or bias and its existence or otherwise can be tested in various ways. The Court has thus distinguished between a subjective approach, that is endeavouring to ascertain the personal conviction or interest of a given judge in a particular case, and an objective approach, that is determining whether he or she offered sufficient guarantees to exclude any legitimate doubt in this respect (see Piersack v. Belgium, judgment of 1 October 1982, Series A no. 53, § 30 and Grieves v. the United Kingdom [GC], no. 57067/00, § 69, ECHR 2003-XII). As to the second test, when applied to a body sitting as a bench, it means determining whether, quite apart from the personal conduct of any of the members of that body, there are ascertainable facts which may raise doubts as to its impartiality. In this respect even appearances may be of some importance (see Castillo Algar v. Spain, judgment of 28 October 1998, Reports 1998-VIII, p. 3116, § 45 and Morel v. France, no. 34130/96, § 42, ECHR 2000-VI). When it is being decided whether in a given case there is a legitimate reason to fear that a particular body lacks impartiality, the standpoint of those claiming that it is not impartial is important but not decisive. What is decisive is whether the fear can be held to be objectively justified (see Ferrantelli and Santangelo v. Italy, judgment of 7 August 1996, Reports 1996-III, pp. 951-52, § 58, and Wettstein v. Switzerland, no. 33958/96, § 44, CEDH 2000-XII).

119.  In applying the subjective test the Court has consistently held that the personal impartiality of a judge must be presumed until there is proof to the contrary (see Hauschildt v. Denmark, judgment of 24 May 1989, Series A no. 154, p. 21, § 47). As regards the type of proof required, the Court has, for example, sought to ascertain whether a judge has displayed hostility or ill-will or has arranged to have a case assigned to himself for personal reasons (see De Cubber, cited above, § 25). The principle that a tribunal shall be presumed to be free of personal prejudice or partiality is long established in the case-law of the Court (see, for example, the Le Compte, Van Leuven and De Meyere v. Belgium judgment cited above, p. 25, § 58). It reflects an important element of the rule of law, namely that the verdicts of a tribunal should be final and binding unless set aside by a superior court on the basis of irregularity or unfairness. This principle must apply equally to all forms of tribunal including juries (see Holm v. Sweden, judgment of 25 November 1993, Series A no. 279-A, p. 14, § 30). Although in some cases, it may be difficult to procure evidence with which to rebut the presumption, it must be remembered that the requirement of objective impartiality provides a further important guarantee (see Pullar v. the United Kingdom, judgment of 10 June 1996, Reports 1996-III, p. 793, § 32). In other words, the Court has recognised the difficulty of establishing a breach of Article 6 on account of subjective partiality and for this reason has in the vast majority of cases raising impartiality issues focused on the objective test. However, there is no watertight division between the two notions since the conduct of a judge may not only prompt objectively held misgivings as to impartiality from the point of view of the external observer (objective test) but may also go to the issue of his or her personal conviction (subjective test).

120.  The Court has held for instance that the judicial authorities are required to exercise maximum discretion with regard to the cases with which they deal in order to preserve their image as impartial judges. That discretion should dissuade them from making use of the press, even when provoked. It is the higher demands of justice and the elevated nature of judicial office which impose that duty (see Buscemi v. Italy, no. 29569/95, § 67, ECHR 1999-VI). Thus, where a court president publicly used expressions which implied that he had already formed an unfavourable view of the applicant’s case before presiding over the court that had to decide it, his statements were such as to justify objectively the accused’s fears as to his impartiality (see Buscemi v. Italy, cited above, § 68). On the other hand, in another case, where a judge engaged in public criticism of the defence and publicly expressed surprise that the accused had pleaded not guilty, the Court approached the matter on the basis of the subjective test (Lavents v. Latvia, no. 58442/00, §§ 118 and 119, 28 November 2002).

121.  An analysis of the Court’s case-law discloses two possible situations in which the question of a lack of judicial impartiality arises. The first is functional in nature: where the judge’s personal conduct is not at all impugned, but where for instance the exercise of different functions within the judicial process by the same person (see the Piersack v. Belgium case, cited above), or hierarchical or other links with another actor in the proceedings (see court martial cases, for example Grieves v. the United Kingdom, cited above, and Miller and Others v. the United Kingdom, nos. 45825/99, 45826/99 and 45827/99, 26 October 2004), objectively justify misgivings as to the impartiality of the tribunal, which thus fails to meet the Convention standard under the objective test (see paragraph 118 above). The second is of a personal character and derives from the conduct of the judges in a given case. In terms of the objective test, such conduct may be sufficient to ground legitimate and objectively justified apprehensions as in the above-mentioned Buscemi case, but it may also be of such a nature as to raise an issue under the subjective test (for example the Lavents case, cited above) and even disclose personal bias. In this context, therefore, whether a case falls to be dealt with under one test or the other, or both, will depend on the particular facts of the contested conduct.

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126.  In considering this question, the Court recalls that, both in relation to Article 6 § 1 of the Convention and in the context of Article 5 § 3, it has found doubts as to impartiality to be objectively justified where there is some confusion between the functions of prosecutor and judge (see, for Article 6 § 1, mutatis mutandis, Daktaras v. Lithuania, no. 42095/98, §§ 35 -38, ECHR 2000-X and, for Article 5 § 3, Brincat v. Italy, judgment of 26 November 1992, Series A no. 249-A, pp. 11-12, §§ 20-22; Huber v. Switzerland, judgment of 23 October 1990, Series A no. 188, pp. 17-18, §§ 41-43 and Assenov and Others v. Bulgaria, judgment of 28 October 1998, Reports 1998-VIII, pp. 3298-3299, §§ 146-150).

127.  The present case relates to a contempt in the face of the court, aimed at the judges personally. They had been the direct object of the applicant’s criticisms as to the manner in which they had been conducting the proceedings. The same judges then took the decision to prosecute, tried the issues arising from the applicant’s conduct, determined his guilt and imposed the sanction, in this case a term of imprisonment. In such a situation the confusion of roles between complainant, witness, prosecutor and judge could self-evidently prompt objectively justified fears as to the conformity of the proceedings with the time-honoured principle that no one should be a judge in his or her own cause and, consequently, as to the impartiality of the bench (see Demicoli v. Malta, judgment of 27 August 1991, Series A no. 210, pp. 18-19, §§ 41-42).

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135.  In the light of the foregoing and having examined the facts of the case under both the objective and subjective tests enshrined in its case-law, the Court finds that the Limassol Assize Court was not impartial within the meaning of Article 6 § 1 of the Convention.