CEDH · CASELAW;CLIN;ENG — 5 février 2009

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Croatia - 22330/05 Judgment 5.2.2009 [Section I] Article 6 Civil proceedings Article 6-1 Civil rights and obligations Disciplinary proceedings against a judge fulfilling the Eskelinen test: article 6 applicable   Impartial tribunal Independent tribunal Aspersion cast on applicant’s conduct in interviews given to press by members of disciplinary panel prior to hearing: violation   Facts : The applicant was the President of the Supreme Court. In 1996 he was accused of having sexual relationships with minors and of using his position to protect the financial activities of two individuals known for their criminal activities. Disciplinary proceedings were brought against him before the National Judicial Council (“the NJC”). In January 1997 the NJC found it established that the applicant had used his position in an improper way by fraternising in public with two individuals who had a criminal background, and decided to remove him from judicial office. Over the following months, three members of the NJC – A.P., V.M. and M.H. – gave interviews in the press expressing unfavourable views on the applicant’s case. The NJC’s decision was subsequently upheld by the Parliament’s Chamber of the Counties. However, in April 1998 the Constitutional Court quashed both decisions and remitted the case for fresh consideration. In the resumed proceedings, the applicant filed unsuccessful motions for the withdrawal of A.P., V.M. and M.H. and for the proceedings to be held in public. In October 1998 the applicant was again found guilty and removed from office. The Chamber of the Counties upheld the NCJ’s decision. In December 1998 the applicant lodged a complaint with the Constitutional Court alleging, among other things, that the disciplinary proceedings had not been held in public, that three members of the NJC had not been impartial, and that witnesses in his favour had not been heard. In December 2004 the Constitutional Court dismissed his complaint as ill-founded. Law : (a)   Applicability : The Government argued that Article 6 was not applicable to the case under either its civil or criminal head, in particular given the specific nature of the applicant’s position of President of the Supreme Court. That fact was, however, deemed irrelevant by the Court, since as a consequence of the impugned disciplinary proceedings, the applicant had not only been removed from his post but had also been discharged from judicial office. Recalling the test in the Vilho Eskelinen and Others v. Finland judgment ([GC], no. 63235/00, ECHR 2007-…, Information Note No. 96), the Court noted at the outset that the domestic law expressly excluded judicial protection in connection with disciplinary proceedings against judges. However, the scope of that exclusion only referred to protection before the ordinary courts. The applicant had filed a constitutional complaint raising the same complaints as those before the Court, which the Constitutional Court had examined on its merits. Given the scope of the Constitutional Court’s review, and in particular the fact that it had the power to quash the NJC’s decision and remit the case for fresh consideration, the Court concluded that such a review provided the applicant with access to a court under domestic system and satisfied the Eskelinen test. It further concluded that the NJC had exercised judicial powers in determining the applicant’s disciplinary responsibility and was to be regarded as an independent tribunal established by law for the purposes of Article 6 of the Convention. Consequently, that Article was applicable under its civil head in the applicant’s case. (b)   Impartiality of the National Judicial Council : The Court noted that an interview with V.M. had been published in a national daily newspaper in February 1997, when the applicant’s case was pending before the Chamber of the Counties for the first time. The revelation that V.M. had voted against the applicant’s appointment as President of the Supreme Court, coupled with the fact that he himself had been a potential candidate for the same post and had considered therefore that he should have withdrawn from the disciplinary proceedings against the applicant, had created a situation which could raise legitimate doubts as to his impartiality. As to A.P., who at the time was the President of the NJC, the Court noted that an interview with him had been published in the same newspaper in March 1997, when the case was pending before the Constitutional Court. In that interview A.P. had stated that the applicant had used his personal influence and contacts in order to protect the interests of two people with a criminal background, and had added that the defence’s allegations that the case was politically motivated had been untrue. Those statements implied that A.P. had already formed an unfavourable view of the applicant’s case and were clearly incompatible with his further participation in the resumed proceedings against the applicant. In September 1997, while the case was still pending before the Constitutional Court another national daily newspaper published an interview in which M.H. described the applicant as lacking experience and knowledge, and as a corpus alienum in the Croatian judiciary. The Court considered that those expressions had clearly shown M.H.’s bias against the applicant and that his participation in the proceedings after the publication of the interview had been incompatible with the requirement of impartiality. (c)   Right to a public hearing : The NJC excluded the public from the hearing in the applicant’s case on the ground that it was necessary to protect the dignity of both the applicant personally and the judiciary as a whole, without further elaborating on these points. However, the applicant himself had asked for the proceedings to be held in public thus showing that he did not consider that his dignity required protection. Moreover, given that the proceedings concerned such a prominent public figure and that public allegations had already been made suggesting that the case against him was politically motivated, it was evidently in the interest of both the applicant and the general public for the proceedings before the NJC to be open to public scrutiny. However, the lack of public access was not rectified in either the proceedings before the Chamber of the Counties or those before the Constitutional Court. (d)   Equality of arms : The NJC had justified its refusal to hear evidence from any of the witnesses called on behalf of the applicant by stating that the circumstances referred to in the evidence on which he relied had already been established or had not been important for the case. However, even though it was not for the Court to express an opinion on the relevance of the evidence or on whether the allegations against the applicant were well-founded, it considered that the evidence of the witnesses concerned had been relevant to the applicant’s case in that it would have been likely to support his line of defence. Moreover, the reasons relied on by the NJC had not been sufficient to justify the refusal to hear any of the witnesses called on behalf of the applicant, which ultimately limited his ability to present his case in a manner compatible with the guarantees of a fair trial. Conclusion : violations (unanimously). Article 41 – EUR 5,000 in respect of non-pecuniary damage.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes