THIRD SECTION

CASE OF KAMENOS v. CYPRUS

( Application no. 147/07 )

JUDGMENT

STRASBOURG

31 October 2017

FINAL

31/01/2018

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Kamenos v. Cyprus,

The European Court of Human Rights ( Third Section ), sitting as a Chamber composed of:

Helena Jäderblom, President, Luis López Guerra, Dmitry Dedov, Pere Pastor Vilanova, Alena Poláčková, Jolien Schukking, judges, Costas Pamballis, ad hoc judge, and Stephen Phillips , Section Registrar ,

Having deliberated in private on 3 October 2017 ,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1 . The case originated in an application (no. 147/07) against the Republic of Cyprus lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Cypriot national, Mr Costas Kamenos (“the applicant”), on 24 November 2006 .

2 . The applicant was represented by Mr E. Efstathiou, a lawyer practising in Nicosia. The Cypriot Government (“the Government”) were represented by their Agent at the time, Mr P. Cl erides, Attorney General of the Republic of Cyprus.

3 . The applicant complained principally under Article 6 of the Convention of the lack of fairness of disciplinary proceedings against him before the Supreme Council of Judicature (“ the SCJ”). He complained firstly, under Article 6 § 1, that he had been charged, tried and convicted by the same judges , in breach of the principle of impartiality . S econdly , relying on Article 6 § 2, he alleged that he had not been given adequate information concerning the specific Industrial Disputes Court (“ the IDC”) proceedings to which the complaint against him had related and on which the SCJ had relied.

4 . On 10 December 2008 both complaints were communicated to the Government under Article 6 § 1 of the Convention .

5 . As the judge that had been elected in respect of Cyprus at the time , George Nicolaou, was exempted from sitting in the case (Rule 28 of the Rules of Court), on 27 January 2009 the Government appointed Mr Costas Pamballis to sit as an ad hoc judge ( former Article 27 § 2 of the Convention and former Rule 29 § 1).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

6 . The applicant was born in 1949 , he is a lawyer and lives in Nicosia .

7 . The applicant was appointed as a n IDC judge on 1 October 1997 and as its P resident on 6 December 2001.

9 . The applicant was served with a written notice from the Supreme Court dated 1 September 2005, informing him of the allegations against him and noting that the Supreme Court had decided that it was justified to activate Rule 3 of the Procedural Rules concerning the e xercise of the SCJ ’ s d isciplinary a uthority (“ the Procedural Rules ”; see paragraph 41 below). The applicant was provided with a copy of the letter of complaint and was requested to send his comments within seven days.

10 . By a letter dated 7 September 2005 the applicant submitted his comments to the Supreme Court with regard to the allegations against him. T he applicant observed, inter alia , that the complaint was so general and vague that he was unable to identify the precise events on which it was based as he had presided over numerous proceedings. He also informed the Supreme Court that the authors of the letter had given a copy to the press and that it had been published in a newspaper on 21 July 2005.

11 . On 16 September 2005 the Supreme Court decided , in accordance with Rule s 4 and 5 of the Procedural Rules (see paragraph 41 below) , to appoint an investigating judge to look into the allegations against the applicant.

12 . On 19 September 2005 the Supreme Court appointed the then P resident of the District Court of Nicosia as investigating judge.

13 . In a letter dated 5 December 2005 the investigating judge informed the applicant of his appointment. He also provided the applicant with statements he had taken from twenty-eight pe ople during his investigation and invited the applicant to submit a supplementary statement, if he so wished, within ten days.

14 . On 16 December 2005 the applicant made a lengthy supplementary statement to the investigating judge , provid ing his comments on the statements collected by the judge and referr ing to various proceedings in which the witnesses had been involved. He also noted that he did not view his comments as a supplementary statement as such, since it was only at that time that the complaint had become more precise , at least in part. Furthermore, he observed that the witness statements covered a period of six years, when he had sat in about three thousand cases. The statements could not therefore provide the full picture. He suggested that statements should be taken from a number of lay members of the court and provided the investigating judge with their names and telephone numbers.

15 . On 21 December 200 5 , upon completion of the investigation, the investigating judge submitted a report to the Supreme Court summarising his investigation and the evidence collected. The report was accompanied by all the material he had collected, including the statements given by the witnesses and the applicant . The report made n o recommendation.

16 . By a letter dated 10 February 2006 the c hief r egistrar of the Supreme Court informed the applicant that the court had decided that a disciplinary process was warranted. He provided the applicant with the charge sheet drawn up by the Supreme Court at a meeting it had held on 9 February 2006. This includ ed two charges of misconduct , and details of the preparatory investigation by the investigating judge. The charges against the applicant were as follows:

“ First Charge

Misconduct (Articles 153 § 7 (4) and 157 § 3 of the Constitution)

Particulars

While you exercised the duties of President of the Industrial Disputes Court you repeatedly displayed oppressive, disparaging, scornful and, more generally, insulting behaviour towards the lay members of the Court, both inside and outside the courtroom and, at the same time, in the course of proceedings you sometimes ignored them, sometimes did not allow them to put questions and sometimes did not allow them to ask for clarification on the matters at issue.

Second Charge

Misconduct (Articles 153 § 7 (4) and 157 § 3 of the Constitution)

Particulars

While you exercised the duties of President of the Industrial Disputes Court you repeatedly displayed oppressive, disparaging, scornful and, more generally, insulting and even humiliating behaviour towards lawyers and/or litigants and/or witnesses during the proceedings, including ironic comments at their expense and/or innuendos, with the result that, owing to the agitation and disruption caused to them , the entire proceedings were diverted from their proper course.”

17 . A list of fifteen witnesses was attached to the charge sheet.

18 . In his letter the c hief r egistrar summoned the applicant to appear on 9 March 2006 before the SCJ (see paragraph 36 below ) to answer the charges. He informed the applicant that the proceedings would not be held in public unless he so wished and that, pending the proceedings, he would have to refrain from carrying out his duties.

19 . On 9 March 2006 , b efore the applicant answered the charges against him, his lawyer raised several preliminary objections. In particular, he argued that the inv estigation had been incomplete as statements had not been taken from the pe ople indicated by the applicant. Furthermore, he argued that the charge sheet was incomplete, defective and vague; it did not give sufficient information to the applicant about the offences in relation to the actual content of the two charges he was facing .

20 . T he SCJ ruled the same day that the charge sheet, taken together with the fifteen statements, provided sufficient information to the applicant about the facts on which the charges had been based . In th at regard, it noted that the applicant had commented on all the details referred to in the statements in a lengthy statement. The SCJ also held that the investigation had been adequate and had provided ground s for bringing charges .

22 . A hearing was set for 29 March 2006. The applicant ’ s lawyer agreed that the proceedings would not be held in public.

23 . H earing s commenced on the scheduled date . The SCJ set out the procedure to be followed: every witness would read out the statement he or she had g i ve n to the investigating officer and would then be cross-examined by the applicant ’ s lawyer. F ollowing a request by the applicant ’ s lawyer, the SCJ also held on the same day that in view of the defence ’ s line of argument all the files of the proceedings in which the witnesses had sat as members of the IDC , from the applicant ’ s appointment as p resident of the IDC onwards , should be brought before it. The hearing was scheduled to continue on 31 March 2006.

24 . F ollowing a request by the applicant ’ s lawyer , leave was given by the SCJ on the latter date for the applicant to have full access to the IDC r egistry ’ s archives in order to enable him to examine and collect any elements that could help his defence.

25 . The hearing s continued , with around seven more sessions being held. Files of the proceedings over which the applicant had presided and in which the witnesses had been involved were admitted as exhibits . They were filed in separate bundles by reference to the particular witness and were recorded in the list of exhibits.

26 . During the proceedings it was clarified that the charge sheet was limited to the period subsequent to the applicant ’ s appointment as P resident of the IDC. Further s tatements that related to pending proceedings and complaints that had previously been dealt with by the Supreme Court were removed from the charge sheet. Ten out of the fifteen witnesses listed on the charge sheet ultimately testified. The y comprised six lay members, two lawyers and two pe ople who had been witnesses in proceedings over which the applicant had presided. The witnesses read out and confirmed the contents of their statements. They were then cross-examined by the applicant ’ s lawyer .

27 . In addition, at the suggestion of the applicant ’ s lawyer , the court also summoned the IDC ’ s r egistrar.

28 . A fter the conclusion of the witness statements and an address by the applicant ’ s lawyer , the SCJ found on 29 May 2006 that a prima facie case had been established against the applicant. It therefore called the applicant to put forward his defence.

29 . The applicant took until 23 June 2006 to set out his defence case , testif ying himself and call ing thirty-six witnesses. The y consisted of twenty-six lay members of the IDC, nine lawyers and a representative from the redundancy fund. The proceedings concluded with the applicant ’ s lawyer addressing the court . H e raised the issue of the charge sheet again and also submitted that because the Supreme Court and the SCJ had the same composition, the same judges had examined the witness statements, had decided to refer the case to trial, formulated the charge sheet and overseen the proceedings. Th ose judges had also acted as prosecutors and had then tried the case. He argued that that was contrary to the rules of natural justice and the right to a fair trial. He stressed, however, that this had nothing to do with the judges as individuals .

30 . In a decision of 19 September 2006 the SCJ found, by a majority of twelve to one ( the President and eleven justices concurr ing ), that on the basis of the evidence and all the material facts before it, the applicant ’ s alleged misconduct had been proved. T he SCJ assessed the evidence given by the eleven witnesses and made specific reference to events transcribed in the records of court proceedings over which the applicant had presided and in which the witnesses had been involved. It referred to ten specific cases. After hearing the applicant , in accordance with Rule 26 (see paragraph 41 below) , the SCJ removed him from office.

31 . The relevant parts of the decision read as follows:

“...

Rule 13 secures for the judge against whom proceedings are brought all the rights provided for in Article 12 § 5 of the Constitution for persons who are charged with a criminal offence. Th at constitutional provision secures the well-known rights that an accused has in a criminal trial and are identical to those secured under Articles 6 §§ 2 and 3 of the European Convention on Human Rights, which was ratified by the House of Representatives by l aw in 1962 ( L aw 39/62). Further more, the provisions of Article 30 of our Constitution, which are the equivalent to those of Article 6 of the Convention, are also applicable.

...

At no stage did the Supreme Council of Judicature function as a public prosecutor against Mr Kamenos. The President and Members of the Supreme Council of Judicature did not put a single question to the witnesses who were listed on the charge sheet, or to those summoned on behalf of Mr Kamenos, which might have been construed as cross-examination for the purpose of contesting the witnesses ’ allegations. On the contrary, the President and Members of the Supreme Council of Judicature asked very few questions, and they were solely for the purpose of clarification; special reference will be made to some of th o se questions at the appropriate stage. Not a single question was put to Mr Kamenos. The Supreme Council of Judicature was not seeking to pursue a procedure of prosecution against Mr Kamenos in the form of a confrontation between prosecution and defence. For th at reason, and despite having such power s under Rule 16, the relevant provision of the Constitution on the judicial process and the procedure to be followed in investigating disciplinary cases, it did not assign the duties of prosecutor to the judge-investigator or to any other judicial official. In th at way, which was the declared intention of the Supreme Council of Judicature, more rights were secured for Mr Kamenos than those which he had under the aforementioned A rticles of the Constitution and the Rule. Th at was precisely the aim of the procedure followed by the Supreme Council of Judicature, which essentially remained an audience for the witnesses ’ statements.

It follows that this is the appropriate moment to refer to the suggestion made by Mr Kamenos ’ s lawyer in his final address. Its subject relates directly and absolutely to what we have just said. The lawyer alleged that the Supreme Council of Judicature had functioned in a dual capacity, given that it had judged the case and simultaneously exercised the duties of prosecutor. Clarifying his position, he said that th at is inferred from the fact that the President and Members of the Supreme Council of Judicature put questions to the witnesses. In our opinion, th at suggestion is unfounded and unjustifiable. It is u nfounded for the reasons which we explained above, and unjustifiable because it conflicts with what the lawyer said to us at the beginning of the proceedings, when he ... spoke in praise of the power s invested by the Constitution in the Supreme Council of Judicature, describing its work as difficult and important [in those instances] when it is called upon to decide whether a judge displayed misconduct and is obliged, again in accordance with the Constitution, to terminate the latter ’ s services in the event of conviction. In brief, Mr Efstathiou not only accepted but also praised as correct the competence, arising from the Constitution, of the Supreme Council of Judicature, which is made up of the full bench of the Members of the Supreme Court, the highest judicial authority in the State.

...

[The applicant ’ s lawyer ] asked many witnesses to express an opinion on the extent to which they considered that Mr Ka m enos ’ s decisions were correct. Most of them, including the lawyers, gave the right reply, namely, that it was not for them to judge Mr Kamenos ’ s decisions. In the same way, the Supreme Council of Judicature is not judging the correctness of Mr Kamenos ’ s decisions. We do not have such competence. Th at belongs to the Supreme Court. T he competence of the Supreme Council of Judicature is only to decide whether the charges of improper behaviour (misconduct) are proved , which [behaviour] in the case we are examining and according to the particulars of the charges, is continuous ( κατ ά συρροή , διαρκής ) and directly refers to the function of Mr Kamenos as the President of the Industrial Disputes Court.

...

W e previously stated that certain witnesses called by Mr Kamenos, evident ly in an endeavour to tone down or explain what the witnesses listed on the charge sheet had testified to and who touched on Mr Kamenos ’ s behaviour in the course of the hearing, in essence confirmed what those witnesses had said . Several examples follow ...

...

From the evidence that we have analysed above, we find that the charges have been proved.

...

We wish to clarify that the purpose of this procedure is not to punish Mr Kamenos but to protect the public by adoptin g of a strict standard of judicial behaviour in order to preserve public confidence in the integrity, prestige and independence of the judicial system. We borrow and adopt the above principle from the decision (Investigation concerning Judge Bruce Van Voorhis, No. 165) given in February 2003 by the Commission of Judicial Performance of the State of California, in the United States of America, which concerned a procedure against a specific judge whose services were also terminated for misconduct, with facts and particulars similar to the case before us. In essence, we translate the principle which that Commission adopted and recorded on page 31 of the decision. The principle is based, as stated in the decision, on what was said by the Supreme Court of the State, that the purpose of the procedure was not to punish judges who have erred but to protect the judicial system and those who are subject to the formidable power exercised by judges.

...

Evaluating the above with great care, caution and, we would say, anxiety, we are led to the conclusion that everything imputed to Mr Kamenos as stated in the two charges has been proved. In accordance with the relevant provisions of the Constitution, which are referred to in our decision, the proof of a charge of misconduct against a judge leads to the termination of his services.”

32 . The dissenting judge found in his decision that the evidence was not sufficient to prove such a serious charge as misconduct. As regards the procedure, the judge noted, inter alia , that the Supreme Council of Judicature had asked the witnesses very few questions and that they had been for the purpose s of clarification. Furthermore, with regard to the investigation and the object of the hearing , he observed:

“A judicial official with the duties of prosecutor was not appointed, a possibility which is referred to in Rule 16, and we adopted the following approach: every witness read his statement to the investigating officer out loud and, immediately after, was cross-examined by Mr Kamenos ’ s lawyer. During the cross-examination or subsequently members of the Supreme Council of Judicature asked the witnesses a few questions for clarification purposes. This is also exactly what happened in the case of Mr Kamenos and the 36 witnesses called by him.

...

Before referring to the evidence, it is useful if we outline the methodology which led to the taking of statements by the Investigating Officer. He did not himself take the initiative of collecting evidence in view of the accusation, as he explains in his report. The persons who signed the accusation did not have any personal knowledge of the circumstances and statements were taken from all those they ... named, and from others subsequently named by those who had been initially summoned. Th e investigation into the manner in which Mr Kamenos exercised his duties in general was therefore not systematic and th at is also the reason for not taking statements from a number of other persons whom Mr Kamenos himself indicated. Besides, as we have seen, of the 28 statements which the Investigating Office took, only 15 were attached to the charge sheet, with a further reduction to 10 in the course of the hearing. The y did not include statements which, as the Investigating Officer reported, not only expressed no complaint s but stated that Mr Kamenos ’ s conduct had been irreproachable in all respects. Consequently, as is in any case self-evident, the object of the hearing is [to determine] whether, on the basis of the evidence of th o se ten witnesses, the charge has been substantiated as formulated. That is to say, whether, from each individual ’ s evidence and the correlation between them, to the extent possible , there arises conduct as cumulatively stated on the charge sheet, [and] in the case of the second charge “with the result that, owing to the agitation and disruption they were caused , the entire proceedings were diverted from their proper course ” . This (was the wording), without any specifi cation on the charge sheet of a definite , specific incident at a specific time, ... in relation to a specific person in the context of a specific case. The witnesses who remained on the charge sheet (whose statements I shall of course return to), as lay members of the court, or as lawyers or witnesses, did not submit a complaint there and then about what they considered to be objectionable conduct. ... Nor did the litigants in any specific case which could be related to the charge sheet make a complaint at the time, or appeal or employ any other legal means so that any objectionable conduct would be examined also from the aspect of its effect on the final outcome. That was what occurred in the cases of Athanasiou v. Reana Manuf. & Trade Co.Ltd and others (2001) 1 C.L.R. 1635 , and Fanos N. Epiphaniou Ltd v. Melarta and others (2002) 1 C.L.R.654, in which the Supreme Court annulled decisions issued by the Industrial Disputes Trib unal under the presidency of Mr Kamenos, using strong language about the degree of his intervention in the proceedings and the appearance of partiality to which it could give rise. Of course, the charge sheet does not extend to th o se cases and does not concern the issue of interventions as such ... The core of the charge is the conduct attributed to Mr Kamenos at the expense of lay members of the court, lawyers , litigants and witnesses, and it is in the light of such considerations that I shall go on to examine the evidence adduced.”

33 . T he applicant continued to receive all the benefits that came with his post during the proceedings . It appears from a letter sent to him by the Treasury of the Republic of Cyprus that the applicant w as considered as having retired from the date of his dismissal, 19 September 2006 . H e was paid a retirement lump sum and started receiving his pension .

II. RELEVANT DOMESTIC LAW AND PRACTICE

A . The Supreme Court and the SCJ

35 . The Supreme Court was originally composed of between five and seven judges, but the ir number was gradually increased by legislation to its current thirteen ( Law no. 33/1964; in particular, Amending Laws no. 59/1981 and no. 158/1988). The judges of the Supreme Court are appointed by the Preside nt of the Republic (Article 153 § 2 of the Constitution) .

36 . District judges, senior district judges, presidents of district courts and judges of courts exercising specialised jurisdiction are appointed by the SCJ. The SCJ is composed of all thirteen judges of th e Supreme Court (Articles 153 § 8 (1) and 157 § 1 of the Constitution and s ection 10 of Law no. 33/1964 as ame nded by Law no. 3/1987). Pursuant to Article 157 § 2 of the Constitution the appointment, promotion, transfer, termination of appointment, dismissal and disciplinary matters related to judges are exclusively within the competence of the SCJ. The same is provided by s ection 10(2) of Law no. 33/64 (as amended by Law no. 3/1987). Further more , with the exception of their appointment, the SCJ has exclusive competence under Article 153 § 8 to determine matters concerning the retirement, dismissal or termination of the appointment of Supreme Court judges and the court ’ s p resident.

Article 153 § 8

“(1) There shall be established a Council consisting of the President of the Supreme Constitutional Court as Chairman and the Greek and the Turkish judge of the Supreme Constitutional Court as members.

(2) This Council shall have exclusive competence to determine all matters relating to-

(a) the retirement, dismissal or otherwise the termination of the appointment of the President of the High Court in accordance with the conditions of service laid down in the instrument of his appointment;

(b) the retirement or dismissal of any Greek judge or the Turkish judge of the High Court on any of the grounds provided in sub ­ paragraphs (3) and (4) of paragraph 7 of this Article.

(3) The proceedings of the Council under sub ­ paragraph (2) of this paragraph shall be of a judicial nature and the judge concerned shall be entitled to be heard and to present his case before the Council.

(4) The decision of the Council taken by a majority shall be binding upon the President and the Vice-President of the Republic who shall jointly act accordingly. ”

Article 157

“1. Save as otherwise provided in this Constitution with regard to the Supreme Constitutional Court, the High Court shall be the Supreme Council of Judicature, and its President shall have two votes.

2. The appointment, promotion, transfer, termination of appointment, dismissal and disciplinary matters of judicial officers are exclusively within the competence of the Supreme Council of Judicature.

... ”

38 . District judges, senior district judges, presidents of district courts and judges of the courts exercising specialised jurisdiction are appointed by the SCJ. They retire at the age of sixty-three ( secti on 8(2) of the Courts of Justice Law, Law no. 14/1960 , as amended in relation to district courts ; and as provided for by the various domestic laws which concern courts of specialised jurisdiction). Supreme Court judges hold office until the age of 68 (Article 153 § 7 (1) of the Constitution ) .

39 . Once appointed , judges can only be removed under very exceptional circumstances. In particular, Article s 153 § 7 and 157 § 3 of the Constitution , in so far as relevant , provide as follows:

Article 153 § 7

“ ...

“ (3) Any Greek or the Turkish judge of the High Court shall be retired on account of such mental or physical incapacity or infirmity as would render him incapable of discharging the duties of his office either permanently or for such period of time as would render it impracticable for him to continue in office. A judge so retired shall be entitled to all benefits and emoluments provided by any law in force for the time being.

(4) A Greek or the Turkish judge of the High Court may be dismissed on the ground of misconduct. ”

Article 157 § 3

“No judicial officer shall be retired or dismissed except on the like grounds and in the same manner as a judge of the High Court.”

40 . Judicial independence is safeguarded by the Constitution and the traditions of the j udiciary. The Constitution provides for a strict separation of the powers, jurisdictions and duties of the e xecutive, l egislature and j udiciary.

B . Procedural Rules concerning the e xercise of the SCJ ’ s Disciplinary Authority

41 . On 14 July 2000 the Supreme Court issued Rules on the basis of Article 163 § 2 (f) of the Constitution and section 17 of Law no. 33/64 , setting out the practice and procedure to be followed by the SCJ in the exercise of its competence with regard to disciplinary matters relating to judicial officers ( see paragraph 9 above ) . The y s e t out in detail the disciplinary procedure to be followed in the event of a complaint that a judge may have be come incapable, have displayed inappropriate behaviour (misconduct) or committed a disciplinary offence. In so far as relevant, the y provide as follows :

“2. Definitions

...

‘ Supreme Council of Judicature ’ means the Supreme Court in the exercise of its competences on the basis of Article 157 of the Constitution.

...

3. Where it comes to the notice of the Supreme Court, in the exercise of its procedures, competences and powers or following a complaint, that a Judge may have –

(a) become incapable ,

(b) displayed inappropriate behaviour (misconduct) ,

(c) committed a disciplinary offence,

it shall notify th at Judge of the information it has in its possession or the complaints made and shall ask for his views within a specified time-limit.

4. Having received the views of the Judge, or on expiry of the above time-limit in the event that he refuses or omits to submit them, the Supreme Court shall examine whether there are grounds which justify holding an investigation into the possibility of the Judge having become incapable, having displayed inappropriate behaviour (misconduct) or having committed a disciplinary offence

5. If it is considered that an investigation is justified, this shall be carried out in the manner set out below.

...

(a) If an investigation is ordered, the Supreme Court shall appoint an investigating judge, to whom it shall assign the investigation of the matter.

...

In the conduct of the investigation, the investigating judge shall be assisted by a member or members of the r egistry of the c ourts.

Before beginning the investigation, all the information in the Supreme Court ’ s possession shall be put before the investigating judge, including the views of the Judge who is the subject of the investigation. The investigating judge shall proceed with the investigation as quickly as possible and shall complete his task without delay.

6. The investigating judge shall take statements and collect information from every person who is in a position to provide facts and information with regard to the subject of the investigation.

...

7. The statements taken and the facts collected shall be put before the Judge who is under investigation, and he is given the opportunity to make, if he so wishes, a supplementary statement within a specified time-limit.

8. After completion of the investigation, the investigating judge shall submit, within fifteen days, a report summarising the evidence collected. The report shall be accompanied by the statements which have been taken, including any supplementary statement by the Judge under investigation.

9. The Supreme Court shall decide, in the light of the statements, facts and information before it, whether it is justified to refer the Judge under investigation to the Supreme Council of Judicature in order for it to be decided whether he has become incapable, has displayed inappropriate behaviour (misconduct) or has committed a disciplinary offence.

10....

(a) If a decision is taken to proceed against the Judge for misconduct or for commi tting a disciplinary offence, a charge sheet shall be drawn up, on which shall be set out the charge or charges, as the case may be, and a summary of the details which form the basis for them.

...

11. The charge sheet shall be served on the Judge against whom it is directed by the r egistrar of the c ourt in which he serves, together with the investigating judge ’ s report and all the data attached to it.

12. Pending the hearing the Judge against whom proceedings are being taken shall refrain from the exercis e of his judicial duties.

13. During the hearing the Judge against whom proceedings are being taken shall enjoy all the rights guaranteed by Article 12 § 5 of the Constitution for a person charged with the commission of an offence.

15. At the first appearance before the Supreme Council of Judicature, the Judge against whom proceedings are being taken shall be called upon to answer the charge or charges. If the answer is a denial of the charges , a date shall be fixed for hearing the case. ...

16. During the hearing, the Supreme Council of Judicature shall summon, one by one, and shall hear the witnesses who have made statements and any other person who is in possession of facts or is in a position to shed light on the matters at issue. The witnesses shall take the oath required by law or make an affirmation that they will tell the Court the truth and nothing but the truth. Their evidence shall be introduced by questions which are put by the President of the Supreme Council of Judicature and supplementary questions by the Members:

... The Supreme Council of Judicature can assign the duties of prosecutor to the investigating judge or, if this is not feasible, to another Judge of the Supreme Court or to an other Judge, in which case the presentation of witness evidence shall be made by him.

17. After the presentation of their evidence, witness es shall be subject to cross-examination by the Judge against whom proceedings are being taken.

18. After the cross-examination , the President and Members of the Supreme Council of Judicature may put questions for clarification purposes, after which the Judge against whom proceedings are being taken shall have the right to put supplementary questions.

19. At the conclusion of the witness evidence on which the charge is based, the Supreme Council of Judicature shall decide if a prima facie case has been established against the Judge against whom proceedings are being taken.

20. If it is decided that a prima facie case has been established against the Judge against whom proceedings are being taken, he shall be given an opportunity to present his defence. The Judge against whom proceedings are being taken shall be entitled to give evidence on oath, to make an unsworn statement and to call witnesses. Both the Judge against whom proceedings are being taken and who has given evidence on oath, and any other witness for the defence, shall be subject to examination by the President and Members of the Supreme Court of Judicature, at the close of which the Judge against whom proceedings are being taken shall be given an opportunity to make, if it concerns himself, a supplementary, clarifying statement, or, if it concerns a witness whom he has summoned, of asking clarifying or supplementary questions.

21. On completion of the defence, the Judge against whom proceedings are being taken shall have the right to address the Court.

22. After the conclusion of the hearing, the Supreme Council of Judicature shall decide, in the case of a prosecution, if it has been proved that the Judge against whom proceedings are being taken is guilty –

(a) of misconduct or

(b) of a disciplinary offence,

as the case may be.

23. If the Supreme Council of Judicature decides that the charge or charges against the Judge against whom proceedings are being taken have not been proved, the court shall acquit and exonerate him.

...

26. A Judge who is found to be incapable or guilty of misconduct shall be heard before the Supreme Council of Judicature proceeds further.

27. A Judge guilty of misconduct shall be dismisse d as the Constitution provides.

28. A judge guilty of a disciplinary offence shall be given -

(a) a reprimand; or

(b) a reprimand published in the Of ficial Gazette of the Republic.”

C . Review of SCJ decisions

42 . Article 146 of the Constitution provides for the revisional jurisdiction of the S upreme Court. Article 146 § 1 provides as follows:

“The Supreme Constitutional Court shall have exclusive jurisdiction to adjudicate finally on a recourse made to it on a complaint that a decision, an act or omission of any organ, authority or person, exercising any executive or administrative authority is contrary to any of the provisions of this Constitution or of any law or is made in excess or in abuse of powers vested in such organ or authority or person.”

43 . In the case of Antonios Kourris and the SCJ ( (1972) 3 C . L . R 390 ) , the complainant, a district court judge , brought a “recourse” (judicial review proceedings) before the Supreme Court under Article 146 of the Constitution . He challeng ed a decision by the SCJ relating to the temporary appointment of five other district judges as p residents of d istrict c ourts and complained about the SCJ alleged ly refus ing or omi tt in g to deal with his written complaint in connection with th ose appointments. On 8 August 1972 t he Supreme Court dismissed the recourse. It held , by a majority, that it lacked jurisdiction to deal with a recourse under Article 146 of the Constitution against any act, decision or omission of the SCJ because the latter ’ s functions were very closely connected with the exercise of judicial power.

44 . In the case of Savva s Karatsis v. 1. t he Republic of Cyprus , through th e Supreme Council of Judicature, 2. t he SCJ ( (2001) 3 C.L.R. 220 ) , the complainant , a f amily c ourt j udge, brought a r ecourse before the Supreme Court under Article 146 of the Constitution , challenging a decision by the SCJ concerning the conditions of his appointment to a temporary post as d istrict c ourt j udge and the revocation of his appointment when he did not accept th o se conditions. The Supreme Court sat as a full bench (that is, all thirte en judges; see paragraph 35 above ). The complainant requested that the Supreme Court re-examine and/or revise its judgment in Kourris (see paragraph 43 above) and that his case be heard by a different bench, arguing that the thirteen judges in question had themselves written the impugned decision, which they had taken in their capacity as members of the SCJ. On 15 March 2001 the Supreme Court dismissed the recourse for want of jurisdiction without addressing the issue of impartiality. It ruled that the Constitution entrusted the appointment of judicial officers exclusively to the SCJ (Article 157 § 2 of the Constitution ) . Judicial appointments were closely , even inextricably , interwoven with the exercise of the judicial function; more precisely , they constituted a pre condition for the exercise of that function . Entrusting the appointment of judicial officers to the judicial function itself was an aspect of the independence of the judicia ry and an expression of the autonomy of that function. Law no. 33/64 had been based on th at premise and reflected the constitutional order . The complainant then filed a communication with the United Nations Human Rights Committee ( OP-ICCPR) , which was declared inadmissible on 25 July 2005 ( communication no. 1182/2003; decision on admissibility UN. Doc. CCPR/C/84D/1182/2003) ) .

D . The IDC

45 . The IDC was established by the Annual Holidays with Pay Law of 1967 (Law no. 8/1967, as amended; section 12 (2)(a)). It consists of the P resident or a judge , who are appointed by the SCJ , as well as two lay members who have a purely consultative role and are appointed by the p resident of the IDC upon the recommendation of the trade unions and the employers ’ federations respectively. The P resident and the judges of the IDC are permanent members of the judiciary but cannot be moved to any other position in the service (se ction 12 (3)(c) and (4)(b) of the above Law ). The IDC ’ s P resident has the same salary and terms of service as a s enior d istrict c ourt judge while IDC judges are treated in the same way as d istrict c ourt judges ( Law no. 14/1960, paragraph 38 above and section 12 (3)(b) and (4)(d) of Law no. 8/1967). Retirement is therefore at the age of sixty ‑ three .

E . Relevant Constitutional human rights provisions

46 . Article 12 § 5 of the Constitution guarantees the right to a fair trial in criminal ca ses. It reads as follows:

“5. Every person charged with an offence has the following minimum rights:

(a) to be informed promptly and in a language which he understands and in detail of the nature and grounds of the charge preferred against him;

(b) to have adequate time and facilities for the preparation of his defence;

(c) to defend himself in person or through a lawyer of his own choosing or, if he has no sufficient means to pay for legal assistance, to be given free legal assistance when the interests of justice so require;

(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

(e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court . ”

“1. No person shall be denied access to the court assigned to him by or under this Constitution. The establishment of judicial committees or exceptional courts under any name whatsoever is prohibited.

2. In the determination of his civil rights and obligations or of any criminal charge against him, every person is entitled to a fair and public hearing within a reasonable time by an independent, impartial and competent court established by law. Judgment shall be reasoned and pronounced in public session, but the press and the public may be excluded from all or any part of the trial upon a decision of the court where it is in the interest of the security of the Republic or the constitutional order or the public order or the public safety or the public morals or where the interests of juveniles or the protection of the private life of the parties so require or, in special circumstances where, in the opinion of the court, publicity would prejudice the interests of justice.

3. Every person has the right:

(a) to be informed of the reasons why he is required to appear before the court;

(b) to present his case before the court and to have sufficient time necessary for its preparation;

(c) to adduce or cause to be adduced his evidence and to examine witnesses according to law;

(d) to have a lawyer of his own choice and to have free legal assistance where the interests of justice so require and as provided by law;

(e) to have free assistance of an interpreter if he cannot understand or speak the language used in court.”

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION AS REGARDS THE IMPARTIALITY OF THE SCJ

“In the determination of his civil rights and obligations or of any criminal charge against him ... everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law.”

A. Admissibility

1 . Applicability of Article 6 of the Convention : the criminal head

2. Applicability of Article 6 of the Convention: the civil head

54 . The Court must next consider whether the civil h ead of Article 6 is applicable.

(a) The parties ’ submissions

(i) The Government

55 . It was the Government ’ s position that Article 6 under its civil head was not applicable. They submitted that the disciplinary proceedings against the applicant had not constitute d a determination of his civil rights and obligations within the meaning of Article 6 § 1. First, no “right” had existed in t he present case: there had been no right to remain as a judge or as P resident of the IDC and there had been no right not to be dismissed from his post. The applicant did not have arguable grounds on which to claim such a right. Secondly, even if such a right was deemed to exist, it was not “civil” in nature as the two conditions established in the case of Vilho Eskelinen and Others v. Finland ([GC], no. 63235/00, § 62, ECHR 2007 ‑ II) had been fulfilled. As to the first condition, the Government observed that the applicant had not had a right of access to a court in order to challenge his removal. Although neither the Constitution nor the applicable procedural rules concerning the exercise of the SCJ ’ s disciplinary authority expressly exclude d access to a court in order to challenge the removal of a judge from his post, the Supreme Court ha d expressly ruled in the cases of Kourris and Karatsis (cited above) that the acts , decisions or omissions of the SCJ could not be challenged by way of a recourse under Article 146 of the Constitution (see paragraphs 43 and 44 above). The applicant had therefore not had access to a court in ord er to challenge his dismissal.

56 . As to the second condition set out in Vilho Eskelinen , the Government pointed out that the Court had acknowledged that a judge had specific responsibilities in the field of the administration of justice, which was a sphere in which S tates exercised sovereign power . A judge participated directly in the exercise of powers conferred by public law and performed duties designed to safeguard the general interest of the S tate (relying on Serdal Apay v. Turkey (dec.), no. 3964/05, 11 December 2007 ; Muammer Yilmazo ǧ lu v. Turkey (dec.), no. 36593/97, 12 June 2003 and Pitkevich v. Russia (dec.), no. 47936, 8 February 2001). The exclusion from access to court by domestic law was justified on objective grounds and in the S tate ’ s interests. In the Karatsis case t he Supreme Court had highlighted that judicial appointments were inextricably interwoven with the exercise of the judicial function and, more precisely , constituted a precondition for the exercise of that function . Entrusting the appointment of judicial officers to the judicial function itself constituted an aspect of the independence of the judicia ry and was an expression of the autonomy of its function (see paragraph 44 above). In the present case, the applicant, as a ju dge at the IDC , and even mo re so as its p resident, had occupied a post of the highest rank in the field of the administration of justice. He had had powers conferred by public law and had assumed duties to safeguard the general interests of the S tate. The applicant ’ s m isconduct had eroded public confidence in the integrity and independence of the judicial function as a whole . As stated by the SCJ in its decision in the present case, the purpose of the procedure had not been to punish the applicant , but rather to protect the public by adopting a strict standard of judicial conduct so as to preserve the public ’ s trust in the integrity, reputation and independence of the judicial system (see paragraph 31 above). Preventing the applicant from having access to a court had therefore been j ustified on objective grounds and the subject matter of the dispute had been related to the exercise of S tate power .

(ii) The a pplicant

57 . The applicant submitted that the disciplinary proceeding s against him had been a drastic step . By their very nature and consequences a “right” in the sense of Article 6 of the Convention had been created. Any public ‑ law features of a disciplinary nature in the case did not exclude the proceedings from the scope of Article 6 since their outcome had been severe and far-reaching : the applicant h ad been dismissed from his post , affecting his career and professional activities. The fact that Articles 12 § 5 and 30 of the Constitution, which contained equivalent guarantees to Article 6 of the Convention, had been applicable to the disciplinary proceedings were indicative of th e civi l nature of the right at stake.

58 . The applicant emphasised that he had no t had access to court because he was not able to seek a review of the SCJ ’ s decision and that there had been no objective just if ication for th at exclusion. The Court ’ s decisions in Serdal Apay , Muammer Yilmazo ǧ lu and Pitkevich (all cited above), on which the Government had relied in their submissions on this point (see paragraph 56 above) had nothing to do with his case as the S tate ’ s interest in those cases had been strictly interpreted on the basis of their specific facts. It emerged clearly from the Court ’ s judgment in Vilho Eskelinen (cited above) that only the special nature of the relationship between the particular civil servant and the S tate in question c ould justify not applying Article 6. Such a case would have to involve a particular p ortion of sovereignty being given to the civil servant , creating a special bond of trust . Th at had not been the case in the present application.

59 . Lastly , the Government ’ s reliance on the cases of Kourris and Karatsis did not provide a justification for denying him access to a court. It was clear from th o se cases that the existence of a “ right ” for the purposes of Article 6 did not depend on the classification or categorisation of the nature of the case s mentioned above by the Supreme Court when it was examining the complainants ’ recourses.

(b) The Court ’ s assessment

(i) General p rinciples established by the Court ’ s case-law

61 . Article 6 § 1 does not guarantee any particular content for (civil) “rights and obligations” in the substantive law of the Contracting States: the Court may not create by way of interpretation of Article 6 § 1 a substantive right which has no legal basis in the State concerned (see Regner § 100, Károly Nagy, § 61 and Baka , § 101, all cited above, with further references).

62 . In so far as the “civil” nature of the right is concerned , in cases concerning employment disputes concerning civil servants the Court , applies a two-tier test which it established in its Grand Chamber judgment in Vilho Eskelinen (cited above - hereinafter referred to as the “ Eskelinen test ” ) . In order for the respondent State to be able to rely before the Court on the applicant ’ s status as a civil servant in excluding the protection embodied in Article 6, two conditions must be fulfilled. First, the State in its national law must have expressly excluded access to a court for the post or category of staff in question. Secondly, the exclusion must be justified on objective grounds in the State ’ s interest. In order for the exclusion to be justified, it is not enough for the State to establish that the civil servant in question participates in the exercise of public power or that there exists, a “special bond of trust and loyalty” between the civil servant and the State, as employer . It is also for the State to show that the subject matter of the dispute in issue is related to the exercise of State power or that it has called into question the special bond (ibid., §§ 102-103). Thus, there can in principle be no justification for the exclusion from the guarantees of Article 6 of ordinary labour disputes, such as those relating to salaries, allowances or similar entitlements, on the basis of the special nature of the relationship between the particular civil servant and the State in question (ibid., § 103). There will, in effect, be a presumption that Article 6 applies. It will be for the respondent Government to demonstrate, firstly, that a civil-servant applicant does not have a right of access to a court under national law and, secondly, that the exclusion of the rights under Article 6 for the civil servant is justified ( ibid . , § 103 ).

(ii) Application of the above principles to the present case

( α ) Existence of a right

65 . The Court observes that the SCJ appointed the applicant as a n IDC judge on 1 October 1997 and made him P resident o f that court on 6 December 2001.

66 . In Cyprus j udges hol d office until the y resign or retire and can only be removed by the SCJ in exceptional circumstances . Th o se circumstances are set out exhaustive ly in the Constitution and the SCJ ’ s Procedural Rules. First, a judge can be made to retire on account of such mental or physical incapacity or infirmity as would render him incapable of discharging the duties of his office either permanently or for such a period of time as would render it impracticable for him to continue in office (Article 153 § 7 (3) of the Constitution; see paragraph 39 above ) . In such a situation a judge is entitled to all the benefits and emoluments provide d for by a ny law in force at the time. Second, a judge can be dismis sed for misconduct (see Article s 15 3 § 7 ( 4) and 157 § 3 of the Constitution and Rule 27 ; see paragraph s 39 and 41 above ).

67 . It is therefore clear from the applicable domestic law that judge s , in line with the principle of irremovability and except for e xceptional circumstances, ha ve the right to serve their term of office in full until retirement (see, mutatis mutandis , Baka , cited above, § 107 ).

68 . The p resident and judges of the IDC are permanent members of the judiciary and their terms of service are the same as those of s enior d istrict c ourt judge s and d istrict c ourt judges respectively (see paragraph 45 above) . They can thus hol d office until retirement. In the Court ’ s view therefore the applicant could arguably claim that he was entitled to serve as a judge and P resident of the IDC until the age of sixty-three ( see Baka , cited above, § 107). Although SCJ decision s are not subject to review, judge s are provided with the same procedural safeguards as in civil and criminal proceedings in order to defend them sel ves (see paragraph s 31 and 41 above).

69 . The Supreme Court charged t he applicant with misconduct under Articles 153 § 7 (4) and 157 § 3 of the Constitution and the question before the SCJ was whether he had indeed been guilty of such a violation .

70 . It is clear from the above therefore that the outcome of the disciplinary proceedings in question w as directly decisive for the manner of the exercise of the right in question .

( β ) “Civil” nature of the right: the Eskelinen test

72 . The Court must now determine whether the “right” claimed by the applicant was “civil” within the autonomous meaning of Article 6 § 1, in the light of the criteria developed in the Vilho Eskelinen judgment.

The relevant case-law

74 . A determinative factor in a number of th o se cases was whether an applicant was able to seek review of the decision or measure in question (see Tato Marinho dos Santos Costa Alves dos Santos and Figueiredo v. Portugal , nos. 9023/13 and 78077/13, § 41, 21 June 2016; Bayer v. Germany , no. 8453/04 , § 38, 16 July 2009 ; and Iordan Iordanov and Others v. Bulgaria , no. 23530/02 , § 44, 2 July 2009 ).

75 . However , it emerges from many of th o se cases that the existence of the possibility of review is not per se a sine qua non in order for the first condition of the Eskelinen test to be fulfilled. So in Saghatelyan v. Armenia (no. 7984/06, § § 32-35, 20 October 2015) , in which the applicant had been dismissed as a judge on the basis of a p residential d ecree following a recommendation by the Council of Justice, the Court considered that the first condition of the test had not been satisfied . I t observed in that regard , first, that the Government had not mentioned a particular provision of the law which expressly excluded judicial protection in connection with disciplinary proceedings against judges and , second, that although at the material time it had not been possible to challenge a presidential decree, as this applied to all individuals, national law did not rule out access to court for the applicant based on her status as a holder of public power. In Harabin v. Slovakia ( no. 58688/11 , 20 November 2012), disciplinary proceedings were brought against the applicant , who was the President of the Supreme Court, before the Constitutional Court . It found him guilty of a serious disciplinary offence and imposed a disciplinary sanction (§§ 36-37). The decision was final , there being no remedy against the Constitutional Court ’ s decisions (§ 54). In applying the Eskelinen test, t he Court observed that the Constitutional Court was a tribunal with powers to determine the relevant issues. National law therefore did not exclude a judicial examination of the relevant points and the applicant had actually had access to a court (§ 123). The Court thus took the approach that even though the disciplinary proceedings brought against the applicant were only examined at one level of jurisdiction , th at qualified as “access to court” for the purposes of the first condition of the Eskelinen test .

76 . Further, in Olujić v. Croatia (no. 22330/05, § 36-37, 5 February 2009) and in Oleksandr Volkov ( cited above, § 88 ) , which both concerned the dismissal of judges , the Court did not confine its reasoning to the fact that it had been open to the applicants to seek review of the decisio n of the first - instance bodies. T he Court highlighted that in the context of the first condition, it was not prevented from categorising a particular domestic body, outside the domestic judiciary, as a “court” for the purpose s of the Eskelinen test. In th at connection , it reiterated that f or the purposes of Article 6 § 1 of the Convention a tribunal need not be a court of law integrated with the standard judicial machinery since a tribunal, within the meaning of Article 6 § 1, was characterised in the substantive sense of the term by its judicial function, that is to say, the determining of matters within its competence on the basis of rules of law and after proceedings conducted in a prescribed manner. Consequently, a non-judicial body, for example an administrative or parliamentary body, may qualify as a “court” in the substantive sense of the term if it performed judicial functions ( see also Savino and Others v. Italy , nos. 17214/05 and 2 others, § § 72-75 , 28 April 2009 ).

77 . Hence, in Olujić (cited above, § § 36 -42), although the applicant had filed a constitutional complaint with the Constitutional Court against the decisions of the first decision - making body , the National Judicial Council, the Court examined the powers of the National Judicial Council and the nature of the proceedings before it. It noted that the proceedings before the National Judicial Council followed the rules of criminal procedure , which included, inter alia , all the guarantees provided by Article 6 of the Convention and enabled the accused to submit a defence. When ruling in disciplinary proceedings against judges, the National Judicial Council was empowered to establish the facts of a given case, hold hearings, hear witnesses and assess other evidence and decide on all the questions of fact and law. It therefore concluded that in that case the National Judicial Council had exercised judicial powers in determining the applicant ’ s disciplinary responsibility and thus that the disciplinary proceedings against the applicant had been conducted before a tribunal for the purposes of Article 6 § 1 of the Convention.

78 . Similarly , in Oleksandr Volkov ( cited above, §§ 88-91 ), although the dismissal decision had been reviewed by the Higher Administrative Court, the Court , in determining whether the applicant had had access to a court in the context of the first condition of the Eskelinen test, noted that in determining the applicant ’ s case and taking a binding decision, it appeared that the High Council of Justice, the Parliamentary Committee on the J udiciary and the plenary meeting of Parliament had , in combination, perform ed a judicial function. In th at re gard, i t observed that the High Council of Justice had determined all the questions of fact and law after holding a hearing and assessing the evidence, the Parliamentary Committee had been empowered to hold its own deliberations and conduct additional inquiries, if deemed necessary, which could end with a recommendation to dismiss or retain the judge and that the plenary of Parliament had subsequently approved dismissing the applicant based on the HCJ ’ s submissions and the Parliamentary Committee ’ s recommendation .

79 . Th at approach was followed in a number of subsequent cases. For instance, most recently, i n Sturua v. Georgia ( no. 45729/05, § 27 , 28 March 2017), a disciplinary charge against the applicant had been examined by the Disciplinary Council of Judges at first instance as a four-member panel and on appeal sitting as a plenary. The decisions were then reviewed by the Supreme Court of Georgia. T he Court observed that the disciplinary bodies that had conducted the proceedings had clearly performed a judicial function and that the Disciplinary Council of Judges clearly represented “a tribunal” within the meaning of Article 6 § 1 of the Convention. In Di Giovanni v. Italy ( no. 51160/06, § 37, 9 July 2013) the Court observed that the first - instance body – the disciplinary section of the Supreme Judicial Council ­ – had full jurisdiction to examine all the questions raised in the case. The fact that the decision could be appealed against before the Court of Cassation ( Sezioni Unite ) was an additional factor. Similarly, i n several recent judgments against the former Yugoslav Republic of Macedonia, the Court observed in the context of the first condition that the first - instance disciplinary body, the State Judicial C ouncil , determined all questions of facts and law after holding hearings and assessing evidence ( Poposki and Duma v. the former Yugoslav Republic of Macedonia , nos. 69916/10 and 36531/11 , § 37, 7 January 2016; Gerovska Popčevska v. the former Yugoslav Republic of Macedonia , no. 48783/07 , § 58, 7 January 2016 ; JakÅ¡ovski and Trifunovski v. the former Yugoslav Republic of Macedonia , nos. 56381/09 and 58738/09 , § 32, 7 January 2016 ; and Mitrinovski v. the former Yugoslav Republic of Macedonia , no. 6899/12 , § 29, 30 April 2015 ).

The approach to be taken in the present case

82 . In the present case , disciplinary proceedings were brought against the applicant before the SCJ , which h as exclusive competence , inter alia , for the dismissal of judges and disciplinary matters (see paragraphs 36 and 37 above) . As no review lies against any act, decision or omission of the SCJ under domestic law ( see paragraph s 43 and 44 above ), the SCJ ’ s decision to remove the applicant from office was final.

83 . The arguments of b oth the Government and the applicant are based on the premise that the applicant had no access to a court because he was not able to seek a review of the SCJ ’ s decision.

84 . The Court , however , finds that the mere f act that a review of the SCJ ’ s decision was not possible d oes not necessarily mean that the applicant did not have access to a court for the purposes of the Eskelinen test.

87 . In th o se circumstances , the Court finds that the disciplinary proceedings were conducted before a court for the purposes of the Eskelinen test .

3 . Otherwise as to admissibility

89 . The Court finds that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further finds that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B . Merits

1. The parties ’ submissions

(a) The a pplicant

90 . The applicant submitted that pursuant to Rule 16 of the Procedural Rules the SCJ had been obliged to appoint a prosecutor but had failed to do so. As a result , the judges who had acted as prosecutor s had also tried the case , in breach of the principle of impartiality. They had chosen the witnesses to be summoned and had decided on the objection raised by the applicant concerning a charge sheet which they themselves had drawn up. I n the applicant ’ s view such circumstances amounted to a most flagrant violation of the rule of natural justice .

(b) The Government

91 . The Government submitted that the Supreme Court, in accordance with the disciplinary procedure set out in the Procedural Rule s , had decided , after the completion of the disciplinary investigation, that the matter should be dealt with by the S CJ . The Government pointed out that the Court had held in cases concerning criminal proceedings that the test to be applied was whether in a given case there was a legitimate reason to fear that a tribunal lack ed impartiality and that the standpoint of the accused was important but not decisive. The Court looked at whether there were objective reasons for the applicant to fear that the tribunal in question would display bias or prejudice with regard to the decision that it was required to reach. Therefore a situation which m ight occasion misgivings on the part of the accused c ould not necessarily be treated as objectively justified (relying on Hauschildt v. Denmark , 24 May 1989, § 4 9, Series A no. 154). This depended on the circumstances of the particular case (ibid.) . The mere fact that the same court ha d also made pre-tr ial decisions in a case was not in itself sufficient to justify fears as to its impartiality ( relying on JasiÅ„ski v. Poland , no. 30865/96, § § 55-58, 20 December 2005 ; Tierce and Others v. San Marino , nos. 24954/94, 24971/94 and 24972/94, §§ 79-83, ECHR 2000 ‑ IX ; and Saraiva de Carvalho v. Portugal , 22 April 1994, § § 35-40 , Series A no. 286 ‑ B ).

92 . It was the Government ’ s view that the applicant ’ s fear s had not been objectively justified in the circumstances of the present case . There had been no objective reasons for him to fear that the SCJ , which had appointed him as a judge and had also promoted him to the post of P resident of the IDC , would display bias or prejudice with regard to the decision that it was required to reach in the proceedings on account of the fact that it had previously decided in its capacity as the Supreme Court that the matter of the applicant ’ s conduct should be further dealt with in disciplinary proceedings and had framed the “charges” against him. The Court has reiterated that its task is not to review the relevant law and practice in abstracto .

93 . The Government observed that the Procedural Rules referred to “prosecution”, to the framing and hearing of “charges” and used other terminology pertinent to criminal proceedings when misconduct or the commission of disciplinary offences by judges of lower courts were concerned . However , in reality the actual proceedings had been disciplinary and not criminal in nature and had not been aimed at punishing the applicant but maintaining the public ’ s trust in the integrity, prestige and independence of the judicial system through the adoption of strict standards of judicial conduct. In dealing with the investigation material submitted to it by the investigating judge, the Supreme Court ’ s role had been to examine whether, based on the statements that had been made , the conduct allegedly exhibited by the applicant had raised a disciplinary issue which needed to be determined in trial proceedings conducted with procedural safeguards . U nder domestic law therefore , the Supreme Court ’ s function at that phase had not been to weigh the witness statement s , including th ose of the applicant , to assess their veracity or to assess or determine in any way whether they had pointed to guilt or to any suspicion of guilt. It had also not had the function of assess ing whether there was a prima facie case ag ainst the applicant as th at could only be determined by the SCJ , which hear d the case. It had therefore not deal t with the same issues that had been subsequently examined by the SCJ. The Supreme Court ’ s assessment that the investigation material had justified referring the applicant for trial had not been such as to convey a conviction that the applicant had been guilty of misconduct as alleged, and could not therefore be considered as amounting to a finding of guilt.

94 . The core issue in the disciplinary proceedings , and the one on which the SCJ ’ s decision had been based , had been whether the witnesses had been honest as t he applicant ’ s defence all along had been that they had not told the truth . The Supreme Court had not dealt with that issue and had not interviewed any of the persons who had been interviewed by the investigating judge . The witnesses had not given particulars in their statements of specific IDC proceedings in which the applicant ’ s misconduct had allegedly arisen , nor had the files or records of such proceedings been before the Supreme Court when it had taken its decision.

95 . Lastly, the Government pointed out that although it had been possible under Rule 16 of the Procedural Rules to assign prosecution duties to the investigating judge or another judge for the purposes of the trial, th at had not been done in the present case. Under domestic law the applicant had had the right to be heard, and to cross-examine and question witnesses before a decision was made as to whether there was a prima facie case against him and to bring witnesses in his defence. It was also evident from the SCJ ’ s judgment and the record of the disciplinary proceedings that the SCJ had not assume d any role in the proceedings analogous to that of a prosecuting authority but had maintained its role of a n adjudicating disciplinary body, refraining from any questioning analogous to that of the examination in chief of witnesses testifying against the applicant o r to that of the cross-examination of witnesses testifying in his defence.

2. The Court ’ s assessment

(a ) General principles established by the Court ’ s case-law

97 . As to the subjective test, the principle that a tribunal must be presumed to be free of personal prejudice or partiality is long-established in the case-law of the Court. The personal impartiality of a judge must be presumed until there is proof to the contrary. As regards the type of proof required, the Court has, for example, sought to ascertain whether a judge has displayed hostility or ill will for personal reasons (ibid., § 74) .

( b ) Application of the above principles to the present case

II . ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION AS REGARDS THE INFORMATION GIVEN TO THE APPLICANT ABOUT THE RELEVANT IDC PROCEEDINGS

A. The parties ’ submissions

1. The applicant

2. The Government

B. The Court ’ s assessment

III . OTHER ALLEGED VIOLATIONS OF THE CONVENTION

IV . APPLICATION OF ARTICLE 41 OF THE CONVENTION

“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

1. The parties ’ submissions

(a) The applicant

125 . T he applicant claimed EUR 250,000 in respect of non-pecuniary damage . He submitted that he had been a well-known and respect ful judge and the P resident of the IDC and had suffered damage to his honour and reputation. The Supreme Court had issued a press release concerning the disciplinary decision and thus his dismissal had been made public.

( b ) T he Government

2. The Court ’ s assessment

129 . On the other hand, having regard to the violation found and ruling on an equitable basis, as required by Article 41 of the Convention , it awards the applicant EUR 7,800 in respect of non-pecuniary damage , plus any tax that may be chargeable .

B. Costs and expenses

132 . The Government rejected the claims as excessive and reserved its right to make further submissions in the event of a finding of a violation.

133 . The Court observes that only legal costs and expenses found to have been actually and necessarily incurred and which are reasonable as to quantum are recoverable under Article 41 of the Convention. This may include domestic legal costs actually and necessarily incurred to prevent or redress the breach of the Convention (see, example, Associated Society of Locomotive Engineers and Firemen (ASLEF) v. the United Kingdom , no. 11002/05, § 58, 27 February 2007, with further references).

135 . As regards the claim for expenses incurred for the preparation of the expert report, the Court finds that it was not incurred necessarily given that it has dismissed the applicant ’ s claim in respect of pecuniary damage.

C. Default interest

136 . The Court considers it appropriate that the default interest rate 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 ,

1. Declares , by a majority, the complaint under Article 6 § 1 of the Convention concerning the SCJ ’ s impartiality admissible and the remainder of the application inadmissible;

2 . Holds , by six votes to one , that there has been a violation of Article 6 § 1 of the Convention;

3 . Holds , by six votes to one ,

(a) that the respondent State is to pay the applicant, within three months of the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts:

(i) EUR 7,800 ( seven thousand eight hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii ) EUR 10 ,000 ( ten thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

4 . Dismisses , unanimously, the remainder of the applicant ’ s claim for just satisfaction.

Done in English, and notified in writing on 31 October 2017 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

             Stephen Phillips Helena J ä derblom Registrar President

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge Pamballis is annexed to this judgment.

H.J. J.S.P.

DISSENTING OPINION OF JUDGE PAMBALLIS

The question of the applicability of Article 6 § 1 in its “civil limb” is raised in this case. I agree with the majority that in order for Article 6 § 1 to be applicable, there must be a dispute as to a right recognised under domestic law. Nonetheless, I have to dissent with regard to the applicability of Article 6 § 1 in the present case, and this inevitably leads me to consider the application inadmissible.

The applicability of Article 6 § 1 – that is, the right to a fair hearing – in civil proceedings was raised recently in the case of Baka v. Hungary [1] , which concerned access to a court by a judge.

The applicant (Mr Baka), as President of the Hungarian Supreme Court, criticised proposed legislative reforms affecting the judiciary. The constitutional and legislative changes that followed resulted in the premature termination of his mandate as President. Those changes at the same time precluded the possibility of a judicial review of his dismissal. The Court held that there had been a violation of Article 6 because the applicant ’ s access to a court had been impeded by the transitional provisions of the new legislation.

At the same time, the Court in the Baka case confirmed that in cases raising a dispute concerning judges, the criteria already established in the case of Vilho Eskelinen and Others v. Finland [2] were applicable.

Those criteria are:

(a) the State ’ s national law must have expressly excluded access to a court for a relevant post or category of staff; and

(b) that exclusion must be justified on objective grounds in the State ’ s interest.

In my view, the particular circumstances of the case under consideration, as analysed in the judgment of the majority, falls outside the scope of Article 6. The conditions set out in the Vilho Eskelinen case are fulfilled and the protection enshrined in Article 6 § 1 is excluded.

The first condition, as mentioned above, is that the law must have expressly excluded access to a court.

The majority of the Court, in the present judgment, seek to establish that the fact that no review of the Supreme Council of Judicature (SCJ) ’ s decision was possible does not necessarily mean that the applicant did not have access to a court. The majority ’ s reasoning is that the disciplinary authority, the SCJ, qualified as a court for the purposes of the Eskelinen test and that access to a court was therefore not excluded.

I do not concur with this reasoning. The applicant had no access to a court, under national law, because the decisions of the SCJ are connected with the exercise of its judicial power and they cannot be challenged. Disciplinary proceedings were instituted against the applicant by the SCJ and these proceedings were of a judicial nature. They led to the applicant ’ s dismissal. The applicant did not have a right of access to a court to challenge that decision. Neither the national law nor the Constitution provide for a right of access to a court in cases concerning the dismissal of judges. On the contrary, constitutional provisions exclude judicial review in a general, abstract and foreseeable manner, by stating that the decision of the SCJ is final and binding. The case-law expressly states that the decisions of the SCJ cannot be challenged by means of a recourse under Article 146 of the Constitution [3] .

As mentioned in the Vilho Eskelinen case, the exclusionary legal provision must be of general application, whereas in the Baka case the provision was directed at a specific individual. That is why the Court, in the special circumstances of the particular case, found that the first of the Eskelinen criteria had not been satisfied.

It is my opinion that the first Eskelinen criterion was fulfilled in the present case.

The Court seeks to establish that a judge acting in his official capacity has a “right”, and the deprivation of the judge ’ s powers is considered an interference with the judge ’ s individual rights. In my view, there is no such human right to preserve those powers. A judge is a State organ and the extension of such protection would inevitably lead to the creation of a special right for judges.

The second Eskelinen criterion is that the exclusion must be justified on objective grounds in the State ’ s interest. The Court noted that in order for the exclusion to be justified, it was not enough for the State to establish that the applicant participated in the exercise of public powers, or that there was a special bond of trust and loyalty; the State had to show that that special bond had been called into question. Judges are entrusted with specific responsibilities in the administration of justice. The applicant held the office of President of the Industrial Disputes Court and exercised judicial powers. He participated directly in the exercise of powers conferred by public law and duties designed to safeguard the general interest of the State and other authorities. Public confidence in the judiciary is of paramount importance and should be preserved. The applicant ’ s misconduct has diminished this trust and confidence. Therefore, his exclusion served a legitimate purpose and was justifiable.

[1] [GC], no. 20261/12, ECHR 2016.

[2] [GC], no. 63235/00, ECHR 2007.

[3] Kourris and the SCJ ((1972) 3 C.L.R. 390) and Karatsis v. 1. The Republic of Cyprus, through the Supreme Council of Judicature, 2. The SCJ ((2001) 3 C.L.R. 220).