FIRST SECTION

DECISION

Application no . 4835/12 Marek SEDLÁK against the Czech Republic

The European Court of Human Rights (First Section), sitting on 30 August 2016 as a Committee composed of:

Ledi Bianku, President, Linos-Alexandre Sicilianos, Aleš Pejchal, judges, and Renata Degener, Deputy Section Registrar ,

Having regard to the above application lodged on 19 January 2012 ,

Having regard to the comments submitted by the respondent Government and the observations submitted in reply by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Marek Sedl á k, is a Czech national, who was born in 1968 and lives in Brno. He was represented before the Court by Ms M. Šamlotová, a lawyer practising in Brno.

The Czech Government (“the Government”) were represented by their Agent, Mr V.A. Schorm, from the Ministry of Justice.

The facts of the case, as submitted by the parties, may be summarised as follows.

On 1 October 2008 the applicant was charged with assisting illegal residence in the Czech Republic under Article 171d of the Criminal Code in force at that time. According to the charges, he had assisted two women, citizens of Mongolia, to stay unlawfully in the Czech Republic. Specifically, he was accused of attempting to procure a false declaration of fatherhood. The women had been interviewed in the presence of a judge under Article 158a of the Code of Criminal Procedure as an urgent measure ( neodkladný úkon ) before the applicant was charged.

In April 2009 the applicant was indicted and in June 2009 the trial started before the Brno Municipal Court.

At trial headed by judge S., the applicant asked that all files and documents relating to the residence of the two Mongolian women be submitted to the court. He claimed that the women had been granted long-term residence permit ( dlouhodob ý pobyt ) in the Czech Republic as a reward for testifying against him. His requests were rejected. The applicant did not ask that two women be called to testify before the court, but he applied for the interpreter who had been present at their interviews to be heard.

In a judgment of 18 August 2009 the Municipal Court found the applicant guilty as charged and sentenced him to four months ’ imprisonment suspended for a probationary period of two years.

On 24 September and 20 October 2009 respectively, the applicant ’ s legal representative was allowed to listen to an audio recording of the hearing held on 18 August 2009. She noticed that the recording did not correspond to the trial transcript in respect of the operative part of the judgment and, on 29 September 2009, she asked for rectification.

On the same day the applicant, having received a written copy of the judgment, discovered that the judge called him “a convict” and not “an accused” although the judgment was not final. He considered this fact as a grave violation of the presumption of innocence and a manifest sign of the judge ’ s bias towards him. The applicant also requested that a copy of the audio recording be provided to him.

On 1 October 2009 he submitted a motion for rectification of the judgment on 6 October 2009 a motion for bias of the judge indicating, inter alia , that judge D. had been found biased by a decision of the Supreme Court taken in other proceedings, due to his negative relationship with the applicant. After the delivery of the judgment in his case, he had been informed by his colleagues that in the legal profession environment, it was generally known that judge S., sitting in his case, was allegedly in a close relationship with judge D. The applicant stated that such a close relationship would lead to identical interests, standpoints, and opinions of both of these judges, justifying the exclusion of judge S.

On 7 October 2009 judge S. rejected the applicant ’ s request to correct and complete the trial transcript of 18 August 2009. On the same day, she replied to his request for a copy of the recordings of the hearings and for a corrigendum of the judgment.

On 9 October 2009 judge D. issued a statement on the objection raised by the applicant concerning the alleged bias of judge S., in which he stated in particular that the applicant ’ s allegation that he would be biased against him is unsubstantiated.

On 12 October 2009 judge S. decided that she was not excluded from the proceedings related to the matter at hand. On the same day she also corrected the written version of the judgment.

The applicant appealed against the judgment, without complaining that the Mongolian women had not been heard at trial and without asking to be heard before the appellate court.

On 19 October 2009 he challenged the dismissal of his motion for bias.

On 25 November 2009 the Brno Regional Court quashed the first instance judgment, finding an inconsistency between the oral judgment and the written version, specifically that the judgment had not been pronounced correctly in a full text but judge S. had referred to the fact described in the criminal charge and had not repeated it and that the notion of “exit visa” ( výjezdní v í zum ) mentioned in the judgment should be changed to the term of “exit order” ( výjezdní příkaz ).

On the same date the Brno Regional Court dismissed the applicant ’ s complaint against the dismissal of his motion for bias. It stated, inter alia , that:

“Reasons for which a judge can be excluded from the performance of acts of criminal procedure are exhaustively indicated in Article 30 § 1 of the Code of Criminal Procedure. No such reason was found in respect of judge [S.].

Judge [S.] is not in any relationship with the accused as well as with other persons in another procedural position. She does personally know the accused, she met him only strictly in professional situations in which he acted as a defence counsel. Moreover, she has neither any relationship in respect of the present case. From the case file it does not appear anything which would indicate the contrary. Even if ... judge [S.] has a close relationship with [D.] (vice-president of the Brno Municipal Court) who was excluded from the consideration of a case in which the accused had acted as a defence counsel, it would change nothing in respect of the fact that [S.] is not the biased person [raising] doubts that she will not be able to decide impartially. ...”

In a judgment of 18 February 2010 judge S. found the applicant guilty anew sentencing him to four months ’ imprisonment suspended for a two year probationary period. The judgment contained the following extracts:

“[Witnesses T.A. and S.A.] were heard at the pre-trial proceedings ..., the [applicant] did not insist on their personal interview at trial and the parties agreed on the reading of these witness statements. ...

[T]he applicant ’ s guilt] is fully proved in particular by the statements of T.A. and S.A., who do not [show any] contradictions, they are interconnected, very detailed and ... correspond to the information which they had already mentioned within the framework of their request for international protection. Moreover, their statements correspond to the statements of other witnesses ... and also to documentary evidence ...

The court cannot ... [agree with] the defence that the witnesses ’ statements are isolated, on the contrary, taking into account the fact that these statements are ‘ detailed, fully constant and without any contradiction, supported by the witness statements and material evidence, the court considered these witnesses fully credible. ... If the defence maintains that these witnesses, in connection with their statement against [the applicant] reside on the territory of the Czech Republic, it has to be stated that it does not appear from any report that the witnesses would stay in the territory of the Czech Republic precisely due to their testimony in respect of [the applicant][;] ... if the State decides to create a program to support the fighting against illegal migration and establishes the rules ..., there is nothing illegal.”

In a judgment of 18 May 2010 the Regional Court quashed the Municipal Court ’ s judgment and newly found the applicant guilty as charged sentencing him to four months ’ imprisonment suspended for a two year probationary period. It also barred him to practice as a lawyer for three years. Its judgment included the following statements:

“[T]he interrogations of witnesses [T.A. and S.A.] were carried out on [11 and 13] October 2008, respectively, so after the [applica nt] had been charged (2 October 2008). ... The interrogations of both witnesses took place in presence of the interpreter and defence counsel of the [applicant] whose right to defence was therefore not breached. ...

It is not appropriate to complete the evidence by ... documents of the Ministry of the Interior, which concern the stay of witnesses [T.A. and S.A.], concerning the procedure of the police ... in respect of these two witnesses. ... Undoubtedly, witness [T.A.] was granted a long-term residence permit when she was included into the Support Program for Elimination Illegal Immigration, but it happened after shed had been heard in [the present] criminal case. As to [S.A.], on 28 April 2009 she travelled back to Mongolia upon her own request. ...”

On 31 January 2011 the Supreme Court dismissed the applicant ’ s appeal on points of law stating, in particular, that under the national case-law, a recusal of a judge in one case did not automatically mean that the judge was disqualified in other cases involving the same accused; a fortiori , could such a circumstance lead to the disqualification of a judge who was close to the recused judge.

On 20 May 2011 the applicant introduced a constitutional appeal which was dismissed by the Constitutional Court on 13 July 2011. Among other claims, he challenged the impartiality of judge S. criticizing the opinion of the Supreme Court that the actions of this judge had not indicated any grounds of bias towards the applicant. However, the court did not address the issue of impartiality.

On 2 November 2011 the applicant filed a request for conditional release from completing the remainder of the sentence of prohibition to perform his profession. Judge S. subsequently requested all documents needed for the decision and ordered a public hearing to be held b efore the Municipal Court on 31 January 2012, during which the applicant expressly stated that he would not have raised any objection of bias towards judge S. The court granted the applicant ’ s request.

COMPLAINTS

1. The applicant complained under Article 6 § 1 and Article 6 § 3 (d) of the Convention that he was not allowed to familiarise himself with all evidence, especially the documents concerning the residence of two Mongolian women whose testimonies were used to prove his guilt. In the applicant ’ s view, there was a doubt as to the motivation of their statements, as they were rewarded with long-term residence permit and other material advantages, e.g. accommodation and other services. This led to a violation of the principles of equality of arms and contradictory proceedings and the right to defend oneself. He submits that he did not have an opportunity to express his opinion on this evidence or to question credibility of these witnesses.

2. Relying on Article 6 § 1 of the Convention, the applicant complains about the bias of the judge at the Municipal Court. He argues that although she denied that her personal relationships may have affected her decisions, even subjective attitude may have actually influenced her decision-making. The applicant did not have confidence in the impartiality of the Municipal Court ’ s decisions since the deciding judge was a girlfriend of this court ’ s vice-president, who had been found to have an inimical attitude towards the applicant.

THE LAW

1. The applicant complained about the bias of the judge at the Municipal Court. He relied on Article 6 § 1 of the Convention, which reads as follows:

“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ...”

The Government observed that the applicant based his doubts on the judge ’ s impartiality both on her personal actions against him, namely her alleged failure to make available the audio recording of the trial hearings and to issue a copy thereof, and in referring to the applicant as “the sentenced” instead “the accused” in the original written version of the judgment; and in an alleged relationship with judge D., who had been excluded for bias from proceedings pertaining to another criminal case in which the applicant was involved as a legal counsel. The Government contended in this respect that except for the relationship between judge S. and judge D., the applicant had failed to properly present the above arguments at the domestic level, thus not allowing domestic courts to consider his objection of bias. Actually, the applicant used the arguments referred to above only in his first objection of bias made before the Municipal court, but nevertheless failed to do so in the subsequent proceedings before the Regional and Supreme Courts.

In respect of the relationship between judge S. and judge D. the Government do not deem it necessary to examine whether the relationship had indeed existed or of what nature it had been. According to them, apart from the professional error for which judge D. was excluded from the proceedings in another matter, his attitude to the applicant at the time judge S. had been about to issue a decision in the applicant ’ s criminal case had not been negative, and he could not have been partial or biased towards the applicant for any other reason.

The Government stated that there was nothing to suggest that judge S. had had any personal negative attitude to the applicant and that she might have been prejudiced towards him. Even if there were any reasons suggesting judge D. ’ s bias towards the applicant, the same conclusion could not be drawn in relation to judge S. solely on the grounds of the alleged relationship between these two judges: judge S. must be seen as an autonomous individual who could not a priori be influenced by opinions of others, no matter how close such other persons may be.

In addition, while the applicant had challenged the impartiality of judge S., he had been tried and found guilty upon a final judgment only in the appellate proceedings. Moreover, the applicant ’ s objection of bias had been assessed by the courts at three levels.

The applicant submitted his own description of the history of his relationship with judge D. and how it had affected his negative opinion on the impartiality of judge S. in his criminal case. He referred, in particular, to a criminal case in which he had acted as the defence counsel and from which judge D. had been excluded due to his improper behaviour in respect of the applicant.

The Court notes the Government objection of non-exhaustion. It finds, however, that it is not required to examine it in detail as the present complaint is in any event inadmissible for the following reasons.

The Court reiterates that impartiality denotes the absence of prejudice or bias. According to the Court ’ s settled case-law, the existence of impartiality for the purposes of Article 6 § 1 must b e determined according to (i) a subjective test, where regard must be had to the personal conviction and behaviour of a particular judge – that is, whether the judge held any personal prejudice or bias in a given case; and (ii) an objective test, that is to say by ascertaining whether the tribunal itself and, among other aspects, its composition, offered sufficient guarantees to exclude any legitimate doubt in respect of its impartiality (see A.K. v. Liechtenstein , no. 38191/12, § 65, 9 July 2015, with further references).

As regards the subjective test, the Court reiterates that the personal impartiality of a judge must be presumed until there is proof to the contrary (see A.K. v. Liechtenstein , § 66, with further references), and in this regard the Court has, for example, sought to ascertain whether a judge has displayed hostility or ill will for personal reasons (see Morice v. France [GC], no. 29369/10 , § 74, ECHR 2015). In the present case, t he applicant has not adduced any convincing proof to rebut that presumption. The facts that judge S. hearing his case at first instance made certain procedural errors, ruled against him, decided to proceed in a certain manner and refused to withdraw do not constitute such proof. Indeed, she gave reasons for all her rulings including the judgment on the merits, and those reasons do not evince any bias against the applicant. Moreover, the typing errors produced in the first instance judgment were subsequently rectified. In the same vein, the Court finds unsubstantiated the applicant ’ s submission that judge S. had a close relationship with judge D. who had previously been excluded from another case in which the applicant had acted as a defence counsel. It notes in this relation that judge D. was in no way involved and/or did not intervene in any stage of the present criminal proceedings. His mere personal and professional relationship with judge S. together with his exclusion from an unrelated case do not suffice to put in doubt the impartiality of the judge concerned.

As to the objective test, the Court must determine whether, quite apart from the conduct and/or standpoint of judge S., there are ascertainable facts which may raise doubts as to her impartiality. This implies that, in deciding whether in a given case there is a legitimate reason to fear that a particular judge lacks impartiality, the standpoint of the person concerned is important but not decisive. What is decisive is whether this fear can be held to be objectively justified (see Wettstein v. Switzerland , no. 33958/96, § 44, ECHR 2000 ‑ XII ).

The Court, having regard to the all material in the case file, finds no reason to doubt that the Municipal Court judging the applicant ’ s case in the single judge formation by judge S., and not sitting as a bench (see, a contrario , Kyprianou v. Cyprus [GC], no. 73797/01, § 118, ECHR 2005-XIII) who has not been involved in other proceedings concerning the same parties (see, a contrario , Gillow v. the United Kingdom , 24 November 1986, Series A no. 109, p. 28, § 73), fulfilled the objective impartiality test.

The Court adds, as pointed by the Government, that the final meritorious judgment convicting the applicant was taken by the appellate court which carried out a full examination of the case. The Court recalls in this respect that in determining issues of fairness for the purposes of Article 6 of the Convention, the Court must consider the proceedings as a whole, including the decision of the appellate court (see, e.g., Khodorkovskiy and Lebedev v. Russia , nos. 11082/06 and 13772/05, § 710, 25 July 2013). It is well established in the Court ’ s case law that a defect at first instance may be remedied on appeal, so long as the appeal body has full jurisdiction. More specifically, where a complaint is made of a lack of impartiality on the part of the decision-making body, the concept of “full jurisdiction” involves that the reviewing court not only considers the complaint but has the ability to quash the impugned decision and either to take the decision itself, or to remit the case for a new decision by an impartial body (see, e.g., M.S. v. Finland , no. 46601/99, § 35, 22 March 2005).

Accordingly, the Court finds that the proceedings were not unfair overall and that this part of the application is manifestly ill-founded. It must therefore be declared inadmissible under Article 35 § 3 a) and 4 of the Convention.

2. The applicant further complained under Article 6 § 1 and Article 6 § 3 (d) of the Convention that he had not been allowed to familiarise himself with all evidence, especially the documents concerning the residence of two Mongolian women whose testimonies had been used to prove his guilt. In the applicant ’ s view, there was a doubt as to the motivation of their statements, as they had been rewarded with long-term residence and other material advantages, e.g. accommodation and other services. This had led to a violation of the principles of equality of arms and contradictory proceedings and the right to defend oneself. He submitted that he had not had an opportunity to express his opinion on this evidence or to question the legality of circumstances during the testimonies of these witnesses.

In the light of all the evidential material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares inadmissible the application.

Done in English and notified in writing on 22 September 2016 .

             Renata Degener Ledi Bianku              Deputy Registrar President