Information Note on the Court’s case-law No. 82

January 2006

Kyprianou v. Cyprus [GC] - 73797/01

Judgment 15.12.2005 [GC]

Article 6

Criminal proceedings

Article 6-1

Impartial tribunal

Defence counsel found in contempt of court by the same judges before whom the contempt had taken place and judges’ use of emphatic language when convicting him: violation

Article 10

Article 10-1

Freedom of expression

Defence counsel found in contempt of court following intemperate outburst: violation

Facts : The applicant, acting as defence counsel during a murder trial before an Assize Court, was interrupted by the court while cross-examining a prosecution witness. He felt aggrieved and sought leave to withdraw from the case, but as leave was not granted, he responded by alleging that during the cross ‑examination members of the court had been talking to each other and sending each other notes ( “ ravasakia ” ‑ which can mean, among other things, short and secret letters/notes, or love letters, or messages with unpleasant contents). The judges stated they had been “deeply insulted” “as persons”; could not “conceive of another occasion of such a manifest and unacceptable contempt of court by any person, let alone an advocate”; and that “if the court’s reaction is not immediate and drastic, … justice will have suffered a disastrous blow”. They gave the applicant the choice, either to maintain what he had said and to give reasons why a sentence should not be imposed on him, or to retract. As the applicant did neither, the court found him in contempt of court and sentenced him to five days’ imprisonment, to be enforced immediately, which the court deemed to be the “only adequate response”, as “an inadequate reaction on the part of the lawful and civilised order, as expressed by the courts would mean accepting that the authority of the courts be demeaned”. The applicant served the prison sentence, although he was in fact released early, in accordance with the relevant legislation. His appeal was dismissed by the Supreme Court.

Law : Article 6(1) – This complaint was directed at a functional defect in the relevant proceedings. The applicant’s case had related to contempt in the face of the court, aimed at the judges personally. They had been the direct object of his criticisms as to the manner in which they had been conducting the proceedings. The same judges then had taken the decision to prosecute him, had tried the issues arising from his conduct, had determined his guilt and had imposed the sanction (a term of imprisonment) on him. In such a situation the confusion of roles between complainant, witness, prosecutor and judge could self-evidently prompt objectively justified fears as to the conformity of the proceedings with the time ‑honoured principle that no one should be a judge i n his or her own cause and, consequently, as to the impartiality of the bench. Accordingly, the impartiality of the Assize Court had been capable of appearing open to doubt and the applicant’s fears in that respect could therefore be considered to have been objectively justified.

Turning to the applicant’s allegation that the judges concerned had acted with personal bias, the Court observed that the judges in their decision sentencing the applicant had acknowledged that they had been “deeply insulted” “as persons” by the applicant. That statement in itself had showed that the judges had been personally offended by the applicant’s words and conduct and had indicated personal embroilment on the part of the judges. In addition, the emphatic language used by the judges throughout their decision had conveyed a sense of indignation and shock, which had run counter to the detached approach expected of judicial pronouncements. The judges had proceeded to impose a sentence of five days’ imprisonment, enforced immediately, which they had deemed to be the “only adequate response” to what had happened. In addition, the judges had expressed the opinion early on in their discussion with the applicant that they had considered him guilty of the criminal offence of contempt of court. After deciding that he had committed the above offence they had given him the choice, either to maintain what he had said and to give reasons why a sentence should not be imposed on him, or to retract. Although no doubt the judges were concerned with the protection of the administration of justice and the integrity of the judiciary and, for that purpose, felt it appropriate to initiate the procedure in question, they did not succeed in detaching themselves sufficiently from the situation. That conclusion was reinforced by the speed with which the proceedings had been carried out and the brevity of the exchanges between the judges and the applicant. Against that background and having regard in particular to the different elements of the judges’ personal conduct taken together, the applicant’s misgivings about the Assize Court’s impartiality had been justified in this respect as well. As the Supreme Court had declined to quash the lower court’s decision the defect in question had not been remedied.

Conclusion : violation (unanimously).

Articles 6(2) and 6(3)(a) – Contrary to the Chamber, the Grand Chamber considered that no separate issue arose under these provisions.

Article 10 – Contrary to the Chamber, the Grand Chamber considered that a separate examination of this complaint was called for. The Assize Court had sentenced the applicant to five days’ imprisonment which could not but be regarded as a harsh sentence, especially considering that it was enforced immediately. His conduct could be regarded as having shown certain disrespect for the judges of the Assize Court. Nonetheless, albeit discourteous, his comments had been aimed at and limited to the manner in which the judges had been trying the case, in particular concerning the cross-examination of a witness he had been carrying out in the course of defending his client against a charge of murder. The penalty in question had been disproportionately severe and had been capable of having a “chilling effect” on the performance by lawyers of their duties as defence counsel. The Court’s finding of procedural unfairness in the summary proceedings for contempt served to compound that lack of proportionality. In sum, the Assize Court had failed to strike the right balance between the need to protect the authority of the judiciary and the need to protect the applicant’s right to freedom of expression.

Conclusion : violation (unanimously).

Article 41 – The Court awarded the applicant 15,000 euros in respect of non-pecuniary damage. It also made an award in respect of costs.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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