FIFTH SECTION

Application no. 4835/12 Marek SEDLÁK against the Czech Republic lodged on 19 January 2012

STATEMENT OF FACTS

The applicant, Mr Marek Sedlák, is a Czech national, who was born in 1968 and lives in Brno . He is an attorney practising law in Brno . He is represe nted before the Court by Ms M. Å amlotov á , a lawyer practising in Brno.

A. The circumstances of the case

The facts of the case, as submitted by the applicant, 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 pr esence 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, at which the judge was judge X, the applicant asked for all files and documents relating to the residence of the two Mongolian women to be submitted to the court; he claimed that the women had been granted permanent residence in the Czech Republic as a reward for testifying against him. His requests were rejected. The applicant did not ask for the two women to be called to give before the court, and he did not apply for the interpreter who had been present at their interviews to be heard.

On 18 August 2009 the applicant was found guilty as charged and conditionally sentenced to four months. In the judgment, the judge X had described the applicant as a convict although the decision was not final. She had also announced the verdict in wording which differed from the written version of the judgment. Additionally, she had refused to provide the applicant with an audio recording of the trial.

The applicant appealed, without complaining that the Mongolian women had not been heard and without asking for them to be heard on appeal.

Shortly afterwards, the applicant discovered that the judge at the Municipal Court was the girlfriend of the vice-president of this court with whom he had had a conflict in the past. The Supreme Court had found the vice-president biased towards the applicant in another case, which involved alleged defrauding of social security authorities, after he had asked the applicant ’ s client at trial “why she was represented by a defender of the Vietnamese” . The applicant thus challenged the impartiality of the judge at the Municipal Court who had dealt with his own criminal case. He alleged that her bias could be deduced from the facts that she had described him as a convict in a judgment which was not final, she had refused to provide him with an audio recording of the trial and she had announced the verdict in wording which differed from the written version of the judgment. The judge did not deny her relationship with the vice- president of the Municipal Court, but stated that “[her] personal relationships ... are not in any way connected to [her] decision-making in any criminal case.” She therefore rejected the applicant ’ s motion for bias on 12 October 2009. Her decision was upheld by the Brno Regional Court on 25 November 2009 .

On 25 November 2009 the Regional Court reversed the Municipal Court ’ s judgment of 18 August 2009 upon the applicant ’ s appeal, finding an inconsistency between the oral judgment and the written version.

On 18 February 2010 the applicant was anew found guilty by the Municipal Court (judge X). He was conditionally sentenced to four months ’ imprisonment.

On the applicant ’ s appeal, on 18 May 2010 the Regional Court quashed the Municipal Court ’ s decision and decided the case on its own in order to make the factual description of the crime more accurate in relation to the established factual background. It quashed the Municipal Court ’ s judgment, finding the applicant guilty of assisting illegal residence in the Czech Republic under Article 171d of the Criminal Code and conditionally sentenced to four months ’ imprisonment. He was also barred from law practice for three years.

The applicant filed an appeal on points of law which was rejected by the Supreme Court on 31 January 2011.

He proceeded with a constitutional appeal which was rejected by the Constitutional Court on 13 July 2011. The applicant challenged the impartiality of the judge at the Municipal Court before both instances. The Supreme Court addressed this issue stating that the actions of judge X in this case did not indicate any grounds of bias towards the applicant. The Supreme Court added that under its own case-law, recusal of a judge in one case does not automatically mean that this judge is disqualified in other cases involving the same party. Still less persons close to the disqualified judge could be regarded as partial. The Constitutional Court did not address the issue of impartiality even though it was raised by the applicant.

B. Relevant domestic law

At the material time, the relevant provisions of Code of Criminal Procedure (Act no. 141/1961), as amended, read as follows:

Article 30 § 1

“ A judge, lay judge, higher court official, prosecutor, investigator, police body or clerk shall be disqualified from a criminal case whenever there are reasonable grounds to question their impartiality with respect to the case under consideration or to persons directly involved in the proceedings, their defence counsel, legal representatives and proxies, or another body involved in the same proceedings. Acts carried out by the disqualified persons cannot constitute grounds for a decision in criminal proceedings.”

Article 31

(1) The disqualification decision for reasons set in Article 30 shall be made by the body concerned, even without an objection raised. Disqualification of a judge or a lay judge, who form part of a senate, shall be decided upon by this senate.

(2) A complaint may be filed against the decision under § 1.

(3) Such complaint will be decided upon by a body immediately superior to the body which rendered the contested decision.”

The Supreme Court ’ s case-law (no. 11 Tdo 1426/2006, 23 January 2007) states that the recusal of a judge in one case does not automatically mean that this judge is disqualified in other cases with the same party, too. Reasons for disqualification must be examined on an individual case basis.

The Constitutional Court ’ s case-law (no. I. ÚS 167/94, 27 November 1996; no. II. ÚS 105/01, 3 July 2001; no. I . ÚS 722/05, 7 March 2007) states that judges may be disqualified only if it is evident that their relation in a given case to persons involved in the proceedings or their representatives, is of a nature and intensity to lead to the conclusion that they will not be capable of independent and impartial decision-making. Clearly inimical relation consisting of a conflict between a judge and representative of a plaintiff constitutes grounds for disqualification. In terms of objective evaluation of impartiality of judges, it is necessary to determine whether there are – independently on the judge ’ s behaviour – verifiable facts which cast doubt on the impartiality, and the view of the defendant may be taken into account, too. It is decisive, if the fear of the person concerned is objectively justifiable.

COMPLAINTS

1. The applicant complains 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 permanent residence 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 he did not have an opportunity to express his opinion on this evidence or to question the legality of circumstances during the testimonies 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 inimical attitude towards the applicant.

QUESTION TO THE PARTIES

Was the first instance judge impartial within the meaning of Article 6 § 1 of the Convention?