Information Note on the Court’s case-law 211

October 2017

Kamenos v. Cyprus - 147/07

Judgment 31.10.2017 [Section III]

Article 6

Disciplinary proceedings

Article 6-1

Civil rights and obligations

Impartial tribunal

Disciplinary proceedings against judge brought and heard by same body: Article 6 applicable; violation

Facts – At the material time the applicant was a judge and the president of the Industrial Dis putes Court in Cyprus. Following complaints by third parties of judicial misconduct by the applicant, the Supreme Court appointed an independent investigating judge to look into the matter. After receiving the investigating judge’s report and rather than a ppointing a prosecutor, the Supreme Court itself framed charges of misconduct against the applicant and called him to appear before the Supreme Council of Judicature (SCJ), which was composed of all the judges of the Supreme Court. The disciplinary proceed ings were carried out before the SCJ, which ultimately found the charges proved and, after hearing the applicant, removed him from office.

In the Convention proceedings, the applicant complained under Article 6 § 1 that he had been charged and tried by the same judges, in breach of the principle of impartiality.

Law – Article 6 § 1

(a) Applicability

(i) Criminal aspect – Misconduct was a disciplinary offence limited and linked to the exercise of judicial functions. The penalty was dismissal but that did not prevent the applicant from practising as a lawyer. The proceedings were therefore of a purely disciplinary nature and did not involve the determination of a criminal charge.

(ii) Civil aspect – It was clear from the applicable domestic law that judges, in line with the principle of irremovability and except for exceptional circumstances, had the right to serve their term of office in full until retirement. The outcome of the disciplinary proceedings in the applicant’s case was directly decisive for the manner of the exercise of that right. There had thus been a genuine and serious dispute over a “right” which the appl icant could claim on arguable grounds under domestic law.

In order to determine whether the “right” claimed by the applicant was “civil” within the autonomous meaning of Article 6 § 1 the Court applied the Vilho Eskelinen test. Under this test, a civil servant is excluded from the protection embodied in Article 6 only if two cumulative conditions are fulfilled (a) the national law expressly excludes access to a court for the post or category of staff in question; and (b) t he exclusion is justified on objective grounds in the State’s interest.

The Court found that the first condition of the Eskelinen test – whether national law “expressly excluded” access to a court for the post or category of staff in question – had not bee n fulfilled. Reviewing its case-law, the Court noted that while an applicant’s ability to seek judicial review of the impugned decision or measure tended to be determinative of the question whether or not national law excluded access to a court, it was not a sine qua non : even in the absence of judicial review, an applicant may be deemed to have had access to a court for the purposes of the first condition of the Eskelinen test if the disciplinary body itself qualified as a “court”. That was the position in the applicant’s case. Although no review lay from the SCJ’s decision to dismiss him, the SCJ was composed of all thirteen judges of the Supreme Court and pursuant to Article 153 § 8 of the Constitution the proceedings before it were of a judicial nature. Judges appearing before it were entitled to be heard and present their case and enjoyed constitutional rights equivalent to those provided by Articles 6 §§ 1, 2 and 3 of the Convention. The SCJ held hearings, summoned and heard witnesses, assessed evidence and decided the questions before it with reference to legal principles. The disciplinary proceedings against the applicant had thus been conducted before a court for the purposes of the Eskelinen test.

Since the first condition of the Eskelinen test had n ot been met and both limbs of the test had to be met for Article 6 not to apply to disciplinary proceedings, there was no need to consider the second limb. Article 6 § 1 of the Convention was thus applicable under its civil head to the disciplinary proceed ings against the applicant.

Conclusion : admissible (majority).

(b) Merits – It was clear from the proceedings and the SCJ’s decision that the SCJ did its best to avoid a procedure that was prosecutory in nature in an attempt to prevent an atmosphere of ho stility and confrontation in the proceedings. In its efforts to achieve such a goal, it decided not to assign the duties of a prosecutor to the investigating judge or to any other judicial official and did not put questions to the witnesses, other than for clarification purposes. As it observed in its decision, it essentially acted as an audience for the statements by the witnesses. It also put no questions to the applicant.

Nonetheless, the fact remained that the Supreme Court had itself framed the charges against the applicant and then, sitting as the SCJ, conducted the disciplinary proceedings. It had also decided on and dismissed an objection by the applicant concerning the charge sheet.

In such a situation, confusion between the functions of bringing ch arges and those of determining the issues in the case could prompt objectively justified fears as to the SCJ’s impartiality.

Conclusion : violation (six votes to one).

Article 41: EUR 7,800 in respect of non-pecuniary damage; claim in respect of pecuniary d amage dismissed.

(See also Vilho Eskelinen and Others v. Finland [GC], 63235/00, 19 April 2007, Information Note 96 ; Oleksandr Volkov v. Ukraine , 21722/11, 9 January 2013, Information Note 159 ; and Baka v. Hungary [GC], 20261/12, 23 June 2016, Information Note 197 (and the cases referred to in the legal summary))

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

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