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CASE OF KYPRIANOU v. CYPRUSCONCURRING OPINION OF JUDGES Sir Nicolas BRATZA AND PELLONPÄÄ

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Document date: December 15, 2005

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CASE OF KYPRIANOU v. CYPRUSCONCURRING OPINION OF JUDGES Sir Nicolas BRATZA AND PELLONPÄÄ

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Document date: December 15, 2005

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CONCURRING OPINION OF JUDGES Sir Nicolas BRATZA AND PELLONPÄÄ

We have voted with the majority of the Court on all aspects of the case. We are also in general agreement with the majority ' s conclusions and reasoning in the judgment , save as to their opinion that the judges of the Limassol Assize Court were affected by subjective bias against the applicant when they tried and sentenced him for contempt in the face of the court.

For the reasons given in the judgment, the applicant ' s misgivings as to the impartiality of the members of the Assize Court were, in the particular circumstances of the present case, objectively justified. This would not always be the case where a contempt committed in the face of the court was tried by the court concerned and in this respect we consider that the Chamber went too far in paragraph 3 7 of its judgment in holding that in all situations where a court was faced with misbehaviour on the part of a person in the court room, the correct course dictated by the requirement of impartiality under Article 6 of the Convention would be to refer the question to the competent prosecuting authorities for investigation and to have the matter determined by a different bench than the one before which the problem arose. However, where, as in the present case, the words or actions which are alleged to constitute the contempt in question were directed at the judges personally and amounted to an outspoken criticism of the manner in which they had conducted the proceedings, the impartiality of those same judges in t rying and punishing the contemne r was in our view open to doubt and was such as to give rise to objectively justified misgivings.

Having found in paragraphs 123-28 of the judgment that the Assize Court did not satisfy the objective test of impartiality, it was in our view unnecessary to go on to examine the question whether the subjective test was also satisfied. Since the majority of the Court have not only done so but have based their finding of a violation of Article 6 on the further ground of subjective bias, we feel obliged to explain why in our view no convincing reasons have been given to rebut the presumption of the personal impartiality of the judges who tried the applicant for contempt.

First ly , we recall the general context of the events in question. The court had interrupted the applicant during the course of the main proceedings to remark that his cross-examination was entering into excessive detail at that stage of the trial. This was in our view a normal and unexceptionable intervention by the court in the proper exercise of its function to control the proceedings before it and was not suggestive of any bias on the court ' s part against the applicant. The immediate reaction of the applicant was to request leave to withdraw as counsel from the case, a request which the court refused, relying on established case-law. There is no indication that this was a decision based on anything other than proper judicial considerations and, once again, nothing to suggest any personal hostility on the part of the court towards the applicant.

Then followed the exchange containing the applicant ' s reference to “ ravasakia ” and the trial court ' s characterisation of the applicant ' s behaviour as contempt of court and its invitation to the applicant “either to maintain what he said and to give reasons why no sentence should be imposed on him, or to decide whether he should retract”. The applicant, who , according to the Assize Court was shouting and gesturing at the court, replied: “You can try me.” After an adjournment, the court reaffirmed its view that the applicant ' s words, as well as the manner and tone in which he had expressed them, constituted a contempt of court and, after giving the applicant a further opportunity to apologise, sentenced him to five days ' imprisonment.

In concluding – very exceptionally, if not for the first time in its case-law – that the presumption of personal impartiality was rebutted in the present case, the majority of the Court attach importance to a number of aspects of the Assize Court judges ' conduct which are said to amount to evidence of subjective bias on their part: the fact that the judges stated that they had been personally insulted and offended by the applicant ' s words; the emphatic language used by the judges which “conveyed a sense of indignation and shock”; the fact that the judges deemed a sentence of five days ' imprisonment to be the only adequate response for the contempt in question; and the early expression of the judges ' opinion that a contempt had been committed.

In our view none of these factors, whether considered individually or cumulatively, are sufficient to rebut the strong presumption, consistently applied by the Court, that professional judges are free from personal bias.

While, as noted above, the applicant ' s remarks plainly amounted to a personal attack on the judges of the Assize Court and objective appearances required that the alleged contempt be tried by a differently constituted bench, it by no means follows that, once having decided to try the applicant themselves, the judges of the Assize Court were influenced by their personal feelings of affront rather than by proper considerations of the need to preserve the authority of the tribunal and the due administration of justice. In this regard, we see no reason to doubt the Assize Court when it stated that the fact that the judges of the court had been personally insulted was the least of their concerns and that the real concern of the court was the authority and integrity of justice.

As to the emphatic language employed by the Assize Court , while the terms used by the judges to describe the applicant ' s conduct were unquestionably strong, we do not consider this to be of itself in any way indicative of personal bias against the applicant. We see it rather as a reflection of the seriousness with which the court regarded the applicant ' s words, tone of voice and general demeanour, which in the judges ' view had shown disrespect for the authority of the court.

For substantially the same reason, we cannot agree that the fact that the Assize Court regarded an immediate custodial sentence of five days as being the only appropriate response as suggestive of subjective bias on the part of the judges of the court . For the reasons given in the C ourt ' s judgment, we consider that the sentence was , in the circumstances of the case , a disproportionate interference with the applicant ' s Article 10 rights. But the fact that the Assize Court took a different view of the gravity of the case – and one which was shared by the Supreme Court – cannot in our view serve as evidence of a lack of subjective impartiality on its part.

Nor are we convinced that the early expression of the opinion that the applicant was guilty of contempt of court justifies the rebuttal of the presumption of the subjective impartiality of the judges. While the present case is an illustration of the difficulties faced by a tribunal in trying cases of contempt which occur in the face of the court, the mere fact that the Assize Court formed an early view that the applicant ' s conduct amounted to a contempt of court is not in our view indicative of personal bias. Moreover, the court not only adjourned to reconsider the matter before reaffirming its initial view that a contempt had been committed , but gave the applicant an opportunity to retract his statements before imposing any sentence. We see no reason to doubt the conclusion of the Supreme Court, according to which the Assize Court thereby predetermined “indirectly its intention not to continue with imposing a sentence, should Mr Kyprianou dissociate himself from what he said and did with an expression of sincere apology”.

For these reasons we cannot share the conclusion of the majority that the judges of the Limassol Assize Court were subjectively biased against the applicant and that the finding of a violation of Article 6 § 1 of the Convention was justified on this further ground.

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