The ECHR judgment of 31 October 2017 in the case of Kamenos v. Cyprus (complaint No. 147/07).
In 2007, the applicant was assisted in preparing the complaint. Subsequently, the complaint was communicated to Cyprus.
The case successfully considered the complaint of the judge for bringing him charges of committing a disciplinary offense and conducting disciplinary proceedings by the same judicial body in violation of the principle of impartiality. There has been a violation of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
CIRCUMSTANCES OF THE CASE
During the period relevant to the circumstances of the case, the applicant was the judge and chairman of the Industrial Disputes Court of Cyprus. On complaints of third parties on the wrongful actions of the judge on the part of the applicant, the Supreme Court appointed an independent investigative judge to review the case. After receiving the report of the investigating judge and instead of appointing the prosecutor, the Supreme Court itself charged the applicant with wrongful acts against the applicant and summoned him to the Supreme Council of the Judiciary, which included all the judges of the Supreme Court. The Supreme Council of the Judiciary held disciplinary proceedings, found the charges against the applicant proven, and after hearing the applicant, dismissed him.
In the conventional proceedings, the applicant complained under Article 6 § 1 of the Convention that he had been convicted and convicted by the same judges in violation of the principle of impartiality.
ISSUES OF LAW
Concerning compliance with article 6, paragraph 1, of the Convention. (a) Applicability. (i) The criminal legal aspect. Illegal actions constituted a disciplinary offense, limited and related to the performance of the functions of a judge. The penalty for the applicant was dismissal, but this did not prevent the applicant from practicing as a lawyer. Thus, the proceedings were purely disciplinary and did not include consideration of criminal charges.
(ii) Civil-law aspect. Under Cyprus law, judges, in accordance with the principle of irremovability, in the absence of exceptional circumstances, had the right to remain in office for the full term until resignation. The outcome of the disciplinary proceedings in the applicant's case was directly decisive for the manner in which this right was exercised. Thus, there was a real and serious dispute over the "law" to which the applicant could, on provable grounds, be invoked in accordance with domestic law.
In order to determine whether the "right" to which the applicant refers was "civil" in the autonomous meaning of Article 6 § 1 of the Convention, the Court applied the test developed in the Vilho Esquelinen case. According to this test, a civil servant is excluded from the protection of Article 6 of the Convention only if two cumulative conditions are met: (a) the domestic law expressly excludes access to the court for that post or category of personnel, and (b) the exclusion is justified by objective grounds for the benefit of the state.
The Court found that the first condition of the test of the Eskelinen case, whether the domestic legislation directly excludes access to the court, was not met. Having examined its case-law, the Court noted that while the applicant's ability to request a judicial review of the impugned decision or measure appeared to be decisive for the question of whether the country's legislation excluded access to the court, it was not a sine qua non: even in the absence of a judicial review, the applicant could be considered to have access to the court for the purpose of complying with the first condition of the Esquelinen test, if the disciplinary body itself was qualified as a "court". Such was the situation in the applicant's case. Although the decision of the Supreme Court of Justice to dismiss him did not provide for an audit, the Supreme Court of Justice consisted of all 13 judges of the Supreme Court, and in accordance with Part 8 of Article 153 of the Constitution of Cyprus, the proceedings were of a judicial nature. The summoned judges had the right to be heard and to be present during the examination of their case, they enjoyed constitutional rights equivalent to those provided for in paragraphs 1 to 3 of Article 6 of the Convention. The Supreme Council of the Judiciary held hearings, summoned and heard witnesses, evaluated the evidence and resolved the questions posed to it with reference to legal principles. Thus, the disciplinary proceedings against the applicant were conducted by the court for the purposes of the test of Eskelinen.
Since the first condition of the Esquelinen test was not met, whereas both aspects of the test must be observed for the non-application of Article 6 of the Convention to disciplinary proceedings, there was no need to consider the second aspect. Thus, Article 6 § 1 of the Convention in its civil law aspect was applicable to disciplinary proceedings against the applicant.
The complaint was declared admissible (substantiated by a majority vote).
(b) Merits. From the proceedings and decision of the Supreme Court of Justice it followed that he sought to avoid using a procedure that was of a criminal nature to prevent an atmosphere of hostility and confrontation in the proceedings. In an effort to achieve this goal, he decided not to place the prosecutor's duties on the investigative judge or other judicial officer and did not ask questions to the witnesses except for the purpose of clarification. As the Supreme Council of the Judiciary noted in its decision, it basically acted as an audience for hearing the testimony of witnesses. He also did not ask the applicant questions. Nevertheless, the fact remains that the Supreme Court itself formulated charges against the applicant, and then, sitting as the Supreme Council of the Judiciary, held disciplinary proceedings. It also considered and rejected the applicant's objection to the points of charges. In such a situation, the confusion of the functions of bringing charges and considering the issues in the case could objectively justify the fears of the impartiality of the Supreme Council of Justice.
There has been a violation of Article 6 of the Convention (six votes in favor, one at a time).
In the application of Article 41 of the Convention. The Court awarded the applicant EUR 7,800 in respect of non-pecuniary damage, the claim for pecuniary damage was rejected.