EHRM, 12-01-2016, nr. 57774/13

The Court firstly reiterates that ‘the right to a fair trial holds so prominent a place in a democratic society that there can be no justification for interpreting Article 6 § 1 restrictively’ (see Perez v. France [GC], no. 47287/99, § 64, ECHR 2004 I).

In cases under Article 6 of the Convention, the Court often examines individual aspects of a fair trial that the applicant complains of, and a breach of such a specific right may result in a breach of the right to a fair trial (see Kinský v. the Czech Republic, no. 42856/06, § 83, 9 February 2012). Nevertheless, in many instances it takes into account the ‘proceedings as a whole’. Thus the Court may find a breach of Article 6 § 1 of the Convention if the proceedings taken as a whole did not satisfy the requirements of a fair hearing even if each procedural defect, taken alone, would not have convinced the Court that the proceedings were ‘unfair’ (see Barberà, Messegué and Jabardo v. Spain, 6 December 1988, § 89, Series A no. 146; and Mirilashvili v. Russia, no. 6293/04, § 165, 11 December 2008).

Under Article 6 § 1 of the Convention, a tribunal must always be ‘established by law’. This expression reflects the principle of the rule of law, which is inherent in the system of protection established by the Convention and its Protocols (see, for example, Jorgic v. Germany, no. 74613/01, § 64, ECHR 2007-III).

‘Law’, within the meaning of Article 6 § 1 of the Convention, comprises not only legislation providing for the establishment and competence of judicial organs (see, inter alia, Lavents v. Latvia, no. 58442/00, § 114, 28 November 2002), but also any other provision of domestic law which, if breached, would render the participation of one or more judges in the examination of a case irregular (see Gorguiladzé v. Georgia, no. 4313/04, § 68, 20 October 2009; and Pandjikidzé and Others v. Georgia, no. 30323/02, § 104, 27 October 2009). This includes, in particular, provisions concerning the independence of the members of a tribunal, the length of their term of office, impartiality and the existence of procedural safeguards (see, for example, Coëme and Others, cited above, § 99; and Gurov v. Moldova, no. 36455/02, § 36, 11 July 2006).

In other words, the phrase ‘established by law’ covers not only the legal basis for the very existence of a ‘tribunal’ but also compliance by the tribunal with the particular rules that govern it (see Sokurenko and Strygun v. Ukraine, nos. 29458/04 and 29465/04, § 24, 20 July 2006) and the composition of the bench in each case (see Buscarini v. San Marino (dec.), no. 31657/96, 4 May 2000).

In principle, a violation by a tribunal of domestic legal provisions relating to the establishment and competence of judicial organs gives rise to a violation of Article 6 § 1. The Court may therefore examine whether the domestic law has been complied with in this respect. However, having regard to the general principle that it is, in the first place, for the national courts themselves to interpret the provisions of domestic law, the Court finds that it may not question their interpretation unless there has been a flagrant violation of domestic law (see, mutatis mutandis, Coëme and Others, cited above, § 98 in fine; and Lavents, cited above, § 114).

The Court further observes that, according to its case-law, the object of the term ‘established by law’ in Article 6 of the Convention is to ensure ‘that the judicial organisation in a democratic society does not depend on the discretion of the executive, but that it is regulated by law emanating from Parliament’ (see Zand v. Austria, no. 7360/76, Commission's report of 12 October 1978, Decisions and Reports (DR) 15, pp. 70–80). Nor, in countries where the law is codified, can the organisation of the judicial system be left to the discretion of the judicial authorities, although this does not mean that the courts do not have some latitude to interpret relevant domestic legislation (see Coëme and Others, cited above, § 98; Savino and Others v. Italy, nos. 17214/05, 20329/05 and 42113/04, § 94, 28 April 2009; and Fruni v. Slovakia, no. 8014/07, § 134, 21 June 2011).

‘The notion of separation of powers between the executive and the judiciary … has assumed growing importance in the case-law of the Court’ (see Stafford v. the United Kingdom [GC], no. 46295/99, § 78, ECHR 2002-IV). At the same time, ‘neither Article 6 nor any other provision of the Convention requires States to comply with any theoretical constitutional concepts regarding the permissible limits of the powers' interaction’ (see Kleyn and Others v. the Netherlands [GC], nos. 39343/98, 39651/98, 43147/98 and 46664/99, § 193, ECHR 2003-VI).

In order to establish whether a tribunal can be considered ‘independent’ within the meaning of Article 6 § 1, regard must be had, inter alia, to the manner of appointment of its members and their term of office, the existence of safeguards against external pressure and the question whether the body presents an appearance of independence (see Findlay v. the United Kingdom, 25 February 1997, § 73, Reports 1997-I; and Brudnicka and Others v. Poland, no. 54723/00, § 38, ECHR 2005-II). In this latter connection, what is at stake is the confidence which such tribunals in a democratic society must inspire in the public and, above all, the parties to the proceedings. In deciding whether there is a legitimate reason to fear that a particular court lacked independence or impartiality, the standpoint of the party to the proceedings is important without being decisive. What is decisive is whether the party's doubts can be held to be objectively justified (see, amongst others, Morris v. the United Kingdom, no. 38784/97, § 58, ECHR 2002-I; and Miroshnik v. Ukraine, no. 75804/01, § 61, 27 November 2008, with further references). In this respect, even appearances may be of a certain importance or, in other words, ‘justice must not only be done, it must also be seen to be done’ (see De Cubber v. Belgium, 26 October 1984, § 26, Series A no. 86).

Moreover, as a rule, impartiality denotes the absence of prejudice or bias. According to the Court's settled case-law, the existence of impartiality for the purposes of Article 6 § 1 must be determined according to:

There is no watertight division between subjective and objective impartiality, as the conduct of a judge may not only prompt objectively held misgivings as to his or her impartiality from the point of view of the external observer (the objective test) but may also go to the issue of his or her personal conviction (the subjective test) (see Kyprianou v. Cyprus [GC], no. 73797/01, § 119, ECHR 2005-XIII). Thus, in some cases where it may be difficult to procure evidence with which to rebut the presumption of the judge's subjective impartiality, the requirement of objective impartiality provides a further important guarantee (see Pullar v. the United Kingdom, 10 June 1996, § 32, Reports 1996-III).

Finally, the concepts of independence and objective impartiality are closely linked and, depending on the circumstances, may require joint examination (see Sacilor-Lormines v. France, no. 65411/01, § 62, ECHR 2006-XIII).

At the outset, the Court would emphasise that the paramount importance of judicial independence and legal certainty for the rule of law calls for particular clarity of the rules applied in any one case and for clear safeguards to ensure objectivity and transparency, and, above all, to avoid any appearance of arbitrariness in the assignment of particular cases to judges (see Iwańczuk v. Poland (dec.), no. 39279/05, 17 November 2009; and DMD GROUP, a.s., cited above, § 66).

The Court considers that where the assignment of a case is discretionary in the sense that the modalities thereof are not prescribed by law, that situation puts at risk the appearance of impartiality, by allowing speculation about the influence of political or other forces on the assignee court and the judge in charge, even where the assignment of the case to the specific judge in itself follows transparent criteria. The order in which the individual judge or panel in charge of a certain case within a court is determined in advance, that is, an order based on general and objective principles, is essential for clarity, transparency as well as for judicial independence and impartiality. An element of discretion in the allocation or reassignment of cases could be misused as a means of putting pressure on judges by for instance overburdening them with cases or by assigning them only low-profile ones. It is also possible to direct politically sensitive cases to certain judges and to avoid allocating them to others. Therefore, the Court shares the Constitutional Court's opinion (see paragraph 21 above), according to which:

The Court will next examine the individual aspects of a fair trial (see Kinský, loc. cit.). It notes the applicant's submissions about the assignee court not being a tribunal ‘established by law’ and about the impact of the discretionary assignment of the case on the independence and impartiality of that court.

The Court observes the Government's argument about the imbalance between the workloads of courts in Hungary (see paragraph 40 above) and recognises the need for organisational measures that enable the administration of justice to avoid undue delays. Such measures, however, have to be of a kind that satisfies the requirements of the right to a fair hearing.

The competence of the assignee court to hear the applicant's case was determined by a decision of the President of the NJO, who has extensive powers over administrative issues and to some extent over the personal status of members of the judiciary, and who was elected by Parliament and not within a system of judicial self-government. The Court refers to the opinion of the Venice Commission according to which the mere fact that only judges are eligible to be elected President of the NJO does not render the latter an organ of judicial self-government (see paragraph 26 above). Moreover, the Court cannot overlook the fact that until 17 September 2012 there had been no criteria at all in place that could, in principle, contribute to an objective reassignment (see paragraph 12 above). Although the National Judicial Council determined the applicable principles on that date, it did not provide any criteria for the selection of the individual cases to be reassigned, but granted discretion to the President of the NJO in the choice between eligible assignee courts. In any event, the introduction of the selection criteria was immaterial in the present case, since the assignee High Court had given judgment earlier, on 5 June 2012; and by 18 September 2012 the Pécs Court of Appeal, whose competence had also been determined by the assignment of the case to the Zalaegerszeg High Court, terminated the appeal procedure.

While the reorganisation of judicial work in general terms — that is, according to verifiable criteria and without selecting particular cases — can be accepted by the Court, by contrast the reassignment of the applicant's case took the form of an individual decision, which concerned that file exclusively (see paragraph 10 above) (compare and contrast, DMD GROUP, a.s., cited above, § 69). In this respect, the Court would underline that in the instant application, it is not the lawful existence of a court which is at issue but the lawfulness of the allocation of a case to that court.

For the Court, the discretionary nature of the reassignment manifested itself in the fact that there were neither ascertainable reasons nor criteria as to which cases were to be transferred. This situation was ultimately capable of creating the appearance of lack of independence and impartiality and did not offer the foreseeability and certainty that is required in order for a court to be considered ‘established by law’.

Similar was the conclusion of the Constitutional Court which established in its decision no. 36/2013. (XII.5.) AB (see paragraph 16 above) that the provisions on reassignment, namely sections 62 and 63 of Act no. CLXI of 2011 on the Organisation and Administration of Courts, as in force between 1 January and 16 July 2012, had been unconstitutional. Although that conclusion was reached in the context of constitutional complains originating in criminal proceedings, the Constitutional Court's findings were not limited to the reassignment of criminal trials in the sense that sections 62 and 63 had provided legal basis for reassignments in civil and criminal cases alike.

It is true that no direct domestic legal consequences emerged from the Constitutional Court's decision in the applicant's case (see paragraphs 16 in fine, 19 and 24 above). For the Court, however, remains the fact that the legal provisions ultimately underlying the reassignment of the applicant's case were unconstitutional — and were found to be so by the Constitutional Court for reasons (see paragraph 21 above) which the Court agrees with. Indeed, the constitutional criticism of the impugned measure casts serious doubts on the Zalaegerszeg High Court being a ‘tribunal established by law’ in the applicant's case. The Court would add at this juncture that the failure of the domestic authorities to attach adequate legal consequences to the declaration of unconstitutionality affecting litigants in the applicant's position sits uncomfortably with the requirement of the effective protection of Convention rights including the ones enshrined in paragraph 1 of Article 6.

The Court further considers that the above-mentioned inherent defects of the proceedings, resulting from the discretionary reassignment of the case, could not be corrected by the subsequent appeal or review. The first-instance procedure, carried out by the assignee court — which reassignment was, for the above reasons, irreconcilable with the notion of a fair hearing — must have had a decisive impact on the entire proceedings and irretrievably affected the applicant — especially since, subsequently, the territorial competence of the appeal court also flowed from this assignment (see paragraph 11 above). Again, the Court would stress that the discretionary reassignment of the applicant's litigation was open to concerns in terms of domestic constitutionality.

In sum, the Court is of the view that the case was not heard by a ‘tribunal established by law’. There has accordingly been a violation of Article 6 § 1 of the Convention.

The Court further considers that in view of the findings as to the principal legal issue of the application, it is unnecessary to consider the applicant's other submissions made under Article 6 § 1.