EHRM, 25-11-2021, nr. 63703/19

The applicant emphasised the fact that both he and his alleged co-perpetrators had been convicted by a tribunal with an identical composition (that is to say by the same chamber of the same court, composed of the same judges). Irrespective of whether he had been referred to by his initials or by his full name, the tribunal in question had been aware of his identity, and the wording of the judgments convicting his alleged co-perpetrators had contained specific conclusions in relation to him — both as regards his alleged status within the criminal enterprise and his alleged participation in the criminal actions in issue. When convicting the alleged co-perpetrators, the tribunal had in so doing addressed his alleged status and actions in terms of constituent elements of the offences of which he had been prosecuted and ultimately convicted.

The applicant pointed out that the judgments convicting his alleged co-perpetrators had not been excluded from his own case file but had constituted a part of them as a whole and that his own conviction had been to a large extent based on evidence given by those collaborating coperpetrators.

The applicant acknowledged that his complaint was essentially about the objective test of impartiality but argued that it was not limited to the simple fact of his having been convicted by the same tribunal as had previously convicted his alleged co-perpetrators. In his view, the Government's observations entirely failed to address individual aspects of the case. The domestic authorities had likewise failed to assess any individual circumstances and had contented themselves with abstract reliance on the unifying decision of 5 April 2017 (see paragraph 28 above). In his opinion, under domestic law there was no procedural avenue enabling anyone effectively to challenge a tribunal under the objective test of impartiality in a situation such as his. At the time of his conviction the matter had been covered by the general provision of Article 32 § 6 of the CCP, which had prevented such a challenge (deeming it to concern nothing more than a tribunal's procedural course of action — see paragraph 26 above). Following an amendment that had entered into force on 1 January 2019 (that is to say after his own conviction) such a challenge was now expressly prevented (see paragraph 25 above). The problem was thus of a systemic nature, and it was unreasonable to hold against him the fact that he had not substantiated his complaints at the domestic level by referring to his individual circumstances.

It was true that the applicant's case had also been examined by higher-instance courts, but none of these tribunals had afforded him any remedy. The question of the presumption of innocence was linked to the question of impartiality. Given that the judgments in respect of his alleged co-perpetrators had not made it clear that he was being prosecuted separately and that his guilt had not been legally established, he held objectively justifiable doubts regarding the impartiality of the tribunal that had subsequently convicted him.

The Government, for their part, argued that it was not the Court's task to review the applicable law and practice in abstracto. The case revolved around the objective test of impartiality, in respect of which the fact that the applicant's trial court had previously convicted his co-perpetrators on the basis of their plea-bargaining agreements (which had referred to his participation in the offences in question) as such presented no Convention issues.

When dealing with a plea-bargaining agreement, an examining court reviewed solely the lawfulness and fairness of that agreement, but it did not consider the potential criminal liability of third persons. This had been clearly defined in the unifying decision of 5 April 2017 (see paragraph 28 above) and reflected in the amendment to the CCP that came into force on 1 January 2019 (see paragraph 25 above).

The applicant's complaints had been abstract and had involved no allegation that any error had been made by the trial court. In any event, its judgment had subsequently been reviewed by the court of appeal, the cassation court and ultimately the Constitutional Court, the impartiality of which was beyond any doubt. All in all, the applicant had been afforded a fully-fledged and self-standing trial with all the attendant guarantees of fairness, which not even he himself had contested.

Regarding the matter of the presumption of innocence, the Government contended that the applicant's conviction had not been based on the convictions of his co-accused but on complex evidence that had been examined and assessed in a manner that did not appear arbitrary. It was accepted under the Convention (and, more widely, within the European legal space) that in complex criminal trials reference could be made to the participation in an offence by third persons who were to be tried separately. Such references had to remain within certain parameters — as indicated, for example, in the cases of Bauras v. Lithuania (no. 56795/13, 31 October 2017) and Meng v. Germany (no. 1128/17, 16 February 2021) — and they had so remained in the present case.

Specifically, the applicant and his co-perpetrators had been tried for offences with a complex organised-crime background, which they had committed together. It had accordingly been only logical to identify his role in such offences, even though those offences had been attributed solely to his co-perpetrators. The factual definition of the offences committed by his co-perpetrators given in their convicting judgments had contained nothing superfluous relating to him. Out of respect for the principle of the presumption of innocence, those judgments had referred by their full names only to those who were being convicted or had already been convicted. The applicant had accordingly been referred to only by his initials and by his alias. Even though the actual plea-bargaining agreements submitted to the Court had identified him by his full name, it was clear that any actual assessment in them had related only to the parties to those agreements. The previous references to the applicant had therefore in no way prejudiced the decision concerning him.

The Court notes that the present case raises two interlinked complaints — that of an alleged lack of a trial before an impartial tribunal, and that of an alleged violation of the applicant's right to be presumed innocent. Despite being represented by a lawyer, the applicant has not sought to challenge the fairness of his hearing as such (contrast Adamčo v. Slovakia, no. 45084/14, § 12, November 2019, and Navalnyy and Ofitserov v. Russia, nos. 46632/13 and 28671/14, § 102, 23 February 2016). His specific complaints hinge on the fact that he was tried and convicted by the same trial court that had previously convicted his co-perpetrators for criminal acts committed jointly with the applicant and that it had defined those acts in a way that made it clear that he had also participated in them. Accordingly, in so far as the complaint about the prejudicial impact of the judgments against the applicant's co-perpetrators on his own trial has been made in reliance on Article 6 § 2 of the Convention, it refers to essentially the same underlying issue. On the specific facts of the present case, that issue will be examined as a matter concerning the impartiality of a tribunal within the meaning of Article 6 § 1 of the Convention. In that examination, aspects of the applicant's right to be presumed innocent will be taken into account as and if appropriate.

It has not been disputed that the applicant was tried and convicted by the same trial court that had previously convicted his co-perpetrators for criminal acts committed jointly with him and that when defining those acts the trial court also referred to the applicant's participation in them.

In that respect, the Court observes at the outset that the trial-court chamber in question consisted exclusively of professional judges, who must be assumed to have been more trained, accustomed and prepared than would a lay judge to disengage themselves from their experience of and findings in the previous trial against the applicant's co-perpetrators (see Meng, cited above, §§ 51 and 55). It also notes that in the proceedings against the applicant the trial court itself examined witness, expert and other evidence and that in its judgment convicting him it reached its own findings of fact and law (ibid., §§ 50 and 56, with further references), not being bound by the judgments concerning the co-perpetrators in terms of law (in that respect, see the unifying opinion of 5 April 2017 referred to in paragraph 28 above and, for example, Miminoshvili v. Russia, no. 20197/03, § 117, 28 June 2011).

However, while these are important elements in the examination of the question of whether the trial court met the requirement of impartiality under Article 6 § 1 in the applicant's case, they do not exempt the Court from examining whether its judgments against his co-perpetrators contained findings that actually prejudged the question of his guilt (see Meng, cited above, § 57, with further references).

At this juncture, the Court notes that, unlike in cases such as Meng, the judgments of the applicant's co-perpetrators were not based on an assessment of the evidence against them or anyone else. They were in fact based on plea-bargaining arrangements under which the co-perpetrators had accepted their guilt of offences specifically defined therein. On the specific facts of the present case, however, the Court does not find this distinction decisive, on the following two grounds.

First, while there are various models of plea-bargaining procedures and arrangements across the Convention landscape, Slovakia has a system in which the plea-bargaining processes result in a criminal conviction (see Natsvlishvili and Togonidze v. Georgia, no. 9043/05, §§ 62–75, ECHR 2014 (extracts)). As can be seen on the facts as well as from the applicable legal provisions, plea-bargaining agreements are approved by a court in the form of a publicly delivered judgement (see paragraph 27 above) and their operative part is formulated in the same manner as in ordinary convicting judgments — in particular as regards the finding that by committing the factually-defined action (or failure to act) the accused person in question had committed the offence in question. As to the actual scope of judicial examination in relation to a plea-bargaining agreement, the Court notes a certain incongruity between the position taken by the courts in the applicant's case and the Government, on the one hand, and the applicable legal provisions, on the other. In particular, the courts and the Government suggested that in the judicial approval of the plea-bargain agreements of his co-perpetrators there had been no assessment of anything but the lawfulness and fairness of those agreements (see paragraphs 22 and 44 above). However, the rules on the scope of deliberations on an application for the approval of such agreements appear to suggest that the examining court must carry out that assessment in a wider factual and procedural context (see paragraph 8 above).

Second, the Court notes that the judgments approving the plea-bargaining agreements of the applicant's co-perpetrators contained a detailed factual description of their crimes, including the applicant's role in them as a joint perpetrator, while the precise factual description of some of their criminal actions was identical to the precise factual description of the criminal actions attributed to him. Although those judgments do not contain any separate finding of guilt in relation to the applicant per se (see also paragraphs 27 and 28 above), they are to be seen in the light of the constituent elements of the offences in question — in particular that of setting up, conceiving and maintaining a criminal enterprise, which presupposes coordinated criminal actions on the part of joint perpetrators. Convicting the applicant's co-perpetrators of these offences on the basis of the given description of their criminal actions, which included a precise factual definition of the applicant's specific role in them, was thus in principle capable of raising doubts as to whether it prejudged the question of whether he himself fulfilled all the criteria necessary for him to be held to have committed the criminal offences in question (see Meng, cited above, § 48, with further references).

Referring to the applicant and his actions in such a way may in principle engage the protection of his right to be presumed innocent. The Court is aware that any possible interference with this right would primarily have taken place in the proceedings concerning the applicant's co-perpetrators and that there is no indication of him having challenged it by any direct action. Nevertheless, the possible interference is linked to the applicant's own trial through the identify of his and their tribunal and the fact that, as acknowledged by that tribunal itself, the convictions of his co-perpetrators were a part of the case against the applicant and had as such been noted (see paragraph 18 above).

The Court reiterates that the principle of the presumption of innocence will be violated if a judicial decision or a statement made by a public official concerning a person charged with a criminal offence reflects an opinion that he or she is guilty before that person has actually been proved guilty under the law. A fundamental distinction must be made between a statement that someone is merely suspected of having committed a crime and a clear declaration, in the absence of a final conviction, that an individual has committed the crime in question. In this regard the Court has emphasised the importance of public officials' choice of words in statements made by them before a person has been tried and found guilty of a particular criminal offence. While the use of language is of critical importance in this respect, the Court has furthermore pointed out that whether a statement made by a public official is in breach of the principle of the presumption of innocence must be determined within the context of the particular circumstances in which the impugned statement was made. Even the use of some unfortunate language may not be decisive when regard is had to the nature and context of the particular proceedings (see Karaman v. Germany, no. 17103/10, § 63, 27 February 2014, with further references).

It has been accepted by the Court — and more widely at the European level — that in complex criminal proceedings involving several persons who cannot be tried together, references by a trial court to the participation of third parties, who may later be tried separately, might be indispensable for the assessment of the guilt of those on trial and that criminal courts are obliged to establish the facts of the case relevant for the assessment of the legal responsibility of the accused as accurately and precisely as possible, and they cannot present established facts as mere allegations or suspicions. This also applies to facts related to the involvement of third parties, though if such facts have to be introduced, the court should avoid giving more information than is necessary for the assessment of the legal responsibility of those accused in the trial before it (see Karaman, cited above, § 64; see also the judgment of the CJEU in the case of AH and Others (Presumption of innocence),§ 44, cited at paragraph 34 above). Moreover, the Court also found that, even if the law expressly states that no inferences about the guilt of a person can be drawn from criminal proceedings in which he or she has not participated, judicial decisions must be worded so as to avoid any potential pre-judgment about the third party's guilt in order not to jeopardise the fair examination of the charges in the separate proceedings (see Karaman, cited above, § 65; and the CJEU judgment of 18 March 2021 in Pometon v Commission, C-440/19, EU:C:2021:214, § 63).

Turning again to the facts of the present case, in view of the organised-crime-related nature of the offences of which the applicants' co-perpetrators stood accused, and given that the offence of setting up, conceiving and maintaining a criminal enterprise by nature of things could only have been perpetrated jointly with others, it appears beyond doubt that it was indispensable for the assessment of their cases to refer in the factual definition of their criminal actions to third parties.

As to the level of detail contained in the references in the judgments of the applicants' co-perpetrators to another joint perpetrator with a particular status in the gang and a role in the specific prosecuted actions or omissions, the Court finds it questionable whether it was necessary to identify the applicant individually. This is so because it may appear that the crucial point in the legal classification of the prosecuted actions or omissions was the generic presence of a joint perpetrator with a specific status or role, rather than the individual presence of a specific person (see, mutatis mutandis, Karaman, cited above, § 64). However, the Court considers that it is not called upon to answer this question conclusively because, even assuming that it was indeed necessary, for reasons explained below the references to the applicant and his actions in the judgments regarding his co-perpetrators cannot be accepted as being worded so as to avoid any potential (even if only implicit) pre-judgment regarding his guilt (ibid., § 67).

The references in question were in no way worded in such a manner as to indicate that at the given time the applicant merely stood accused and was being prosecuted in separate criminal proceedings. At the same time, no such wording or any other explanation to the effect that his guilt had not been legally established appears in the reasoning of the judgments convicting the co-perpetrators or anywhere else (see the judgment of the CJEU in the case of AH and Others (Presumption of innocence), cited at paragraph 34 above).

It is true that the judgments convicting the co-perpetrators referred to the applicant by his initials and an alias only. However, as also noted in the unifying decision (see paragraphs 29 below), it is manifest that the trial court was perfectly aware of his identity. Moreover, and more importantly (since the precise factual definition of the applicant's own criminal actions is identical to that of his co-perpetrators), there can be no doubt that his participation in their criminal actions was specifically and individually defined in the judgments finding those co-perpetrators guilty.

When confronted with the applicant's complaints, both the domestic courts and the Government cited the unifying decision of 5 April 2017. As can be seen from its contents, this decision is concerned with consolidating the divergent interpretation and application of certain provisions of the CCP concerning the presumption of innocence and the impartiality of a tribunal within a plea-bargaining context at an abstract level. In other words, it provides interpretative guidance in relation to the applicable legal provisions and is accordingly concerned purely with issues of lawfulness. In particular, as regards the impartiality of a tribunal that consecutively convicts joint co-perpetrators, the unifying decision suggests that it should be assessed from the point of view of a neutral observer who is however informed at least of the basic safeguards applicable in the procedures used. In view of how those procedures were set up, no issue of impartiality arose. Leaving aside the feasibility of a third-party observer having the requisite understanding of the procedures in question (given that judicial interpretation of the applicable rules had diverged so as to necessitate consolidation by way of the above-mentioned unifying decision), the Court notes that that decision in no way addressed the linguistic or any other individual aspect of the judgments in question.

As the applicant's trial court considered the convictions of his co-perpetrators a part of the case against him, at least on the face of things it had an obvious incentive in his to remain consistent with its earlier set of judgments, because any conflicting findings made in the former could undermine the credibility of the latter (see Navalnyy and Ofitserov, cited above, § 108). Similarly — given that the applicant's own conviction was to a large extent based on evidence given by the co-perpetrators who had already incriminated him through the confessions that they had given in the plea-bargaining process — they also had an obvious incentive not to contradict their earlier statements (ibid., § 109).

To the extent that the Government argued that the applicant's own complaints had been expressed in abstract terms only, which is consistent with the Constitutional Court's observation that he had not advanced any argument to the effect that the trial court had cited numerous extracts from the judgments convicting his co-perpetrators (see paragraph 23 above), the Court finds striking that this observation by the Constitutional Court appears to ignore the fact that the entire factual definition of the criminal actions attributed to the applicant was entirely identical to those of the criminal actions of his co-perpetrators. Moreover, the Court notes the applicant's reply to the Government — namely that the domestic system effectively did not provide for a procedure by which to invoke any individual aspects of a given case. The Government have not replied to this argument, focusing mainly on the general features of the functioning of the plea-bargaining system in the light of the unifying decision and the above-mentioned amendment to the CCP that came into force in 2019.

Accordingly, the Court finds that, although the general procedural safeguards identified in the unifying decision of 5 April 2017 were undoubtedly relevant, in the light of the specific facts of the present case they were not sufficient. In view of their wording, the judgments against the applicant's co-perpetrators were prejudicial to the applicant's right to be presumed innocent until proven guilty. Given the role they played in the applicant's own trial, which took place before the same court, his doubts as to its impartiality were objectively justified.

Lastly, the Court reiterates that a higher or the highest court might, in some circumstances, make reparation for defects that arose in first-instance proceedings. Although the higher courts in the applicant's case had the power to quash the trial court's judgment on the grounds that it had not been impartial and that there had been other fundamental procedural irregularities, they did not, and thereby provided no remedy in respect of the defects in question (see Meng, cited above, § 64, with further references).

There has accordingly been a violation of Article 6 § 1 of the Convention.