KAMENOS v. CYPRUS

12 December 2008

FIRST SECTION

Application no. 147/07
by Costas KAMENOS
against Cyprus
lodged on 24 November 2006

STATEMENT OF FACTS

THE FACTS

The applicant, Mr Costas Kamenos, is a Cypriot national who was born in 1949 and lives in Nicosia. He is represented before the Court by Mr E. Efstathiou, a lawyer practising in Nicosia.

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

The applicant was a judge and the President of the Industrial Disputes Court (hereinafter “the IDC”). The applicant was appointed as a judge in the IDC on 1 October 1999 and as President of that court on 6 December 2001.

By a letter dated 18 July 2005 a complaint was submitted to the Supreme Council of Judicature by two trade unions and two employers’ federations, alleging misconduct on the part of the applicant in the exercise of his judicial functions. The letter referred, in general, to complaints received by members of trade unions and employers’ federations who had carried out duties as members of the IDC, concerning the applicant’s conduct towards litigants, witnesses, lawyers and lay members of the court during proceedings.

The applicant was served with a written notice from the Supreme Court dated 1 September 2005, informing him of the allegations against him and noting that the Supreme Court had decided that it was justified to activate Rule 3 of the Procedural Rules concerning the Exercise of the Disciplinary Authority of the Supreme Council of Judicature (hereafter “Procedural Rules”, see below). The applicant was provided with a copy of the letter of complaint and was requested to send his comments within seven days.

In a letter dated 7 September 2005 the applicant submitted his comments to the Supreme Council of Judicature with regard to the allegations against him. In his letter the applicant observed, inter alia, that the complaint was so general and vague that he was unable to identify the precise events on which it was founded, as he had presided over numerous proceedings. He also informed the Supreme Council of Judicature that the authors of the letter had transmitted a copy to the press and that the letter had been published in a newspaper on 21 July 2005.

On 16 September 2005 the Supreme Court decided in accordance with Rule 5 of the Procedural Rules to appoint an investigating judge to conduct an investigation into the allegations made against the applicant.

On 19 September 2005 the Supreme Court appointed the President of the District Court of Nicosia as investigating judge.

In a letter dated 5 December 2005 the investigating judge informed the applicant of his appointment. He also provided the applicant with statements he had taken from twenty-eight persons during his investigation and invited the applicant to submit a supplementary statement, if he so wished, within a period of ten days.

On 16 December 2005 the applicant made a lengthy supplementary statement before the investigating judge. The applicant provided his comments on the statements collected by the investigating judge. In this connection, he referred to various proceedings in which the witnesses had been involved. He also noted that he considered that this was not a supplementary statement as such, since it was only now that the complaint had become, at least in part, more precise. Furthermore, he observed that the witness statements covered a period of six years, during which time he had sat in about three thousand cases. The statements could not therefore provide the full picture. He suggested that statements should be taken from a number of lay members of the court and provided the investigating judge with the relevant names and telephone numbers.

On 21 December 2001, upon completion of the investigation, the investigating judge submitted a report to the Supreme Court summarising his investigation and the evidence collected. The report was accompanied by all the material he had collected, including the applicant’s statements. No recommendation was made in the report.

By letter dated 10 February 2006 the Chief Registrar of the Supreme Court informed the applicant that the Supreme Court had decided that a disciplinary process was warranted. He provided the applicant with the charge sheet, listing two charges of misconduct and all the preparatory investigation as completed by the investigating judge. The charges against the applicant were as follows:

“First Charge

Misconduct (Articles 153.7 (4) and 157.3 of the Constitution)

Particulars

While you exercised the duties of President of the Industrial Disputes Court you repeatedly displayed oppressive, disparaging, scornful and, more generally, insulting behaviour towards the lay members of the Court, both inside and outside the court room and, at the same time, in the course of the proceedings, you sometimes ignored them, sometimes did not allow them to put questions and sometimes did not allow them to ask for clarification on matters in issue.

Second Charge

Misconduct (Articles 153.7(4) and 157.3 of the Constitution)

Particulars

While you exercised the duties of President of the Industrial Disputes Court you repeatedly displayed oppressive, disparaging, scornful and, more generally, insulting and even humiliating behaviour towards advocates and/or litigants and/or witnesses during the proceedings, including ironic comments at their expense and/or innuendos, with the result that, owing to their agitation and disruption, the entire proceedings were diverted from their proper course.”

A list of fifteen witnesses was attached to the charge sheet.

In his letter the Chief Registrar summoned the applicant to appear before the Supreme Council of Judicature on 9 March 2006 to answer the charges. He informed the applicant that the proceedings would not be public unless he so wished and that, pending the proceedings, he would have to abstain from his duties.

Before the applicant answered the charges against him, his counsel raised several preliminary objections. In particular, he argued that the investigation had been incomplete, as statements had not been taken from the persons indicated by the applicant. Furthermore, he argued that the charge sheet had been incomplete, defective and vague.

The Supreme Council of Judicature found that the charge sheet, taken together with the fifteen statements, provided sufficient information to the applicant about the facts on which the charges had been based and that the investigation had been adequate.

Following an objection by the applicant’s counsel, the Supreme Council of Judicature decided to limit its examination of the case to the period subsequent to the applicant’s appointment as President of the IDC.

The case was fixed for hearing on 29 March 2006. The applicant’s counsel agreed that the proceedings would not be public.

The applicant pleaded not guilty to the charges.

The issue of the clarity of the charge sheet arose again during the proceedings. Statements that related to pending proceedings and complaints that had previously been dealt with by the Supreme Court were removed from the charge sheet. Ten out of the fifteen witnesses listed on the charge sheet ultimately testified. These comprised six lay members, two lawyers and two persons who had been witnesses in proceedings over which the applicant had presided. These witnesses read out and confirmed the contents of their statements. They were then cross-examined by the applicant’s counsel.

Following a suggestion by the applicant’s counsel, the Registrar of the IDC was also summoned.

Files of proceedings over which the applicant had presided and in which the witnesses had been involved were presented to the Supreme Council of Judicature.

At the end of the case the Supreme Council of Judicature found that a prima facie case had been established against the applicant. It therefore called the applicant to put forward his defence.

The applicant testified and called thirty-six defence witnesses. These consisted of twenty-six lay members of the IDC, nine lawyers and the representative of the redundancy fund.

In its decision of 19 September 2006 the Supreme Council of Judicature found, by a majority[1] (12 to 1), that on the basis of the evidence adduced and of all the material facts before it, the applicant’s alleged misconduct had been proved. In its decision the Supreme Council of Judicature examined the evidence given by the eleven witnesses and made specific reference to events transcribed in the court records of proceedings over which the applicant had presided and in which the witnesses had been involved. After hearing the applicant in accordance with Rule 26, the Supreme Council of Judicature removed the applicant from his office.

The relevant parts of the decision provide as follows:

“...

Rule 13 secures for the judge against whom proceedings are taken all the rights provided for in Article 12.5 of the Constitution for persons who are charged with a criminal offence. This provision of the Constitution secures the well-known rights that an accused has in a criminal trial and are identical to those secured under Articles 6 (2) and (3) of the European Convention on Human Rights, which was ratified by the House of Representatives by Law in 1962 (law 39/62). Furthermore, the provisions of Article 30 of our Constitution, which are the equivalent of those of Article 6 of the Convention, are also applicable.

...

At no stage did the Supreme Council of Judicature function as a public prosecutor against Mr Kamenos. The President and Members of the Supreme Council of Judicature did not put a single question to the witnesses who were listed on the charge sheet, or to those summoned on behalf of Mr Kamenos, which might have been construed as cross-examination for the purpose of contesting the witnesses’ allegations. On the contrary, the President and Members of the Supreme Council of Judicature put very few questions, solely for the purpose of clarification; special reference will be made to some of these questions at the appropriate stage. Not a single question was put to Mr Kamenos. The Supreme Council of Judicature was not seeking to pursue a procedure of prosecution against Mr Kamenos in the form of a confrontation between prosecution and defence. For this reason, and despite having such power under Rule 16, the relevant provision of the Constitution on judicial process and the procedure to be followed in investigating disciplinary cases, it did not assign the duties of prosecutor to the judge-investigator or to any other judicial official. In this way, and this was the declared intention of the Supreme Council of Judicature, more rights were secured for Mr Kamenos than those which he had under the afore-mentioned articles of the Constitution and the Rule. This was precisely the aim of the procedure followed by the Supreme Council of Judicature, which essentially remained an audience for the statements of the witnesses.

It follows that this is the appropriate moment to refer to the suggestion proposed by Mr Kamenos’ advocate in his final address. Its subject relates directly and absolutely to what we have just said. The advocate alleged that the Supreme Council of Judicature functioned in a dual capacity, given that it judged the case and simultaneously exercised the duties of prosecutor. Clarifying his position, he said that this is inferred from the fact that the President and Members of the Supreme Council of Judicature put questions to the witnesses. In our opinion, this suggestion is unfounded and unjustifiable. Unfounded for the reasons which we explained above, and unjustifiable because it conflicts with what the advocate said to us at the beginning of the proceedings, when he ... spoke in praise of the power invested by the Constitution in the Supreme Council of Judicature, describing its work as difficult and important [in those instances] when it is called upon to decide whether a judge has displayed misconduct and is obliged, again in accordance with the Constitution, to terminate the latter’s services in the event of conviction. In brief, Mr Efstathiou not only accepted but also praised as correct the competence, arising from the Constitution, of the Supreme Council of Judicature, which is made up of the full bench of the Members of the Supreme Court, the highest judicial authority in the State.

...

[The applicant’s advocate] asked many witnesses to express an opinion on the extent to which they considered Mr Kanenos’s decisions correct. Most of them, including the lawyers, gave the correct reply, namely, that it was not for them to judge Mr Kamenos’ decisions. In the same way, the Supreme Council of Judicature is not judging the correctness of Mr Kamenos’ decisions. We do not have such competence. This belongs to the Supreme Court. It rests only to the competence of the Supreme Council of Judicature to decide whether the charges of improper behaviour (misconduct) are proved, which, in the case we are examining and according to the particulars of the charges...

...

Previously we stated that certain witnesses called by Mr Kamenos, in their evident endeavour to tone down or explain what the witnesses listed on the charge sheet had testified to and who touched on Mr Kamenos’ behaviour in the course of the hearing, in essence confirmed those witnesses. Several examples follow...

...

We wish to clarify that the purpose of this procedure is not the punishment of Mr Kamenos but the protection of the public, with the adoption of a strict standard of judicial behaviour in order to preserve public confidence in the integrity, prestige and independence of the judicial system. We borrow and adopt the above principle from the decision (Investigation concerning Judge Bruce Van Voorhis, No. 165) given in February 2003 by the Commission of Judicial Performance of the State of California, in the United States of America, which concerned a procedure against a specific judge whose services were also terminated for misconduct, with facts and particulars similar to the case before us. In essence, we translate the principle which that Commission adopted and recorded on page 31 of the decision. The principle is based, as stated in the decision, on what was said by the Supreme Court of the State, that the purpose of the procedure was not to punish judges who have erred but to protect the judicial system and those who are subject to the formidable power exercised by judges.

...

Evaluating the above with great care, caution and, we would say, anxiety, we are led to the conclusion that everything imputed to Mr Kamenos as stated in the two charges has been proved. In accordance with the relevant provisions of the Constitution, which are referred to in our decision, the proof of a charge against a judge of misconduct leads to the termination of his services.”

The dissenting judge in his decision found that the evidence adduced was not sufficient to establish the serious charge of misconduct.

As regards the procedure followed, the judge noted, inter alia, that the Supreme Council of Judicature had asked the witnesses very few questions for the purpose of clarification. Furthermore, with regard to the investigation and the object of the hearing he observed:

“A judicial official with the duties of prosecutor was not appointed, a possibility which is referred to in Rule 16, and we adopted the following approach: every witness read out loud his statement to the investigating officer and, immediately after, was cross-examined by Mr Kamenos’s lawyer. During the cross-examination or subsequently, members of the Supreme Council of Judicature asked the witnesses a few questions for clarification purposes. This is also exactly what happened in the case of Mr Kamenos and the 36 witnesses called by him.

...

Before referring to the evidence, it is useful if we outline the methodology which led to the taking of statements by the Investigating Officer. He did not himself take the initiative of collecting evidence in view of the accusation, as he explains in his report. The persons who signed the accusation did not have personal knowledge of anything and statements were taken from all those they ... named, and from others whom those initially summoned subsequently named. This was not therefore a systematised investigation into the manner in which Mr Kamenos exercised his duties in general, and this is also the reason for not taking statements from a number of other persons whom Mr Kamenos himself indicated. Besides, as we have seen, of the 28 statements which the Investigating Office took, only 15 were attached to the charge sheet, with a further reduction to 10 in the course of the hearing. These did not include statements in which, as the Investigating Officer reported, not only was no complaint expressed but it was stated that Mr Kamenos’ conduct was irreproachable in all respects. Consequently, as is in any case self-evident, the object of the hearing is [to determine] whether, on the basis of the evidence of these ten witnesses, the charge is substantiated as formulated. That is to say, whether, from each individual’s evidence and the correlation between them, to the extent that this would be permissible, there arises conduct as cumulatively stated on the charge sheet, [and] in the case of the second charge “with the result that, owing to their agitation and disruption, the entire proceedings were diverted from their proper course. This (was the wording), without it being specified on the charge sheet a definite specific incident at a specific time, ... in relation to a specific person in the context of a specific case. The witnesses who remained on the charge sheet (whose statements I shall of course return to), as lay members of the court, or as advocates or as witnesses, did not submit a complaint there and then about what they considered to be objectionable conduct. ... Nor did the litigants in any specific case which could be related to the charge sheet make a complaint at the time, or appeal or employ any other legal means so that any objectionable conduct would be examined also from the aspect of its effect on the final outcome. As occurred in the cases of Athanasiou v. Reana Manuf. & Trade Co.Ltd and others (2001) 1 C.L.R. 1635 and Fanos N. Epiphaniou Ltd v. Melarta and others (2002) 1 C.L.R.654, in which the Supreme Court annulled the decisions issued by the Industrial Disputes Tribunal under the presidency of Mr Kamenos, with strong remarks about the degree of his intervention in the proceedings and the appearance of partiality to which this could give rise. Of course, the charge sheet does not extend to these cases and does not concern the issue of interventions as such...The core of the charge is the conduct attributed to Mr Kamenos at the expense of lay members of the court, advocates, litigants and witnesses, and it is in the light of this that I shall go on to examine the evidence adduced.”

He concluded:

“I have finished the summary and evaluation of the evidence on which the charge sheet is based. I have evaluated separately each piece of evidence to the extent that it referred to each person’s separate experiences from cases or different incidents. For this reason I do not think it is useful to go into the evidence of those witnesses for the defence on whom I have not commented, who generally approved of the way in which Mr Kamenos carried out his duties, without references to their experiences which would have had a common source with the ten witnesses on the charge sheet.

I do not think that I have anything else to add. Mr Kamenos, clearly misunderstanding his role, ignored the Supreme Court’s recommendations in the two cases I referred to earlier, by intervening in the proceedings more than necessary, and there were indeed cases, as the minutes ... revealed, of unfortunate phraseology or even comments which could have been taken as indicating a stance against the case or the substance of the evidence. I would reprimand Mr Kamenos for these things, but the crucial question to which we are required to give an answer is whether he displayed improper behaviour (misconduct) as stated in the charge sheet, as I tried to explain at the beginning. My conclusion is in the negative and I would acquit Mr Kamenos.”

B. Relevant domestic law and practice

1. The Supreme Court and the Supreme Council of Judicature

The 1960 Constitution, by which the Republic of Cyprus was established, provided for the existence of both a High Court and a Supreme Constitutional Court. These Courts were composed of Greek, Turkish and neutral judges, that is, judges from a foreign country other than Greece and Turkey. The two neutral judges presided over the Courts. This Constitutional arrangement lasted only until the beginning of 1964 due to the eruption of intercommunal hostilities in Cyprus, as a result of which the neutral presidents vacated their posts without being replaced. In order to overcome this situation, which was paralysing the judiciary, the Administration of Justice (Miscellaneous Provisions) Law no. 33/64 was enacted. By virtue of this law, the two highest courts were merged into one, the Supreme Court of Cyprus, to which the jurisdiction and powers of the two pre-existing courts were transferred. The establishment and operation of the new Supreme Court was held to be in conformity with the Constitution on the basis of the law of necessity.

The Supreme Court was originally composed of five judges, but the number of judges was gradually increased by legislation to its current number of thirteen judges. The judges of the Supreme Court are appointed by the President of the Republic (Article 153.2 of the Constitution) who customarily obtains recommendations from the Supreme Court beforehand. The selection is usually made from among the senior Presidents of District Courts. To qualify for appointment a candidate must be an advocate with at least 12 years’ practice (a term which also includes service in any judicial post) and of a high moral standard. The District Judges, Senior District Judges, Presidents of District Courts and Judges of the Courts exercising specialised jurisdiction are appointed by the Supreme Council of Judicature, a body consisting of the judges of the Supreme Court (Articles 153.8 (1) and (2) and 157 of the Constitution).

The Industrial Disputes Court consists of the Presiding Judge and two lay members of the Court, who are nominated by the Trade Unions and the Employers’ Federations respectively, and who are appointed by the Supreme Council of Judicature.

Judicial independence is safeguarded by the Constitution and the traditions of the Judiciary. The Constitution provides for a strict separation of the powers, jurisdictions and duties of the Executive, Legislature and Judiciary.

In so far as relevant, the pertinent provisions of the Constitution provide:

Article 153

1. (1) There shall be a High Court of Justice composed of two Greek judges, one Turkish judge and a neutral judge. The neutral judge shall be the President of the Court and shall have two votes.

(2) The President and the other judges of the High Court shall be appointed jointly by the President and the Vice-President of the Republic:

...

2. The seat of the High Court shall be in the capital of the Republic.

...

5. The President and the other judges of the High Court shall be appointed from amongst lawyers of high professional and moral standard.

6. (1) The President of the High Court shall be appointed for a period of six years.

(2) The remuneration and other conditions of service of the President of the High Court shall be laid down in the instrument of his appointment.

...

7. (4) A Greek or the Turkish judge of the High Court may be dismissed on the ground of misconduct.

8. (1) There shall be established a Council consisting of the President of the Supreme Constitutional Court as Chairman and the Greek and the Turkish judge of the Supreme Constitutional Court as members.

(2) This Council shall have exclusive competence to determine all matters relating to-

(a) the retirement, dismissal or otherwise the termination of the appointment of the President of the High Court in accordance with the conditions of service laid down in the instrument of his appointment;

(b) the retirement or dismissal of any Greek judge or the Turkish judge of the High Court on any of the grounds provided in sub­paragraphs (3) and (4) of paragraph 7 of this Article.

(3) The proceedings of the Council under sub­paragraph (2) of this paragraph shall be of a judicial nature and the judge concerned shall be entitled to be heard and present his case before the Council.

(4) The decision of the Council taken by a majority shall be binding upon the President and the Vice-President of the Republic who shall jointly act accordingly.”

Article 155

“1. The High Court shall be the highest appellate court in the Republic and shall have jurisdiction to hear and determine, subject to the provisions of this Constitution and of any Rules of Court made thereunder, all appeals from any court other than the Supreme Constitutional Court.

2. Subject to paragraphs 3 and 4 of this Article the High Court shall have such original and revisional jurisdiction as is provided by this Constitution or as may be provided by a law:

Provided that where original jurisdiction is so conferred, such jurisdiction shall, subject to Article 159, be exercised by such judge or judges of the High Court as the High Court shall determine:

Provided further that there shall be a right of appeal to the High Court from their decision.

3. The High Court shall, to the exclusion of any other court, determine the composition of the court which is to try a civil case where the plaintiff and the defendant belong to different Communities and of the court which is to try a criminal case in which the accused and the injured party belong to different Communities. Such court shall be composed of judges belonging to both the Greek and the Turkish Communities.

4. The High Court shall have exclusive jurisdiction to issue orders in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari.”

Article 157

“1. Save as otherwise provided in this Constitution with regard to the Supreme Constitutional Court, the High Court shall be the Supreme Council of Judicature, and its President shall have two votes.

2. The appointment, promotion, transfer, termination of appointment, dismissal and disciplinary matters of judicial officers are exclusively within the competence of the Supreme Council of Judicature.

3. No judicial officer shall be retired or dismissed except on the like grounds and in the same manner as a judge of the High Court.”

Article 163

1. The High Court shall make Rules of Court for regulating the practice and procedure of the High Court and of any other court established by or under this Part of this Constitution, other than a court established under Article 160.

2. Without prejudice to the generality of paragraph 1 of this Article the High Court may make Rules of Court for the following purposes:-

...

(f) for prescribing the practice and procedure to be followed by the Supreme Council of Judicature in the exercise of its competence with regard to disciplinary matters relating to judicial officers.

...”

2. Procedural Rules concerning the Exercise of the Disciplinary Authority of the Supreme Council of Judicature of 2000

On 14 July 2000 the Supreme Court issued Rules on the basis of Article 163.2(f) of the Constitution and section 17 of the Administration of Justice (Miscellaneous Provisions) Law of 1964 (Law 33/64, as amended), setting out the practice and procedure to be followed by the Supreme Council of Judicature in the exercise of its competence with regard to disciplinary matters relating to judicial officers. In so far as relevant, these provide:

“2. Definitions

...

“Supreme Council of Judicature” means the Supreme Court in the exercise of its competences on the basis of Article 157 of the Constitution.

...

3. Where it comes to the notice of the Supreme Court, in the exercise of its procedures, competences and powers or following a complaint, that a Judge may –

(a) have become incapable

(b) have displayed inappropriate behaviour (misconduct)

(c) have committed a disciplinary offence,

it shall notify this Judge of the information it has in its possession or the complaints made and shall ask for his views within a specified time-limit.

4. Having received the views of the Judge, or on expiry of the above time-limit in the event that he refuses or omits to submit them, the Supreme Court shall examine whether there are grounds which justify the holding of an investigation into the possibility of the Judge having become incapable, having displayed inappropriate behaviour (misconduct) or having committed a disciplinary offence

5. If it is considered that an investigation is justified, this shall be carried out in the manner set out below.

...

(a) If an investigation is ordered, then the Supreme Court shall appoint an investigating judge, to whom it shall assign the investigation of the matter.

...

In the conduct of the investigation, the investigating judge shall be assisted by a member or members of the Registry of the Courts.

Before the commencement of the investigation, all the information in the possession of the Supreme Court shall be put before the investigating judge, including the views of the Judge who is the subject of the investigation. The investigating judge shall proceed with the investigation as quickly as possible and shall complete his task without delay.

6. The investigating judge shall take statements and collect information from every person who is in a position to provide facts and information with regard to the subject of the investigation.

...

7. The statements taken and the facts collected shall be put before the Judge who is under investigation, to whom the opportunity is given to make, if he wishes, a supplementary statement within a specified time-limit.

8. After the completion of the investigation, the investigating judge shall submit, within fifteen days, a report summarising the evidence collected. The report shall be accompanied by the statements which have been taken, including any supplementary statement by the Judge under investigation.

9. The Supreme Court shall decide, in the light of the statements, facts and information before it, whether the referral of the Judge under investigation to the Supreme Council of Judicature is justified, in order for it to be decided whether he has become incapable, has displayed inappropriate behaviour (misconduct) or has committed a disciplinary offence.

10.

...

(a) If a decision is taken to proceed against the Judge for misconduct or the commission of a disciplinary offence, a charge sheet shall be drawn up, on which shall be set out the charge or charges, as the case may be, and a summary of the details which establishes them.

...

11. The charge sheet shall be served on the Judge against whom it is directed by the Registrar of the Court in which he serves, together with the report of the investigating judge and all the data attached to it.

12. Pending the hearing the Judge against whom proceedings are being taken shall abstain from his judicial duties.

13. During the hearing the Judge against whom proceedings are being taken shall enjoy all the rights which Article 12.5 of the Constitution ensures for a person charged with the commission of an offence.

14. Where the investigating judge is a member of the Supreme Court, he shall not be a member of the bench during the hearing.

15. At the first appearance before the Supreme Council of Judicature, the Judge against whom proceedings are being taken shall be called upon to answer the charge or charges. If the answer is a denial, a date shall be fixed for the hearing of the case. ...

16. During the hearing, the Supreme Council of Judicature shall summon, one by one, and shall hear the witnesses who have made statements and any other person who is in possession of facts or is in a position to throw light on the matters in issue. The witnesses shall take the oath required by law or make an affirmation that they will tell the Court the truth and nothing but the truth. Their evidence shall be introduced by questions which are put by the President of the Supreme Council of Judicature and supplementary questions by the Members:

... The Supreme Council of Judicature may assign the duties of prosecutor to the investigating judge or, if this is not feasible, to another Judge of the Supreme Court or Judge, in which case the introduction of the witnesses’ evidence shall be made by him.

17. After the introduction of his evidence, the witness shall be subject to cross-examination by the Judge against whom proceedings are being taken.

18. After the cross-examination the President and Members of the Supreme Council of Judicature may put questions for clarification purposes, after which the Judge against whom proceedings are being taken shall have the right to put supplementary questions.

19. At the conclusion of the witness evidence on which the charge is based, the Supreme Council of Judicature shall decide if a prima facie case has been established against the Judge against whom proceedings are being taken.

20. If it is decided that a prima facie case has been established against the Judge against whom proceedings are being taken, he shall be given an opportunity to present his defence. The Judge against whom proceedings are being taken shall be entitled to give evidence on oath, to make an unsworn statement and to call witnesses. Both the Judge against whom proceedings are being taken and who has given evidence on oath, and any other witness for the defence, shall be subject to examination by the President and Members of the Supreme Court of Judicature, at the close of which the Judge against whom proceedings are being taken shall be given an opportunity to make, if it concerns himself, a supplementary, clarifying statement, or, if it concerns a witness whom he has summoned, of asking clarifying or supplementary questions.

21. On completion of the defence, the Judge against whom proceedings are being taken shall have the right to address the Court.

22. After the conclusion of the hearing, the Supreme Council of Judicature shall decide, in the case of a prosecution, if it has been proved that the Judge against whom proceedings are being taken is guilty –

(a) of misconduct or

(b) of a disciplinary offence,

as the case may be.

23. If the Supreme Council of Judicature decides that the charge or charges against the Judge against whom proceedings are being taken have not been proved, the court shall acquit and exonerate him.

...

26. A Judge who is found to be incapable or guilty of misconduct shall be heard before the Supreme Council of Judicature proceeds further.

27. A Judge guilty of misconduct shall be dismissed as the Constitution provides.”

3. Relevant Constitutional human rights provisions

Article 12 of the Constitution provides for no punishment without law and guarantees the right to a fair trial in criminal cases:

“1. No person shall be held guilty of any offence on account of any act or omission which did not constitute an offence under the law at the time when it was committed; and no person shall have a heavier punishment imposed on him for an offence other than that expressly provided for it by law at the time when it was committed.

2. A person who has been acquitted or convicted of an offence shall not be tried again for the same offence. No person shall be punished twice for the same act or omission except where death ensues from such act or omission.

3. No law shall provide for a punishment which is disproportionate to the gravity of the offence.

4. Every person charged with an offence shall be presumed innocent until proved guilty according to law.

5. Every person charged with an offence has the following minimum rights:

(a) to be informed promptly and in a language which he understands and in detail of the nature and grounds of the charge preferred against him;

(b) to have adequate time and facilities for the preparation of his defence;

(c) to defend himself in person or through a lawyer of his own choosing or, if he has no sufficient means to pay for legal assistance, to be given free legal assistance when the interests of justice so require;

(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

(e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court”.

Article 30 of the Constitution guarantees the right to a fair trial:

“1. No person shall be denied access to the court assigned to him by or under this Constitution. The establishment of judicial committees or exceptional courts under any name whatsoever is prohibited.

2. In the determination of his civil rights and obligations or of any criminal charge against him, every person is entitled to a fair and public hearing within a reasonable time by an independent, impartial and competent court established by law. Judgment shall be reasoned and pronounced in public session, but the press and the public may be excluded from all or any part of the trial upon a decision of the court where it is in the interest of the security of the Republic or the constitutional order or the public order or the public safety or the public morals or where the interests of juveniles or the protection of the private life of the parties so require or, in special circumstances where, in the opinion of the court, publicity would prejudice the interests of justice.

3. Every person has the right:

(a) to be informed of the reasons why he is required to appear before the court;

(b) to present his case before the court and to have sufficient time necessary for its preparation;

(c) to adduce or cause to be adduced his evidence and to examine witnesses according to law;

(d) to have a lawyer of his own choice and to have free legal assistance where the interests of justice so require and as provided by law;

(e) to have free assistance of an interpreter if he cannot understand or speak the language used in court.”

4. Miscellaneous provisions

Section 17 of the Administration of Justice (Miscellaneous Provisions) Law of 1964 (Law 33/64, as amended) provides:

“The Court may make Rules (in this Law referred to as “Rules of Court” to be published in the official Gazette of the Republic for the better carrying out of this Law into affect:

Provided that any Rules of Court duly made and in force on the date of the coming into the operation of this Law shall, until revoked or amended by any new Rules made under this Law, continue to be in force.”

COMPLAINTS

1. The applicant complains under Article 6 § 1 of the Convention of the fairness of the disciplinary proceedings. In particular, he complains of the following:

(a) during the investigation the investigating judge did not take statements from the witnesses suggested by the applicant in his statement of 16 December 2005. As a result, the Supreme Court decided to institute disciplinary proceedings against him without having all the relevant evidence before it;

(b) the charge sheet was drafted by Supreme Court judges who subsequently, in their capacity as members of the Supreme Council of Judicature, tried and convicted the applicant. The same judges had also chosen the witnesses to be summoned. They had therefore acted both as prosecutors and judges, in breach of the principle of impartiality. The Supreme Council of Judicature did not assign the duties of prosecutor to an independent person, as provided for under the applicable procedural rules. As a result of the above situation, the applicant had also been deprived of the possibility of objecting to the charge sheet.

(c) the proceedings were held at only one instance, as no appeal lay against decisions of the Supreme Council of Judicature.

2. The applicant complains under Article 6 § 2 of the Convention of a violation of the principle of the presumption of innocence. In this connection, he complains that he was tried by the same judges who had charged him. Furthermore, he complains that, during the proceedings, the Supreme Council of Judicature admitted evidence, specifically numerous minutes of court proceedings over which the applicant had presided, which had not been part of the pleadings assembled by the investigating judge and had not been brought to the applicant’s attention before the commencement of the trial. The applicant claims that he had found out about the specific proceedings in question only from the decision of the Supreme Council of Judicature.

3. The applicant also complains under Article 6 § 3 that:

-the charge sheet was vague and very general. It did not specify the particular acts or omissions of which the applicant was accused but merely referred to general misconduct, with the use of various adjectives describing his behaviour during the period he exercised his duties as President of the Industrial Disputes Court. No reference to precise dates was made. His objections as to the vagueness of the charge sheet were dismissed by the Supreme Council of Judicature. The applicant was thereby prevented from preparing his defence.

-the Supreme Council of Judicature dismissed and failed to take into account the testimony of all the witnesses the applicant had summoned.

5. Finally, the applicant complains of a breach of the principle of nullum crimen nulla poena sine lege embodied in Article 7 of the Convention. In this respect he claims that the offence of “inappropriate behaviour”, in particular, the acts or omissions which constitute this offence, were not defined in the law. The Supreme Council of Judicature had dismissed his objections on this point.

QUESTIONS TO THE PARTIES

1. Can it be said that the disciplinary proceedings against the applicant constitute a determination of his civil rights and obligations with the meaning of Article 6 § 1 of the Convention? Namely,

- did a “right” exist in the present case?

- if so, could it be said that it was “civil” in nature?

(see Vilho Eskelinen and Others v. Finland [GC], no. 63235/00, §§ 40 and 62, ECHR 2007‑...; Serdal Apay c. Turquie ((déc.), no 3964/05, 11 décembre 2007).

2. Did the applicant have a fair hearing within the meaning of Article 6 § 1 of the Convention? In particular:

(a) Given that the Supreme Court charged the applicant with misconduct, and then, in its capacity as the Supreme Council of Judicature, tried the applicant, found him guilty of misconduct and removed him from office, can it be said that the requirements of impartiality (objective test) under Article 6 § 1 of the Convention were met in the present case?

(b) Was the applicant aware of the specific proceedings (before the Industrial Disputes Court) to which the complaint against him was related and on which the Supreme Council of the Judicature relied?

Request for documents

The Government are requested to send a copy of the minutes of the disciplinary proceedings and to provide English translations of the witness statements collected by the investigating judge.

[1] The President and eleven justices concurred.

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