Legal summary
November 2023
Toivanen v. Finland - 46131/19
Judgment 9.11.2023 [Section I]
Article 6
Civil proceedings
Article 6-1
Fair hearing
Impartial tribunal
Decision by Court of Appeal’s Acting Chief Justice to transfer examination of applicant’s appeal against revocation of his trial counsel licence to an extended composition of that court: no violation
Facts – In 2014 and 2015, over a period of about ten months, the applicant, a lawyer, sent emails to several judges and authorities criticising them and asking them to take measures in connection with criminal proceedings against him. As a result the Board on Trial Counsel decided to revoke his licence finding that he was manifestly unsuited to act as trial counsel.
Prior to that decision, in 2014, Judge L., performing the functions of Acting Chief Justice of the Court of Appeal in the Chief Justice’s short-term absence, had forwarded a message to the police from the applicant, addressed to the Chief Justice, as she apparently considered that it contained a threat against one of the judges working at the Court of Appeal who had been involved in criminal proceedings against the applicant.
The applicant appealed the Board’s decision before the Court of Appeal which initially heard the case sitting as a bench of three judges, before Judge L., not a member of that composition, performing the functions of the Acting Chief Justice of the Court of Appeal, decided to transfer the case to an extended composition of seven judges. The applicant’s appeal was dismissed by five votes to two, the latter judges having sat on the initial bench. Judge L. voted with the majority. The Supreme Court dismissed his appeal.
Law – Article 6 § 1:
(a) Classification of the complaint – The application contained a complaint based on two grounds: (i) alleged bias, particularly relating to Judge L., and (ii) an unfair trial owing to the decision to transfer the examination of the applicant’s case to an extended composition of the Court of Appeal. Those two grounds were intrinsically linked in so far as the applicant had effectively argued that the decision to transfer his case to the extended composition in the circumstances had both demonstrated bias on the part of Judge L. – who had taken that decision as Acting Chief Justice - and had made the trial unfair. The Court was mindful that issues regarding the allocation of a case to a particular court, formation or judge were usually examined under the “established by law” aspect of Article 6. However, the applicant’s complaint had also entailed an allegation that the proceedings had fallen foul of the objective impartiality test. The Supreme Court, similarly, in essence had examined the case from the angle of whether the decision to transfer the case to the extended composition had led to the proceedings in Court of Appeal falling foul of that test by way of its examination of whether that decision had in the specific circumstances been based on objectively acceptable grounds. In that connection the Court reiterated that the “established by law” aspect of Article 6 § 1 was closely related to the guarantees of independence and impartiality under the same Article.
(b) The applicant’s complaint regarding the transfer of his case to the extended composition of the Court of Appeal – The criteria for transferring the case to an extended composition were clearly set out in the Act on Courts of Appeal (“the Act”). Domestic law on that point gave discretion to the chief justice of a court of appeal, whose functions at the relevant time had been carried out by Judge L., which was limited in cases where oral hearings had been or would be held. In those situations, special reasons were required. The Supreme Court had found that there had been such reasons in the instant case. In that connection it had referred to the reasons that Judge L. had provided in her written statement, namely the far-reaching nature and considerable importance of the matter for which there had been no case-law, as well as the potential quashing by the three-judge panel of the unanimous decision of the Board. The Court was ready to follow the Supreme Court’s reasoning that the purpose of the rule on such transfer was to provide a sound and broad basis for authority in respect of important rulings regardless of whether the three-judge bench had or had not yet deliberated on the case. It was primarily for the national authorities, notably the courts, to resolve problems of interpretation of domestic legislation. Moreover, the transfer of the case had not led to any loss of opportunity for the applicant to participate in the decision-making process. He had been summoned and could attend, but decided not to, the new hearing in person and nothing had been adduced to indicate that he had not been given every opportunity to plead his case before the extended composition, as he had been before the three-judge bench.
Other procedural safeguards had also been in place. Firstly, the Act contained clear provision as to the composition of the extended panel which had been complied with. Secondly, the judge competent to decide on the transfer of a case, Judge L., had neither formed part of the initial composition of that court nor participated in any prior deliberations; conversely, all the judges of the previous composition had been members of the extended one. Thirdly, the Supreme Court had solicited Judge L. on the reasons for the impugned transfer. Although the Court had not been informed whether a decision to transfer was amenable to appeal, and it did not appear that the parties’ views on the transfer had been obtained before the taking of that decision, it was apparent from the domestic proceedings that such a decision could be relied on as a procedural error in an appeal to the Supreme Court against the final decision taken by a court of appeal, which is what the applicant had done. The Supreme Court had thereupon granted the applicant’s request for leave to appeal and had carried out an extensive examination of the processing of the case before the Court of Appeal. It held that the decision had been fully in accordance with domestic procedural law. The Court had no basis to reject that finding and accordingly proceeded on the grounds that the processing of the case before the Court of Appeal had been in keeping with what had been prescribed by the legislature by means of the relevant provision of the Act applicable at the time.
Lastly, the Supreme Court, had had full jurisdiction to examine the merits of the issue of revocation of the applicant’s licence as it had granted the applicant leave to appeal without any limitations. The applicant had claimed before it that there had been no legal grounds for revocation of his licence. The Supreme Court, based on the documents before it, had endorsed the reasons given by the extended composition of the Court of Appeal and had decided unanimously that the revocation should be upheld. That court which had had the power to quash the Court of Appeal’s judgment on the ground that it had not been impartial and that the proceedings had not been fair, as well as to make a fresh examination of the merits itself, or by way of remittal to a lower court, had been undisputedly composed of judges whose impartiality had not been challenged, nor had the proceedings at any stage been criticised as being unfair. The applicant had not claimed that it had not provided the guarantees of Article 6 § 1. Consequently, even assuming that there had been defects in the appellate proceedings, the Supreme Court had remedied the defects in question, it being irrelevant that it had rejected the arguments of the applicant in that regard. Thus far, the Court was satisfied that the transfer of the case to the extended composition had complied with the relevant criteria under its established case-law and did not in and of itself lead to the applicant’s trial becoming unfair within the meaning of Article 6.
(c) The applicant’s allegation of bias – The email from the applicant that had been forwarded by Judge L. in 2014 to the police had been addressed to the Chief Justice of the Court of Appeal and not her specifically. According to the Supreme Court’s judgment, it had been a matter of standard practice that emails perceived to contain threats against staff were forwarded to the police. The Court did not find that the foregoing in and of itself might be considered proof of any personal bias on her part. Furthermore, the fact that Judge L. had made the impugned transfer decision in her capacity as Acting Chief Justice in compliance with procedural law could not in and of itself be taken as proof of her personal bias, regardless of whether she had done so during a short-term replacement of the Chief Justice.
In connection with the question of whether the proceedings had nonetheless fallen foul of the objective impartiality test the Court observed that the case had had some particular features. Specifically, (i) it had concerned a lawyer whose licence to plead before the courts had been examined owing to, at least in part, the many emails or letters he had sent in which he had expressed distrust in various authorities, including the courts themselves; (ii) it appeared that had Judge L. not transferred the case, a split decision in the applicant’s favour would have been delivered, and that this had become apparent to the applicant when he had received the decision of the extended composition, since the two judges forming the minority had also sat as part of the initial three-judge bench; and (iii) Judge L., had forwarded the aforementioned email, as she had perceived that it had contained a threat to a judge of the Court of Appeal who had been involved in criminal proceedings against the applicant. Those features could have affected the applicant’s perception of the fairness of the proceedings. However, it was important that the transfer of the case had taken place in accordance with the express provision of the Act. On the basis of the Supreme Court’s detailed explanation as to how the criteria in that provision had to be interpreted and how they had been met in the applicant’s case, there were no grounds for doubting that the conditions for a transfer had objectively been met and that a plausible explanation of the procedures followed had been provided.
Moreover, in the event that no formally reasoned decision had been delivered and no other explanation had been given to the applicant when the transfer had been decided, as he contended, the Court did not rule out that this might have led him to perceive that the proceedings had not been conducted in an ordinary manner. Nonetheless, the general law setting out the criteria for such a transfer had been fully accessible to the applicant, who was himself a lawyer. Furthermore, in her statement to the Supreme Court, Judge L. had provided detailed reasons as to why she had decided to transfer the case which had been thoroughly examined.
The fact nonetheless remained that Judge L. had taken a decision which had had the consequence that a decision of the three-judge bench that would have gone in the applicant’s favour had not been given; instead, a decision unfavourable to the applicant had been given by the extended composition, chaired by Judge L., who had voted with the majority. While the Court had found no grounds for considering that there had been personal bias on the part of Judge L., it could not rule out that the applicant might have suspected that she had taken the opportunity provided by her replacing the Chief Justice to use a procedural tool whose purpose was to give authority to important decisions, in order to obtain a result to the applicant’s detriment, and that the applicant viewed that in the light of her handling of the email in 2014. In that connection, the Supreme Court had pointed out that the fact that the proceedings before the three-judge bench had been about to end with a split decision on a complex matter that had required a balancing of competing fundamental rights formed in itself an argument in favour of having the case examined by an extended composition, since the purpose of a transfer would be to create a decision that had the desired authority. In the light of that consideration, the general timing of the decision to transfer appeared justifiable. It had been during her replacement of the Chief Justice that Judge L. had been called upon both to take the decision to transfer the case to an extended composition and to sit in that composition, in line with the procedural arrangements stipulated in the Act. The Supreme Court had concluded that there had not been any reason to doubt that the transfer had not been objectively justified. The Court had no reason to re-assess that conclusion. In the absence of any other matters raised by the applicant giving any concrete impression of possible bias, the Court did not, however, find that that fact in itself could have deprived the proceedings of their fairness. The Supreme Court had had full jurisdiction and had re-examined all relevant matters and found no deficiencies in the appellate proceedings.
In sum, viewing the case overall and giving particular importance to its particular features as mentioned above, which had raised questions in the applicant’s mind, the Court was nonetheless satisfied that the proceedings had provided sufficient guarantees to exclude any legitimate doubt in respect of the impartiality of the Court of Appeal.
Conclusion: no violation (six votes to one).
(See also Academy Trading Ltd and Others v. Greece, 30342/96, 4 April 2000, Legal Summary)
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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