A judge has tried the same parties three times for the same facts. The same judge also rejected his request for exclusion! Conviction for bias!
JUDGMENT
Mikhail Mironov v. Russia 06.10.2020 (app. no. 58138/09)
SUMMARY
Judge impartiality. Fair trial. Objection of bias. A judge tried one criminal and two civil cases between the same parties and for the same facts. He also adjudicated his objection of exclusion and rejected it.
A judge has tried the same parties three times for the same facts. The same judge also rejected his request for exclusion! Conviction for bias!
The applicant requested that a judge be disqualified in a civil case, citing a lack of impartiality because he had already formed his own judgment, having already expressed a negative view of him based on the same facts.
The exceptional judge had initially requested in writing to abstain from the trial of the criminal case because he had already expressed an opinion on the case in its civil part. The competent Court did not accept it because it did not consider that there was a risk of impartiality and prejudice against the party and rejected the request.
However, the same judge then in the civil proceedings adjudicated in a single-member panel the objection of his exclusion but also the case in its essence. The same judge rejected his objection of exception and upheld the action against the applicant.
Strasbourg found that in such a case, where there were circumstances which could affect the impartiality of the judge, it was not appropriate for the judge himself to decide on the request for disqualification against him.
As the Judge did not give a reasoned reply to the applicant’s request, the ECtHR held that the entire court procedure for his exclusion from the trial did not meet the requirements of the Convention for impartiality and found a violation of his right to a fair trial. of its more specific appearance to be tried by an impartial court (Article 6 § 1 ECHR).
PROVISION
Article 6§1
PRINCIPAL FACTS
The applicant, Mikhail Nikolayevich Mironov, is a Russian national who was born in 1981 and lives in
Pskov.
The case concerned his complaint of a judge’s lack of impartiality.
In 2005 the applicant agreed to buy land from the Municipality of the Gdovskiy District of the Pskov
Region and concluded a sale contract with his father, who was the head of the Municipality.
In June 2007 the prosecutor of the Pskov Region brought civil proceedings against the applicant to
have the sale of the land declared invalid. He also began criminal proceedings against the applicant’s
father for selling land to his relatives below market price and charged him with abuse of power.
In December 2007 a Justice of the Peace dismissed the prosecutor’s civil claim, but in June 2008 the
Gdovskiy District Court, with Judge A. as single judge, quashed that judgment and declared the sale
null and void. Neither the applicant nor his legal representative were present in court.
The criminal proceedings against the applicant’s father also came before Gdovskiy District Court and
in July 2008 Judge A. withdrew from the case owing to his previous involvement in the civil matter.
Among other reasons for his recusal, he stated that he had already expressed his view that the sale
of the plot of land to the accused’s relatives had been unlawful.
In October 2008 Pskov Regional Court quashed the civil case decision of June 2008 given the absence
of the applicant and his lawyer from the hearing. The case again came before Judge A., whom the
applicant challenged for bias, referring to his statement of withdrawal from the criminal case. Judge A. rejected the challenge, holding that the withdrawal of a judge in a criminal trial could not be a ground for a challenge against him in a civil case. In January 2009 Judge A. again allowed the
prosecutor’s claim in the civil action.
Relying on Article 6 § 1 (right to a fair trial), the applicant complained that Judge A. had been biased
when he had considered his case in the appellate proceedings.
THE DECISION OF THE COURT…
The Court reiterates that 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 (i) a subjective test, where regard must be had to the personal conviction and behaviour of a particular judge – that is, whether the judge held any personal prejudice or bias in a given case; and (ii) an objective test, that is to say by ascertaining whether the tribunal itself and, among other aspects, its composition, offered sufficient guarantees to exclude any legitimate doubt in respect of its impartiality.
As regards the objective test, 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”.
In the instant case the fear of a lack of impartiality derived from two circumstances. Firstly, the applicant had doubts as to Judge A.’s subjective impartiality in view of what he had said in his withdrawal statement given in the criminal case relating to analogous facts. Secondly, the applicant alleged that he could not expect a favourable decision in his case because Judge A. had examined his appeal twice, his challenge for bias having been unjustifiably rejected.
A judge’s statements in related proceedings are taken into account when assessing his or her impartiality. In the present case, the only reason on which Judge A. had relied in his request to be replaced in the criminal case was that he had already dealt with an analogous matter in proceedings against the applicant. The statement made in his withdrawal request represented a simple statement of fact. It was neither alleged nor shown that Judge A. had in fact made any statements or conducted the proceedings in a manner that gave rise to doubts as to his personal impartiality
The applicant’s right to a fair hearing by an impartial tribunal will not be violated if a judge examines a request for his or her exclusion in the absence, in the challenge for bias, of arguments which by their nature are relevant for determining the impartiality issue. In the present case, the applicant invoked Judge A.’s statements that he had already formed his opinion on the applicant’s claim as a ground for alleged lack of impartiality. The applicant referred to important elements which it was necessary to take into account when assessing the judge’s impartiality. His challenge for bias could not have paralysed the respondent State’s judicial system and be considered an abuse of process or irrelevant, the grounds for impartiality indicated in the challenge being sufficiently specific. In such situation, where there were circumstances which could, in principle, affect the judge’s impartiality, such as conflict of interests, it was not appropriate for Judge A. to decide on the challenge against himself.
In addition, in his decision of 18 November 2008 Judge A. did not properly respond to the applicant’s concerns about a lack of impartiality on his part. His statement contained a general comment that the grounds for impartiality indicated by the applicant were not listed among the reasons for recusal in the domestic law (see paragraph 14 above). He did not explain why his impartiality could not have been called into doubt in the applicant’s case. In particular, he did not consider whether the grounds in the challenge fell under the “other grounds” provided for in Article 16 of the Code of Civil Procedure.
Lastly, the Court reiterates that a possibility certainly exists whereby a higher court may, in some circumstances, make reparation for defects that took place in lower-instance proceedings. In the present case, there was no remedy available to make good the procedural defects described above, since the only way to complain of bias on the part of an appellate court judge was through supervisory-review proceedings, an extraordinary remedy characterised by the Court as “uncertain” and “ineffective”.
In the light of the foregoing, the Court concludes, in the specific circumstances of the case, that the procedure for deciding on the applicant’s challenge for bias was not in compliance with the requirement of impartiality.
There has accordingly been a violation of Article 6 § 1 of the Convention.
The ECtHR considered that the finding of a breach constituted in itself just satisfaction and did not award a sum of money for non-pecuniary damage.
