When the victim – the accused himself – brings disciplinary procedures against the complainant and considers him as the President of the institution in the case of the complaint, the fair trial is violated.
Paluda v. Slovakia 23-5-2017 (no. 33392/12)
Disciplinary proceedings against a judge. Access to court. Fair trial. Disciplinary Proceedings against a Supreme Judge over his complaints against the President of the Supreme Court. The initiation of disciplinary action and the imposition on the applicant of a suspension of his judicial duties by a body chaired by the President of the Supreme Court and the inapplicability of an appeal against the suspension decision violate his right to a fair trial. Sentence of Slovakia for violating Article 6 § 1 of the ECHR.
The complainant himself cannot bring disciplinary action and also chairs a body that decides against the complaint of by the prosecuted person.
Article 6 § 1
The applicant, Peter Paluda, is a Slovak national who was born in 1959 and lives in Bratislava. In September 2009 Mr Paluda, a Supreme Court judge, was suspended from office pending disciplinary proceedings brought against him. The proceedings were brought following his making accusations – in a criminal complaint and public statements – of abuse of authority against the President of the Supreme Court. The decisions to suspend him and to bring disciplinary proceedings were taken by the national Judicial Council, the supreme governing body of the judiciary in Slovakia, presided under domestic law applicable at the time by definition by the President of the Supreme Court.
Mr Paluda attempted, unsuccessfully, to challenge his suspension before the Judicial Council, the administrative courts and the Constitutional Court. The Judicial Council found that the law did not allow for decisions of the Council to be challenged by means of appeals to the Council and that its decisions were reviewable by administrative courts. The latter, however concluded that the decision to suspend the applicant was of a preliminary nature and that under the applicable law – namely, Article 248 (a) of the Code of Civil Procedure – such decisions were exempt from judicial review, a position that was ultimately endorsed by the Constitutional Court in December 2011. The disciplinary proceedings against Mr Paluda had in the meantime been discontinued by a final decision of September 2011. A 50% part of his salary that had been retained during his two years’ suspension was restored to him in July 2012.
THE DECISION OF THE COURT
As a preliminary matter, the Court accepted that the guarantees under Article 6 § 1 applied to the main proceedings on the disciplinary charges against Mr Paluda and that his suspension constituted a determination of the same civil rights and obligations in terms of the Court’s case-law. The access-to-court guarantee relied on by Mr Paluda therefore applied to the suspension itself.
The Court found that Mr Paluda had not had the benefit of judicial protection in relation to his suspension. That exclusion of Mr Paluda’s suspension from judicial review had nonetheless had a legal basis, namely Article 248 (a) of the Code of Civil Procedure, a provision of general application which made no allowances for the particular measure – the suspension of a judge from his mandate – at the heart of Mr Paluda’s case. Noting inter alia the growing importance that is being attached to procedural fairness in cases involving the removal or dismissal of judges, the Court found that the legitimacy of the aim pursued by denying Mr Paluda access to court was open to question. Nevertheless, it was not necessary to give that question a definitive answer since his lack of access to court in any event failed the test of proportionality.
From that perspective, the Court noted that Mr Paluda’s suspension had been imposed on him by a body, the Judicial Council, one half of the members of which had been directly appointed by the legislative and executive power. In addition, the Court noted that under domestic law as applicable at the time the Judicial Council had been presided over by the person who had been at the centre of Mr Paluda’s criminal complaint and public statements, the President of the Supreme Court. His suspension had not therefore had institutional guarantees as required under Article 6 § 1 of the Convention.
The Court further observed that there was no indication that the proceedings before the Judicial Council were of a judicial character and that, at the time of his suspension, Mr Paluda had not been heard either about the suspension itself or about the underlying disciplinary charges against him. 3 Accordingly, with regard to his suspension, Mr Paluda could not be said to have enjoyed the procedural guarantees inherent in Article 6 § 1 of the Convention.
Moreover, the Court noted that Mr Paluda’s lack of access to court concerned a measure that placed him for two years in the situation of being unable to exercise his mandate, having half of his salary withheld, and at the same time being unable to exercise any other gainful activity. Although the withheld part of his salary was ultimately restored to him, this essentially had to do with his suspension rather than with his lack of access to court in respect of it. In relation to the lack of access to court no additional corrective or remedial measures were taken at the domestic level.
Given those shortcomings, the Court concluded that Mr Paluda’s lack of access to a tribunal to challenge his suspension could not have been proportionate to any legitimate aim that it pursued and that therefore the very essence of his right of access to court had been breached, in violation of Article 6 § 1 of the Convention.
Just satisfaction (Article 41)
The Court held that Slovakia was to pay Mr Paluda 7,800 euros (EUR) in respect non-pecuniary damage.