Impartiality of judge in a trial with a party who promotes the former. A critical glance at a decision with the President of the French Republic and a simple citizen.
Τhiam v. France 18.10.2018 (no. 80018/12)
Participation of former President of the Republic of France Nicolas Sarkozy as a civilian party in a criminal trial against a citizen. Complaints by the applicant alleging breach of the principle of equality of arms and lack of impartiality of the court due to the participation of Saekozy as civil party. The ECtHR considered that there was no indication that Mr Sarkozy’s involvement would prevent the applicant from exercising his defense rights. Sarkozy was Chairman of the Commission who appointed judges to the Supreme Court and the Presidents of Appeals when the judges of the criminal courts were investigating the case. The applicant’s assertion that Mr Sarkozy had, by reason of his capacity, influence on the professional career of the judges appointed by him, was not sufficient to establish the Court’s lack of independence since the procedure did not give rise to issues of impartiality of the judges and problems of equal treatment the accused. According to the European Court of Human Rights, the fact that the judges were appointed by the President of the Republic did not make them his subordinates and is not sufficient to justify a lack of impartiality. No violation of the right to a fair trial.
Article 6 par. 1
THE IMPORTANCE OF THE CASE
The judgment Thiam v France of 18 October 2018 is extremely interesting. The former President of the French Republic, Sarkozy, filed a private prosecution for a civil action in a criminal court against a French citizen. He exercised this right while being the President of the French Republic and at the same time holding ex officio the Chairmanship of a Committee that appointed Supreme Judges and Presidents of Appeals.
Could it be possible for judges to be influenced by a party who determined their working position and their promotion to the highest levels of justice?
The ECtHR investigated the case and ruled that the official status of the party was not sufficient in itself to make the Court non-impartial and the trial unfair to the accused who was opposed to the President of the Republic. According to the Court, there were French safeguards, which brought a veil of independence to the judges in France.
n my view, the reasoning of the Court is not very convincing. It leaves gaps and a lot of questioning. The fact that the person who determines the promotion and the professional future of those who will judge his case and will participate as civil party creates a climate of insecurity to the accused, whom does not have the same possibilities, qualities and powers. Safeguards should be provided for and established in the French law in order to suspend the trial in such obvious cases until the end of the status of the party.
On 16 October 2018, two days before the judgment being delivered, the Court ruled in the case of Dainelienė v. Lithuania (posted on the 22.10.18 on our blog) that “justice should not only be awarded, but also seems to be rightly awarded “and condemned Lithuania for violating the fair trial principal because of a lack of objective impartiality of a judge, because he participated in a Commission regarding the admissibility of the appeal, and was the father of a prosecutor who had been involved in the same case in a lower degree!
Does the lack of objective impartiality apply to the minor case(Father Judge of Suppreme Court – Prosecutor’s son) and does not apply to the more important case(President of the Republic determining the promotion of judges – judges that are judged by the President)?
A clear answer could be given by the Court if the commented decision is taken and examined to the Grand Chamber. Until then, the citizen will wonder whether a judge can be impartial when he or she examines a case between a formal party and a President of the Republic who happens to determine the latter’s future and the progress /promotion of the judge. What do you believe?
(see here for the decision)