Impartiality in the disciplinary proceedings and violation of the principle of fair trial

JUDGMENT

Kamenos v. Cyprus 31-10-2017  (no. 147/07)

see here 

SUMMARY 

Disciplinary examination of  a judge regarding the performance of his duties. Non-impartial disciplinary proceedings, since he was accused, tried and disciplined by the same persons. Violation of a fair trial.

PROVISION

Article 6 § 1

PRINCIPAL FACTS

The applicant, Costas Kamenos, is a Cypriot national who was born in 1949. He is a lawyer and lives
in Nicosia. The case concerned disciplinary proceedings brought against him following his
appointment as judge and then President of the Industrial Disputes Court (“the IDC”).

In 2005 the Supreme Court received a complaint alleging misconduct on the part of Mr Kamenos in
the exercise of his judicial functions. Mr Kamenos was thus served with a written notice of the
allegations and asked to submit comments. Following this, the Supreme Court appointed an
investigating judge to look into the allegations. This judge submitted a report to the Supreme Court,
together with statements he had collected from witnesses and Mr Kamenos. The Supreme Court
then framed charges of misconduct against Mr Kamenos and called him to appear before the
Supreme Council of Judicature (“the SCJ”), which has exclusive competence for the dismissal of
judges and disciplinary matters.

Disciplinary proceedings were carried out before the SCJ, with a number of hearings taking place at
which witnesses listed on the charge sheet against Mr Kamenos were heard and cross-examined by
his lawyer. Mr Kamenos then set out his defence case, testifying himself and calling 36 witnesses.
During these proceedings, he submitted that the Supreme Court and the SCJ had the same
composition, meaning that the same judges had examined the witness statements against him, had
decided to refer the case to trial, had formulated the charges against him and, acting as prosecutors,
had tried the case. He argued that this was contrary to the right to a fair trial. He also raised certain
preliminary objections against the charge sheet which were dismissed. In September the SCJ
ultimately found that the charges had been proved and removed Mr Kamenos from office. It
dismissed his objection about the fairness of the proceedings, finding that it had done its best to
avoid a procedure which was prosecutory: in particular it had not assigned the duties of prosecutor
to the investigating judge or put questions to the witnesses. The SCJ’s decision was final.
Relying in particular on Article 6 § 1 (right to a fair trial / hearing) of the European Convention on
Human Rights, Mr Kamenos alleged that the disciplinary proceedings against him had been unfair.

He notably complained that he had been charged, tried and convicted by the same judges, in breach
of the principle of impartiality.

THE DECISION OF THE COURT 

Violation of Article 6 § 1 (impartial tribunal)

Just satisfaction: 7,800 euros (EUR) (non-pecuniary damage) and EUR 10,000 (costs and expenses)(echrcaselaw.com editing).


ECHRCaseLaw

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