No judge can judge his own case! Judges adjudicated and rejected their request for exclusion! Lack of court impartiality!
JUDGMENT
Kolesnikova v. Russia 02.03.2020 (app. no. 45202/14)
SUMMARY
Court impartiality and a fair trial. Lack of impartiality in a case against a former judge of the courts of Russia.
The applicant, a former judge, applied for disqualification against the court hearing her appeal because the presiding judge was the one who denounced her and because the other members of the court had served with her during her tenure in that court. The request for exemption was rejected by this court, which adjudicated the case and rejected her appeal.
The applicant appealed against the decision and the Supreme Court upheld the decision of the judges of the District Court, who ruled on the appeal against them.
According to the ECtHR, the Supreme Court merely repeated the reasoning of the Court of Appeal and did not respond with its own reasoning to the appellant’s allegations.
The Court held that the national authorities had not settled the applicant’s reasonable doubts as to the impartiality of the District Court and found a breach of the national court ‘s lack of impartiality, which is a more specific manifestation of the right to a fair trial.
PROVISION
Article 6
PRINCIPAL FACTS
The applicant, Olga Kondratyevna Kolesnikova, is a Russian national who was born in 1958 and lives
in Archangel (Russia).
The case concerned an alleged breach of the applicant’s right to be presumed innocent on account
of the reasoning of a decision given by the investigating authorities, and the alleged lack of
impartiality of the court in which the applicant had contested that decision.
In a decision of 5 May 2012 the investigating authorities decided not to open a criminal investigation
against the applicant on the grounds that prosecution of the offence was time-barred. On
27 December 2012 the Naryan-Mar Town Court dismissed an appeal by the applicant against the decision. On 18 April 2013 the court of the Nenetskiy Autonomous District of the Archangel Region upheld that decision on appeal.
Relying in particular on Articles 6 § 1 (right to a fair trial) of the European Convention, the applicant
complained that the District Court had lacked independence and impartiality.
THE DECISION OF THE COURT…
The Court also noted that in the judgment of 5 May 2012, the appeal was lodged through a court appeal and that the applicant used that means to examine the substance of the provision in question, in particular as regards the findings of the investigation into the offense referred to in article 293 § 1 of the Criminal Code. The ECtHR therefore considered that the courts, including the District Court, should have the guarantees of independence and impartiality within the meaning of Article 6 § 1 of the Convention.
The Court recalled that impartiality is usually defined by the absence of prejudice and can be assessed in a number of ways. According to its settled case-law, for the purposes of Article 6 § 1 of the Convention, impartiality must be assessed subjectively, taking into account the personal conviction and conduct of the judge, ie whether he/she had shown personal prejudice in a particular circumstance, and also objectively , that is, if the court offered sufficient guarantees, in particular through its composition, to rule out any legal doubt as to its impartiality (Morice v France [GC], no. 10, § 73, ECHR 2015).
The Court held that the circumstances put forward by the applicant in support of her request for exemption were well founded. It found that the reasons given were sufficiently detailed and contained specific evidence and that the judges’ request for disqualification was therefore well founded. The ECtHR also noted that the District Court did not consider this request to be unfounded and examined it on the merits. Indeed, the ECtHR noted that article 35 § 1 of the CPC. included a mechanism that could allow, where appropriate, the transfer of the applicant’s appeal to a court of different local jurisdiction.
Consequently, the ECtHR considered that the applicant’s appeal procedure was incompatible with the principle nemo judex in causa sua (no one may be a judge in his own case) and could not conceal the reasonable and objective doubts of the person concerned regarding the impartiality of the Judicial Committee of the Regional Court.
The Court also noted that in the judgment of 5 May 2012, the appeal was lodged through a court of law and that the applicant used that means to examine the substance of the provision in question, in particular as regards the findings of the investigation into the offense referred to in in article 293 § 1 of P.K. The ECtHR therefore considered that the courts, including the District Court, should have the guarantees of independence and impartiality within the meaning of Article 6 § 1 of the Convention.
The Court recalled that impartiality is usually defined by the absence of prejudice and can be assessed in a number of ways. According to its settled case-law, for the purposes of Article 6 § 1 of the Convention, impartiality must be assessed subjectively, taking into account the personal conviction and conduct of the judge, ie whether he/ she had shown personal prejudice in a particular circumstance, and also objectively , that is, if the court offered sufficient guarantees, in particular through its composition, to rule out any legal doubt as to its impartiality (Morice v France [GC], no. 10, § 73, ECHR 2015).
The Court held that the circumstances put forward by the applicant in support of her request for exemption were well founded. It found that the reasons given were sufficiently detailed and contained specific evidence and that the judges’ request for disqualification was therefore well founded. The ECtHR also noted that the District Court did not consider this request to be unfounded and examined it on the merits. Indeed, the ECtHR noted that article 35 § 1 of the CPC. included a mechanism that could allow, where appropriate, the transfer of the applicant’s appeal to a court of different local jurisdiction.
Consequently, the ECtHR considered that the applicant’s appeal procedure was incompatible with the principle nemo judex in causa sua (no one may be a judge in his own case) and could not conceal the reasonable and objective doubts of the person concerned regarding the impartiality of the Judicial Committee of the Regional Court.
Just satisfaction: Ms Kolesnikova did not submit a claim for just satisfaction for pecuniary and nonpecuniary damage. The Court awarded her EUR 1,500 for costs and expenses.
