The judge must abstain when his / her impartiality is legitimately challenged. Infringement of fair trial when the judge who convicted the accused was the mother’s enemy!

JUDGMENT 

Škrlj v. Croatia 11.07.2019 (no. 32953/13)

see here 

SUMMARY 

A judge who was prejudiced against the defendant’s mother heard his case and sentenced him. Lack of fairness and fair trial.

The police issued a penalty notice against the applicant for two traffic violations and he appealed before the Offences Court. At the Court of Appeal hearing his objections, a judge was involved who had personal differences with the applicant’s mother and was already abstaining from a previous trial with the same defendant. In the present case, however, that judge refused to stay away from the trial and sentenced the applicant.

The ECtHR held that there was a breach of fair trial, because any judge who had a legitimate reason to challenge his impartiality had to abstain, so the non-exclusion of the Judge who had personal sympathy with the applicant’s mother did not secure her fair conditions to the applicant.

COMMENT 

Important decision of the Court that any judge should refrain from hearing a case when there are legitimate grounds for questioning his impartiality!

PROVISION 

Article 6 par. 1

PRINCIPAL FACTS 

The applicant, Matko Škrlj, is a Croatian national who was born in 1991 and lives in Rijeka (Croatia).
The case concerned his complaint that the judge who had fined him in minor-offence proceedings
had lacked impartiality.

In February 2012 Mr Škrlj was issued with a police penalty notice for two minor road traffic offences:
failure to stop his vehicle to let a pedestrian cross a pedestrian crossing and not wearing a seat belt.
He challenged the penalty notice before the Pazin Minor Offences Court, where Judge B.L.V. set it
aside and ordered summary minor-offence proceedings.

The applicant stated that his lawyer had sent a fax in late June to the court to ask that Judge B.L.V.
be removed from the case: he had worked with the applicant’s mother and to remove any doubts
about impartiality he should be taken off the case. The Government stated that the court had not
received such a fax.
Judge B.L.V. found against Mr Škrlj, with neither he nor his lawyer attending the court hearing. He
was fined approximately 130 euros. Mr Škrlj appealed to the Constitutional Court, stating that in
another set of minor-offence proceedings the judge had agreed to recuse himself owing to animosity
between him and the applicant’s mother when they had worked together earlier.

Relying on Article 6 § 1 (right to a fair hearing) of the European Convention on Human Rights, the
applicant complained that he had not been tried by an impartial tribunal owing to Judge B.L.V.’s
involvement in the minor-offence proceedings against him.

THE DECISION OF THE COURT 

 The Court observes at the outset that the minor road traffic offences of which the applicant was convicted do not belong to the traditional categories of criminal law.

The Court reiterates that while entrusting the prosecution and punishment of minor offences to administrative authorities is not inconsistent with the Convention, the person concerned must have an opportunity to challenge any decision made against him or her before a tribunal that offers the guarantees of Article 6.

The Court notes that Judge B.L.V., who conducted the minoroffence proceedings against the applicant in a single-judge formation, had only several days earlier agreed to be removed from another case against the applicant for the very same reason related to his impartiality.

In the Courts view, this created a situation which was capable of raising legitimate doubts as to Judge B.L.V.s impartiality, doubts which were not without objective justification, and was also of such a nature as to raise an issue under the subjective test, even disclosing personal bias motivated by the judgeanimosity towards the applicants mother.

The Court reiterates that any judge in respect of whom there is a legitimate reason to fear a lack of impartiality must withdraw 

 Furthermore, the Court does not accept the Governments argument that Judge B.L.V. did not have a significant role in the proceedings and therefore his partiality was of no relevance to the adjudication of the case. Indeed, regardless of the extent to which the applicant used his procedural rights to prove his defence, the Court is of the view that the very fact that he was tried by a judge who had himself admitted that there were circumstances justifying his withdrawal undermined the appearance of a fair trial.

Lastly, the Court notes that the Constitutional Court did not remedy the defect in question. It is certainly possible that a higher or the highest court might, in some circumstances, make reparation for defects in the proceedings before lower courts. In the present case, although the Constitutional Court had the power to quash the relevant decision on the grounds that it appeared that the trial judge had not been impartial, it declined to do so and upheld the impugned judgment. As a consequence, it did not cure the failing in question.

In view of the foregoing, the Court rejects the Governments objection of non-exhaustion of domestic remedies that it has previously joined to the merits  and finds that there has been a violation of Article 6 § 1 of the Convention as regards the requirement of an impartial tribunal.

The applicant did not submit a claim for just satisfaction. Accordingly, the Court considers that there is no call to award him any sum on that account(echrcaselaw.com).


ECHRCaseLaw

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