Last Updated on June 23, 2022 by LawEuro
Information Note on the Court’s case-law 263
June 2022
Grosam v. the Czech Republic – 19750/13
Judgment 23.6.2022 [Section I]
Article 6
Civil proceedings
Article 6-1
Impartial tribunal
Independent tribunal
Insufficient procedural guarantees in appointment of lay members of disciplinary court and in their protection from outside pressure: violation
Facts – The applicant was an enforcement officer who, as a member of a liberal profession, was, on the State’s behalf, in charge of performing enforced execution of enforceable titles, such as final civil court decisions, arbitration awards, or an enforceable notarial or enforcement officer’s record.
The Minister of Justice, in the capacity of a disciplinary petitioner, lodged a disciplinary action against the applicant with the disciplinary chamber of the Supreme Administrative Court, acting as the disciplinary court, for two alleged acts of misconduct. The disciplinary court found the applicant guilty and fined him. The applicant lodged an unsuccessful constitutional appeal, alleging violations of several principles of criminal procedural law.
Law – Article 6 § 1:
The applicant had objected to the composition of the disciplinary chamber of the Supreme Administrative Court, namely how it had been designated by law and the consequences for the case at hand. In particular, he had complained that the professional judges had been in a minority (comprising two out of six members) and that the procedure for selecting the other four members (lay assessors) had lacked adequate safeguards to guarantee their independence and professional expertise, which in turn had cast doubt on the independence and impartiality of the disciplinary chamber as a whole. Accordingly, there was no issue concerning the judges of the disciplinary chamber or their appointment process. Moreover, the Court was only concerned with objective impartiality.
(a) The requirement of an “independent tribunal”
Firstly, the Court had to assess whether the manner in which the disciplinary chamber had been set up as to its membership (and most notably as to its members’ independence) might have produced results that had been incompatible with the object and purpose of the right to an “independent tribunal”. As noted, two-thirds of the chamber’s members had been “lay assessors”, members of specifically chosen legal professions.
The procedure seemed reasonable insofar as the members had been appointed by the chair of the disciplinary court by drawing lots from the lists of lay assessors. However, the key issue in the present case had been the transparency of the procedure by which the lay assessors of the disciplinary court had been appointed, in particular the system of nomination of the persons to the lists from which lay assessors had been drawn. The chair of the disciplinary court had kept several lists of lay assessors. The list of lay assessors who had been enforcement officers had included ten enforcement officers nominated by the President of the Chamber of Enforcement Officers, without any predetermined selection criteria or otherwise transparent process. The only objective condition had been that the candidates had to have held office for three years and satisfied the subjective condition of good moral character. Otherwise, the President had been allowed full discretion in his selection.
The Court also observed that until the end of 2012, at the time when the applicant’s case had been examined by the disciplinary court, the list of lay assessors had comprised candidates nominated by the same persons as for proceedings in matters concerning judges, namely the President of the Czech Bar Association and deans of faculties of law of the public universities. Like the President of the Chamber of Enforcement Officers, none of them had had to apply any specific criteria or pre-established legitimate selection process, having full discretion in their choice of candidates. Although the rules of nomination had since changed, involving the President of the Czech Bar Association and the Ombudsperson, the selection practice had remained the same.
Next, the Court considered the existence of guarantees against outside pressure. Two-thirds of the chamber’s members, the lay assessors, had worked and received their salaries externally, which had inevitably involved their material, hierarchical and administrative dependence on their primary employers and thereby could have endangered both their independence and impartiality. The Minister of Justice had broad powers over enforcement officers, and had been entitled to bring disciplinary action against any enforcement officer and become a party to the disciplinary proceedings. The Minister of Justice was placed at the top of the hierarchy and supervised all enforcement officers, including two lay members of the disciplinary court. In that connection, the enforcement officers’ remuneration (including that of those sitting in the disciplinary chamber in the case at hand) had been based on the Ministry of Justice’s regulation. Accordingly, the renumeration of two members of the disciplinary chamber had depended directly on the Ministry of Justice, whose head had also been the disciplinary petitioner in the present case.
Moreover, the General Prosecutor might have nominated ten candidates from among public prosecutors to the list from which the other two lay assessors were to be dawn. Public prosecutors had been systematically considered under Czech law as a part of the executive and received their salary from the Ministry of Justice. Its head, the Minister of Justice, however, might act as the disciplinary petitioner in proceedings against public prosecutors, that is against members of the disciplinary chamber. At the same time, the Minister of Justice had also been the disciplinary petitioner in the case at hand. Thus, in a situation when the Minister of Justice brought a disciplinary action against an enforcement officer, as in the instant case, it created a risk that at least two (the enforcement officer lay assessors only) or even three members of the disciplinary chamber (when a public prosecutor had been drawn by lots to sit in the chamber as a lay assessor) might not be wholly impartial towards the enforcement officer the Minister of Justice wished to discipline.
The foregoing might of itself be seen to raise doubt as to the necessary personal and institutional independence required for impartial decision-making, which was also a prerequisite for impartiality. That was increased by the lack of procedural guarantees concerning how the lists of the lay assessors had been put together and, seemingly also, a lack of guarantees against outside pressure once appointed to sit on a concrete case.
Finally, concerning the appearance of independence, for the reasons set out above, the Court could not regard the pre-selection process as transparent and clear, giving sufficient procedural guarantees of independence. In addition, it was concerning that the manner of the appointment of lay assessors in the present case had completely differed from the general arrangements for the appointment of lay assessors in the Czech legal system, as they had not been elected or selected following an established procedure, and the selection process had been entirely in the hands of the nominating persons. Moreover, the appearance of independence had also been affected by the lack of guarantees against outside pressure and the close proximity to the Minister of Justice of at least some of the lay assessors.
(b) The requirement of an “impartial tribunal”
The issues of independence and impartiality were closely linked and the concerns regarding both of them had already been jointly examined above.
The Court further observed that there had been no territorial jurisdiction to perform the enforcement officer’s activities under domestic law, that is to say, whoever had wanted to make use of an enforcement officer’s services could approach any enforcement officer of his or her choosing. Accordingly, the two enforcement officers who had been sitting as lay assessors in the disciplinary chamber and hearing the applicant’s case, namely one-third of the chamber’s members, had been the his direct competitors.
Overall, in the light of the foregoing, the legal regulation concerning the establishment of the disciplinary chamber for enforcement officers which had heard and decided the applicant’s case had not offered sufficient safeguards guaranteeing the independence and impartiality of lay assessors, and, thus, of the disciplinary chamber as a whole.
(c) Whether the allegations regarding the right to an “independent and impartial tribunal” had been effectively reviewed and remedied by the domestic courts
No appeal had lain against the disciplinary court’s decision. The applicant had thus only had a constitutional appeal at his disposal. The subsequent control by the Constitutional Court had not provided full jurisdiction since it had reviewed the applicant’s case only in terms of compliance of the impugned decision with the constitutional law, which had made it impossible for it to examine the relevant facts in full. Such limited judicial power did not allow the Constitutional Court to examine the case and to provide reasons for its decision to the same extent as a court with full jurisdiction.
Thus, the Constitutional Court could not have conducted a full rehearing, and therefore, in the case of enforcement officers, it could not have remedied the shortcomings of the disciplinary chamber.
Conclusion: violation (four votes to three).
Article 41: EUR 4,000 in respect of non-pecuniary damage. Claim in respect of pecuniary damage dismissed.
Article 46: It fell upon the respondent State to take any general measures as appropriate in order to solve the problems that had led to the Court’s findings and to prevent similar violations from taking place in the future. That being said, the finding of a violation in the present case could not as such be taken to impose on the respondent State an obligation under the Convention to reopen all similar cases that had since become res judicata in accordance with Czech law.
(See also H. v. Belgium, 8950/80, 30 November 1987; Maktouf and Damjanović v. Bosnia and Herzegovina [GC], 2312/08 and 34179/08, 18 July 2013, Legal Summary; Guðmundur Andri Ástráðsson v. Iceland [GC], 26374/18, 1 December 2020, Legal Summary)
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