Last Updated on October 4, 2022 by LawEuro
Information Note on the Court’s case-law 266
September 2022
Besnik Cani v. Albania – 37474/20
Judgment 4.10.2022 [Section III]
Article 6
Civil proceedings
Article 6-1
Civil rights and obligations
Tribunal established by law
Manifest breach of domestic law adversely affecting appointment of a judge sitting on panel which vetted and dismissed prosecutor, without effective domestic court review and redress: violation
Facts – In the context of a national judicial reform which started in 2016 and included the vetting of all judges and prosecutors, the applicant was vetted and dismissed from the post of prosecutor by the Special Appeal Chamber (the “SAC”). The applicant had sought the exclusion of one of the judges, L.D., from the panel, on the ground that he had been dismissed from office in 1997 for a breach of the law and for incompetence and thus had been appointed to the SAC in violation of the statutory eligibility criterion under Section 6(1) (dh) of the Vetting Act. That section provides that a candidate who was subject to the disciplinary measure of dismissal from office at the time of his application for the position of SAC judge could not be appointed to that position. Both the SCA and, subsequently, the Constitutional Court, declined to examine the merits of applicant’s motion on the grounds that they had lacked jurisdiction. The latter court, however, stated that it was for the SAC, as a separate chamber of the Constitutional Court, to ensure compliance with the applicant’s right to a tribunal established by law.
Subsequent to a criminal complaint lodged by the applicant while his vetting case was pending, L.D. was convicted of forgery on the grounds that he had submitted personal documents that did not disclose his prior dismissal. The Disciplinary Commission of the SAC then dismissed L.D. – who had already been suspended- from his office of SAC judge.
Law – Article 6 § 1: The Court examined whether the hearing of the applicant’s case by the SAC by virtue of L.D.’s participation in the panel, gave rise to a violation of his right to a “tribunal established by law” in the light of the criteria laid down in Guðmundur Andri Ástráðsson v. Iceland [GC].
(a) Whether there was a manifest breach of the domestic law – This question concerning the appointment of judge L.D. to the SAC had not been answered by the domestic courts in any of the proceedings. The Court might nevertheless take into consideration the contextual findings made by them in that respect and which had not been disputed by the parties. Firstly, the appointment to the SAC of a candidate who failed to fulfil the condition under section 6(1) (dh) of the Vetting Act would be contrary to domestic law. Secondly, L.D. had been subjected to the disciplinary measure of dismissal from office for a breach of the law and for incompetence. Thirdly, section 6(1)(c) of the above Act mandated that candidates for the position of judge on one of the vetting bodies should have obtained in the course of their careers, positive evaluations of their professional skills and ethics and of their moral integrity. This seemed hardly compatible with prior dismissal for “breach of the law and incompetence.”
While it was not for the Court to render a definitive interpretation of national law, especially in the absence of clear and authoritative pronouncements by the national courts, it seemed clear that L.D.’s earlier dismissal from office raised serious questions as to the lawfulness of his appointment as a SAC judge, which had furthermore been specifically challenged by the applicant during the domestic proceedings. The latter had thus made out a serious and arguable claim of a manifest breach of domestic law in this regard which had triggered an obligation on the part of the national courts to consider the question.
(b) Whether the breach of the domestic law pertained to a fundamental rule of the procedure for appointing judges – Eligibility requirements for the appointment of judges were considered fundamental rules whose breach undermined the purpose and effect of the “established by law” requirement. That rule aimed at upholding the legitimacy of and public trust in the vetting process. Indeed, the appointment of a person who did not meet the statutory criteria for a certain judicial office was capable of undermining the legitimacy of the judicial function in question. The importance of those criteria was also apparent from that fact that a failure to fulfil them led to the termination of a magistrate’s term of office as of the date of the decision recognising such failure, and irrespective of the passing of time since the original appointment.
As far as vetting proceedings were concerned, the appointment to the SAC, the highest tribunal in the country, of a candidate who had been previously dismissed from an office for a breach of the law and for incompetence was difficult to reconcile with the requirement that the higher a tribunal was placed in the judicial hierarchy, the more demanding the applicable selection criteria should be.
The Government’s argument that the authorities had had no knowledge of L.D.’s dismissal from his office during his appointment did not stand. The relevant authorities had been under an obligation to verify that L.D.’s application for the position of SAC judge had complied with the statutory requirements for his position. The disciplinary measure had been a matter of official record. Furthermore, in so far as the Government maintained that the domestic authorities had not interfered with L.D.’s appointment procedure in a way that would have placed his independence in question, the Court noted that the requirements that a tribunal be “established by law” and “independent” constituted stand-alone rights. The fact that they were at times examined in conjunction with one another on account of their close connection did not mean that possible compliance with the “independence” requirement ruled out a violation of the requirement that a tribunal be “established by law”.
Accordingly, the question of judge L.D.’s fitness for office concerned a fundamental rule in respect of the appointment of SAC judges.
(c) Whether the allegations regarding the right to a “tribunal established by law” were effectively reviewed and remedied by the domestic courts – The Court had already found under the first criterion that no domestic authority had examined – let alone remedied – the question of whether L.D. had been appointed to the SAC in accordance with domestic law. In particular, the domestic authorities had not adopted a clear position as to whether L.D.’s term of office could have been brought to an end (and if so by which authority), or whether he could have been excluded from examining the applicant’s case on account of his failure to comply with the relevant eligibility criteria. The SAC had declined to examine the applicant’s requests for the exclusion of L.D. from the panel hearing his case for want for jurisdiction, an approach, however, which appeared to be inconsistent with the Constitutional Court’s subsequent decision on the matter. It had also deemed, that the conditions for termination of the term (removal from office) of Constitutional Court judges on the grounds of non- compliance with the statutory eligibility requirements had not been applicable to SAC judges. Yet, the Disciplinary Commission of the SAC, in its decision dismissing L.D., had found that L.D. had had the status of a Constitutional Court judge, and had been liable to be dismissed from office under the said conditions. Moreover, the constitutional and disciplinary decisions had been incapable of remedying the applicant’s complaint, as those proceedings had come to an end after the applicant had been dismissed by a final and unappealable judgment of the SAC.
An irregularity in the appointment procedure of a judge might not necessarily be open to a challenge by an individual relying on the “tribunal established by law” right in an indefinite or unqualified manner. With the passage of time, the preservation of legal certainty and the security of judicial tenure would carry increasing weight in relation to the individual litigant’s right to a “tribunal established by law” in the balancing exercise that must be carried out. However, no balancing of any kind had been carried out by the domestic courts in the present case.
Although the combined effect of the domestic proceedings – in particular, the suspension and subsequent dismissal of L.D. from the SAC on the basis of his criminal conviction – had been able to prevent future similar allegations, they had not remedied the applicant’s complaint.
Overall conclusion: There had been an arguable claim of a manifest breach of a fundamental rule of the domestic law that had adversely affected the appointment of L.D. as a SAC judge and the national courts had failed to properly consider the relevant Convention questions raised by the applicant.
Conclusion: violation (unanimously).
Article 41: The finding of a violation constituted sufficient just satisfaction in respect of non-pecuniary damage; claim in respect of pecuniary damage dismissed.
Article 46: The vetting proceedings in respect of the applicant had concerned primarily his own rights and obligations as a career prosecutor, with no implications for, at least directly, the rights and obligations of any third parties. Furthermore, their outcome had had serious consequences for his professional career. Given the circumstances of the present case and to the extent that that might be possible under domestic law, the Court considered that the most appropriate form of redress for the violation of the applicant’s right would be to reopen the proceedings, should the applicant request such reopening, and to re‑examine the case in a manner that is keeping with all the requirements of Article 6 § 1. The Court, however, in view of its jurisdiction and the nature of the violation that it had found in respect of the vetting proceedings, refused the applicant’s request to quash the SAC’s decision and order the Government to reinstate him immediately in his former office.
(See also Guðmundur Andri Ástráðsson v. Iceland [GC], 26374/18, 1 December 2020, Legal summary; Xhoxhaj v. Albania, 15227/19, 9 February 2021, Legal Summary; Dolińska-Ficek and Ozimek v. Poland, 49868/19 and 57511/19, 8 November 2021, Legal Summary; Advance Pharma sp. z o.o v. Poland, 1469/20, 3 February 2022, Legal Summary)
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