Last Updated on February 1, 2024 by LawEuro
European Court of Human Rights (22431/20)
The applicant was one of the leaders of the United National Movement (“the UNM”), a political party which governed the country between November 2003 and October 2012. He was initially appointed mayor of Tbilisi in 2005 and then elected to the post in 2010. In October 2012 the Georgian Dream coalition, led by Mr B.I., won parliamentary elections and formed a new government. The applicant continued to serve as Mayor of Tbilisi. Subsequently, five sets of criminal proceedings were brought against him. The present case concerns the circumstances of the second criminal case brought against the applicant.
On 20 February 2013 an investigation was launched under Article 182 § 3 (b) of the Criminal Code into the activities of the Old Tbilisi Rehabilitation and Development Fund, founded by the Tbilisi Mayor’s Office. On 18 December 2013 the applicant was formally charged with aggravated embezzlement. The investigation was conducted by the investigative unit of the Chief Prosecutor’s Office.
The applicant maintained that the Prosecutor General was the most senior prosecuting officer in Georgia and that all other prosecutors were directly subordinate to him or her. He or she enjoyed the power of appointing or removing prosecutors from office, issuing instructions and amending or revoking their decisions and acts. At the same time, all prosecutors, if requested, were under a legal obligation to report to the Prosecutor General and to provide him or her with information about their activities and the cases they were engaged in. The Prosecutor General’s Order no. 157-G concerning the distribution of work, which was merely a piece of subordinate legislation, did not and could not prevent the Prosecutor General from requesting updates, briefs, reports, or any other information concerning ongoing criminal cases, including those conducted under the direction of the first Deputy Prosecutor General.
The applicant further argued that in view of the strict internal hierarchy in the prosecution service and the Prosecutor General’s powers vis-à-vis all the remaining prosecutors, including the first deputy Prosecutor General, and noting the political importance of his case, it was unrealistic to assume that the then Prosecutor General would not have been involved in the direction or supervision of his criminal case. As regards the Supreme Court’s reasoning that there was no evidence of such involvement, the applicant observed that no one outside the prosecution system could have had access to internal documents from the General Prosecutor’s Office and that, in any event, there were other ascertainable facts which were sufficient to raise doubts as to Judge Sh.T.’s impartiality.
The Government maintained that the applicant’s allegations concerning Judge Sh.T.’s impartiality were unsubstantiated. Referring to the time frame in which Sh.T. had served as the Prosecutor General, the Government noted that both the pre-trial investigation and the first-instance court proceedings in the applicant’s case had been completed before Sh.T.’s appointment as Prosecutor General. In other words, Sh.T. had not been Prosecutor General during the most crucial stage of the criminal proceedings against the applicant. The Government further argued that, in contrast to the case of Piersack v. Belgium, in the present case Sh.T. had not been the direct superior of the prosecutors who had led the investigation and prosecution of the applicant and had not had authority either to review or correct submissions or to influence in any way the activities of the prosecutors acting in the applicant’s case. The Government stressed in that connection that Judge M.V. had withdrawn from the applicant’s case specifically because of his earlier supervisory role in it. Referring further to the substance of Order no. 157-G issued by Sh.T. concerning the distribution of work within the General Prosecutor’s Office, they maintained that an examination of the criminal investigation file made it clear that Sh.T. had not taken any action in the criminal proceedings against the applicant.
The Government also pointed out that the applicant’s request for Sh.T.’s recusal had been examined by two judges of the Supreme Court, who had considered that his fears concerning Sh.T.’s impartiality had not been justified and concluded that the conditions for the judge’s recusal had not been fulfilled.
The European Court of Human Rights noted the following:
Impartiality normally denotes the absence of prejudice or bias, and its existence or otherwise can be tested in various ways. According to the Court’s settled case-law, the existence of impartiality for the purposes of Article 6 § 1 must be determined according to a subjective test where regard must be had to the personal convictions and behaviour of a particular judge, that is, whether the judge held any personal prejudice or bias in a given case; and also according to an objective test, that is to say by ascertaining whether the tribunal itself and, among other aspects, its composition, offered sufficient guarantees to exclude any legitimate doubt in respect of its impartiality.
As to the subjective test, the principle that a tribunal must be presumed to be free of personal prejudice or partiality is long-established in the case‑law of the Court. The personal impartiality of a judge must be presumed until there is proof to the contrary. As regards the type of proof required, the Court has, for example, sought to ascertain whether a judge has displayed hostility or ill will for personal reasons.
In the vast majority of cases raising impartiality issues the Court has focused on the objective test. However, there is no watertight division between subjective and objective impartiality since the conduct of a judge may not only prompt objectively held misgivings as to impartiality from the point of view of the external observer but may also go to the issue of his or her personal conviction. Thus, in some cases where it may be difficult to procure evidence with which to rebut the presumption of the judge’s subjective impartiality, the requirement of objective impartiality provides a further important guarantee.
As to the objective test, it must be determined whether, quite apart from the judge’s conduct, there are ascertainable facts which may raise doubts as to his or her impartiality. This implies that, in deciding whether in a given case there is a legitimate reason to fear that a particular judge or a body sitting as a bench lacks impartiality, the standpoint of the person concerned is important but not decisive. What is decisive is whether that fear can be held to be objectively justified.
The objective test mostly concerns hierarchical or other links between the judge and other protagonists in the proceedings. It must therefore be decided in each individual case whether the relationship in question is of such a nature and degree as to indicate a lack of impartiality on the part of the tribunal.
In this regard, even appearances may be of a certain importance or, in other words, “justice must not only be done, it must also be seen to be done”. What is at stake is the confidence which the courts in a democratic society must inspire in the public. Thus, any judge in respect of whom there is a legitimate reason to fear a lack of impartiality must withdraw.
Moreover, in order that the courts may inspire in the public the confidence which is indispensable, account must also be taken of questions of internal organisation. The existence of national procedures for ensuring impartiality, namely rules regulating the withdrawal of judges, is a relevant factor. Such rules manifest the national legislature’s concern to remove all reasonable doubts as to the impartiality of the judge or court concerned and constitute an attempt to ensure impartiality by eliminating the causes of such concerns. In addition to ensuring the absence of actual bias, they are directed at removing any appearance of partiality and so serve to promote the confidence which the courts in a democratic society must inspire in the public. The Court will take such rules into account when making its own assessment as to whether a tribunal was impartial and, in particular, whether the applicant’s fears can be held to be objectively justified.
In the present case the applicant’s fear of a lack of impartiality stemmed from the fact that Judge Sh.T., who sat on the Supreme Court bench which adopted the judgment of 10 February 2020, had previously held the position of Prosecutor General, specifically during the period when the applicant’s case had been examined by the appeal court and when the appeal on points of law had been prepared by the General Prosecutor’s Office. The applicant raised this objection before the Supreme Court, requesting Sh.T.’s recusal from the cassation proceedings. The Supreme Court, sitting in a bench of two judges, dismissed the applicant’s request and found that his fears concerning Sh.T.’s impartiality had not been justified.
With regard to the subjective test, it has not been shown or argued that Judge Sh.T. held or expressed any personal convictions which could cast doubt on his subjective impartiality.
As regards the objective test, the Court notes that the applicant did not submit any evidence showing that Judge Sh.T. had in fact played a dual role in the criminal proceedings conducted against him. It also recalls that the mere fact that a judge was once a member of the public prosecutor’s office is not a reason for fearing that he or she lacked impartiality.
At the same time, the Court cannot but observe that Sh.T. had led the country’s prosecution service when the applicant’s case was examined by the court of appeal and when the decision was made by two prosecutors from the investigative unit at the General Prosecutor’s Office to lodge an appeal on points of law. Sh.T. was thus at the pinnacle of what appears to have been a hierarchical structure, with all the prosecutors subordinated to him. Moreover, in accordance with the Prosecutor’s Act, he could give instructions to any of them, including his first deputy, who was responsible for the overall supervision of the investigative unit in charge of the applicant’s case. He could also ask for updated information from subordinate prosecutors regarding the progress of the applicant’s case. Having regard to the above features of the prosecution service in Georgia, which are not in dispute, the Court accepts the applicant’s argument that the content of the Prosecutor General’s Order no. 157-G concerning the distribution of work at the General Prosecutor’s Office would not have prevented Sh.T. from exercising his supervisory powers as provided for in the Prosecutor’s Act.
The Court further recalls that, in specific circumstances, the organisation and structure of the national prosecution service and the role of the Prosecutor General may lead it to consider that without appropriate arrangements at the national level, taking those specific features into account, the effective protection of a Convention right may be affected, in particular in highly sensitive cases.
In the present case, having regard to the role and extensive powers of the Prosecutor General under the relevant national legislation, as described above, and noting the politically sensitive context in which the applicant’s high-profile trial was conducted, the Court considers that, at the very least, Sh.T. must have been privy, at the time when he was the Prosecutor General, to internal information about the prosecution service’s strategy in handling the criminal proceedings conducted against the applicant and that this reality must have been obvious to an external objective observer.
In the Court’s view, therefore, in the particular circumstances of the present case, there were ascertainable facts which could raise objectively justified doubts as to Sh.T’s impartiality. The Court cannot accept in this connection the Government’s argument that the most crucial phase in the criminal proceedings conducted against the applicant had taken place before Sh.T.’s appointment to lead the prosecutor’s office. The fact that the decision to lodge an appeal on points of law, which eventually led to the legal reclassification of the applicant’s acts and the increase in his prison sentence, was taken by the General Prosecutor’s Office during Sh.T.’s time as Prosecutor General is in itself sufficient to rebut that argument.
The Court finds it important to emphasise in this context the importance of appearances for ensuring objective impartiality and, therefore, confidence in the justice system. In the present case, regard being had to all the specific circumstances, in particular to the utmost political sensitivity of the applicant’s trial, coupled with the Prosecutor General’s role and authority within the prosecution service in Georgia, the Court finds that the inclusion of the former Prosecutor General in the bench of judges which heard the applicant’s case was sufficient to cast doubt on the objective impartiality of the Supreme Court in ruling on the applicant’s appeal on points of law. There has accordingly been a violation of Article 6 § 1 of the Convention.
CASE OF UGULAVA v. GEORGIA (No. 2) – 22431/20. Full text of the document.