4. Independent tribunal

Courts normally are considered to be independent. The European Court has held that the tribunal must be independent of both the executive and the parties. When deciding whether a tribunal is independent, the European Court considers:

1) the manner of appointment of its members,

2) the duration of their office,

3) the existence of guarantees against outside pressures and

4) the question whether the body presents an appearance of independence.

Example

The case of Miroshnik v. Ukraine, 27 November 2008

In 1998 the applicant was dismissed from the military forces.

In 2000 the applicant instituted proceedings in the Central Regional Military Court against the Ministry of Defence contesting the lawfulness of his dismissal from the military service and seeking compensation for damage.

In 2001 the Central Regional Military Court returned the applicant’s claim for failure to indicate all the requisites of the claim, and to enclose any evidence in its support, as required by the legislation.

The applicant states that this decision was sent to him too late to enable him to appeal against it within the fixed time-limit. The Supreme Court rejected an appeal by the applicant against the decision.

The European Court agreed with the Government that there were guarantees of the independence of judges of the military courts, provided, inter alia, by the manner of their appointment, the term of their office, their inviolability, and the prohibition of interference with the administration of justice.

The Court, however, noted that by the domestic law the judges of the military courts were military servicemen, and in that capacity they constituted a part of the staff of the Armed Forces subordinate to the Ministry of Defence. The Court observed that it was up to the Ministry of Defence to provide the judges of the military courts with flats or houses if they needed to improve their living conditions. Finally, the Court notes that the entities of the Ministry of Defence carried out the financing, logistics and maintenance of the military courts on a practical level.

In the Court’s opinion the above aspects of the status of the military courts and their judges gave objective grounds for the applicant to doubt whether the military courts complied with the requirement of independence when dealing with his claim against the Ministry of Defence. The Court therefore holds that the applicant had not had an opportunity to present his case before an independent tribunal, as required by the Convention.

5. Impartial tribunal

The European Court has two tests to indicate impartiality: subjective and objective.

As to the subjective test, the Court requires proof of actual bias. Personal impartiality of a judge is presumed until there is evidence to the contrary. In Lavents v. Latvia the Court criticised the judge for making comments about the case to the press before the trial had been concluded. The requirement of impartiality was violated by the judge referring to the possibility of conviction or partial acquittal but leaving out the possibility of total acquittal.

As to the objective test, the Court stated in Fey v. Austria that under the objective test, it must be determined whether, quite apart from the judge’s personal conduct, there are facts which may raise doubts as to his impartiality. In this respect even appearances may be of certain importance.

Example

The case of Belukha v. Ukraine, 9 November 2006

The applicant instituted proceedings before the Artemivsk town court seeking reinstatement to her former post, but to no avail. During the proceedings she unsuccessfully challenged the President of the Artemivsk Court who sat in her case, claiming that he lacked impartiality as the defendant company had carried out work in the court's new building free of charge and had provided certain goods to the court.

In the instant case, the European Court was not convinced that there are sufficient elements to establish that any personal bias was shown by the President of the Artemivsk Court.

As to the objective test, it must be determined whether there are facts which may raise doubts as to President's impartiality. This implies that, in deciding whether in a given case there is a legitimate reason to fear that a particular judge lacks impartiality, the standpoint of the person concerned is important but not decisive. What is decisive is whether this fear can be held to be objectively justified.

In this respect 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”.

The Court observed that the President of the Artemivsk Court, who sat alone as a first instance judge in the applicant's case and whose decision was upheld by the higher courts, demanded and accepted certain assets from the defendant company for free. In the Court's view, in these circumstances the applicant's fears that the President lacked impartiality can be held to be objectively justified. There had been a violation of Article 6 § 1 of the Convention.