- On the independence and impartiality of the Judicial Division of the Supreme Court
The applicant submitted that there were objective reasons to doubt the independence and impartiality of the Judicial Division of the Supreme Court. She argued, firstly, that the President of the HCJ was also the President of the Supreme Court and that in the latter capacity, under section 168(2) of the Status of Judges Act (Law no. 21/85 of 30 July 1985), he or she appointed each year the members of the ad hoc division that examined appeals against the HCJ’s decisions in disciplinary cases. In such circumstances, in the applicant’s submission, the aforementioned ad hoc division was not, and could not appear to the public to be, separate from the HCJ.
Regarding these arguments, the ECHR stated that the composition of the Judicial Division of the Supreme Court was determined by the Status of Judges Act on the basis of objective criteria such as judges’ seniority and their membership of a particular division, and the President of the Supreme Court did not sit in that ad hoc division. In practice, the members of the division were formally appointed by the most senior Vice-President of the Supreme Court.
In addition, the applicant did not allege that the judges of the Judicial Division had been acting on the instructions of the President of the Supreme Court or had been influenced by the latter, or that they had otherwise demonstrated bias. In particular, it was not established that those judges had been specially appointed with a view to adjudicating her case. No evidence existed capable of arousing objectively justified fears on the part of the applicant.
The dual role of the President of the Supreme Court was therefore not such as to cast doubt on the independence and objective impartiality of that court.
Furthermore, the fact that judges were subject to the law in general, and to the rules of professional discipline and ethics in particular, could not cast doubt on their impartiality. The judges of the Supreme Court, who were highly qualified and often in the final stages of their careers, were no longer subject to performance appraisals or in search of promotion, and the HCJ’s disciplinary authority over them was in reality rather theoretical. Nor was there any specific evidence of a lack of impartiality. Hence, the fact that judges hearing cases were themselves still subject to a set of disciplinary rules and might at some point be in a similar position to one of the parties was not in itself a sufficient basis for finding a breach of the requirements of impartiality.
Consequently, regard being had to all the specific circumstances of the case and to the guarantees aimed at shielding the Judicial Division of the Supreme Court from outside pressures, the applicant’s fears could not be regarded as objectively justified.
- On the review performed by the Judicial Division of the Supreme Court and the lack of a public hearing
For the ECHR, given the seriousness of the accusations made against the defendant and the sanctions that could be imposed on her in advance, the defendant should have been given a public hearing by the HCJ, in order to give her the opportunity to rebut what she was accused of, to defend herself and, if appropriate, to present possible defence witnesses.
Since this did not happen, the ECHR concluded that the HCJ had not exercised its discretionary powers on an adequate factual basis. As to the Supreme Court, the ECHR considered that even it was not its task to conduct a re-examination of the evidence, the supreme Court had nevertheless had a duty to ascertain whether the factual basis for the decisions taken by the HCJ was sufficient to support the latter’s conclusions. The dispute as to the facts and the repercussions of the disciplinary penalties on the applicant’s reputation had made it necessary for the Judicial Division of the Supreme Court to perform a review that was sufficiently thorough to enable it to examine issues going to the applicant’s credibility and that of the witnesses. It was true that holding disciplinary proceedings in private with the consent of the person concerned was not contrary to the Convention. However, the applicant had requested a public hearing and should therefore have had the possibility of obtaining a public hearing before a body with full jurisdiction. An adversarial hearing of that kind would have allowed for an oral confrontation between the parties and a more thorough review of the facts.
Secondly, given the limits imposed on it by legislation and its own jurisprudence, the Judicial Division of the Supreme Court was not competent to examine the decisive points of the case, but could only "examine any contradictions, inconsistencies and inadequacies in the evidence and any manifest errors in its assessment, in so far as these defects [were] apparent". According to its own case law definition, a "manifest" error "must not only be serious (a serious error in that [it was] manifestly contrary to reason, common sense or truth, or demonstrate[d] inadequate knowledge); it must also be flagrant (manifest)".
However, the ECHR ascertain that even if that it’s true, the Judicial Division of the Supreme was nevertheless empowered to set aside a decision wholly or in part in the event of a “gross, manifest error”, and in particular if it had been established that the substantive law or procedural requirements of fairness had not been complied with in the proceedings leading to the adoption of the decision. Thus, it could refer the case back to the HCJ for the latter to give a fresh ruling in conformity with any instructions issued by the Judicial Division regarding possible irregularities, namely the lack of hearing.
Furthermore, and again, if it’s true that he Judicial Division of the Supreme Court, ruling within the limits of its jurisdiction as defined by national legislation and its own case-law, had given sufficient reasons for its decisions, replying to each of the applicant’s grounds of appeal, the lack of a hearing in respect of the decisive factual evidence, which the Judicial Division had justified by reference to the limited nature of its powers, had prevented it from including in its reasoning considerations relating to the assessment of those issues.
Thus, the ECHR, taking into consideration the insufficiency of the judicial review performed by the Judicial Division of the Supreme Court and the lack of a hearing either at the stage of the disciplinary proceedings or at the judicial review stage, concluded that the applicant’s case had not been heard in accordance with the requirements of Article 6 § 1 of the Convention.