This week in Strasbourg - A roundup of the European Court of Human Rights' case law - 2015 - week 18

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Prison guards used excessive force, amounting to ill-treatment, against two detainees during a search of their cell - Milić and Nikezić v. Montenegro - Violations of Article 3 (prohibition of inhuman or degrading treatment) of the European Convention on Human Rights on account of the ill-treatment to which both applicants, Mr Milić and Mr Nikezić, had been subjected during a search of their cell as well as the ineffectiveness of the ensuing investigation into their complaints of ill-treatment - The case concerned the applicants’ allegation that the prison guards had beaten them with rubber batons during a search of their cell. According to the Montenegrin Government, the guards had had to use force against the applicants to overcome their resistance on entering their cell. The Court found in particular that, even though it had been established in the compensation and disciplinary proceedings concerning the applicants’ complaint of ill-treatment that the guards had used excessive force, the damages awarded to the applicants had not been sufficient. Nor had the domestic courts or the Government actually acknowledged that such behaviour had amounted to ill-treatment. The Court on the other hand found that hitting the applicants with batons – as established by the domestic bodies – had amounted to ill-treatment within the meaning of Article 3.

CONCURRING OPINION OF JUDGE KARAKAŞ, JOINED BY JUDGES SAJÓ AND KŪRIS

"We agree with the outcome in the present case. We do, however, wish to draw attention to certain decisions and judgments by the Court concerning the issue of compensation as an appropriate remedy in Article 2 and 3 cases, which conflict with the Court’s established case-law and which were not considered unacceptable, as a matter of principle, in the present case.

In paragraph 74 of the judgment, it is stated that “[E]ven assuming that a compensation claim in civil proceedings may be regarded as an effective domestic remedy for complaints under the substantive aspect of Article 3 of the Convention, the Court notes that the applicants in the present case have exhausted that remedy proposed by the Government, whose objection in that regard must therefore be dismissed.”

In paragraph 75 of the judgment, it is further stated that “In any event, and quite apart from the issue as to whether the domestic courts’ findings were sufficient in terms of acknowledgement of a violation, the Court is of the opinion that the compensation of EUR 1,500 awarded to each applicant in respect of non-pecuniary damage, in the present case, cannot be considered an appropriate redress for the violation complained of...”

We find this troubling, as we cannot accept that civil compensation may be regarded as an effective remedy for complaints under the substantive aspect of Article 3 of the Convention.

(-)

In our opinion, the time has come for the Grand Chamber of the Court to settle this issue and to reinforce the case-law against unintended erosions. In the light of what we set out above, it is apparent that the established case-law does not allow the dilution of State liability under the pretext of available civil remedies. This risk cannot be mitigated by the addition of sentences such as “even assuming that a compensation claim in civil proceedings may be regarded as an effective domestic remedy for complaints under the substantive aspect of Article 3 of the Convention” (see § 74 of the present judgment). One wonders, for example, what the Court would have decided in this case had each of the applicants been awarded, not EUR 1,500, but EUR 20,000? Would it then have held that that sum was sufficient to amount to adequate redress? In any event, as it is, the present judgment seems to create a third line of case-law, by relying on the insufficiency of the sum awarded in civil proceedings. That clearly conflicts with what was stated in the Caraher decision, namely that “[T]he Court is not persuaded that an applicant can still claim to be a victim on the basis that the amount of compensation is inadequate”. We are convinced that these applicants can still claim to be victims of a substantive violation of Article 2, not because of the adequacy or inadequacy of the compensation, but in view of the fact that without consistent State responsibility for providing an adequate mechanism for criminal liability there can be no proper protection of the values enshrined in Article 2 or 3 of the Convention."

Sentences imposed by the administrative courts in spite of acquittals in criminal proceedings: violations of the Convention - case of Kapetanios and Others v. Greece - violation of Article 6 § 2 (presumption of innocence) of the European Convention on Human Rights and of Article 4 of Protocol No. 7 (right not to be tried or punished twice) with regard to all three applications, and a violation of Article 6 § 1 (right to a fair hearing within a reasonable time) and Article 13 (right to an effective remedy) with regard to Mr Kapetanios’s application - The case concerned the imposition of administrative fines on individuals accused of contraband who had been acquitted of a criminal offence. The Court found in particular that the fact of ordering the three applicants to pay administrative fines, even though they had been acquitted by the criminal courts of the same offence in respect of the same set of facts, was contrary both to the right to the presumption of innocence and to the right not to be tried or punished twice (ne bis in idem). The Court also held, with regard to Mr Kapetanios, that the length of the proceedings before the administrative courts, which lasted twenty-two years, had been excessive, and that at the relevant time there was no effective remedy available under domestic law in this connection.

Judicial body deciding on dismissal of a judge lacked impartiality, making proceedings unfair - case of Mitrinovski v. “The former Yugoslav Republic of Macedonia” - violation of Article 6 § 1 (right to a fair trial) of the European Convention on Human Rights. The case concerned the dismissal from office of a judge of the Skopje Court of Appeal on the grounds of professional misconduct. The ECtHR found in particular that the role of the President of the Supreme Court in the proceedings leading to Mr Mitrinovski’s dismissal lacked impartiality, as he had both initiated the proceedings and subsequently participated in the decision.

"38.  The Court notes that under Amendment XXVIII of the Constitution (see paragraph 19 above), the SJC was composed of fifteen members, of which the President of the Supreme Court and the Minister of Justice were ex officio members; eight members were elected by judges from among their peers and five members were elected by Parliament. Professional misconduct proceedings before the SJC were regulated in detail by the Act, according to which a finding by the SJC of professional misconduct by a judge could lead only to removal of that judge from office. This is the case because dismissal was the only available measure in cases of professional misconduct, in contrast to disciplinary proceedings, for which other measures were available (see sections 73, 77 and 93 of the Act, paragraph 20 above).

39.  Section 78(1) of the Act (see paragraph 20 above) provided that any member of the SJC could ask the SJC to establish that there had been professional misconduct on the part of a judge. Such a request could be made also by the president of the higher court. In the present case, judge J.V., who was the President of the Supreme Court at the time and ex officio member of the SJC, requested the impugned proceedings regarding the applicant, the President of Skopje Court of Appeal at the time.

40.  This request was submitted after the criminal division of the Supreme Court, which was competent to discuss procedural and substantive issues related to criminal cases (see section 37(1) of the Rules of the Supreme Court, see paragraph 22 above), had established unanimously that “there was professional misconduct by two judges” in the criminal case Ксж.бр.537/2010 adjudicated by the three-judge panel of Skopje Court of Appeal, which included the applicant (see paragraph 9 above). Although the criminal division did not set out the names of the judges whom it believed that had violated the law, it is obvious that that opinion included the applicant. The SJC confirmed that the conclusion of the criminal division of the Supreme Court had concerned the applicant (see paragraph 16 above). Judge J.V. participated in the criminal division and voted in favour of its findings.

41.  In such circumstances, the Court considers that the applicant had legitimate grounds for fearing that judge J.V. was already personally convinced that he should be dismissed for professional misconduct before that issue came before the SJC (see Werner v. Poland, no. 26760/95, § 41, 15 November 2001).

42.  The Court further notes that the plenary of the SJC, which included judge J.V., declared the latter’s request admissible. It further set up an ad hoc Commission, as an internal body of the SJC that conducted the impugned proceedings. The Commission was composed, as specified under section 80(3) of the Act (see paragraph 20 above), of five members of the SJC. Judge J.V. was not a member of the Commission. In accordance with section 87 of the Act, on 19 April 2011 the Commission held a hearing at which it considered relevant evidence and heard arguments and concluding remarks by both the applicant and judge J.V. The latter was also given the opportunity to question the applicant (see paragraphs 14 and 15 above). Both the applicant and judge J.V. signed the record of the hearing. On the basis of all available material, the Commission drew up a report which it forwarded to the plenary of the SJC for consideration.

43.  Having regard to the procedural rules described above, the Court considers that in the present case against the applicant, judge J.V. had rights as a party to the impugned proceedings. His request set in motion the proceedings, to which he submitted evidence and arguments in support of the allegations of professional misconduct on the applicant’s part. Accordingly, he had acted as “prosecutor” in respect of the applicant, the “defendant” in the impugned proceedings.

44.  Relying on the Commission’s report, the Supreme Court’s decision delivered in the criminal case Ксж.бр.537/2010 and the conclusion of the criminal division of the Supreme Court (see paragraph 16 above), the plenary of the SJC dismissed the applicant for professional misconduct. Judge J.V., as an ex officio member of the SJC, took part in that decision. Both the applicant and judge J.V. were to be served with a transcript of the decision (see section 95(3) of the Act, paragraph 20 above).

45.  In such circumstances, the Court considers that the system in which judge J.V., as member of the SJC who had sought the impugned proceedings subsequently took part in the decision to remove the applicant from office, casts objective doubt on his impartiality when deciding on the merits of the applicant’s case (see Oleksandr Volkov, cited above, § 115).

46.  In view of the above the Court finds it established that Judge J.V.’s role in the proceedings failed both the subjective and objective impartiality test. Furthermore, the fact that Judge J.V. was only one of fifteen members of the SJC cannot, in the circumstances, lead to any other result (see Fazlı Aslaner v. Turkey, no. 36073/04, 4 March 2014). Accordingly, there has been a violation of Article 6 § 1 of the Convention on account of lack of requisite impartiality of the SJC that examined the applicant’s case."

Texts are based on the press releases of the European Court of Human Rights. 

This selection covers categories 1 and 2 judgments.