Monday, September 4, 2017

ECtHR on judicial independence

From the decision of the European Court of Human Rights in Mikhno v. Ukraine:
A. Independence and impartiality of the courts

[158] The Government submitted that the military courts were sufficiently independent and impartial, and that there had been no violation of the applicants’ rights in this respect. According to them, the national law contained sufficient guarantees of the independence of the military courts. In particular, military court judges, like civilian judges, were first appointed to their posts by the President of Ukraine for a five-year term and, following its successful completion, elected by the Parliament of Ukraine permanently. Promotion, disciplining and removal from office of the military court judges were governed by the same law as that applicable to civilian judges. The funding of the military courts was managed by the State Judicial Administration in cooperation with the Ministry of Defence from a separate line of the State budget expressly dedicated to the funding of the military courts, while the Supreme Court, which acted as a court of appeal in the present case, was fully independent of the executive in the management of its own budget. The applicants also did not present any evidence of subjective bias on the part of any of the judges. 
[159] The applicants disagreed. They submitted that the military court judges, being military servicemen, had had no way of being independent and impartial, and had in fact acted in the interests of the Armed Forces and the Ministry of Defence. In particular, they had exonerated the high-ranking military officers from criminal liability for their omissions in the organisation of the air show. 
[160] The Court would state at the outset that the right to a fair trial, of which the right to a hearing before an independent tribunal is an essential component, holds a prominent place in a democratic society (see, in particular, Miroshnik v. Ukraine, no. 75804/01, § 61, 27 November 2008). In order to establish whether a tribunal can be considered “independent”, regard must be had, inter alia, to the manner of appointment of its members and their term of office, the existence of guarantees against outside pressures, and to the question whether the body presents an appearance of independence. In this latter respect, what is at stake is the confidence which such tribunals in a democratic society must inspire in the public and, above all, in the parties to the proceedings. In deciding whether there is a legitimate reason to fear that a particular court lacked independence or impartiality, the standpoint of the party to the proceedings is important without being decisive. What is decisive is whether the party’s doubts can be held to be objectively justified (see, mutatis mutandis, Incal v. Turkey, judgment of 9 June 1998, Reports 1998-IV, pp. 1572-73, § 71; Cooper v. the United Kingdom [GC], no. 48843/99, § 104, ECHR 2003-XII; and Miroshnik, cited above, § 61). 
[161] Turning to the present case, the Court reiterates that the proceedings at issue concerned the determination of the applicants’ civil claims against the Ministry of Defence. These claims were examined by the Central Region Military Court of Appeal at first instance and reviewed by the Military Panel of the Supreme Court contemporaneously with the determination of the criminal charges against military officers indicted of negligent acts resulting in the loss of the lives of the applicants’ relatives. 
[162] In the case of Miroshnik v. Ukraine, cited above, the Court has previously found that the domestic military courts lacked independence in determination of a civil claim lodged against the Ministry of Defence in proceedings, which concerned the allegedly unlawful dismissal of a military serviceman. The Court based the relevant findings, in particular, on the domestic statutory provisions, according to which the military court judges were military servicemen on the staff of the Armed Forces subordinate to the Ministry of Defence. In addition to that, applicable law at the material time allocated to the Ministry of Defence a number of tasks relating to court administration and provision of the judges with housing (see Miroshnik, cited above, paragraphs 63-64). 
[163] With the new Judicial System Act having been adopted before the beginning of the proceedings at issue in the present case, these findings are of limited value in examining the applicants’ complaint. In particular, although according to the new law the military judges remained military servicemen, the Ministry of Defence lost practically all of its previous court administration functions to the newly created State Judicial Administration and the Supreme Court’s administrative staff. In addition, unlike in the Miroshnik judgment, which concerned a purely civil dispute, the present applicants’ claims were lodged in a very different context. In particular, they were closely connected to the determination of criminal charges related to breaches of service duty imputed to several military officers. 
[164] The Court notes that the practice of using courts staffed wholly or in part by the military to try members of the armed forces is deeply entrenched in the legal systems of many member States (see, for instance, Morris v. the United Kingdom, no. 38784/97, § 59, ECHR 2002-I). According to its current jurisprudence, unlike in cases relating to the trials of civilians (see, for instance, Öcalan v. Turkey [GC], no. 46221/99, § 113, ECHR 2005-IV, and Maszni v. Romania, no. 59892/00, §§ 53-60, 21 September 2006), there is nothing in the provisions of Article 6 of the Convention which would in principle exclude the determination by military courts of criminal charges against service personnel (see, for instance, Cooper, cited above, § 110, and Mureşan v. Romania (dec.), no. 37702/06 § 19, 16 December 2014). 
[165] There is a tendency in international human rights law to urge States to act with caution in using military courts and, in particular, to exclude from their jurisdiction determination of charges concerning serious human rights violations, such as extrajudicial executions, enforced disappearances and torture (see paragraphs 106-108 above). However, the proceedings at issue in the present case cannot, in the Court’s view, be approached in the same manner as the aforementioned serious intentional human rights violations, which cannot be covered by ordinary military functions. In particular, the present case concerned an accident, resulting in very serious but unintentional damage. The servicemen involved were accused of negligent performance of their duties, the scope of which was in dispute to be resolved by the courts. The criminal limb of the present proceedings was therefore very closely connected to the defendants’ military service. In these circumstances, the Court considers that the referral of the criminal charges and, regard being had to the domestic legal tradition, the related civil claims to a military court for their contemporaneous examination, is not as such incompatible with the Convention. Nevertheless, the Court must look at the composition of the respective military courts and examine the statutory and practical safeguards enabling them to act independently and impartially in resolving these claims (see, mutatis mutandis, Yavuz v. Turkey (dec.), no. 29870/96, 25 May 2000, and Tanışma v. Turkey, no. 32219/05, §§- 81-84, 17 November 2015). 
[166] The Court reiterates that in its previous cases relating to the determination of the independence of military servicemen engaged in administering justice it has had regard to a number of elements determining their status and the manner of operation of the military courts. These elements included the quality of the procedure under which the military courts operated, in particular as regards confidentiality of deliberations and availability of review by an ordinary court, availability of appropriate training for officers involved in the adjudication of cases; the manner of their appointment, promotion and discipline (in particular, whether those officers remained subject to army appraisal reports and whether those reports could evaluate the quality of their judicial decision-making), and other elements (see, for instance, Maszni, cited above, § 55; Bucur and Toma v. Romania, no. 40238/02, § 140, 8 January 2013; and Mureşan, cited above, §§ 20-22). 
[167] Turning to the circumstances of the present case, the Court reiterates that the applicants’ principal argument concerning lack of independence of the military courts related to the fact that the military judges were military servicemen of the officer rank (see applicable provisions of the domestic law in paragraphs 78 and 99 above). According to the applicable law, these judges were on the staff of the Armed Forces subordinate to the Ministry of Defence. However, in examining the practicalities of their status, the Court observes that nothing in it suggests that they reported on their performance to any military official. In fact, the applicable law expressly prohibited military judges from carrying out any duties other than adjudication of cases. Eligibility criteria for a post of a military judge (apart from being a military officer) and procedures concerning their appointment, promotion, disciplining and removal were analogous to those in place for their civilian counterparts. Nothing in the relevant legal framework or the applicants’ submissions indicates that either the Ministry of Defence or any career military officers were involved in these procedures. 
[168] The Court further notes that, according to the applicable law, military courts were integrated into the system of ordinary courts of general jurisdiction. They operated under the same rules of procedure as the ordinary courts in determination of criminal cases. This procedure provided for the applicants the same opportunities to participate in the proceedings, as would have been afforded to them in civilian courts (see paragraphs 93 and 95 above). 
[169] As regards court funding and court administration responsibilities, the Supreme Court, which incorporated the Military Panel, was independent in these matters. Primary responsibility for administering inferior military courts was vested in the State Judicial Administration. Although the Ministry of Defence retained some authority in this matter as well as in taking care of certain benefits for the military court judges (see paragraphs 98 and 99 above), the Court considers that, absent any substantiated arguments to the contrary, such limited authority in itself does not suffice to cast doubt on the impartiality and independence of the judges of the military courts (see, mutatis mutandis, Baranova v. Russia, (dec.), no. 72757/01 of 9 November 2004). 
[170] The Court next notes that, as far as the applicants submitted that acquittal of the senior military officers in the “organisers’ case” was indicative of the judges’ bias, it is not open to them to cite this argument, as they did not lodge any civil claims within the framework of these proceedings. Absent any other indications that there existed a special relationship between the defendants and the judges engaged in adjudication of the applicants’ civil claims or any other substantiated arguments by the applicants concerning the judges’ objective lack of independence or subjective bias, the Court considers that there is no basis for it to conclude that the military judges in the present case lacked structural independence or otherwise acted in the interests of the Armed Forces or the Ministry of Defence when adjudicating the applicants’ civil claims. 
[171] In view of all the above, the Court considers that the applicants’ complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
The court's decision became final on January 30, 2017.

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