CASE OF KAMENOS v. CYPRUS
Remainder inadmissible (Art. 35) Admissibility criteria;(Art. 35-3-a) Manifestly ill-founded;Violation of Article 6 - Right to a fair trial (Article 6 - Disciplinary proceedings;Article 6-1 - Impartial tribunal);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
Alena Poláčková;Costas Pamballis;Dmitry Dedov;George Nicolaou;Helena Jäderblom;Luis López Guerra;Pamballis;Pere Pastor Vilanova
6. The applicant was born in 1949, he is a lawyer and lives in Nicosia. 7. The applicant was appointed as an IDC judge on 1 October 1997 and as its President on 6 December 2001. 8. By a letter dated 18 July 2005 the two main trade unions and the two corresponding employers’ federations submitted a complaint to the Supreme Court, alleging misconduct on the part of the applicant in the exercise of his judicial functions. The letter referred, in general, to complaints received by members of trade unions and employers’ federations who had carried out duties as lay members of the IDC, concerning the applicant’s conduct towards litigants, witnesses, lawyers and lay members of the court during proceedings. 9. The applicant was served with a written notice from the Supreme Court dated 1 September 2005, informing him of the allegations against him and noting that the Supreme Court had decided that it was justified to activate Rule 3 of the Procedural Rules concerning the exercise of the SCJ’s disciplinary authority (“the Procedural Rules”; see paragraph 41 below). The applicant was provided with a copy of the letter of complaint and was requested to send his comments within seven days. 10. By a letter dated 7 September 2005 the applicant submitted his comments to the Supreme Court with regard to the allegations against him. The applicant observed, inter alia, that the complaint was so general and vague that he was unable to identify the precise events on which it was based as he had presided over numerous proceedings. He also informed the Supreme Court that the authors of the letter had given a copy to the press and that it had been published in a newspaper on 21 July 2005. 11. On 16 September 2005 the Supreme Court decided, in accordance with Rules 4 and 5 of the Procedural Rules (see paragraph 41 below), to appoint an investigating judge to look into the allegations against the applicant. 12. On 19 September 2005 the Supreme Court appointed the then President of the District Court of Nicosia as investigating judge. 13. In a letter dated 5 December 2005 the investigating judge informed the applicant of his appointment. He also provided the applicant with statements he had taken from twenty-eight people during his investigation and invited the applicant to submit a supplementary statement, if he so wished, within ten days. 14. On 16 December 2005 the applicant made a lengthy supplementary statement to the investigating judge, providing his comments on the statements collected by the judge and referring to various proceedings in which the witnesses had been involved. He also noted that he did not view his comments as a supplementary statement as such, since it was only at that time that the complaint had become more precise, at least in part. Furthermore, he observed that the witness statements covered a period of six years, when he had sat in about three thousand cases. The statements could not therefore provide the full picture. He suggested that statements should be taken from a number of lay members of the court and provided the investigating judge with their names and telephone numbers. 15. On 21 December 2005, upon completion of the investigation, the investigating judge submitted a report to the Supreme Court summarising his investigation and the evidence collected. The report was accompanied by all the material he had collected, including the statements given by the witnesses and the applicant. The report made no recommendation. 16. By a letter dated 10 February 2006 the chief registrar of the Supreme Court informed the applicant that the court had decided that a disciplinary process was warranted. He provided the applicant with the charge sheet drawn up by the Supreme Court at a meeting it had held on 9 February 2006. This included two charges of misconduct, and details of the preparatory investigation by the investigating judge. The charges against the applicant were as follows: “First Charge Misconduct (Articles 153 § 7 (4) and 157 § 3 of the Constitution) Particulars While you exercised the duties of President of the Industrial Disputes Court you repeatedly displayed oppressive, disparaging, scornful and, more generally, insulting behaviour towards the lay members of the Court, both inside and outside the courtroom and, at the same time, in the course of proceedings you sometimes ignored them, sometimes did not allow them to put questions and sometimes did not allow them to ask for clarification on the matters at issue. Second Charge Misconduct (Articles 153 § 7 (4) and 157 § 3 of the Constitution) Particulars While you exercised the duties of President of the Industrial Disputes Court you repeatedly displayed oppressive, disparaging, scornful and, more generally, insulting and even humiliating behaviour towards lawyers and/or litigants and/or witnesses during the proceedings, including ironic comments at their expense and/or innuendos, with the result that, owing to the agitation and disruption caused to them, the entire proceedings were diverted from their proper course.” 17. A list of fifteen witnesses was attached to the charge sheet. 18. In his letter the chief registrar summoned the applicant to appear on 9 March 2006 before the SCJ (see paragraph 36 below) to answer the charges. He informed the applicant that the proceedings would not be held in public unless he so wished and that, pending the proceedings, he would have to refrain from carrying out his duties. 19. On 9 March 2006, before the applicant answered the charges against him, his lawyer raised several preliminary objections. In particular, he argued that the investigation had been incomplete as statements had not been taken from the people indicated by the applicant. Furthermore, he argued that the charge sheet was incomplete, defective and vague; it did not give sufficient information to the applicant about the offences in relation to the actual content of the two charges he was facing. 20. The SCJ ruled the same day that the charge sheet, taken together with the fifteen statements, provided sufficient information to the applicant about the facts on which the charges had been based. In that regard, it noted that the applicant had commented on all the details referred to in the statements in a lengthy statement. The SCJ also held that the investigation had been adequate and had provided grounds for bringing charges. 21. The applicant then pleaded not guilty to the charges. 22. A hearing was set for 29 March 2006. The applicant’s lawyer agreed that the proceedings would not be held in public. 23. Hearings commenced on the scheduled date. The SCJ set out the procedure to be followed: every witness would read out the statement he or she had given to the investigating officer and would then be cross-examined by the applicant’s lawyer. Following a request by the applicant’s lawyer, the SCJ also held on the same day that in view of the defence’s line of argument all the files of the proceedings in which the witnesses had sat as members of the IDC, from the applicant’s appointment as president of the IDC onwards, should be brought before it. The hearing was scheduled to continue on 31 March 2006. 24. Following a request by the applicant’s lawyer, leave was given by the SCJ on the latter date for the applicant to have full access to the IDC registry’s archives in order to enable him to examine and collect any elements that could help his defence. 25. The hearings continued, with around seven more sessions being held. Files of the proceedings over which the applicant had presided and in which the witnesses had been involved were admitted as exhibits. They were filed in separate bundles by reference to the particular witness and were recorded in the list of exhibits. 26. During the proceedings it was clarified that the charge sheet was limited to the period subsequent to the applicant’s appointment as President of the IDC. Further statements that related to pending proceedings and complaints that had previously been dealt with by the Supreme Court were removed from the charge sheet. Ten out of the fifteen witnesses listed on the charge sheet ultimately testified. They comprised six lay members, two lawyers and two people who had been witnesses in proceedings over which the applicant had presided. The witnesses read out and confirmed the contents of their statements. They were then cross-examined by the applicant’s lawyer. 27. In addition, at the suggestion of the applicant’s lawyer, the court also summoned the IDC’s registrar. 28. After the conclusion of the witness statements and an address by the applicant’s lawyer, the SCJ found on 29 May 2006 that a prima facie case had been established against the applicant. It therefore called the applicant to put forward his defence. 29. The applicant took until 23 June 2006 to set out his defence case, testifying himself and calling thirty-six witnesses. They consisted of twenty-six lay members of the IDC, nine lawyers and a representative from the redundancy fund. The proceedings concluded with the applicant’s lawyer addressing the court. He raised the issue of the charge sheet again and also submitted that because the Supreme Court and the SCJ had the same composition, the same judges had examined the witness statements, had decided to refer the case to trial, formulated the charge sheet and overseen the proceedings. Those judges had also acted as prosecutors and had then tried the case. He argued that that was contrary to the rules of natural justice and the right to a fair trial. He stressed, however, that this had nothing to do with the judges as individuals. 30. In a decision of 19 September 2006 the SCJ found, by a majority of twelve to one (the President and eleven justices concurring), that on the basis of the evidence and all the material facts before it, the applicant’s alleged misconduct had been proved. The SCJ assessed the evidence given by the eleven witnesses and made specific reference to events transcribed in the records of court proceedings over which the applicant had presided and in which the witnesses had been involved. It referred to ten specific cases. After hearing the applicant, in accordance with Rule 26 (see paragraph 41 below), the SCJ removed him from office. 31. The relevant parts of the decision read as follows: “... Rule 13 secures for the judge against whom proceedings are brought all the rights provided for in Article 12 § 5 of the Constitution for persons who are charged with a criminal offence. That constitutional provision secures the well-known rights that an accused has in a criminal trial and are identical to those secured under Articles 6 §§ 2 and 3 of the European Convention on Human Rights, which was ratified by the House of Representatives by law in 1962 (Law 39/62). Furthermore, the provisions of Article 30 of our Constitution, which are the equivalent to those of Article 6 of the Convention, are also applicable. ... At no stage did the Supreme Council of Judicature function as a public prosecutor against Mr Kamenos. The President and Members of the Supreme Council of Judicature did not put a single question to the witnesses who were listed on the charge sheet, or to those summoned on behalf of Mr Kamenos, which might have been construed as cross-examination for the purpose of contesting the witnesses’ allegations. On the contrary, the President and Members of the Supreme Council of Judicature asked very few questions, and they were solely for the purpose of clarification; special reference will be made to some of those questions at the appropriate stage. Not a single question was put to Mr Kamenos. The Supreme Council of Judicature was not seeking to pursue a procedure of prosecution against Mr Kamenos in the form of a confrontation between prosecution and defence. For that reason, and despite having such powers under Rule 16, the relevant provision of the Constitution on the judicial process and the procedure to be followed in investigating disciplinary cases, it did not assign the duties of prosecutor to the judge-investigator or to any other judicial official. In that way, which was the declared intention of the Supreme Council of Judicature, more rights were secured for Mr Kamenos than those which he had under the aforementioned Articles of the Constitution and the Rule. That was precisely the aim of the procedure followed by the Supreme Council of Judicature, which essentially remained an audience for the witnesses’ statements. It follows that this is the appropriate moment to refer to the suggestion made by Mr Kamenos’s lawyer in his final address. Its subject relates directly and absolutely to what we have just said. The lawyer alleged that the Supreme Council of Judicature had functioned in a dual capacity, given that it had judged the case and simultaneously exercised the duties of prosecutor. Clarifying his position, he said that that is inferred from the fact that the President and Members of the Supreme Council of Judicature put questions to the witnesses. In our opinion, that suggestion is unfounded and unjustifiable. It is unfounded for the reasons which we explained above, and unjustifiable because it conflicts with what the lawyer said to us at the beginning of the proceedings, when he ... spoke in praise of the powers invested by the Constitution in the Supreme Council of Judicature, describing its work as difficult and important [in those instances] when it is called upon to decide whether a judge displayed misconduct and is obliged, again in accordance with the Constitution, to terminate the latter’s services in the event of conviction. In brief, Mr Efstathiou not only accepted but also praised as correct the competence, arising from the Constitution, of the Supreme Council of Judicature, which is made up of the full bench of the Members of the Supreme Court, the highest judicial authority in the State. ... [The applicant’s lawyer] asked many witnesses to express an opinion on the extent to which they considered that Mr Kamenos’s decisions were correct. Most of them, including the lawyers, gave the right reply, namely, that it was not for them to judge Mr Kamenos’s decisions. In the same way, the Supreme Council of Judicature is not judging the correctness of Mr Kamenos’s decisions. We do not have such competence. That belongs to the Supreme Court. The competence of the Supreme Council of Judicature is only to decide whether the charges of improper behaviour (misconduct) are proved, which [behaviour] in the case we are examining and according to the particulars of the charges, is continuous (κατά συρροή, διαρκής) and directly refers to the function of Mr Kamenos as the President of the Industrial Disputes Court. ... We previously stated that certain witnesses called by Mr Kamenos, evidently in an endeavour to tone down or explain what the witnesses listed on the charge sheet had testified to and who touched on Mr Kamenos’s behaviour in the course of the hearing, in essence confirmed what those witnesses had said. Several examples follow ... ... From the evidence that we have analysed above, we find that the charges have been proved. ... We wish to clarify that the purpose of this procedure is not to punish Mr Kamenos but to protect the public by adopting of a strict standard of judicial behaviour in order to preserve public confidence in the integrity, prestige and independence of the judicial system. We borrow and adopt the above principle from the decision (Investigation concerning Judge Bruce Van Voorhis, No. 165) given in February 2003 by the Commission of Judicial Performance of the State of California, in the United States of America, which concerned a procedure against a specific judge whose services were also terminated for misconduct, with facts and particulars similar to the case before us. In essence, we translate the principle which that Commission adopted and recorded on page 31 of the decision. The principle is based, as stated in the decision, on what was said by the Supreme Court of the State, that the purpose of the procedure was not to punish judges who have erred but to protect the judicial system and those who are subject to the formidable power exercised by judges. ... Evaluating the above with great care, caution and, we would say, anxiety, we are led to the conclusion that everything imputed to Mr Kamenos as stated in the two charges has been proved. In accordance with the relevant provisions of the Constitution, which are referred to in our decision, the proof of a charge of misconduct against a judge leads to the termination of his services.” 32. The dissenting judge found in his decision that the evidence was not sufficient to prove such a serious charge as misconduct. As regards the procedure, the judge noted, inter alia, that the Supreme Council of Judicature had asked the witnesses very few questions and that they had been for the purposes of clarification. Furthermore, with regard to the investigation and the object of the hearing, he observed: “A judicial official with the duties of prosecutor was not appointed, a possibility which is referred to in Rule 16, and we adopted the following approach: every witness read his statement to the investigating officer out loud and, immediately after, was cross-examined by Mr Kamenos’s lawyer. During the cross-examination or subsequently members of the Supreme Council of Judicature asked the witnesses a few questions for clarification purposes. This is also exactly what happened in the case of Mr Kamenos and the 36 witnesses called by him. ... Before referring to the evidence, it is useful if we outline the methodology which led to the taking of statements by the Investigating Officer. He did not himself take the initiative of collecting evidence in view of the accusation, as he explains in his report. The persons who signed the accusation did not have any personal knowledge of the circumstances and statements were taken from all those they ... named, and from others subsequently named by those who had been initially summoned. The investigation into the manner in which Mr Kamenos exercised his duties in general was therefore not systematic and that is also the reason for not taking statements from a number of other persons whom Mr Kamenos himself indicated. Besides, as we have seen, of the 28 statements which the Investigating Office took, only 15 were attached to the charge sheet, with a further reduction to 10 in the course of the hearing. They did not include statements which, as the Investigating Officer reported, not only expressed no complaints but stated that Mr Kamenos’s conduct had been irreproachable in all respects. Consequently, as is in any case self-evident, the object of the hearing is [to determine] whether, on the basis of the evidence of those ten witnesses, the charge has been substantiated as formulated. That is to say, whether, from each individual’s evidence and the correlation between them, to the extent possible, there arises conduct as cumulatively stated on the charge sheet, [and] in the case of the second charge “with the result that, owing to the agitation and disruption they were caused, the entire proceedings were diverted from their proper course”. This (was the wording), without any specification on the charge sheet of a definite, specific incident at a specific time, ... in relation to a specific person in the context of a specific case. The witnesses who remained on the charge sheet (whose statements I shall of course return to), as lay members of the court, or as lawyers or witnesses, did not submit a complaint there and then about what they considered to be objectionable conduct. ... Nor did the litigants in any specific case which could be related to the charge sheet make a complaint at the time, or appeal or employ any other legal means so that any objectionable conduct would be examined also from the aspect of its effect on the final outcome. That was what occurred in the cases of Athanasiou v. Reana Manuf. & Trade Co.Ltd and others (2001) 1 C.L.R. 1635, and Fanos N. Epiphaniou Ltd v. Melarta and others (2002) 1 C.L.R.654, in which the Supreme Court annulled decisions issued by the Industrial Disputes Tribunal under the presidency of Mr Kamenos, using strong language about the degree of his intervention in the proceedings and the appearance of partiality to which it could give rise. Of course, the charge sheet does not extend to those cases and does not concern the issue of interventions as such ... The core of the charge is the conduct attributed to Mr Kamenos at the expense of lay members of the court, lawyers, litigants and witnesses, and it is in the light of such considerations that I shall go on to examine the evidence adduced.” 33. The applicant continued to receive all the benefits that came with his post during the proceedings. It appears from a letter sent to him by the Treasury of the Republic of Cyprus that the applicant was considered as having retired from the date of his dismissal, 19 September 2006. He was paid a retirement lump sum and started receiving his pension.