January 30, 2024
by Lidia Carchilan
The impartiality of judges has been addressed by the Court on numerous occasions (see examples here, here, and here), providing the Court with the opportunity to develop a consistent line of case-law on the issue, from both its subjective and objective perspectives. In Tadić v. Croatia the Court ruled on the impartiality and independence of the Supreme Court of Croatia after its President had discussed an ongoing case relating to a politician found guilty of war crimes, with the applicant. This was followed by adverse media publicity of the proceedings, which the applicant alleged breached his right to be presumed innocent. This post briefly examines the reasons for the Court’s finding that there had been no violation of Article 6 § 1 and § 2 and the potential impact it may have going forward.
The case was brought by Mr Drago Tadić, a Croatian national, claiming a violation of Article 6 § 1 and § 2 on account of a) a lack of impartiality of the Supreme Court and b) a breach of the presumption of innocence relating to the criminal proceedings where the applicant was found guilty of conspiracy to influence the Supreme Court to give a favourable decision in the case concerning B.G. (a well-known politician found guilty of war crimes by the first-instance court).
The Security Intelligence Agency learnt that the applicant together with other persons became aware of the Supreme Court reaching a decision unfavourable to B.G. and decided to take actions to change that decision before it became public. Subsequently, the Office for the Suppression of Corruption and Organised Crime (OSCOC) requested the use of special investigative measures (phone tapping and covert monitoring), which, together with searches, led to an investigation where multiple witnesses were heard. One witness that was heard is the president of the Supreme Court, B.H., who held that he had had lunch with the applicant and other persons. During this lunch the applicant informed B.H. that ‘they’ knew of the decision and about the possibility of the Supreme Court’s Records Service to remit the case to the Court’s panel, which could alter the decision should it contravene the Supreme Court’s case law, and he suggested a specific judge – A.P. (who worked in the Records Service) – to be assigned the case. The following morning, B.H. informed the State Attorney General of his conversation with the applicant. The OSCOC indicted the applicant and four other persons with conspiring for the purposes of committing criminal offences and instigating an illegal intercession. B.H. gave testimony during trial. The applicant was found guilty as charged and sentenced with two years’ imprisonment. The applicant appealed arguing that he had played a minor role (collecting information about the appellate proceedings against B.G.) and that he had been convicted solely based on B.H.’s testimony, whose allegations had been contradictory and not credible. Ultimately, the case had been examined by judge A.P.
While the appeals were pending, the Sunday paper Nedjeljni jutarnji published an article entitled ‘How the [Security Intelligence Agency] discovered the infiltration of the Supreme Court’. The article referred to the recordings of phone conversations between the applicant and his former co-accused and other persons arranging to borrow money and attempting to exert influence. The article cited the judges, politicians and other publicly known persons mentioned in the recorded conversations and referred to the meeting between the applicant and B.H.
The Supreme Court dismissed the appeals and upheld the applicant’s conviction. The court did not refer to the news article or the recordings in its decision. It held that the trial court established the facts properly and applied the law correctly. The Court highlighted that the questioning of B.H.’s credibility goes beyond the scope of the charges against the applicant and constitutes speculations that are not the subject of the proceedings. The applicant lodged two constitutional complaints with the Constitutional Court alleging impartiality of the Supreme Court and breach of the presumption of innocence by reference to the publication of the Security Intelligence Agency’s phone conversations while proceedings had been pending before the Supreme Court, which allegedly affected the Court’s decision in respect to his case. Both complaints have been ruled unfounded by the Constitutional Court. The applicant lodged a complaint before the Strasbourg Court alleging breach of Article 6 § 1 and § 2.
The Court noted that it will not address any subjective impartiality claims and will only address the question of impartiality of the Supreme Court judges in light of the objective test established in Morice v. France (§ 73) and Denisov v. Ukraine (§ 61-63), by ascertaining whether the judges or the tribunal offered sufficient guarantees to exclude any legitimate doubt in respect to its impartiality. The Court noted the fact that the applicant’s case concerned an alleged criminal attempt to influence the Supreme Court in a high-profile case, where the applicant alleges the President of the Supreme Court played a role by giving evidence. The Court found the situation to be delicate and admitted it capable of prima facie raising concerns as to the impartiality and independence of the Supreme Court. It highlighted that the testimony of B.H. had not been the sole nor the decisive evidence upon which the conviction relied, as the courts largely referred to the main and lawful secret-surveillance recordings, whose authenticity had not been disputed. The Court addressed the allegation that B.H. was involved in overturning the Supreme Court’s decision to benefit B.G. and that the Supreme Court in the applicant’s case was protecting B.H. and its own integrity, by highlighting that the applicant had already been convicted by the trial court, whose impartiality he never disputed. The Court held that the Supreme Court examined the applicant’s case thoroughly and provided detailed reasoning when upholding the trial court’s judgment. The trial court, the Supreme Court and the Constitutional Court had all found that the only relevant factor regarding the contact between the applicant and B.H. had been that the two had spoken about the appellate proceedings against B.G. at the applicant’s initiative. The Court noted that B.H.’s alleged actions in the case against B.G. had not been the subject matter of the proceedings and did not affect the facts of the case against the applicant and Article 6 § 1 does not confer any right to have a third party prosecuted.
The Court gave an overview of the rules applicable to judicial independence in Croatia at the time and held that there is no evidence that B.H. reassigned the applicant’s case. The Court also addressed whether the Croatian law was capable of generating pressures resulting in Supreme Court judges’ subservience to their President and noted that the powers of the President of the Supreme Court in relation to the other judges are rather limited and not capable of impacting the internal independence of judges.
The Court reiterated that a virulent media campaign can adversely affect the fairness of a trial and trigger the State’s responsibility, while press coverage of current affairs is a right guaranteed by Article 10 of the Convention. However, not every media comment will prejudice a defendant’s right to a fair trial, as sufficient safeguards can ensure that the trial is fair as a whole. The Court noted that the recordings were made by the Security Intelligence Agency even before the investigation into the applicant had commenced and that they had not been used as evidence nor did they form part of the case file against the applicant. Nevertheless, the Court took note that they were published merely eight weeks before the session of the appellate panel in the applicant’s case and agreed that they could not have been published had they not been disclosed by a State agent who had access to them. Furthermore, the Court underscored that the applicant had already been convicted by the trial court relying on secret-surveillance recordings made at the OSCOC’s request and on witness testimony. Finally, the Court noted that the Supreme Court panel had been comprised of highly experienced professionals trained to block out interferences outside of trial. The Supreme Court’s conviction relied on evidence contained in the case file and the recordings had not been considered, nor did anything suggest that they had influenced the assessment in the applicant’s case. The Court concluded that the media article and the published recordings did not breach the applicant’s right to a fair trial or the presumption of innocence under Article 6 § 1 and § 2.
The impartiality of judges is an absolute right not subject to any exception and an important part of the right to a fair trial guaranteed by all international human rights treaties. As such it has been universally accepted to require both subjective and objective impartiality.[i] Subjective impartiality pertains to the assertion of the conviction of a specific judge in a specific case, while objective impartiality refers to the determination of the existence of sufficient guarantees to exclude legitimate doubts.
Involvement of a judge as a witness was found to raise questions regarding the judges’ impartiality. The Working Group on Arbitrary Detention, for example, found that the submission of witness statements of two out of three judges presiding over the case and being on the prosecution’s witness list raised ‘serious due process violations’. There are states where reasonably questioned impartiality is enshrined as grounds for disqualification or recusal of judges under their Judicial Codes or Rules of Evidence (see Title 28 of the US Judicial Code and Federal Rules of Evidence). However, according to the Court’s assessment testifying in a case is not sufficient to find partiality, as it ruled in the present case that an array of circumstances will affect whether there will be a breach of the right to be heard by an independent and impartial tribunal under Article 6 § 1.
This case showed that the threshold of the objective test for finding a breach of Article 6 § 1 is quite high and is not met by merely proving contact between the President of the Supreme Court and a third party. The Court reiterated the objective test according to which the applicant’s fears of partiality would be tested against the objective reality behind them and decide if they can be regarded as objectively justified. As established in its settled case-law, the standpoint of the person concerned is important but not decisive. Furthermore, the objective test has to do with hierarchical or other links of the judge with other actors in the proceedings (Morice v. France, §77). The Court decided on the case by applying a close scrutiny, and analysed the Croatian laws and unlike cases where it found a violation (Töre v. Turkey, § 22), the scrutiny resulted in finding that there were sufficient safeguards in place to prevent from internal and outside interferences. Thus, not every contact of the judges with an outside party will lead to a violation. Even if the party is attempting to influence the decision-making process of the Supreme Court, the influence must prove to have achieved its result and affected the decision-making process. Therefore, the applicant’s fears were deemed to be objectively unjustified.
The second aspect that distinguishes this case from other similar cases, where the Court applied the same principles, is the relevance of the allegations to the case of the applicant. The Court didn’t consider the allegations made against the President of the Supreme Court because they had no bearing on the present case (against the applicant), but because they related to the case of B.G. The Court focused on the relevance of the allegations to the proceedings at hand and found that their only relevance lies in the discussion between B.H. and the applicant about the appellate proceedings against B.G. and the Supreme Court’s Records Service at the initiative of the applicant. Finally, even though the Supreme Court President gave witness testimony against the applicant, the fact that the applicant’s conviction did not solely rely on his testimony made the allegation of B.H.’s impartiality not decisive.
Pertaining to the adverse publicity of the case and leaking of secret surveillance recordings, the Court has consistently held that the presumption of innocence will be violated when there is reasoning suggesting that the court views the accused as guilty before a formal finding. The Court has emphasised previously that words must be chosen carefully before a person has been tried and found guilty of a criminal offence (G.C.P. v. Romania, §55). Therefore, the determining factor in this case has been the fact that the applicant had already been convicted by the trial court. Which means the applicant’s guilt had already been established, and the Supreme Court upheld the conviction of the trial court relying on the evidence contained in the case file and did not refer to the publicised article and/or recordings contained therein.
When deciding on alleged violations of the presumption of innocence, the Court will typically factor in the temporal proximity of the negative publicity to the trial (G.C.P. v. Romania, §47) and the composition of the bench, involvement of trained judges or lay jurors.[ii] In this case, however, the second consideration (composition of the bench of highly experienced and professionally trained judges) was decisive for the Court together with the lack of evidence that would substantiate that the publication of the recordings influenced the decision of the Court, disregarding the temporal proximity of the publication of the recordings to the session of the appeal against the applicant. Finally, trials connected to war crimes will inevitably attract public interest, but coverage in itself is insufficient to find a violation of the presumption of innocence.
This case further consolidated the interconnectivity between impartiality and the independence of the judiciary and further clarifies the application of the objective test. It also underscores the importance of judicial safeguards in place, which protect the judiciary against internal and outside interferences, even in cases involving concerted action to influence the bench of the highest Court.
At first glance this case has one wondering why the Court found no violation, as there are multiple reasons of concern pertaining to various elements protected by Article 6. Especially given the seriousness of the allegation (discussing the possibility of altering the decision of the court in an ongoing case) and the nature of the case (highly known politician tried for war crimes). However, the Court examined every concern carefully and reasonably concluded that the applicant’s case remained unaffected by these circumstances as they related to another case (the Court reiterated that Article 6 § 1 does not confer any right to have a third party prosecuted or convicted for a criminal offence), and that the Supreme Court applied the law to the facts of the case correctly. The Court might have considered the allegations differently, had it been B.G.’s case brought to the attention of the Court, as they would have had a direct bearing on the case. However, since the applicant’s allegations were outside the remit of the case against him, the Court had no basis for finding a violation of Article 6 in the present case.
[i] Clooney A., Webb P., “The right to a fair trial in International Law,” (OUP, 2020), 109
[ii] Schabas W., “The European Convention on Human Rights: A Commentary”, (OUP, 2015), 302