Mensenrechtenhof veroordeelt Cyprus bij gevangenisstraf voor een advocaat wegens belediging rechtbank (en)

The European Court of Human Rights has today delivered at a public hearing its Grand Chamber judgment [1] in the case of Kyprianou v. Cyprus (application no. 73797/01).

The Court held unanimously that there had been:

• - 

  a violation of Article 6 § 1 (right to a fair trial) of the European Convention on Human Rights,
• - 

  a violation of Article 10 (freedom of expression) of the Convention.

Under Article 41 (just satisfaction), the Court awarded the applicant 15,000 euros (EUR) for non-pecuniary damage and EUR 35,000 for costs and expenses. (The judgment is available in English and French.)

• 1. 

  Principal facts

The case concerns an application brought by a Cypriot national, Michalakis Kyprianou, who was born in 1937 and lives in Nicosia. He is a lawyer.

On 14 February 2001 Mr Kyprianou was involved in a murder trial, defending an accused before the Court of Assize of Limassol. During the trial, he objected to having been interrupted during his cross-examination of a prosecution witness, sought leave to withdraw and, when leave was not granted, he alleged that members of the court were talking to each other and sending each other notes ("ravasakia" - which can mean, among other things, short and secret letters/notes, or love letters, or messages with unpleasant contents).

The judges said they had been "deeply insulted" "as persons" by the applicant. They added that they could not "conceive of another occasion of such a manifest and unacceptable contempt of court by any person, let alone an advocate" and that "if the court's reaction is not immediate and drastic, we feel that justice will have suffered a disastrous blow". They gave the applicant the choice, either to maintain what he had said and to give reasons why a sentence should not be imposed on him or to retract. The applicant did neither.

The court then found Mr Kyprianou to be in contempt of court and sentenced him to five days' imprisonment, enforced immediately, which they deemed to be the "only adequate response"; "an inadequate reaction on the part of the lawful and civilised order, as expressed by the courts would mean accepting that the authority of the courts be demeaned".

The applicant served the prison sentence immediately, although he was in fact released early, in accordance with the relevant legislation. His appeal was dismissed by the Supreme Court on 2 April 2001.

• 2. 

  Procedure and composition of the Court

The application was lodged with the European Court of Human Rights on 9 August 2001 and declared partly inadmissible on 7 May 2002. The application was declared partly admissible on 8 April 2003.

In its Chamber judgment of 27 January 2004 the Court held unanimously that there had been a violation of Article 6 §§ 1, 2 and 3 (a) and that it was not necessary to examine the applicant's complaint under Article 10. The Court awarded the applicant EUR 15,000 for non-pecuniary damage and EUR 10,000 for costs and expenses.

On 19 April 2004 the Cypriot Government requested that the case be referred to the Grand Chamber and the panel of the Grand Chamber accepted the request on 14 June 2004.

Third-party comments were received from the Governments of the United Kingdom, Ireland and Malta.

A hearing on the merits took place in public in the Human Rights Building, Strasbourg, on 2 February 2005.

Judgment was given by the Grand Chamber of 17 judges, composed as follows:

Luzius Wildhaber (Swiss), President,

Christos Rozakis (Greek),

Jean-Paul Costa (French),

Nicolas Bratza (British),

Bostjan M. Zupančič (Slovenian),

Giovanni Bonello (Maltese),

Loukis Loucaides (Cypriot)

Riza Türmen (Turkish),

Françoise Tulkens (Belgian),

Josep Casadevall (Andorran),

Matti Pellonpää (Finnish),

Rait Maruste (Estonian),

Vladimiro Zagrebelsky (Italian),

Lech Garlicki (Polish),

Elisabet Fura-Sandström (Swedish),

Alvina Gyulumyan (Armenian),

Khanlar Hajiyev (Azerbaijani), judges,

and also Lawrence Early, Deputy Grand Chamber Registrar.

• 3. 

  Summary of the judgment [2]

Complaints

The applicant complained under Article 6 § 1 that he was not tried by an independent and impartial tribunal, as the same court which claimed that he was in contempt had also tried and punished him. He also relied on Article 6 § 2 (presumption of innocence), Article 6 § 3 (a) (right of accused to be informed promptly of the accusation against her/him) and Article 10.

Decision of the Court

Article 6 § 1

The European Court of Human Rights first considered the applicant's complaint that, in the particular circumstances of his case, the fact that the same judges of the court in respect of which he allegedly committed contempt tried, convicted and sentenced him, raised objectively justified doubts as to the impartiality of that court.

The Court observed that that complaint was directed at a functional defect in the relevant proceedings. In that connection, the Court took note of the increasing trend in a number of common law jurisdictions acknowledging the need to use a summary procedure in respect of contempt of court sparingly, after a period of careful reflection and with appropriate safeguards. However, the Court did not regard it as necessary or desirable to review generally the law on contempt and the practice of summary proceedings in Cyprus and other common law systems. Its task was to determine whether the use of summary proceedings in relation to Mr Kyprianou gave rise to a violation of Article 6 § 1.

The applicant's case related to contempt in the face of the court, aimed at the judges personally. They had been the direct object of the applicant's criticisms as to the manner in which they had been conducting the proceedings. The same judges then took the decision to prosecute, tried the issues arising from the applicant's conduct, determined his guilt and imposed the sanction (a term of imprisonment). In such a situation the confusion of roles between complainant, witness, prosecutor and judge could self-evidently prompt objectively justified fears as to the conformity of the proceedings with the time-honoured principle that no one should be a judge in his or her own cause and, consequently, as to the impartiality of the bench.

The Court therefore found that, on the facts of the case and considering the functional defect which it had identified, the impartiality of the Assize Court was capable of appearing open to doubt. The applicant's fears in that respect could therefore be considered to have been objectively justified.

The Court then considered the applicant's allegation that the judges concerned acted with personal bias, a complaint directed at the judges' personal conduct.

The Court observed that the judges in their decision sentencing the applicant acknowledged that they had been "deeply insulted" "as persons" by the applicant. That statement in itself showed that the judges had been personally offended by the applicant's words and conduct and indicated personal embroilment on the part of the judges. In addition, the emphatic language used by the judges throughout their decision conveyed a sense of indignation and shock, which ran counter to the detached approach expected of judicial pronouncements. The

judges then proceeded to impose a sentence of five days' imprisonment, enforced immediately, which they deemed to be the "only adequate response" to what had happened. In addition, the judges expressed the opinion early on in their discussion with the applicant that they considered him guilty of the criminal offence of contempt of court. After deciding that the applicant had committed the above offence they gave the applicant the choice, either to maintain what he had said and to give reasons why a sentence should not be imposed on him or to retract.

Although the Court did not doubt that the judges were concerned with the protection of the administration of justice and the integrity of the judiciary and that for that purpose they felt it appropriate to initiate the procedure in question, the Court found that the judges did not succeed in detaching themselves sufficiently from the situation. That conclusion was reinforced by the speed with which the proceedings were carried out and the brevity of the exchanges between the judges and Mr Kyprianou.

Against that background and having regard in particular to the different elements of the judges' personal conduct taken together, the Court found that the misgivings of Mr Kyprianou about the impartiality of Limassol Assize Court were also justified in this respect.

Finally, the Court found that the Supreme Court did not remedy the defect in question. While it was clear that the Supreme Court had the power to quash the decision on the ground that the Limassol Assize Court had not been impartial, it had declined to do so and upheld the conviction and sentence. As a consequence, it did not cure the failing in question.

The Court concluded that Limassol Assize Court was not impartial within the meaning of Article 6 § 1.

Article 6 § 2 and 3 (a)

The Court considered that no separate issue arose under Article 6 § 2 or 3 (a).

Article 10

The Court considered that, in the circumstances of the applicant's case, a separate examination of his complaint under Article 10 was called for. It had to ascertain whether a fair balance was struck between, on the one hand, the need to protect the authority of the judiciary and, on the other hand, the protection of the applicant's freedom of expression in his capacity as a lawyer.

The Limassol Assize Court sentenced the applicant to five days' imprisonment. That could not but be regarded as a harsh sentence, especially considering that it was enforced immediately. It was subsequently upheld by the Supreme Court.

The applicant's conduct could be regarded as showing a certain disrespect for the judges of the Assize Court. Nonetheless, albeit discourteous, his comments were aimed at and limited to the manner in which the judges were trying the case, in particular concerning the cross-examination of a witness he was carrying out in the course of defending his client against a charge of murder.

Accordingly, the Court considered that such a penalty was disproportionately severe on the applicant and was capable of having a "chilling effect" on the performance by lawyers of their duties as defence counsel. The Court's finding of procedural unfairness in the summary proceedings for contempt served to compound that lack of proportionality.

That being so, the Court considered that the Assize Court failed to strike the right balance between the need to protect the authority of the judiciary and the need to protect the applicant's right to freedom of expression. The fact that the applicant only served part of the prison sentence did not alter that conclusion.

The Court accordingly held that Article 10 had been breached, given the disproportionate sentence imposed on the applicant.

Judges Bratza and Pellonpää expressed a concurring opinion. Judge Zupančič expressed a concurring opinion. Judges Garlicki and Maruste expressed a concurring opinion and Judge Costa expressed a partly dissenting opinion. The texts of these opinions are annexed to the judgment.

***

The Court's judgments are accessible on its Internet site (http://www.echr.coe.int).

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The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. Since 1 November 1998 it has sat as a full-time Court composed of an equal number of judges to that of the States party to the Convention. The Court examines the admissibility and merits of applications submitted to it. It sits in Chambers of 7 judges or, in exceptional cases, as a Grand Chamber of 17 judges. The Committee of Ministers of the Council of Europe supervises the execution of the Court's judgments.

[1] Grand Chamber judgments are final (Article 44 of the Convention).

[2] This summary by the Registry does not bind the Court.