Европейский суд по правам человека
15 декабря 2005 года

Facts

The applicant, Mr. Kyprianou, was a lawyer who was sentenced of contempt of the court after an exchange with the bench in response to an interrupted cross-examination of a witness. The same court (the same judges) to which the alleged contempt of Mr. Kyprianou was addressed sentenced him to five days imprisonment for that.

Complaint

Mr. Kyprianou complained that he had not received a hearing by an impartial tribunal in violation of his right to fair trial.

Court's ruling

The Court noted that impartiality normally denotes the absence of prejudice or bias and its existence or otherwise can be tested in various ways. The subjective approach requires ascertaining the personal conviction or interest of a given judge in a particular case. The personal impartiality of a judge must be presumed until there is proof to the contrary, such proof that a judge has displayed hostility or ill will or has arranged to have a case assigned to himself for personal reasons. The objective approach means determining whether a given judge offered sufficient guarantees to exclude any legitimate doubt about his/her impartiality, that is, determining whether there are ascertainable facts which may raise doubts in this regard. Even appearances may be important in fulfilling the objective test. \r\nIn the particular case the Court found that misgivings of Mr Kyprianou about the impartiality of the tribunal which sentenced him were justified under both tests. 

The Court found that the same judges he had allegedly insulted determined the applicant’s guilt and sentence. The Court found that the confusion of roles of prosecutors, witnesses and judges in this case could objectively lead to doubts about the court’s impartiality and violated the principle that no one should be judge in their own case. As to the subjective test the Court found the emphatic language used in the tribunal’s decision derived that the judges failed to detach themselves from the case personally. Therefore the Court ruled that the tribunal had not been impartial in violation of the applicant’s right to fair a trial.