European Court of Human Rights judgment sheds light on Mercieca case

The lack of disclosure by a judge that his son was employed at a law firm representing a politician appealing a defamation judgment in Cyprus, led to a breach of the right to a fair trial of the other party, the European Court of Human Rights (ECHR) has ruled on a case that echoes criticism of lawyer Charles Mercieca.

In its judgment, the ECHR pointed out that, given the importance of appearances, any situation that could cause a suggestion or appearance of bias had to be “disclosed at the outset of proceedings and an assessment had to be made to determine whether disqualification was necessary”.

The case dates back to 2006 when Cypriot MP Zacharias Koulias took part in a radio programme where he made various remarks about another politician, who was a former minister and high-ranking member of a political party.

The politician filed defamation proceedings, which were initially rejected by the Cypriot courts, but on appeal, a three-judge panel of the Supreme Court found the remarks defamatory.

It was only after the final decision was handed down that Koulias learned that the son of one of the Supreme Court’s judges worked at the same firm as the lawyer, who was also the founding partner of the firm, representing the politician’s case during the appeal proceedings.

The panel of European judges, which included Maltese judge Lorraine Schembri Orland, noted that the personal impartiality of a judge had to be presumed until there was proof to the contrary. In this case, nothing indicated any actual prejudice or bias towards Koulias.

It then examined his complaint under the objective impartiality test, which depended on the circumstances of the specific case. The factors to be taken into account included whether the judge’s relative had been involved in the case, the position of the relative in the firm, its size and internal organisational structure, financial importance of the case and any possible financial interest or potential benefit on the part of the relative.

Of course, objective impartiality is something that is required only from judges, not from lawyers, but the underlying harm to the administration of justice in the public perception caused by the apprehension of lack of objective impartiality is not dissimilar to that caused by a lawyer switching sides in a case midstream. Lawyers here would not speak of objective impartiality but of conflict, or possible conflict, of interest.

The move was described as “treachery” by former ECHR judge Giovanni Bonello in an interview with The Shift, who also lashed out at the weak response by the State to Mercieca’s crossover. Special Rapporteur of the Parliamentary Assembly of the Council of Europe Pieter Omtzigt wrote a strongly worded letter to the Attorney General saying Mercieca’s actions raised “glaring issues” of professional ethics and potentially of criminal liability.

In the Cypriot judgment, the ECHR pointed out that Cyprus, as a small country, had smaller firms and a smaller number of judges than larger jurisdictions so a situation where someone was related to another was likely to arise more often. Despite this, complaints alleging bias should not be capable of paralysing a defendant State’s legal system and, in small jurisdictions, excessively strict standards “could unduly hamper the administration of justice”.

“Given the importance of appearances, any situation, which could cause a suggestion or appearance of bias had to be disclosed at the outset of proceedings and an assessment had to be made to determine whether disqualification was necessary. That was an important procedural safeguard to provide adequate guarantees for objective and subjective impartiality,” the judges said.

Similarly, the appearance of a lawyer changing sides midstream undermines the very idea of justice. Lawyers appearing in court are considered as officers of the court – should a lawyer who at one point was working for the State in the prosecutor’s office suddenly change sides and work for the very same person that his boss – the State – is prosecuting? That is ultimately an issue of ethics.