November 2023 – Impartiality of court in case of absence of prosecuting party during the hearing

Stavros Theodoropoulos, Lawyer

On 23 November 2020 the police drew up an administrative offence report charging the applicant with an administrative offence under Article 130 § 1 of the Code of Administrative Offences, namely driving while displaying signs of intoxication and refusing to undergo intoxication testing proposed by the traffic police. The case concerns the applicant’s complaint, under Article 6 § 1 of the Convention, that the domestic court which examined an administrative offence case against him had lacked impartiality on account of the absence of a prosecuting party in the proceedings.

The ECHR, citing similar earlier judgments, explicitly states (Case of Figurka v. Ukraine, Application no. 28232/22, 16/11/2023, para. 29 et seq.): “(…) The absence of a prosecuting party at an oral hearing may give rise to doubts about a court’s objective impartiality by leading the court to take up the prosecution’s case (…).”

The prosecution is responsible for the initiation of and carryying-out the criminal procedure and participates in both the pre-trial stage (over which it presides) and the court proceedings, supporting the indictment. The adversarial nature between the prosecutor and the accused allows the court to maintain an impartial and neutral position, evaluating simply the legal and substantive merits of the claims made by both sides. However, in the absence of the prosecuting authority from the hearing, meaning the party called upon to support and argue in favor of the validity of the indictment, the court bears greater responsibility. In this situation, suspicions of bias against the court may reasonably arise, suggesting that the court unconsciously takes on the role of the prosecutor.

Of course, the establishment of criminal justice procedures inherently ensures, to some extent, depending on the quality of these procedures, the sought impartiality. According to the decision in question (para. 36 et seq.): “(…) However, in the present case nothing in the applicant’s submissions or in the case file indicates that the absence of the prosecutor at the hearing before the Court of Appeal could give raise to justified doubts about that court’s objective impartiality or otherwise affect the fairness of the proceedings. In particular, there is no indication that the Court of Appeal itself, in the absence of a prosecuting party, took steps that could be interpreted as assuming the role of the prosecuting party, such as, for example, changing the body of evidence to the applicant’s disadvantage, introducing new incriminating evidence of its own motion or removing certain evidence submitted by the prosecution. There is no indication either that the Court of Appeal modified, of its own motion, the charges contained in the administrative offence report or that it treated the evidence in a manner that would suggest that the burden of proof was shifted to the applicant (…)“.

In conclusion, this decision once again highlights the possibilities for high-level check of decisions in criminal justice (and beyond), as the ECHR assessed both the legality of the procedure and its substance. It also emphasizes the importance of a thorough study and presentation not only of the legal means that will enable such chekcing (in this case, a claim of impartiality in the absence of the prosecuting party) but also of the proper support for the petitioner’s requests.