CONSIDERATION OF THE JUDGE OF CERTAIN CASES ABOUT THE INDICTMENT – NO REASONS FOR SELF-OPENING

 In the ECtHR judgment in the case of Alexander Marian Yancu v. Romania (Complaint No. 60858/15), the European Court of Human Rights unanimously held that there had been no violation of Article 6 § 1 (right to a fair trial) of the European Convention on Human Rights.

 The case concerned the applicant's contention that the judge who had participated in his conviction in the two related trials could not be impartial. The ECtHR found that, apart from the alleged similarity between the two trials of the applicant for the financial crimes, there was no objective justification for any fear of impartiality of one of the judges. Indeed, he tried to get out of the case, but his motion was rejected in a well-founded decision.

 The applicant was charged with various financial crimes which he allegedly committed between 2000 and 2003 as the manager or director of several private commercial companies. The materials in the first case were combined with the materials in the second, since certain evidence was common to both cases. He was sentenced in two episodes by a panel of judges, and one of the judges, M.A.M., was included in the panels on both cases.

 During the review of the cassation appeal in the second case against Judge M.A.M. sought to withdraw from the Board to eliminate any suspicion of a possible lack of impartiality. His motion was rejected by a panel of two judges, who concluded that the mere fact of involvement in the preliminary case could not give rise to reasonable suspicion of his impartiality and that there was no evidence that in the first case he had expressed an opinion as to the guilt of the accused, who are under investigation in this case.

 Against Judge M.A.M. additional allegations of bias were filed, but they were also dismissed. Complaints regarding the alleged lack of impartiality of Judge MA, were also considered and dismissed by the High Court of Cassation and the High Court of Magistrates. In particular, they found that all the motions for dismissal and the final decision in 2015 to convict Mr Yanke were fully justified.

 The ECtHR reiterated that Article 6 § 1 required the court to be impartial and that it established an objective and subjective criterion for assessing whether there was a lack of impartiality. The subjective test focused on the judge's personal beliefs or behavior, while objective analysis was conducted to find out facts that might raise doubts about impartiality.

 With regard to subjective review, Judge M.A. did not convince the ECtHR of possible prejudice. He also did not consider that there were any objective reasons for the accused to be concerned about the impartiality of the judge. The judge tried to leave the panel, mainly as a precautionary measure, and not because of any actual doubts about the bias. Moreover, his request for recusal was rejected in a well-founded decision. Although the other judge who participated in the first trial together with Judge M.A.M. was barred from participating in the second trial, this decision was based on several reasons, including her conduct, as she expressed her opinion in the second case during the appeal. On the other hand, in addition to the alleged similarity between the two trials, Judge M.A.M. was not such as to objectively justify the accused's fear of impartiality.