Last Updated on November 23, 2019 by LawEuro
FOURTH SECTION
DECISION
Application no. 26220/10
Elena ILIE
against Romania
The European Court of Human Rights (Fourth Section), sitting on 3 September 2019 as a Committee composed of:
Faris Vehabović, President,
Iulia Antoanella Motoc,
Péter Paczolay, judges,
and Andrea Tamietti, Deputy Section Registrar,
Having regard to the above application lodged on 30 April 2010,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Ms Elena Ilie, is a Romanian national, who was born in 1944 and lives in Vâlcea. She was represented before the Court by Ms A.E. Neagoe, a lawyer practising in Drăgăşani.
2. The Romanian Government (“the Government”) were represented by their Agent, Ms C. Brumar, of the Ministry of Foreign Affairs.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. In 1991, relying on the relevant domestic legislation concerning property nationalised by the communist regime, the applicant’s ancestor asked the domestic authorities to acknowledge her property rights to 657.4 sq. m of land and to return it to her. The applicant’s ancestor’s request was granted and the applicant inherited the land after her ancestor died.
1. First set of proceedings
5. On 11 April 2005 private parties brought proceedings, inter alia, against the applicant seeking the annulment of the documents produced by the authorities acknowledging the applicant’s ancestor’s property rights to the land (see paragraph 4 above).
6. By a judgment of 5 September 2006 the Drăgășani District Court (“the District Court”), with M.F. sitting as a single judge, allowed the private parties’ action, noting that one of the documents in question had not complied with the lawful conditions for issuing such a document because it had been drafted and signed by only two of the relevant persons. The court held that the authorities had acknowledged that the land had not belonged to the applicant’s ancestor and that producing the contested documents had been a mistake. Moreover, the applicant had not adduced any documents which could prove that the land had belonged to her ancestor before it had been nationalised.
7. By a final judgment of 13 February 2007 the Vâlcea County Court (“the County Court”) allowed the applicant’s appeal on points of fact and law against the judgment and quashed it. It held that the lower court had wrongly assessed the evidence and had ignored the consequences of the previous final judgments. Based largely on the same evidence, the courts had already acknowledged – in final judgments delivered in previous sets of proceedings involving the parties’ ancestors and which could also be relied on as against the private parties – the applicant’s ancestor’s entitlement to have the land returned to her and the validity of the documents issued to her by the authorities. This conclusion was also corroborated by the other evidence available in the case file. The fact that one of the documents had been drafted and signed by only two of the relevant persons was not grounds for annulment under the relevant legislation.
2. Second set of proceedings
8. On 10 May 2007 the same private parties brought proceedings against the applicant seeking a court order acknowledging that they had acquired property rights over the land (paragraph 4 above) by prescription.
9. By a judgment of 6 December 2007 the District Court allowed the private parties’ action.
10. By a final judgment of 27 May 2008 the County Court, sitting as a bench of three judges, namely M.V., G.D., and L.I., dismissed an appeal lodged by the applicant against the judgment on points of fact and law. It held that, according to the available evidence, the private parties and their ancestors had continuously possessed the land in dispute for more than 30 years.
3. Third set of proceedings
11. Relying on the judgments of 6 December 2007 and 27 May 2008, the same private parties brought proceedings against the applicant seeking a court order for the applicant to return the land (see paragraph 4 above) to them.
12. The proceedings were examined by the District Court sitting as a single judge, namely M.F.
13. On 3 February 2009 the applicant challenged judge M.F. for bias and asked for the case to be assigned to a new judge. She argued that the conditions set out by Article 27 § 7 of the Code of Civil Procedure (“the CCP”) had been met. Judge M.F. had already expressed her opinion in the case by delivering the judgment of 5 September 2006 in proceedings which concerned the same parties and the validity of the documents attesting her property rights over the land in question.
14. By an interlocutory judgment of 3 February 2009, subject to appeal on points of fact and of law together with the merits of the case, the District Court, with the president of the court acting as a single judge and deciding in chambers, in the absence of the parties who had been summoned to attend the hearing, dismissed the applicant’s challenge. It held that the grounds of incompatibility relied on for the judge’s disqualification by the applicant had not been met.
15. By a judgment of 7 April 2009 the District Court, with M.F. sitting as a single judge, allowed the private parties’ action. It held that it was clear that both the applicant and the private parties had had property rights to the land in question. However, the private parties had proven that their ancestors’ property rights to the land had been better defined than those of the applicant’s ancestor because, inter alia, he and the private parties had possessed the land continuously for more than thirty years. Moreover, a property title which was registered in the Land Register, like the one held by the private parties, had priority over a property title which was not registered. The court concluded that the property rights acknowledged by the judgments of 6 December 2007 and 27 May 2008 were better defined. In the end, the applicant had only held a document giving her possession of the land, which had been issued without complying with all the legal requirements, and in particular it had not been signed by all the necessary individuals. A formal property title had not been issued to the applicant once the aforementioned document had been produced. Lastly, the court dismissed the res judicata objection raised by the applicant on the grounds that the court proceedings to which she had referred had not concerned the same parties, object and circumstances.
16. The applicant appealed on points of fact and of law both against that judgment and against the interlocutory judgment of 3 February 2009. She argued that the first-instance court had wrongly assessed the evidence and had unlawfully dismissed her objection of res judicata and her challenge against judge M.F. for bias. Her appeal on points of fact and law was examined by the County Court, with M.V., G.D. and L.I. sitting as a bench of three judges.
17. On an unspecified date the above-mentioned three judges sought to recuse themselves from the case. They stated that they were disqualified from examining the case because they had delivered the judgment of 27 May 2008.
18. By an interlocutory judgment of 16 November 2009 not subject to appeal, the County Court, by a panel of three judges deliberating in chambers without summoning the parties, dismissed M.V.’s, G.D.’s, and L.I.’s request to be removed from the case. It held that, taking into consideration the reasons provided by the judges, the evidence in the case file and the provisions of Article 24 of the CCP, there were no reasons for a recusal.
19. By a final judgment of 24 November 2009 the County Court, with M.V., G.D. and L.I. sitting as a bench of three judges, dismissed the applicant’s appeals on points of fact and of law. It held that it was clear that both parties held property titles to the same land and that those titles had to be compared, with a view to determining which was better defined and preferable. Taking into account factors such as the original documents held by the parties’ ancestors, the circuit of legal ownership of the land from the moment it was inherited, the probative value of the property titles held by the parties and the registration of the property titles in the Land Register, the court agreed with the first-instance court that the property title of the private parties was better defined and therefore preferable to that of the applicant. With regard to the applicant’s argument that her objection of res judicata had been dismissed unlawfully by the lower court, the court held that the judicial proceedings involving the parties’ ancestors to which the applicant had referred had not concerned the same parties, object and circumstances. In particular, while the case before the court concerned the same land and some of the same parties, it was based on different circumstances. Thus, all the parties to the proceedings had obtained an acknowledgement of their property rights to the land and therefore in these proceedings the court was only required to compare those rights based on certain factors. Lastly, in respect of the applicant’s arguments that the lower court had dismissed her challenge for bias against judge M.F. unlawfully, the court held that there were no grounds for disqualification within the meaning of Articles 24 § 1 and 27 § 7 of the CCP.
B. Relevant domestic law
20. The relevant provisions of the CCP, as in force at the relevant time, read as follows:
Article 24
“A judge who has delivered a judgment in a case cannot take part in the examination of an appeal or an appeal on points of law lodged in respect of the same case or in the re-examination of the case if the judgment is quashed.
…”
Article 25
“A judge has to inform his or her superior and withdraw from the case if he or she knows that grounds for recusal exist in his or her case.”
Article 26
“A proposal to withdraw is to be made by the judge and examined in accordance with Articles 30 and 31 …”
Article 27
A judge must be removed:
…
7) if he or she has already expressed his or her opinion with regard to the case under examination;
…”
Article 30
“The removal of a judge shall be decided by the same court in a composition which shall not include the judge affected by the removal request.
…”
Article 31
“The court shall decide on the removal request in chambers, in the absence of the parties and after having heard the judge affected by the request.
…”
Article 34
“An interlocutory judgment granting or denying a request for recusal … shall not be subject to appeal.
An interlocutory judgment denying a request for removal shall be subject to an appeal only when taken together with the merits of the case.
When the appellate court decides that a request for removal was wrongfully denied, it shall re-examine all the documents and evidence adduced before the first-instance court.”
C. Comparative law material
21. The Court conducted a comparative study of the legislation of twenty-eight member States of the Council of Europe (Austria, Azerbaijan, Belgium, Bosnia and Herzegovina, Bulgaria, Croatia, the Czech Republic, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Italy, Lithuania, the Republic of North Macedonia, Norway, Poland, Portugal, the Russian Federation, Serbia, Slovenia, Spain, Sweden, Turkey, Ukraine and the United Kingdom (England and Wales)) and of two States which are not members of the Council of Europe (Canada and the United States of America). The study suggests that in the civil legal systems of all these member States there are three common grounds for the recusal of judges: (i) the judge is a party or has a particular interest in the outcome of the case; (ii) the judge is related to one of the parties to the proceedings; and (iii) the judge has previously participated in the same proceedings in another procedural capacity.
22. In seventeen member States of the Council of Europe, namely Austria, Bosnia and Herzegovina, Bulgaria, Croatia, France, Germany, Hungary, Iceland, Italy, Lithuania, the Republic of North Macedonia, Poland, the Russian Federation, Serbia, Slovenia, Turkey and Ukraine, the relevant civil codes include a general clause which requires a judge to recuse him or herself in all other circumstances which may cast doubt on his or her impartiality.
23. A recusal application lodged by a judge is, in most States of the Council of Europe, examined by the president of the court or by another judge or judicial formation and is not determined by the judge himself. In eight member States of the Council of Europe (Azerbaijan, Croatia, Estonia, Finland, Norway, Slovenia, Sweden and Bulgaria) there is an explicit legal obligation to give reasons for the dismissal of an application for recusal. In fourteen member States of the Council of Europe (Austria, Bosnia and Herzegovina, Czech Republic, Germany, Greece, Hungary, Iceland, North Macedonia, Portugal, Russian Federation, Serbia, Spain, Turkey and the United Kingdom (England and Wales)) such an obligation is not explicitly provided but can be inferred from the relevant legal framework. In the remaining Council of Europe member States there is no legal obligation, either explicit or inferred, to give reasons for the dismissal of an application for recusal.
24. In the Canadian common-law system at federal level, in accordance with the non-binding, but nevertheless highly regarded, “Ethical Principles for Judges” issued by the Canadian Judicial Council, judges should disqualify themselves: (i) in any case in which they believe they will be unable to judge impartially, and (ii) in any case in which they believe that a reasonable, fair-minded and informed person would have a reasoned suspicion of conflict between a judge’s personal interest (or that of a judge’s immediate family or close friends or associates) and a judge’s duty.
25. At federal level there is no explicit regulation regarding the authority to examine applications for the withdrawal of judges. However, the practice is that judges can withdraw without having their decisions examined by another judge or state organ, including their fellow panel members. The “Ethical Principles for Judges” document suggests that the better approach is for the judge who thinks there may be a reasonable apprehension of bias to make the decision without inviting consent by the parties, perhaps in consultation with his or her chief justice or other colleague. However, if partiality is argued as a ground for appeal, the higher tribunal will assess the “reasonable apprehension of bias” which may be a reason for annulling a sentence. There is no legal obligation to give reasons for the dismissal of an application to withdraw.
26. In the United States of America at federal level a judge must disqualify him or herself in any proceedings in which his or her impartiality might reasonably be questioned (28 U.S. Code § 455 (a)). Further, he or she must also disqualify him or herself in the following circumstances (28 U.S. Code § 455 (b)): (i) where he or she has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceedings; (ii) where in private practice he or she has acted as lawyer in the matter in contention, or a lawyer with whom he previously practised law has acted, during their association, as a lawyer in the matter, or the judge or such lawyer has been a material witness for that matter; (iii) where he or she has been in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceedings or expressed an opinion concerning the merits of the particular case in contention; (iv) where he or she knows that he or she, individually or as a fiduciary, or his or her spouse or minor child residing in his or her household, has a financial interest in the subject matter in dispute or in a party to the proceedings, or any other interest that could be substantially affected by the outcome of the proceedings; (v) where he or she or his or her spouse, or a person having up to a third degree relationship with either of them, or the spouse of such a person is a party to the proceedings, or an officer, director, or trustee of such a party; is acting as a lawyer in the proceedings; is known by the judge to have an interest that could be substantially affected by the outcome of the proceedings; or is to the judge’s knowledge likely to be a material witness in the proceedings.
27. In the majority of the Federal States, State Supreme Court justices decide removal applications, with no opportunity for review by the U.S. Supreme Court. There is no legal obligation at federal level to give reasons for the dismissal of an application for recusal.
D. Relevant international materials
28. Relevant international materials concerning the impartiality of judges can be found in Harabin v. Slovakia (no. 58688/11, §§ 104-10, 20 November 2012).
COMPLAINTS
29. The applicant complained under Article 6 of the Convention that the civil proceedings which had been concluded by the final judgment of 24 November 2009 of the Vâlcea County Court had been unfair because: (i) the first-instance and the last-instance court judges who had examined the case had lacked impartiality as they had previously examined other cases concerning the same parties and the same circumstances, and (ii) the courts had wrongfully assessed the evidence and had misinterpreted the applicable legal provisions.
30. Relying on Article 1 of Protocol No. 1 to the Convention the applicant complained that her property rights had been breached because she had been deprived of the plot of land that had allegedly been given to her lawfully in accordance with the relevant property restitution laws.
THE LAW
A. Complaint under Article 6 of the Convention concerning the alleged lack of impartiality of judges
31. The applicant complained that the civil proceedings which had been concluded by the final judgment of the Vâlcea County Court of 24 November 2009 had been unfair because all the judges who examined the case had lacked impartiality. She relied on Article 6 of the Convention, which, in so far as relevant, reads as follows:
“1. In the determination of his civil rights and obligations … everyone is entitled to a fair … hearing … by an independent and impartial tribunal established by law.”
1. The parties’ submissions
32. The Government argued that judges M.F., M.V., G.D., and L.I. had not been prevented under Article 24 of the CCP from examining the most recent set of proceedings brought by the private parties against the applicant. The aforementioned provision of the CCP was a norm of public order and was subject to strict interpretation. Moreover, the joint statement made by judges M.V., G.D., and L.I. seeking to withdraw from the case had not been an actual application for recusal because they had failed to indicate any grounds for removal which could have applied to their case. Furthermore, judge M.F. had never expressed her personal opinion with regard to the proceedings in question when they had been pending before her, either during the hearings held in the case or outside those hearings.
33. The proceedings against the applicant had been examined at two levels of jurisdiction, had been adversarial, had lacked any arbitrariness and the applicant had been allowed to present her arguments and submissions.
34. The applicant argued that the first-instance court which had examined the most recent set of proceedings brought against her by the private parties had ignored the fact that the document giving her possession of the land had not been the only document confirming her property rights to the land. That court had disregarded the final judgment delivered by the previous courts during the proceedings involving her and the private parties’ ancestors. The judgment in question had acknowledged her ancestor’s property rights over the land.
35. Her challenge against judge M.F. for bias had been dismissed by the court even though the judge had already expressed her opinion with regard to the case when delivering the judgment of 5 September 2006 and it had been clear that her opinion concerning the validity of the document giving the applicant possession of the land was not going to change. Moreover, the applicant’s appeal on points of fact and of law against the judgment of 7 April 2009 had been examined by a panel of judges who had also lacked impartiality.
36. The applicant contended that the domestic courts had construed the grounds for a judge’s removal very narrowly.
2. The Court’s assessment
37. The Court reiterates the principles set out in its case-law concerning the lack of impartiality of judges (see, amongst other authorities, Micallef v. Malta [GC], no. 17056/06, §§ 93-99, ECHR 2009).
38. In the instant case, the Court notes that there is no sufficient evidence that the judges who examined the most recent set of proceedings brought by the private parties against the applicant (see paragraphs 11-19 above) acted with any personal bias against her.
39. In these circumstances, the Court has to examine whether, having regard to the nature and extent of the involvement of judges M.F., M.V., G.D., and L.I. in the most recent set of proceedings brought by the private parties against the applicant, there were objectively justified fears of bias stemming from the involvement of the same judges as in the previous two sets of proceedings against her. This would be the case, for instance, where questions with which they had successively had to deal were similar, or at least if the difference between them was negligible (see, amongst other authorities, Fazlı Aslaner v. Turkey, no. 36073/04, § 32, 4 March 2014, with further references).
40. The applicant’s fears as to the four judges’ lack of impartiality were based on the fact that they had, from 2006 onwards, taken two decisions in three separate sets of proceedings involving the same parties and a related subject, namely the private parties’ and the applicant’s property rights to the same plot of land (see paragraph 4 above). In particular, during the first set of proceedings, M.F., as a judge in a first-instance court (see paragraph 6 above), had allowed the proceedings brought by the private parties against the applicant seeking the annulment of the documents produced by the authorities acknowledging her ancestor’s property rights to the land. However, judge M.F.’s decision was overturned by the appellate court which acknowledged the applicant’s property rights to the land in question (see paragraph 7 above). In addition, during the second set of proceedings, judges M.V., G.D., and L.I., sitting as a last-instance court (see paragraph 10 above), had allowed the proceedings brought by the private parties against the applicant seeking a court order acknowledging that they had acquired property rights over the land by prescription.
41. The Court notes that the third set of proceedings concerning the applicant and the private parties originated in the initial two sets of proceedings involving judges M.F., M.V., G.D., and L.I. However, it cannot be said that the third set of proceedings concerned the same facts or the same evidence as the first two sets of proceedings. The third set of proceedings related solely to the comparison of the parties’ property titles to the land in question and the domestic courts’ function had been to determine, on the basis of several objective factors, which one of the two titles was better defined (see paragraph 19 above). In that context there was no room for reviewing the validity of the judgments delivered during the previous two sets of proceedings, which had become final and enforceable. Thus, during the third set of proceedings, the domestic courts had not been called upon to assess and determine whether they had correctly applied the relevant domestic law to the applicant’s or the private parties’ cases or whether or not they had committed an error of interpretation or application of the relevant law in the previous two sets of proceedings (contrast, San Leonard Band Club v. Malta, no. 77562/01, §§ 63-64, ECHR 2004-IX).
42. It is true that during the last set of proceedings judge M.F. had made a similar statement to the one made during the first set of proceedings, namely that the document giving the applicant possession of the land had not been signed by all the necessary individuals (see paragraphs 6, 7 and 15 above). It is also true that during the third set of proceedings the domestic courts referred back to the judgments delivered during the second set of proceedings in so far as they acknowledged the private parties’ property rights to the land in question (see paragraphs 15 and 19 above). However, the Court notes that the above-mentioned statement and judgments had become res judicata, meaning that the courts in question or any other courts were bound by the findings made by the domestic courts in the previous two sets of proceedings with regard to the above-mentioned points.
43. The Court is also not persuaded by the applicant’s argument that the first-instance court, which had examined the most recent set of proceedings, had disregarded the final judgment delivered by the courts during the proceedings involving her and the private parties’ ancestors and had therefore ignored the fact that the document giving her possession of the land had not been the only document confirming her property rights to the land. In this regard, the Court notes that both panels of judges examining the third set of proceedings expressly acknowledged that both parties to the proceedings did have confirmed property rights to the land in question (see paragraphs 15 and 19 above). This acknowledgement was based on the available evidence, which included not only the documents issued to the parties by the relevant administrative authorities, but also the previous final judgments delivered by the domestic courts in the various sets of proceedings concerning the parties and their ancestors.
44. The Court notes further that during the third set of proceedings, the applicant challenged judge M.F. for bias because she had already expressed her opinion in the case by delivering the judgment of 5 September 2006 (see paragraph 15 above). Moreover, judges M.V., G.D., and L.I. sought to recuse themselves from the case simply by indicating that they had delivered the final judgment of 27 May 2008 (see paragraph 19 above). However, the latter judges did not refer to any specific ground for disqualification or withdrawal provided for by law and which applied in their case. Consequently, the Court takes the view that their application for leave to withdraw was merely a precautionary measure.
45. The Court further observes in this respect that both the applicant’s challenge for bias and the recusal application of judges M.V., G.D., and L.I. were dismissed after they were duly examined by the courts, sitting in benches which did not include the judges whose impartiality was in question. The courts explained that none of the grounds for disqualification or withdrawal provided for by Article 24 § 1 and/or Article 27 § 7 of the CCP had been met with regard to the judges in question (see paragraphs 14, 18 and 19 above).
46. Having regard to the express provisions of the relevant domestic law (see paragraph 20 above) and the absence of such a close link between the three sets of proceedings as would cast doubt on the impartiality of the four judges, the Court takes the view that the reasons put forth by the domestic courts in dismissing the challenge for bias and the application for recusal were neither arbitrary nor unreasonable and, even though succinct, they were sufficient to dispel any concerns about a lack of impartiality on the part of the judges in question (see paragraph 18 above).
47. In view of the foregoing, the Court finds that the applicant’s misgivings about the impartiality of the judges who examined the third set of proceedings brought against her by the private parties cannot be regarded as objectively justified.
48. It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
B. Other complaints
49. Relying on Article 6 of the Convention, the applicant complained of the unfairness of the civil proceedings which had been concluded by the final judgment of 24 November 2009 of the Vâlcea County Court because the courts had wrongly assessed the evidence and had misinterpreted the applicable legal provisions.
50. Relying on Article 1 of Protocol No. 1 to the Convention the applicant complained of a breach of her property rights.
51. The Court has examined these complaints as submitted by the applicant. However, having regard to all the material in its possession, and in so far as they fall within its jurisdiction, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.
52. It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on26 September 2019.
Andrea Tamietti Faris Vehabović
Deputy Registrar President
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