CASE OF KAMINSKIENE v. LITHUANIA (European Court of Human Rights) Application no. 48314/18

INTRODUCTION. The case concerns the alleged lack of independence and impartiality of judges in civil proceedings. The applicant alleged that two selection panels of the Supreme Court had not been impartial in view of the personal ties of certain judges to individuals who had a direct interest in the outcome of the proceedings.

SECOND SECTION
CASE OF KAMINSKIENĖ v. LITHUANIA
(Application no. 48314/18)
JUDGMENT
STRASBOURG
12 January 2021

This judgment is final but it may be subject to editorial revision.

In the case of Kaminskienė v. Lithuania,

The European Court of Human Rights (Second Section), sitting as a Committee composed of:

Aleš Pejchal, President,
Egidijus Kūris,
Carlo Ranzoni, judges,
and Hasan Bakırcı, Deputy Section Registrar,

Having regard to:

the application (no. 48314/18) against the Republic of Lithuania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Lithuanian national, Ms Marija Kaminskienė (“the applicant”), on 8 October 2018;

the decision to give notice to the Lithuanian Government (“the Government”) of the complaint under Article 6 § 1 of the Convention concerning the independence and impartiality of judges and to declare inadmissible the remainder of the application;

the parties’ observations;

Having deliberated in private on 1 December 2020,

Delivers the following judgment, which was adopted on that date:

INTRODUCTION

1. The case concerns the alleged lack of independence and impartiality of judges in civil proceedings. The applicant alleged that two selection panels of the Supreme Court had not been impartial in view of the personal ties of certain judges to individuals who had a direct interest in the outcome of the proceedings.

THE FACTS

2. The applicant was born in 1947 and lives in Jonava. She was represented by Ms L. Meškauskienė, a lawyer practising in Vilnius.

3. The Government were represented by their Agent, Ms K. Bubnytė‑Širmenė.

I. Proceedings between the applicant and COMPANY A.G.

4. The applicant held some shares in company A.G. In September 2014 she told the company that the number of her shares had been calculated incorrectly and that she should be retroactively paid additional dividends. The company disputed the applicant’s assertion.

5. In September 2014 the applicant and company A.G., represented by its acting chief executive officer (CEO), R.Ž., signed an agreement to submit the dispute to an arbitration tribunal.

6. R.Ž. and several members of his family were shareholders in company A.G. Heserved as its acting CEO from May until September 2014.

A. Proceedings before the arbitration tribunal

7. In March 2016 the applicant lodged a claim against company A.G. with the arbitration tribunal for approximately twelve million euros (EUR) in unpaid dividends, plus interest.

8. The company lodged a counterclaim in which it sought, inter alia, that the arbitration agreement between it and the applicant be declared null and void. It submitted that, in signing the arbitration agreement, the acting CEO, R.Ž., had overstepped his remit and had acted in bad faith and against the company’s interests.

9. In the arbitration proceedings and the subsequent court proceedings, company A.G. was represented by a lawyer, G.B.

10. In March 2017 the arbitration tribunal, sitting as a single arbiter, dismissed both the applicant’s claim and the company’s counterclaim.

B. Proceedings before the Court of Appeal

11. The applicant lodged an appeal with the Court of Appeal against the arbitral award. She submitted, inter alia, that the arbiter had not been independent and impartial because, during the examination of the case, he had privately met with G.B., the lawyer of company A.G. (see paragraph 9 above). She asked the court to annul the arbitral award in its entirety.

12. In February 2018 the Court of Appeal dismissed the appeal lodged by the applicant and upheld the arbitral award.

C. Proceedings before the Supreme Court

13. In April 2018 the applicant lodged an appeal on points of law. She asked the Supreme Court to quash the decision of the Court of Appeal, to annul the arbitral award, and to deliver a new decision in the case. On 17 April 2018 a three-judge selection panel of the Supreme Court declined to accept the appeal on points of law for examination, ruling that it raised no important legal issues. The rapporteur and chair of the selection panel was Judge E.L.

14. In May 2018 the applicant lodged a second appeal on points of law. On 25 May 2018 a different three-judge selection panel declined to accept it for examination, ruling that it raised no important legal issues. The rapporteur was Judge D.Š.

15. In August 2018 the applicant lodged a third appeal on points of law and asked the Supreme Court to renew the three-month time-limit for lodging it. In particular, she asked the court to consider that the admissibility of her first appeal on points of law had been decided by a selection panel that had been biased. She submitted that only after receiving that decision had she found out that the selection panel had included Judge E.L., who had previously withdrawn from another case that had concerned actions by R.Ž. (see paragraph 22 below). The applicant pointed out that R.Ž., his wife and son were shareholders in company A.G., and that they, together with R.Ž.’s mother-in-law and sister-in-law, controlled the majority of the company’s shares. Furthermore, the counterclaim lodged by company A.G. had disputed the lawfulness of the arbitration agreement, which had been signed by R.Ž. as its acting CEO (see paragraph 8 above).Accordingly, the applicant argued that Judge E.L. had not been impartial and should not have sat in the case.

16. On 27 August 2018 a different three-judge selection panel declined to accept the applicant’s third appeal on points of law for examination. It found that she had missed the three-month time-limit without important reasons. It also pointed out that her second appeal on points of law had been rejected by a different selection panel than the first one (see paragraph 14 above) and that there had been no doubts as to its impartiality. Lastly, it stated that the applicant’s third appeal on points of law was based on essentially the same arguments as her two previous appeals and that it did not raise any important legal questions.

D. The applicant’s request for the reopening of the proceedings

17. In April 2019 the applicant lodged a request for the Court of Appeal to reopen the proceedings. In June 2019 the court refused that request.

18. The applicant lodged an appeal on points of law. The composition of the selection panel of the Supreme Court included Judge D.Š. (see paragraph 14 above). He withdrew from the panel on the grounds that he had previously examined an appeal on points of law lodged by the applicant in the same case. In his letter of withdrawal, D.Š. stated that neither he nor his family or relatives had any direct or indirect interest in the outcome of the case, or relations with any of the participants in the proceedings, but he was withdrawing in order to dispel any possible doubts as to the impartiality of the court.

19. In September 2019 a three-judge selection panel declined to accept the appeal on points of law for examination.

II. As to WITHDRAWal of judges E.L. and D.Š. FROM other CASES

20. In January 2016 Judge E.L. withdrew from a selection panel in a case in which an appeal on points of law had been lodged by R.Ž.’s son and in which R.Ž. participated, on the grounds that he and R.Ž. had studied together at university and had thereafter maintained personal contact.

21. In October 2017 Judge E.L. withdrew from a selection panel in a case in which company A.G. was the defendant and had lodged an appeal on points of law, and where R.Ž. was a third party.

22. In February 2018 he withdrew from a selection panel in a case concerning a claim lodged by company A.G. against the applicant and R.Ž.’s wife which concerned, in part, actions that R.Ž. had undertaken while he had been the acting CEO of the company.

23. In July 2018 Judge E.L. withdrew from a selection panel in a case lodged against company A.G. in which R.Ž. was a third party.

24. In July 2018 he sat on a selection panel in a case lodged by the applicant against company A.G. in which R.Ž., his wife and son were third parties. According to the Government, the actions of the third parties did not form part of the subject matter of that case.

25. In September 2018 Judge D.Š. withdrew from a selection panel in a case lodged against company A.G. in which G.B. (see paragraph 9 above) was a third party, on the grounds that he and G.B. had studied together at university and had thereafter remained in personal contact.

RELEVANT LEGAL FRAMEWORK

I. Code of Civil Procedure

A. Independence and impartiality of judges

26. Under Article 64 of the Code of Civil Procedure, a judge may not participate in the examination of a case and must be removed from it if he or she has a direct or indirect interest in the outcome of the case, or if there are any other circumstances that may raise doubts as to his or her impartiality.

27. Article 65 § 1 lists the grounds for removing a judge from a case, such as having a personal interest in the outcome of the case or family links with the participants in the proceedings. Article 66 states that a judge must also withdraw, or be removed from the case, when there are any other circumstances that may raise doubts as to his or her impartiality.

28. Under Article 68 § 1, when any of the aforementioned circumstances (see paragraph 27 above) have arisen, the judge in question must withdraw from the case in question. Moreover, the participants in the case have the right to request the removal of the judge on those grounds.

B. Appeals on points of law

29. Under Article 346 § 2, a case may be examined on points of law when at least one of the following grounds applies: (1) there has been a violation of substantive or procedural law, the rectification of which is essential for the uniform interpretation and application of the law, and that violation may have led to the adoption of an unlawful decision; (2) the court that adopted the impugned decision departed from the Supreme Court’s established case-law; (3) the case-law of the Supreme Court concerning the issue at hand is not consistent.

30. Article 350 § 1 provides that the question of whether to accept an appeal on points of law for examination is decided by a three-judge selection panel composed by the President of the Supreme Court or the head of the Civil Division of that court. An appeal on points of law is accepted for examination when at least one of the three judges votes in favour of accepting it. The question of whether or not to accept an appeal on points of law is decided in written proceedings.

31. Article 350 § 4 states that a decision on accepting an appeal on points of law for examination is final and not subject to any appeal.

32. The Code of Civil Procedure does not contain any provisions on parties’ right to be informed about the composition of the selection panel in their case or the date of the examination of their appeal on points of law by the selection panel, or the right to request the removal of judges from that panel.

II. Other legal instruments

33. The Rules on the composition of the Supreme Court’s selection panels (hereinafter “the Rules”) were adopted on 28 June 2018 by order no. (1.4)-1T-26 of the President of the Supreme Court and subsequently amended several times.

34. Under Rule 4 of the Rules, a selection panel is composed for a period of one month. At the time of the adoption of the Rules, the composition of a selection panel had to be announced on the Supreme Court’s website no later than five working days before the beginning of the next calendar month; that time-limit was later changed to six working days.

35. A selection panel is created automatically, using a special software program that generates a list of judges. Under Rule 5, when there are reasons for which a judge may not be appointed to a selection panel, he or she is replaced by the next judge on the list generated by the software.

36. A judge who has been appointed to the selection panel may be replaced by another judge because of illness, an unforeseen official trip or other important reasons. Under Rule 7, a change in composition is published on the Supreme Court’s website on the same day that such a decision is made.

37. Under Rule 9, in civil cases, the judge who has worked at the Supreme Court the longest is appointed the chair of the selection panel.

38. Under Rule 10, in exceptional circumstances, the rules on the composition of selection panels may be departed from if that is necessary to ensure a balanced distribution of workload among judges, or for other important reasons.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

39. The applicant complained that the selection panels of the Supreme Court that had refused to accept her first two appeals on points of law for examination had lacked independence and impartiality. She invoked Article 6§ 1 and Article 13 of the Convention. The Court considers that this complaint falls to be examined solely under Article 6 § 1, the relevant part of which reads as follows:

“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.”

A. Admissibility

1. The parties’ submissions

(a) The Government

40. The Government argued that the applicant had failed to exhaust the available domestic remedies. They firstly submitted that the composition of the selection panels was published on the Supreme Court’s website every month. Even though, at the time when the applicant had lodged her first two appeals on points of law, the Rules on the composition of the Supreme Court’s selection panels had not yet been adopted (see paragraphs 13, 14 and 33 above), the practice of publishing the composition of selection panels online had already been established. Therefore, the applicant, who had been represented by a lawyer throughout the proceedings, ought to have known how to find out about the composition of selection panels and could have requested the removal of Judges E.L. and D.Š.

41. Secondly, the Government submitted that the applicant had not questioned the independence of Judge E.L. in her second appeal on points of law (see paragraph 14 above), or the independence of Judge D.Š. in her third appeal on points of law (see paragraph 15 above).

42. Lastly, the applicant had not raised the question of the independence of judges in her request for the reopening of the proceedings (see paragraph 17 above).

(b) The applicant

43. The applicant submitted that, even though the composition of each selection panel was published online, parties were not informed of the date on which the acceptance of their respective appeals on points of law would be examined (see paragraph 32 above). Moreover, it was often the case that the composition of a selection panel changed in the course of a month, for various reasons (see paragraph 36 above). Accordingly, she had not had any way of knowing the composition of the selection panel that would decide on her appeal.

44. Furthermore, she submitted that the alleged lack of impartiality of a judge who had sat on a previous selection panel did not constitute grounds to accept a new appeal on points of law for examination (see paragraph 29 above). She also stated that she had become aware of the lack of impartiality of Judge D.Š. only in September 2018, when he had disclosed his links to G.B. in the course of a different set of proceedings (see paragraph 25 above).

2. The Court’s assessment

45. The general principles concerning the obligation to exhaust domestic remedies have been summarised in Vučković and Others v. Serbia ((preliminary objection) [GC], nos. 17153/11 and 29 others, §§ 71-77, 25 March 2014).

46. Turning to the circumstances of the present case, the Court firstly reiterates its extensive case-law to the effect that an application for a retrial or the reopening of appeal proceedings or for a similar extraordinary remedy cannot, as a general rule, be taken into account for the purposes of applying Article 35 § 1 of the Convention (see Nicholas v. Cyprus, no. 63246/10, § 37, 9 January 2018, and the cases cited therein). It therefore dismisses the Government’s argument that the applicant should have raised her complaints in her request for the proceedings to be reopened.

47. The remaining arguments raised by the Government (see paragraphs 40 and 41 above) are essentially identical to those that the Court examined and rejected in the case of Dainelienė v. Lithuania ([Committee], no. 23532/14, §§ 26-27, 16 October 2018). In view of the similarities between the two cases, the Court sees no grounds for reaching a different conclusion in the present case. In particular, it notes that it has not been made aware of any provisions of domestic law or of any existing case-law that may enable applicants or their lawyers to receive information concerning the date on which their appeals on points of law are to be examined by a selection panel and thus to learn the composition of that specific panel (see paragraph 32 above). In the Court’s view, it would be unreasonable to expect the applicant to request the removal of a judge without knowing whether that judge had actually been appointed to decide whether her appeal is to be accepted (see, for a similar situation, Aviso Zeta AG v. Austria [Committee], no. 5734/14, § 34, 21 June 2018).

48. Accordingly, the Court rejects the Government’s objection concerning the exhaustion of domestic remedies.

49. Lastly, it notes that the application is neither manifestly ill‑founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.

B. Merits

1. The parties’ submissions

(a) The applicant

50. The applicant submitted that Judge E.L. had acknowledged his personal ties to R.Ž., the former acting CEO of company A.G., when withdrawing from selection panels in several other cases (see paragraphs 20-23 above). She argued that even though R.Ž. had not been a party to the case which she had brought against company A.G., he had had a direct interest in its outcome. In particular, that case concerned a substantial financial claim against the company (see paragraph 7 above), and R.Ž., his wife, son, mother-in-law and sister‑in‑law were the company’s majority shareholders. Furthermore, the company’s counterclaim had contested the validity of the arbitration agreement signed by R.Ž. (see paragraphs 5 and 8 above), and therefore his actions had constituted part of the subject matter of the case.

51. The applicant further submitted that Judge D.Š. had acknowledged his own personal ties to G.B., the lawyer of company A.G., in another case (see paragraph 25 above). In the proceedings in question, G.B. had represented the company. Moreover, in her appeals the applicant had alleged that G.B. had privately met with the arbiter, thus demonstrating the arbiter’s partiality, which should have constituted grounds for annulling the arbitral award (see paragraph 11 above). Therefore, G.B.’s actions had also constituted part of the subject matter of the case.

52. She also pointed out that Judge E.L. had been the rapporteur and chair of the first panel, and that Judge D.Š. had been the rapporteur of the second panel; therefore, they had played an important role in deciding whether or not to accept her appeals.

53. Lastly, she submitted that the third selection panel could not have remedied the lack of impartiality of the first two panels because, at the time that she had lodged her third appeal on points of law, the time‑limit had already expired and the panel had found no grounds for extending it.

(b) The Government

54. The Government submitted that the sole fact that a judge had gone to university with another person was not sufficient to call into question his or her impartiality. Lithuania was a small country, and many lawyers and judges had gone to the same university, but that in itself did not indicate personal ties between them. Furthermore, Judges E.L. and D.Š. had graduated from university a long time ago. Therefore, the links between E.L. and R.Ž., as well as those between D.Š. and G.B., had been too remote and weak to raise doubts as to the judges’ impartiality.

55. The Government submitted that Judge E.L. had only withdrawn from cases in which the actions of R.Ž. had been the subject matter of the case, or where R.Ž. or his family members had been parties to the proceedings (see paragraphs 20-24 above). In those cases R.Ž. had had a direct interest in the outcome. By contrast, the proceedings instituted by the applicant had been brought against company A.G., where R.Ž. had only served as acting CEO for a few months; he had subsequently been removed from that position and dismissed from the company. The only link between R.Ž. and the proceedings had been the fact that he had signed the arbitration agreement (see paragraph 5 above), the validity of which had been contested in the company’s counterclaim (see paragraph 8 above). However, the counterclaim had been dismissed by the Court of Appeal, and the applicant had not appealed against that part of the decision. Therefore, the question of the validity of the arbitration agreement had not constituted part of the dispute, before either the Court of Appeal or the Supreme Court.

56. As for Judge D.Š., the Government submitted that he had withdrawn from a case in which G.B. had been a third party and had had a direct interest in the outcome of the case (see paragraph 25 above). By contrast, in the proceedings brought by the applicant against the company, G.B. had been the company’s lawyer and had only had a procedural interest in the case. The Government pointed out that, during the proceedings concerning the applicant’s reopening request, Judge D.Š. had withdrawn not because he had had any personal interest in the outcome of the case but only because he had already examined an appeal on points of law lodged by the applicant in the same case (see paragraph 18 above).

57. The Government further contended that, in any event, the applicant’s right to a fair hearing had been ensured by the third selection panel, whose independence and impartiality she was not calling into question. Even though her third appeal on points of law had been lodged out of time, the panel had addressed its arguments, which had been essentially the same as those raised in her two previous appeals on points of law, and had found that it had not raised important legal issues (see paragraph 16 above).

2. The Court’s assessment

58. The relevant general principles concerning the independence and impartiality of judges have been summarised in Ramos Nunes de Carvalho e Sá v. Portugal ([GC], nos. 55391/13 and 2 others, §§ 144-150, 6 November 2018, and the cases cited therein).

59. The Court considers that, in the present case, no evidence has been produced to call into question the subjective impartiality of Judges E.L. and D.Š. Therefore, the case must be examined from the perspective of the objective impartiality test (see Morice v. France [GC], no. 29369/10, §§ 73‑78, ECHR 2015). More specifically, the Court must address the question of whether the applicant’s doubts may be regarded as objectively justified in the circumstances of the case (see Dainelienė, cited above, § 42).

60. In the Court’s view, the issue before it is not whether the fact that a judge had gone to university together with a protagonist in the case should automatically constitute grounds for the removal of that judge (see the Government’s observations in paragraph 54 above). It emphasises that Judges E.L. and D.Š. themselves declared their personal ties to R.Ž. and G.B., respectively, which they considered as precluding them from hearing certain cases in which those individuals were involved (see paragraphs 20‑23 and 25 above). Therefore, those judges acknowledged that their relationships with the aforementioned individuals went beyond a mere acquaintance as former fellow students (compare and contrast Steck-Risch and Others v. Liechtenstein, no. 63151/00, § 48, 19 May 2005).

61. The Court also observes that some of the proceedings from which Judges E.L. and D.Š. withdrew were separated by only a few months from the proceedings in which they were called to decide whether to accept the applicant’s appeals on points of law (see paragraphs 13, 14, 22, 23 and 25 above; compare and contrast Rustavi 2 Broadcasting Company Ltd and Others v. Georgia, no. 16812/17, §§ 356 and 361, 18 July 2019). Therefore, the ties between the judges and R.Ž. and G.B., which had existed at the time of the other proceedings, must have also existed at the time of the examination of the applicant’s appeals on points of law.

62. The Government submitted that the other cases from which the two judges had withdrawn could be distinguished from the case between the applicant and company A.G. (see paragraphs 55 and 56 above).

63. However, the Court is not persuaded that the cases in question were so different as to make the applicant’s doubts regarding the judges’ impartiality devoid of merit. It observes that the defendant in the case brought by the applicant was company A.G., in which R.Ž. and several members of his family held a substantial number of shares (see paragraphs 6, 15 and 50 above). In view of the high value of the claim lodged by the applicant (see paragraph 7 above), it could be reasonably assumed that, had the claim been allowed, the company and its major shareholders would have suffered a significant financial loss. Even though, according to the Government, R.Ž. was eventually dismissed by company A.G. (see paragraph 55 above), there is nothing in the case file indicating that he or his family members gave up their shares in the company.

64. Furthermore, company A.G. in its counterclaim argued that the arbitration agreement, which R.Ž. had signed in his capacity as the acting CEO, should have been declared null and void because R.Ž. had overstepped his remit and had acted in bad faith (see paragraph 8 above). Had the applicant’s appeals been upheld and the arbitral award annulled (see paragraphs 11 and 13 above), the claim and the counterclaim, including R.Ž.’s actions when signing the arbitration agreement, would have had to be examined afresh, thereby forming part of the subject matter of the case.

65. The Court further observes that G.B. was an active participant in the proceedings, as the lawyer of company A.G. (see paragraph 9 above). It has previously found that ties between a judge and the representative of the opposing party may call the impartiality of that judge into question (see, mutatis mutandis, Koulias v. Cyprus, no. 48781/12, § 64, 26 May 2020, and Ramljak v. Croatia, no. 5856/13, § 37, 27 June 2017). In addition, in the domestic proceedings the applicant also alleged that G.B. had privately met with the arbiter, thereby compromising the impartiality of the arbitration process (see paragraph 11 above). This meant that G.B.’s actions had constituted part of the subject matter of the case.

66. In the above circumstances, the Court is of the view that R.Ž. and G.B. were sufficiently involved in the proceedings between the applicant and company A.G. for those proceedings to affect their interests. In view of the personal ties between those two individuals and Judges E.L. and D.Š., acknowledged by the judges themselves, it accepts that the impartiality of the two judges might have appeared to be in doubt (see, for a similar situation, Aviso Zeta AG, cited above, § 50, and Škrlj v. Croatia, no. 32953/13, §§ 38-42, 11 July 2019).

67. Furthermore, the Court observes that Judge E.L. was the rapporteur and chair of the first selection panel, and that Judge D.Š. was the rapporteur of the second panel (see paragraphs 13 and 14 above). In such circumstances, the Court considers that the applicant had grounds to believe that each of those judges had played an important role in delivering the decisions not to accept her appeals on points of law, and that the impartiality of the Supreme Court could have been open to genuine doubt (see Dainelienė, cited above, § 48, and the cases cited therein).

68. The Court has already found that the applicant was not informed about the specific compositions of the selection panels that would decide whether to accept her appeals on points of law (see paragraph 47 above). As a result, she did not have the possibility to have her doubts with regard to the impartiality of the two judges addressed and dispelled at the domestic level (see Nicholas, cited above, § 64).

69. Lastly, the Court considers that the third selection panel, the impartiality of which the applicant did not call into question, could not have remedied the lack of objective impartiality of the first two panels. It notes that when the applicant lodged her third appeal on points of law, the time-limit provided by law had already expired and that the Supreme Court did not find any important reasons to renew it (see paragraphs 15 and 16 above). Given those circumstances, even if that appeal had contained grounds for cassation, in the absence of important reasons for renewing the missed time-limit, the Supreme Court would not have been able to accept it for examination. In addition, the Court emphasises that the applicant lodged two appeals on points of law within the three-month period provided by law, and that she could not reasonably have been expected to continue lodging appeals on points of law to the same court (see Dainelienė, cited above, § 26).

70. The Court therefore finds that the applicant’s doubts regarding the impartiality of Judges E.L. and D.Š. could be seen as being objectively justified and that the domestic law and practice did not provide sufficient procedural safeguards for those doubts to be dissipated.

71. There has accordingly been a violation of Article 6 § 1 of the Convention.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

72. Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

73. The applicant claimed 10,000 euros (EUR) in respect of non-pecuniary damage for the frustration and stress suffered as a result of the violation of her right to a fair hearing by an impartial tribunal.

74. The Government submitted that the applicant’s claim was excessive and unsubstantiated.

75. The Court considers that the violation of the applicant’s rights, found in the present judgment, must have caused her distress and inconvenience. However, it finds the amount claimed by the applicant to be excessive. Making its award on an equitable basis, the Court awards the applicant EUR 4,000 in respect of non-pecuniary damage, plus any tax that may be chargeable to the applicant.

B. Costs and expenses

76. The applicant claimed EUR 31,705 in respect of costs and expenses sustained before the domestic authorities – namely, the court fees for lodging an appeal against the arbitral award before the Court of Appeal and her lawyers’ fees for preparing the appeal against the arbitral award, for representing her in the proceedings before the Court of Appeal and for preparing the first appeal on points of law.

77. The Government submitted that the costs and expenses claimed by the applicant had not been incurred in her attempt to seek redress for the violation of Article 6 § 1 of the Convention alleged before the Court. They therefore asked the Court to reject the applicant’s claim.

78. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. The Court observes that in the present case it found a violation of Article 6 § 1 of the Convention in view of the fact that the two selection panels of the Supreme Court that declined to accept the applicant’s appeals on points of law for examination had lacked impartiality. In such circumstances, the Court considers that the costs and expenses claimed by the applicant were not linked to the violation found in the present case. It therefore rejects that claim.

C. Default interest

79. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the application admissible;

2. Holds that there has been a violation of Article 6 § 1 of the Convention;

3. Holds

(a) that the respondent State is to pay the applicant, within three months, EUR 4,000 (four thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period, plus three percentage points;

4. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 12 January 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Hasan Bakırcı                                               Aleš Pejchal
Deputy Registrar                                             President

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