Last Updated on May 24, 2019 by LawEuro
FIRST SECTION
DECISION
Application no. 75968/12
Jordan ANDONOV
against the former Yugoslav Republic of Macedonia
The European Court of Human Rights (First Section), sitting on 11 September 2018 as a Committee composed of:
Aleš Pejchal, President,
Armen Harutyunyan,
Jovan Ilievski, judges,
and Renata Degener, Deputy Section Registrar,
Having regard to the above application lodged on 22 November 2012,
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, Mr Jordan Andonov, is a Macedonian national who was born in 1947 and lives in Sveti Nikole. He was represented before the Court by Mr T. Torov, a lawyer practising in Štip.
2. The Macedonian Government (“the Government”) were initially represented by their former Agent, Mr K. Bogdanov, and then by their current Agent, Ms D. Djonova.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. The applicant lodged a civil claim against a private company, seeking remuneration for his membership on the company’s board of directors. By a final judgment of 18 March 2009, the Štip Court of Appeal (Апелационен суд Штип – “the Court of Appeal”) partly upheld the applicant’s claim and remitted the remainder to the Štip Court of First Instance (Основен суд Штип – “the first-instance court”) for reconsideration.
5. On 3 June 2010 the Supreme Court overturned the lower courts’ judgments regarding the claim decided in the applicant’s favour and dismissed it. It held that the lower courts had erroneously applied the relevant domestic law.
6. Shortly afterwards, the Court of Appeal, by a final judgment of 9 June 2010, allowed the part of the applicant’s claim that had initially been dismissed.
7. Relying on the Supreme Court’s judgment of 3 June 2010, the defendant requested that the proceedings concerning the second part of the applicant’s claim be reopened.
8. On 1 March 2011 the first-instance court, relying on section 392(1)(8) of the Civil Proceedings Act (“the Act”, see paragraph 17 below) granted the defendant’s request. That decision was upheld by the Court of Appeal on 6 September 2011, with Judge S.N. presiding over a three-judge panel.
9. In the reopened proceedings, by a judgment of 2 November 2011, the first-instance court dismissed the applicant’s claim, applying the reasoning of the Supreme Court’s judgment of 3 June 2010.
10. In an appeal against the first-instance judgment, the applicant, relying on section 64(6) of the Act (see paragraph 14 below), requested that Judge S.N. be excluded from the adjudicating panel because they had a difficult relationship.
11. In reply, Judge S.N. gave the following statement to the President of the Court of Appeal:
“… I live in Sveti Nikole, I know the claimant Jordan, I am neither related to him, nor do I have a bad or good relationship [with him]. I simply do not have any reason to be biased, but if there is an issue of mistrust, I agree to withdraw from the case.”
12. On 14 May 2012 the deputy President of the Court of Appeal dismissed the request for the exclusion of Judge S.N. No evidence was submitted that the applicant, or his representative, was notified of that decision. The relevant part of the decision reads as follows:
“In the present case the circumstances alleged in the request [for exclusion] do not constitute grounds which cast doubt on the judge’s impartiality within the meaning of section 64(6) of the Civil Proceedings Act because judges in the exercise of their judicial functions must decide on the basis of the Constitution, the law and ratified international treaties. Moreover, a judge in the exercise of his judicial functions is autonomous and independent (самостоен и независен) and must oppose any influence on his independence.”
13. On 16 May 2012 the Court of Appeal, sitting as a three-judge panel with Judge S.N. presiding, dismissed the applicant’s appeal. The applicant’s representative received a copy of that judgment on 25 May 2012.
B. Relevant domestic law
14. The relevant provisions of the Civil Proceedings Act (Закон за граѓанската постапка, Official Gazette nos. 79/2005, 110/2008, 83/2009) read as follows:
Section 64
“A judge or a lay judge cannot perform his or her judicial functions if:
1. he or she is a party, statutory representative or counsel of a party..;
2. he or she is permanently or temporarily employed by a party to the proceedings;
3. the party or counsel is his or her relative…;
4. he or she is the guardian, adoptive parent, adoptive child … of a party;
5. he or she has participated in the rendering of any decision by a lower court or another body in the relevant proceedings; and…
6. there are other grounds which cast doubt on his or her impartiality.”
15. Under section 65(2), if a judge or a lay judge considers that there are any other grounds which cast doubt on his or her impartiality he or she shall notify the president of the court, who will make a decision regarding his or her exclusion. Under section 66(6), a party may submit a request for the exclusion of a judge from a higher court in the legal remedy or in the submission submitted in reply. Under section 67(1), the president of the court decides the request for the exclusion of a judge. Under section 67(4), before a decision is made on the exclusion request, a statement must be taken from the judge or lay judge whose exclusion is requested and, if necessary, other measures will be taken. Under section 67(5) the decision dismissing or rejecting the request for exclusion of a judge is not amenable to appeal.
16. Under section 144(1), the parties are entitled to inspect or obtain a copy of the documents of the proceedings in which they are participating. Following amendments to the Act (Official Gazette no.116/2010, applicable as of 9 September 2011), parties have the right to consult the case file in the presence of authorised court staff.
17. Under section 392(1)(8), proceedings that have ended with a final decision of the court may be reopened, on the basis of a request from the parties, if the decision is based on another court’s decision that was overturned or annulled by a final judgment.
COMPLAINT
18. The applicant complained that the Court of Appeal, which had decided his appeal in the reopened proceedings, had not been an impartial tribunal.
THE LAW
19. The applicant alleged that the three-judge panel of the Štip Court of Appeal had not been impartial as it had included Judge S.N., with whom he had not been on good terms. The Court considers that this complaint falls to be examined under Article 6 § 1 of the Convention, which, in so far as relevant, 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…”
A. The parties’ submissions
1. The Government
20. The Government submitted that the applicant’s complaint was unsubstantiated and that his fears as to the impartiality of the Court of Appeal could not be regarded as objectively justified for the following reasons: any alleged personal animosity between the applicant and Judge S.N. had originated a long time ago; Judge S.N. had not denied their acquaintance, which was not unusual for small towns such as Sveti Nikole; Judge S.N. had noted that he did not have any special relationship with the applicant and had agreed to withdraw, if required; the procedure provided for under section 67 of the Act had been observed and the applicant’s request for his exclusion had been duly examined; and Judge S.N., although presiding over the panel, had not been judge rapporteur in the applicant’s case. Since the deputy President of the Court of Appeal had examined and dismissed the applicant’s request for exclusion, the issue had not been addressed in the second-instance decision. The applicant, who had been represented by a lawyer, could have inspected the case file in the court at any time.
2. The applicant
21. The applicant reiterated that his appeal in the substantive proceedings had not been decided by an impartial tribunal on account of the participation of Judge S.N., with whom he had had a disagreement and had not been on good terms. Judge S.N. had already made an unfavourable decision when he had participated in the appellate panel that had allowed the proceedings to be reopened, contrary to the relevant domestic law. His doubts were objectively justified, as was confirmed by the fact that Judge S.N. had never brought their acquaintance and personal animosity to the attention of the President of the Court of Appeal. His concerns as to the impartiality of the tribunal had not been addressed by the Court of Appeal. He had not received the decision concerning his request for the exclusion of Judge S.N., which only confirmed his impression of a lack of impartiality. The applicant alleged that the documents related to his request (see paragraphs 11 and 12 above) had been fabricated for the proceedings before the Court. Furthermore, there had been an order by the President of the Court of Appeal not to divulge information to the parties about the judges and the ongoing cases.
B. The Court’s assessment
1. General principles
22. The Court notes that impartiality normally denotes the absence of prejudice or bias, and that its existence or otherwise can be tested in various ways. According to the Court’s settled case-law, the existence of impartiality for the purposes of Article 6 § 1 must be determined according to (i) a subjective test, where regard must be had to the personal conviction and behaviour of a particular judge – that is to say whether the judge held any personal prejudice or bias in a given case, and (ii) according to an objective test – that is to say by ascertaining whether the tribunal itself and, among other aspects, its composition, offered sufficient guarantees to exclude any legitimate doubt in respect of its impartiality (see Morice v. France [GC], no. 29369/10, § 73, 23 April 2015, with further references).
23. Under the subjective test, the personal impartiality of a judge must be presumed until there is proof to the contrary (see Kyprianou v. Cyprus [GC], no. 73797/01, § 119, ECHR 2005‑XIII, and Micallef v. Malta [GC], no. 17056/06, § 94, ECHR 2009). As regards the type of proof required, the Court has, for example, sought to ascertain whether the judge has displayed hostility or ill will or has arranged to have a case assigned to himself for personal reasons (see De Cubber v. Belgium, 26 October 1984, § 25, Series A no. 86).
24. However, there is no watertight division between subjective and objective impartiality, as the conduct of a judge may not only prompt objectively held misgivings as to his or her impartiality from the point of view of the external observer (the objective test) but may also raise the issue of his or her personal conviction (the subjective test) (see Kyprianou, cited above, § 119). Thus, in some cases where it may be difficult to procure evidence with which to rebut the presumption of the judge’s subjective impartiality, the requirement of objective impartiality provides a further important guarantee (see Pullar v. the United Kingdom, 10 June 1996, § 32, Reports of Judgments and Decisions 1996‑III, and Mitrinovski v. the former Yugoslav Republic of Macedonia, no. 6899/12, § 36, 30 April 2015).
2. Application of those principles to the present case
25. In the present case, the applicant complained that the three-judge panel of the Court of Appeal that had examined his appeal on 16 May 2012 had lacked the requisite impartiality on account of the participation of Judge S.N., with whom he allegedly had a difficult personal relationship. Those were also the grounds relied on by him in his request for the judge’s exclusion (see paragraph 10 above). Accordingly, the Court will confine its examination to whether there were objective reasons to fear that, on account of Judge S.N.’s participation, and for the reasons advanced by the applicant, the adjudicating panel of the Court of Appeal failed to meet the impartiality requirement in Article 6 § 1 of the Convention.
26. The Court observes that the applicant’s allegations about the personal animosity between him and Judge S.N. are of a rather general nature, without any particular details regarding the nature and reasons of the alleged conflict. While Judge S.N. confirmed in his statement that he knew the applicant, he made no mention of a difficult relationship (see paragraph 11 above). Furthermore, the Court cannot agree with the applicant that the fact that Judge S.N. granted the defendant’s request for the proceedings to be reopened (see paragraph 8 above) confirmed his personal bias. In this connection, it reiterates that the fact that, on hearing a case, a judge ruled against the applicant on some points or decided to proceed in certain manner does not constitute proof of partiality (see Aleksey Petrov v. Bulgaria (dec.), no. 27103/04, 2 November 2010, and Kočevski v. the former Yugoslav Republic of Macedonia (dec.), no. 36309/10, § 37, 24 May 2016).
27. The applicant argued that his doubts as to Judge S.N.’s impartiality were confirmed by the judge’s failure to bring their acquaintance and personal animosity to the attention of the President of the Court of Appeal. The Court notes that, as is evident from his statement, Judge S.N. was not under the impression that his relationship with the applicant was hostile or marked by any animosity (see paragraph 11 above). Thus it cannot be held against him that he did not bring his mere acquaintance with the applicant to the attention of the President of the Court of Appeal of his own motion (see, conversely, Nikolov v. the former Yugoslav Republic of Macedonia, no. 41195/02, § 25, 20 December 2007, where the trial judge did not bring his wife’s employment with the applicant’s opponent to the immediate attention of the president of the court, and Tocono and Profesorii Prometeişti v. Moldova, no. 32263/03, § 31, 26 June 2007).
28. Lastly, the Court is satisfied that the applicant’s request for the exclusion of Judge S.N. was duly examined in accordance with the relevant procedure (see paragraphs 12 and 15 above). The relevant decision, which appears not to have been communicated to the applicant, was readily available in the case file for consultation (see paragraph 16 above). The Court notes in this respect that this decision was final as far as the allegations of lack of impartiality were concerned. Lastly, there is nothing to suggest that the decision was “fabricated” for the purposes of the proceedings before the Court.
29. In view of the above, the Court considers that the applicant has not adduced any proof as to Judge S.N.’s personal bias, and that the reasons advanced by him for doubting the judge’s impartiality cannot be regarded as objectively justified in the circumstances of the case. It follows that the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 4 October 2018.
Renata Degener Aleš Pejchal
Deputy Registrar President
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