Last Updated on November 21, 2019 by LawEuro
FOURTH SECTION
DECISION
Application no. 41059/11
Iulian Cătălin GOGAN
against Romania
The European Court of Human Rights (Fourth Section), sitting on 1 October 2019 as a Committee composed of:
Faris Vehabović, President,
Iulia Antoanella Motoc,
Carlo Ranzoni, judges,
and Andrea Tamietti, Deputy Section Registrar,
Having regard to the above application lodged on 24 June 2011,
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 Iulian Cătălin Gogan, is a Romanian national who was born in 1976 and lives in Bucharest.
2. The applicant was granted leave to present his own case in the written proceedings before the Court (Rule 36 § 2 in fine of the Rules of Court). 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. On 3 September 2007 the applicant, who is a lawyer, signed a legal-assistance contract with a private party. The private party retained the applicant’s services in order to initiate proceedings to recover a large debt from a former business partner. The legal-assistance contract included a clause that the applicant was entitled to a fee of 47,000 euros (EUR) and 25,000 US dollars (USD) if the proceedings opened against the private party’s former business partner were successful or if the private party decided to terminate the legal-assistance contract on grounds other than the applicant’s professional fault before the aforementioned proceedings were concluded.
5. On an unspecified date the applicant initiated on the private party’s behalf debt-recovery proceedings against the latter’s former business partner. Subsequently, the private party informed the domestic courts examining the proceedings that he wished to terminate them because he and his former business partner had reached a friendly settlement.
6. The applicant brought proceedings against the private party seeking to enforce the legal-assistance contract’s clause entitling him to the fee of EUR 47,000 and USD 25,000.
7. On 3 November 2008 the private party contested the enforcement proceedings and also asked the courts to annul the impugned contract clause on the grounds that it was unlawful.
8. On 17 August 2010 the Bucharest District Court allowed the private party’s action, terminated the enforcement proceedings initiated by the applicant and declared null the impugned contract clause on the grounds that it was unlawful. The applicant appealed on points of fact and of law against the judgment.
9. The applicant’s appeal on points of fact and of law was examined by the Bucharest County Court (“the County Court”) sitting in a bench of three judges, namely A.P., C.T. and C.M. A.P. was the president of the bench.
10. On 10 January 2011 Judge A.P. sought to recuse herself from the case. She stated that she was friends with one of the private party’s family members as a result of her participation in riding lessons organised by the private party’s daughter. She further stated that she sought to recuse herself from the case in order to inform the parties of her situation given the concept of appearance of impartiality developed in the case-law of the European Court of Human Rights.
11. On the same date, in an interlocutory judgment not subject to appeal, the County Court, deliberating in chambers in a panel of three judges, including Judges C.T. and C.M., and without summoning the parties, dismissed A.P.’s request to recuse herself from the case. After noting that the application for recusal was grounded in Article 27 § 7 of the Code of Civil Procedure (“the CCP”), the court held that the conditions set out by Article 24 § 1 of the CCP had not been met. In particular, Judge A.P. was not re-examining the case after a judgment delivered by her in that case had been quashed.
12. In a final judgment of 24 January 2011 the County Court dismissed the applicant’s appeal on points of fact and of law against the judgment of 17 August 2010 (see paragraph 8 above) and concluded, amongst other things, that the impugned contract clause was unlawful.
B. Relevant domestic law
13. 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 has been 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, 31 and 32.”
Article 27
A judge must be removed:
1) if he or she … has an interest in examining the case …;
…
7) if he or she has already expressed his or her opinion with regard to the case under examination;
8) if he or she has received gifts or promises of gifts or other favours from one of the parties;
…”
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 32
“The interlocutory judgment concerning the recusal is read out in a public hearing.
…”
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
14. 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.
15. 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.
16. 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 her or 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 six Council of Europe member States included in the comparative study there is no legal obligation, either explicit or inferred, to give reasons for the dismissal of an application for recusal.
17. In the Canadian common-law system at federal level, in accordance with the “Ethical Principles for Judges” issued by the Canadian Judicial Council, judges should disqualify themselves: (i) from any case in which they believe they will be unable to judge impartially, and (ii) from 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.
18. 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 grounds 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.
19. 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)). Furthermore, 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 a 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.
20. In the majority of the federal States, State Supreme Court justices decide recusal applications, with no opportunity for review by the U.S. Supreme Court. There is no legal obligation at the federal level to give reasons for the dismissal of an application for recusal.
D. Relevant international materials
21. Relevant international materials concerning the impartiality of judges can be found in Harabin v. Slovakia (no. 58688/11, §§ 104-10, 20 November 2012).
COMPLAINT
22. The applicant complained under Article 6 of the Convention that the proceedings opened against him by the private party had been unfair in so far as the last-instance court had lacked independence and impartiality given that the president of the panel of judges of the aforementioned court had sought to recuse herself from the case.
THE LAW
23. The applicant complained that the proceedings opened against him by the private party had been unfair. He relied on Article 6 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
24. The Government explained that a judge could not simply withdraw from a case. An application for recusal had to be examined by the judge’s peers in order to determine if it was actually justified or not. The review was necessary, because without it judges could have been tempted to choose the cases they wished to examine.
25. Judge A.P.’s disclosure of her relationship with the private party’s daughter had not been sufficient on its own to call into question her impartiality. In her application for recusal she had not stated that her connection with the private party’s daughter had been close or long-lasting or that it had affected her impartiality. In fact she had expressly stated that the actual purpose of her application had been to inform the parties of her situation. This way she had provided the panel of three judges with the opportunity to examine her situation and determine whether she had had to withdraw.
26. Given the content of Judge A.P.’s application for recusal and the provisions of the law, the examination of the applicant’s case by her had not been unethical, and Article 24 of the CCP had not been applicable to that situation. Moreover, there was no evidence in the file suggesting that she had had a personal interest in examining the case. Furthermore, a panel of three judges, including judges C.T. and C.M., had examined her application and had dismissed it as ill-founded.
27. The Government took the view that the present case was different from other cases examined by the Court raising similar issues, including the cases indicated by the applicant, because nothing in the nature of Judge A.P.’s relationship with the private party’s daughter, or in her behaviour, role, statements or opinions concerning the parties to the proceedings suggested that she had been biased and should not have examined the applicant’s case.
28. There was no evidence in the file suggesting that Judge A.P. had had control over the other two members of the bench or could have influenced their decisions. The last-instance court had only confirmed the judgment of the lower court and all the judges involved in the examination of the applicant’s case had reached the same verdict.
2. The applicant
29. Referring to a number of Court judgments, the applicant contested the Government’s submissions. He argued that the last-instance court had lacked independence and impartiality as its verdict had been influenced by Judge A.P.’s friendship with a member of the private party’s family. The applicant alleged that before he had ended his professional relationship with the private party he had personally met Judge A.P. at one of the private party’s properties.
B. The Court’s assessment
30. The Court first notes that nothing in the present case suggests that the Bucharest County Court may had lacked independence. It will therefore examine the case only from the viewpoint of the alleged lack of impartiality of the said court, in the light of the general principles set out in its case-law (see, amongst other authorities, Micallef v. Malta [GC], no. 17056/06, §§ 93-99, ECHR 2009).
31. In the instant case, the Court notes that there is no evidence in the file to indicate that Judge A.P. was subjectively biased against the applicant.
32. In these circumstances, the Court has to examine whether there were objectively justified fears of bias on Judge A.P.’s part against the applicant.
33. The applicant’s fears as to the judge’s lack of impartiality were based on the fact that she had disclosed to him that she was friends with one of the private party’s family members.
34. The Court observes that according to the applicant’s own submissions to the Court he met Judge A.P. at one of the private party’s properties before he and the private party were involved in the proceedings in dispute (see paragraph 29 above). Consequently, the Court finds it reasonable to assume that he must have already had prior knowledge of the fact that the private party or his family had ties or a relationship with this judge.
35. The Court observes further that even though the applicant was aware of the composition of the panel of judges of the last-instance court called to examine his appeal on points of fact and of law, he did not react to that information and he did not challenge A.P. for bias. The Court is prepared to accept that the applicant’s initial lack of reactions to the news that Judge A.P. was presiding over the panel of judges of the last-instance court might have been prompted by that judge’s own application for recusal (see paragraph 10 above).
36. Nonetheless, the Court notes that Judge A.P.’s application was eventually dismissed by a panel of three judges of the Bucharest County Court, which noted that the application was grounded in Article 27 § 7 of the CCP and then concluded that the conditions set out by Article 24 § 1 of the CCP were not met in her case, in particular she was not re-examining the case after a judgment delivered by her in that case had been quashed (see paragraph 11 above).
37. The Court notes further that the County Court confined its assessment of the application only to the legal grounds on which it was based and provided reasons for dismissing it. The applicant has not argued that the court’s approach was arbitrary or unreasonable. Still, since neither the legal grounds on which the application was based nor the reasons provided by the court for dismissing the application seem to have had a close connection to the content of Judge A.P.’s statement (see paragraph 10 above), the Court can accept that this situation could have raised certain misgivings on the part of the applicant.
38. However, the Court notes that Judge A.P.’s application for recusal expressly stated that her intended aim in lodging it was rather to inform the parties of her situation (see paragraph 10 above). Consequently, her application seems to have been merely a precautionary measure and an attempt to alleviate any doubts about a possible lack of impartiality. Moreover, the private party’s daughter was not a party to the proceedings and there is no evidence in the file that she was ever involved in the case in any capacity (see, mutatis mutandis, Academy Trading Ltd and Others v. Greece, no. 30342/96, § 46 in fine, 4 April 2000, and Simsek v. the United Kingdom (dec.), no. 43471/98, 9 July 2002 – where the family or friendly connections of some of the tribunals’ members with private parties who had work or other relations with the parties to the proceeding, were not considered sufficient grounds for calling into question the impartiality of the courts). Furthermore, the applicant was aware both of Judge A.P.’s situation and of the court’s decision to dismiss her application. Nonetheless, he continued to remain inactive in so far as the Judge A.P. was concerned. In this regard, the Court notes that the applicant would have been free under the relevant domestic law (see paragraph 13 above) to initiate a challenge for bias against Judge A.P. by relying on other grounds for removal provided for by law than the ones already considered by the court (see paragraph 11 above). There is no evidence in the file that he initiated such proceedings.
39. In view of the foregoing, the Court finds that the applicant’s misgivings about the impartiality of Judge A.P. cannot be regarded as objectively justified and that no appearance of violation of Article 6 § 1 of the Convention can be disclosed in the present case.
40. It follows that 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 on24 October 2019.
Andrea Tamietti Faris Vehabović
Deputy Registrar President
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