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FIFTH
SECTION
CASE OF
NIKOLOV v. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA
(Application
no. 41195/02)
JUDGMENT
STRASBOURG
20
December 2007
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Nikolov v. the former Yugoslav Republic of
Macedonia,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Mr P. Lorenzen, President,
Mrs S.
Botoucharova,
Mr V. Butkevych,
Mrs M.
Tsatsa-Nikolovska,
Mr R. Maruste,
Mr J. Borrego
Borrego,
Mrs R. Jaeger, judges,
and Mrs C.
Westerdiek, Section Registrar,
Having
deliberated in private on 9 October 2006 and 27 November 2007,
Delivers
the following judgment, which was adopted on the last mentioned
date:
PROCEDURE
- The
case originated in an application (no. 41195/02) against the former
Yugoslav Republic of Macedonia lodged with the Court under Article 34
of the Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by a Macedonian national,
Mr Zlatko Nikolov (“the applicant”), on 28 May 2001.
- The
applicant, who had been granted legal aid, was represented by Mr T.
Torov, a lawyer practising in Štip. The Macedonian Government
(“the Government”) were represented by their Agent, Mrs
R. Lazareska Gerovska.
- The
applicant alleged, in particular, that his case was not heard by an
impartial tribunal since the trial judge's wife was employed with the
defendant on a substantial salary soon after the present proceedings
had started, a fact that affected his impartiality.
- By
a decision of 9 October 2006, the Court declared the application
admissible.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The applicant was born in 1949 and lives in Štip.
- On
11 November 1996 the applicant, a farmer who reared cows, concluded
an insurance agreement (полиса
за осигурување)
(“the agreement”) with an insurance company (“the
defendant”) against a risk of the cows' death under which the
latter would be liable to pay the damage, irrespective of the time of
the death, if it was caused by reasons other than illness. On 23
November 1996 one of the applicant's cows died. Since the defendant
refused to pay for the loss, on 30 January 1997 the applicant brought
a claim against the defendant before the Štip Court of First
Instance (“the first-instance court”).
- On
1 March 1997 the trial judge's wife was employed with the defendant
as an assistant to the manager of its branch office.
- On
30 January 1998 the first-instance court dismissed the applicant's
claim.
-
The applicant appealed, arguing, amongst other things, that the
first-instance court had arbitrarily given weight to evidence in
favour of the defendant and that it had refused to examine witnesses
as to the cause of death.
-
On 17 June 1998 the Štip Court of Appeal quashed the court of
first instance's decision, instructing it to hear evidence from the
vet who had examined the cow in order to determine the cause of the
death.
-
On 28 March 2000 the first-instance court dismissed the applicant's
claim, reiterating its earlier findings.
-
On 20 June 2000 the applicant appealed, arguing that he had never
received a copy of the general terms of the contract, and that the
cause of death had not been properly established. He also contended
that that judge was biased since his wife had started working with
the defendant just after the proceedings had started. He asked for
the trial judge to be removed if the Court of Appeal were to quash
the lower court's decision and remit the case
-
On 27 November 2000 the Court of Appeal dismissed the applicant's
appeal, finding no grounds to depart from the established facts and
the reasons given by the lower court. It did not make any comments on
the applicant's allegations that the trial judge was biased.
-
The decision was served on the applicant on 24 April 2001.
II. RELEVANT DOMESTIC LAW
- The
relevant provisions of the then Civil Proceedings Act (Закон
за парничната
постапка)
provided as follows:
Section 65
“A judge or a lay-judge cannot perform his/ her
judicial function if:
he/ she
is a party, a statutory representative or a counsel of a party...;
he/ she
is permanently or temporary employed by a party to the proceedings;
the
party or its counsel is his/ her relative...;
he/
she is a custodian, an adoptive parent, an adoptive child ...of a
party;
he/ she
participated in the rendering of any decision by a lower court or
another body; and
there
are other grounds which cast doubts to his/her impartiality.”
Section 66 § 2
“A judge who considers that there are other
grounds which put his/her impartiality under doubt should give notice
to the President of the court who will decide on his/her exclusion.”
Section
67 §§ 1, 2, 4
“The parties may also challenge the participation
of a judge. The party concerned is obliged to challenge (изземање)
a trial judge or a lay-judge as soon as it learns about
it, but not later than the end of the trial before the first-instance
court i.e. until the adoption of the decision. The party concerned is
obliged to provide the reasons for challenging a judge's ability to
sit in a case.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
-
The applicant complained under Article 6 of the Convention that his
case had not been heard by an impartial tribunal as the trial judge's
wife had been employed by the defendant soon after the proceedings
had started. Article 6, in so far as relevant, provides 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. The parties' submissions
-
The Government asserted that the employment of the trial judge's wife
by the defendant two months after the proceedings started could not
be considered as a ground which had put his impartiality in doubt nor
did it necessarily imply that he had been biased. They noted that the
applicant had not provided any evidence corroborating his
allegations, he had not pointed to any inferences of bias that could
be drawn from the judge's conduct; and, indeed, the judge had
admitted all evidence submitted by the applicant. The mere fact that
the trial judge had failed to request the President of the court to
exempt him from the case suggested his professionalism and confidence
in his own impartiality and ability to decide on the basis of the
evidence and the circumstances of the case. The applicant was
afforded an opportunity to challenge the first-instance decision and
the trial judge's impartiality by submitting the appeal to the Court
of Appeal, which, if it found any irregularity, could set aside that
decision and remit the case for a fresh consideration. The timing of
the employment of the judge's wife and the commencement of the
proceedings did not imply that that judge had been personally
concerned by the outcome of the relevant proceedings.
- The
applicant argued that the judge's wife had worked as a manual worker
in an insolvent company before she was employed as an assistant to
the manager of the defendant's branch office and that that
recruitment had occurred in time of a high unemployment in the
respondent State. He disagreed that the employment of the judge's
wife had not affected his impartiality pointing out that it had
generated a significant financial benefit. He noted many alleged
procedural violations as evidence of the judge's bias. He submitted
that the judge should have given notice about that decisive fact to
the President of the court to allow the latter to decide whether
there were grounds for exemption. He further maintained that the
judge of the Court of Appeal who decided his appeal had been a close
friend of the trial judge and that, for that reason, no comments had
been provided in the appeal decision about the latter's alleged bias.
He finally submitted that that judge had been exempted from sitting
in all other cases following his case in which the defendant was a
party to the proceedings.
B. The Court's assessment
- According
to the Court's constant jurisprudence, the existence of impartiality
must be determined according to a subjective test, that is on the
basis of the personal conviction of a particular judge in a given
case, and also according to an objective test, namely by ascertaining
whether the judge offered guarantees sufficient to exclude any
legitimate doubt in this respect (see Kyprianou v. Cyprus [GC],
no. 73797/01, § 118, ECHR 2005; Steck-Risch and
Others v. Liechtenstein, no. 63151/00, § 38, 19 May
2005; Puolitaival and Pirttiaho v. Finland, no. 54857/00, §
41, 23 November 2004; Pétur Thor Sigurđsson
v. Iceland, no. 39731/98, § 37, ECHR 2003-IV; and Wettstein
v. Switzerland, no. 33958/96, § 42, ECHR 2000-XII).
- The
Court notes that the applicant argued that the mere employment of the
judge's wife with the defendant soon after he had brought his claim,
objectively gave rise to doubts about his impartiality.
21. Under the objective test, it must be determined whether,
quite apart from the judge's conduct, there are ascertainable facts
which may raise doubts as to the judge's impartiality since “justice
must not only be done; it must also be seen to be done” (see De
Cubber v. Belgium, judgment of 26 October 1984, Series A no.
86, p. 14, § 26). In this respect, even appearances may be of a
certain importance. What is at stake is the confidence which the
courts in a democratic society must inspire in the public (see
Wettstein, cited above, § 44; Castillo Algar
v. Spain, judgment of 28 October 1998, Reports
1998 VIII, p. 3116, § 45; Morris
v. the United Kingdom, no. 38784/97, § 58, ECHR 2002-I).
Accordingly, any judge in respect of whom there is a legitimate
reason to fear a lack of impartiality must withdraw. This implies
that, in deciding whether in a given case there is such a legitimate
reason, the standpoint of the party concerned is important but not
decisive. What is decisive is whether this fear can be held to be
objectively justified (see Pétur Thór
Sigurðsson, cited above, § 37; Ferrantelli and
Santangelo v. Italy, judgment of 7 August 1996, Reports of
Judgments and Decisions 1996 III, p. 951, § 58).
- According
to the information provided by the parties, the trial judge's wife
was employed with the defendant one month after the applicant had
submitted his claim (see paragraphs 6 and 7 above). Before that
employment, she worked as a manual worker in an insolvent company.
The Government did not comment on the applicant's argument about the
resulting significant financial input to the judge's household budget
and the consequent impact on the latter's impartiality. Neither did
they reply to his assertion that that judge had been subsequently
removed by the President of the court from all other cases, in which
the defendant was a party.
- The
Court accepts that the employment of the judge's wife with the
defendant could raise doubts in the applicant's mind about that
judge's impartiality.
-
However, it needs to be decided whether these doubts were objectively
justified.
- The
Court notes, first, that the trial judge did not bring his wife's
employment by the defendant to the immediate attention of the
President of the court, as provided for by Section 66 § 2 of the
Civil Proceedings Act, to decide on whether he should be excluded.
Even in the absence of any direct financial link between the judge
and the defendant, the fact that his wife was employed by the
defendant should have alerted him to the possibility that his
impartiality might appear to be under doubt, and should have brought
about a notice under Section 66 § 2. The applicant could not
request his disqualification from sitting for the reasons detailed in
the Court's admissibility decision of 9 October 2002 given in the
present case. Secondly, the Court of Appeal did not address the
applicant's concerns about the judge's bias. This may have been
because under domestic law, challenges to judges must be made at the
latest by the end of the first-instance trial (see Section 67 of the
Civil Proceedings Act at paragraph 15 above). However, when the
applicant raised the issue with the Court of Appeal, he gave that
tribunal the opportunity to put his mind at rest as to his concerns
about the perceived lack of impartiality on the part of the judge.
The Court of Appeal's failure to comment may have confirmed the
applicant's impression. Finally, the exclusion of the judge in
question from other cases in which the defendant was a party supports
the conclusion that the applicant's doubts were objectively
justified.
- The
Court considers that, having regard to the circumstances of the
present case, there was objective justification for the applicant's
apprehension that the trial judge lacked the requisite impartiality
to the extent necessary under Article 6 of the Convention. In
particular,
- There
has accordingly been a violation of Article 6 § 1 of the
Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant further complained under Article 6 of the Convention that
the courts had decided his case arbitrarily; that they had erred in
fact and law; that their decisions had not been reasoned; and that he
had not been allowed to cross-examine the court-appointed expert. He
also complained under Article 1 of Protocol No. 1 that he had been
deprived of possessions.
- Having
regard to its finding of a violation of the
applicant's right to a hearing by an impartial tribunal, the Court
considers that it is not necessary to examine the other complaints
under Article 6 and Article 1 of Protocol No. 1 of the Convention
relating to the impugned proceedings (see Erçikdi and
Others v. Turkey, no. 52782/99, § 20, 11
April 2006, and the references cited therein).
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- 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.”
- The
Court points out that under Rule 60 of the Rules of Court any claim
for just satisfaction must be itemised and submitted in writing
together with the relevant supporting documents or vouchers, “failing
which the Chamber may reject the claim in whole or in part”.
- In
the instant case, the Court notes that in his initial application to
the Court, the applicant specified his preliminary claims for just
satisfaction under Article 41. In a letter of 13 October 2006,
after the application had been declared admissible, the Court invited
the applicant to submit his claims for just satisfaction by 18
December 2006. He did not submit any such claim within the specified
time-limit.
- In
these circumstances, the Court makes no award under Article 41 of the
Convention (see Smirnov v. Russia, no. 71362/01,
§ 70, 7 June 2007, ECHR 2007 and Timofeyev v.
Russia, no. 58263/00, § 52, 23 October 2003).
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Holds that there has been a violation of
Article 6 § 1 of the Convention concerning the impartiality
of the trial judge;
2. Holds that it is not necessary to consider the
applicant's other complaints under Article 6 and Article 1 of
Protocol No. 1 of the Convention;
3. Decides not to make an award under Article 41 of the
Convention.
Done in English, and notified in writing on 20 December 2007,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
