CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 9 octobre 2006

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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 regard to the above application lodged on 28 May 2001, 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 The applicant, Mr Zlatko Nikolov, is a citizen of the former Yugoslav Republic of Macedonia who lives in Stip. He is represented before the Court by Mr T. Torov, a lawyer practising in Stip, in the former Yugoslav Republic of Macedonia. The Macedonian Government (“the Government”) are represented by their Agent, Mrs R. Lazareska- Gerovska. A.     The circumstances of the case The facts of the case, as submitted by the parties, may be summarised as follows. On 11 November 1996 the applicant, a farmer who reared cows, entered into an insurance agreement ( полиса за осигурување) with ADOR “Makedonija”, an insurance company (“the insurer”) against a risk of the cows’ death. On 23 November 1996 one of the insured cows died. Since the insurer refused to pay for the loss, on 30 January 1997 the applicant brought a compensation claim against it before the Stip Court of First Instance. On 30 January 1998 the Court of First Instance dismissed the applicant’s claim. It found that on 23 November 1996 the cow had been examined by a veterinarian who issued a medical report of 28 November 1996, finding an illness (swollen brain) as the cause of death. According to the report, an autopsy was not necessary since the examination showed that it was the disease (which develops rapidly) that caused the death. The court established that the General Insurance Terms (hereinafter the “GIT”), as an integral part of the agreement, set forth that in case of an illness, the insurer became liable to make monetary provision only if more than fourteen days ( каренца) lapsed between the conclusion of the agreement and the death of the animal. As this was not the case, the court went to conclude that the insurer had not been under contractual obligation to cover the damage. It dismissed the applicant’s allegations that he had not been aware of the contents of the GIT, as he had signed the agreement consisting an explicit reference to the GIT. Relying on the vet’s report, the court rejected the applicant’s argument that the cow had died from a bite instead of a disease. The applicant appealed against this decision arguing that the court had arbitrarily accepted only the evidence which was in favour of the insurer: that it had refused to call the witnesses who would have confirmed that the vet, who allegedly examined the cow, said that it had happened due to a bite; that it had erroneously held that the applicant had agreed upon the GIT; he also complained about the medical report and the lack of autopsy, alleging that a “swollen brain” could only be considered as a symptom of something, but not as a disease. The applicant requested a retrial and an expert opinion to be obtained in relation to the medical report. On 17 June 1998 the Stip Court of Appeal quashed the lower court’s decision and ordered a retrial. It instructed the lower court to examine the vet who had checked the cow to determine the cause of the death. On 28 March 2000 the Court of First Instance dismissed the applicant’s claim repeating its prior findings. Following the Court of Appeal’s instructions, the trial court obtained a written report by Mrs D.V., a court-appointed expert, in which she had noted that, in the absence of an autopsy, she could not firmly verify the cause of the death, but that she endorsed the opinion of her colleague. The court ignored the applicant’s allegations that the GIT had not been given to him, as he had signed the agreement together with the GIT, as an integral part thereof. Moreover, the court referred to the applicant’s prior experience in insuring his livestock with the insurer. It also examined the witnesses as proposed by the applicant, but it did not give weight to their statements that they had heard the vet saying to the applicant that the cow died from a bite, because there was a valid medical report ascertaining the opposite. The court also examined as a witness the vet who had signed the medical report of the examination of the cow done by another vet. He reiterated his findings as noted in the medical report and denied any possibility of a bite. On 20 June 2000 the applicant appealed against this decision complaining that the GIT had not been given to him and that accordingly, they could not have applied. He complained that the court had taken into consideration the medical report which was given by a vet who had not examined the cow and who had worked for the insurer and as such could not have been regarded as an impartial expert. He complained that the court had failed to take into consideration the statements of the witnesses who confirmed that the vet openly admitted on one occasion that a bite caused the death of the cow. As a separate request, the applicant asked for the trial judge’s removal if the Court of Appeal quashed the lower court’s decision and remitted the case for a fresh consideration. According to the applicant, the trial judge was biased as his wife had started working with the insurer almost at the same time as the proceedings commenced. On 27 November 2000 the Court of Appeal dismissed the applicant’s appeal as ill-founded. It found no reasons to depart from the facts as established and the legal reasoning given by the lower court. The court did not make any comments to the applicant’s allegations that the trial judge had lacked impartiality. As stated by the applicant, on 24 April 2001 the decision was served on him. B.     Relevant domestic law The relevant part of the Civil Proceedings Act ( Закон за парничната постапка) provides 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 in the direct line ...;   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 t here 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 about his/her removal.” Section 67 §§ 1,2,4 “The parties may also challenge the participation of a judge. The party concerned is obliged to request exemption ( изземање) of 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.” Section 340 § 2 “There is a substantial infringement of the civil proceedings if: ... 3) a judge or a lay-judge, which has to be exempted by virtue of law (section 65 § 1 points 1-5) or which was exempted by a court decision, participated in rendering a decision.” COMPLAINTS   The applicant complained under Article 6 of the Convention about the lack of impartiality of the trial judge as his wife had been employed by the insurer almost at the same time as the institution of the proceedings. The applicant alleged that the trial judge’s wife had worked as a manual worker in a textile factory before taking up the duties as an assistant to the manager of the insurer’s branch office and that her increased earnings had influenced the judge’s impartiality. Although he raised that issue before the Court of Appeal he received no reply. The applicant also complained that he was denied a fair trial; that the courts had decided in an arbitrary manner and had erroneously established and assessed the facts; that the decisions had lacked reasons and that the principle of equality of arms had been violated as he could not cross-examine Mrs D.V., the court-appointed expert, whose written report had been admitted in evidence at the retrial. The applicant also invoked Article 1 of Protocol No. 1 complaining that he had been deprived of his possessions without any public interest. THE LAW The applicant complained under Article 6 that the trial judge had been biased as his wife was employed by the insurer; that the courts had decided in an arbitrary fashion; that the facts had been erroneously established and national law had been wrongly applied; that the decisions had not been reasoned and that he could not cross-examine the court-appointed expert. He also complained under Article 1 of Protocol No. 1 that he had been deprived of possessions. Article 6 and Article 1 of Protocol No. 1 of the Convention, in so far as relevant, state: Article 6 “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. Article 1 of Protocol No. 1 Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. A. The Government’s objection 1.     Exhaustion of domestic remedies a. The parties’ submissions Concerning the applicant’s complaint that the trial judge was biased, the Government submitted that he had failed to exhaust the domestic remedies in compliance with the rules and time-limits as laid down in the Civil Proceedings Act (see Cardot v. France , judgment of 19 March 1991, Series A no. 200, §   34). They noted that he had failed to challenge the trial judge’s ability to sit in the case before the president of the court, although the party concerned has not only a right, but a duty to ask for exemption as soon as he learns about the grounds that cast doubts as to the judge’s impartiality. They maintained that he had only submitted it as a “separate request” ( посебно барање) in his appeal filed to the Court of Appeal although the Act had not provided for such a possibility. They could not speculate as to when the applicant had learnt about the employment of the trial judge’s wife by the insurer and whether he could have requested his exemption within the time-limit as provided for by the Act. However, as the judge’s wife had been employed by the insurer on 1 March 1997, they had doubts that the applicant had learnt about it only after 28 March 2000, namely the adoption of the second trial court’s decision. The applicant disagreed with the Government’s arguments. He argued that he had requested the judge’s exemption as soon as he had learnt that his wife had been employed by the insurer, but that it was the judge himself who had failed to give notice to the president of the first-instance court to decide about his ability to sit in the case. He submitted that the judge was exempted from sitting in all other cases following his case in which the insurer was a party to the proceedings. b. The Court’s assessment The Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention obliges applicants to use first the remedies that are normally available and sufficient in the domestic legal system to enable them to obtain redress for the breaches alleged. The existence of the remedies must be sufficiently certain, in practice as well as in theory, failing which they will lack the requisite accessibility and effectiveness. Article 35 § 1 also requires that the complaints intended to be brought subsequently before the Court should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements laid down in domestic law, but not that recourse should be had to remedies which are inadequate or ineffective (see mutatis mutandis Merger and Cros v. France (dec.), no. 68864/01, 11 March 2004; Aksoy v. Turkey , judgment of 18 December 1996, ECHR 1996-VI, §§ 51-52; Akdivar and Others v. Turkey, judgment of 16 September 1996, ECHR   1996-IV, §§   65-67). The Court emphasises that the application of the exhaustion rule must make due allowance for the fact that it is being applied in the context of machinery for the protection of human rights and that it must be applied with some degree of flexibility and without excessive formalism. It has further recognised that the rule of exhaustion is neither absolute nor capable of being applied automatically; for the purposes of reviewing whether it has been observed, it is essential to have regard to the circumstances of the individual case. This means, in particular, that the Court must take realistic account not only of the existence of formal remedies in the legal system of the Contracting State concerned, but also of the general context in which they operate, as well as the personal circumstances of the applicant. It must then examine whether, in all the circumstances of the case, the applicant did everything that could reasonably be expected of him or her to exhaust domestic remedies (see Aksoy, cited above, §§ 53 and 54 and Akdivar Others, cited above, § 69). Turning to the present case, the Court notes that the applicant, in his appeal of 20 June 2000, lodged a comprehensive appeal concerning the proceedings before the lower court and requested, if the case was remitted for a fresh consideration, disqualification from sitting of the trial judge on the same grounds as indicated in this application. The Court observes that national law does not consider such a motion as a proper introduction of a formal request for removal of a trial judge. It was not in compliance with the formal requirements as set forth in the Act: it was not submitted within the time-limit or before the competent body. In accordance with the relevant provisions applicable at the material time (see section 67 § 2 of the Act, cited above), a request for removal of a trial judge could only be lodged with the president of the first-instance court “as soon as the party concerned learns about the grounds for judge’s exemption, but not later than the end of the trial before the first-instance court i.e. until the adoption of the decision”. However, the applicant claimed that the decisive fact concerning the trial judge’s bias had come to his attention after the second trial court’s decision and that he raised it before the Court of Appeal immediately thereafter. The Court considers that the Government have not provided any rebuttal evidence nor is there anything in the file to discredit the applicant’s claim. The reasons advanced by the Government are based on a presumption of knowledge which does not rest on any concrete evidence to the effect that the applicant was in fact aware of the decisive fact. Moreover, it is difficult to see how the applicant could prove that he had not learnt about the employment of the trial judge’s wife with the insurer before he raised that issue before the Court of Appeal. The Court considers that such a requirement would subject him to an excessive burden of proof (see, mutatis mutandis , Pescador Valero v. Spain , no. 62435/00, §   26, ECHR 2003 ‑ VII). It is not disputed that national law does not provide for any available and effective remedy for challenging a trial judge’s ability to sit after the trial ended. The applicant raised in his appeal his concerns about the trial judge’s impartiality. The apprehensions that he entertained concerning the judge’s impartiality did not fall within the statutory grounds which ipso jure disqualify a judge from sitting in a particular case (section 65 § 1 points 1-5 of the Civil Proceedings Act). As the applicant’s fears about the trial judge’s bias fell under the clause “other ground which casts doubts to his impartiality” (see section 65 § 1 point 6 of the Civil Proceedings Act above), the Court of Appeal did not consider that it had jurisdiction to examine this complaint (see section 340 § 2 of the Civil Proceedings Act). Having regard to the material before it, the Court considers that the applicant did everything that could reasonably be expected of him to bring to the attention of the national courts the alleged violation complained of. The Court therefore, finds that the exhaustion of domestic remedies could not be put into question in the present case as there was no available and effective remedy that the applicant could avail himself of in the appeal proceedings after he had learnt about the decisive fact concerning the trial judge’s impartiality. The Government’s objection must accordingly be rejected. B. The substance of the case 1. The parties’ submissions The Government asserted that the employment of the judge’s wife by the insurer two months after the proceedings commenced could not be considered as a ground which 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 nor had he pointed to any inferences that could be drawn from the judge’s conduct as to his bias; indeed, the judge had admitted all evidence which was submitted by the applicant. The Government further argued that the mere fact that the trial judge had failed to ask 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. According to the Government, the applicant had been afforded an opportunity to challenge the first-instance decision and the trial judge’s impartiality in the appeal submitted to the Court of Appeal. They maintained that the overlap in time of the employment of the judge’s wife with the commencement of the proceedings could not imply that the judge had been personally concerned by the outcome of the proceedings complained of. 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 insurer’s branch office and that the recruitment had occurred in time of a high unemployment rate in the State. He disagreed that the employment of the judge’s wife had not affected the judge’s impartiality pointing out that it had generated a significant financial input. He noted all the alleged procedural violations as evidence in support of the judge’s bias. He submitted that the judge should have given notice about the decisive fact to the president of the court to decide whether there had been a ground for exemption instead of concealing it. He further maintained that the Court of Appeal judge 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 concerning his allegations about the latter’s bias. 2. The Court’s assessment The Court considers, in the light of the parties’ submissions, that the complaint about the trial judge’s bias raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The other complaints raised are closely connected to this matter and cannot be separated at this stage. The Court concludes therefore that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring them inadmissible has been established. For these reasons, the Court unanimously Declares the application admissible, without prejudging the merits of the case.   Claudia Westerdiek   Peer Lorenzen   Registrar   President