CEDH · CASELAW;CLIN;ENG — 29 mai 2012

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Andorra - 16047/10 Judgment 29.5.2012 Article 35 Article 35-1 Exhaustion of domestic remedies Inability, owing to particularly strict interpretation of a procedural rule, to obtain hearing of application: preliminary objection dismissed; admissible   Facts – The applicant is a temporary business consortium. The Ministry for Regional Development imposed two administrative fines on it in 2007. The applicant appealed against those ministerial decisions but its appeal was dismissed in 2008. On 14   September 2009, on appeal, the Administrative Division of the High Court of Justice upheld the judgment of the lower court. On 1   October 2009 the applicant lodged two applications to have the judgment set aside on grounds of nullity. It submitted in one of the applications that the reporting judge of the Administrative Division, who was also a partner in and a member of the board of directors of a Spanish law firm which had been providing legal services to the Andorran Government since 2002, lacked independence and impartiality. Submitted together with its application was a document taken from the law firm’s website that had been consulted and printed on 24   September 2009. The High Court of Justice joined the two applications and dismissed them for being out of time, because the time-limit for lodging an appeal was fifteen calendar days from service of the judgment or from the date on which the party concerned became aware of the violation of the right that it intended to exercise. The applicant lodged an empara appeal with the Constitutional Court which was declared inadmissible. That court stated that the applicant could not rely on “new information” as the judge’s position was an objective fact and had been a matter of public knowledge for some years, and that the applicant had failed to prove that it had become aware of it only on the date on which it lodged its application. In 2011, in proceedings instituted by the Government for enforcement of the 2008 judgment, the Criminal Division of the High Court of Justice allowed the application for the withdrawal of the judge in question after having verified with the Government the authenticity of certain documents submitted by the applicant. The reporting judge was replaced. Law – Article 35 § 1: The Government submitted that domestic remedies had not been exhausted as the applicant had failed to comply with the statutory time-limit for lodging an application for a decision to be set aside on grounds of nullity. However, the time-limit for lodging an appeal only started to run from the date the appellant was able to act effectively. The applicant’s two applications for the judgment to be set aside on grounds of nullity were based on different grounds and warranted a differentiated response from the courts. With regard to the application alleging that the reporting judge was not impartial, it was true that the applicant had been unable to provide proof of when it had become aware of the reporting judge’s situation. It was however most unlikely that any such proof could have been provided. Even were it to be assumed that the applicant had been aware of the judge’s situation on 24   September 2009, as argued by the Government, it had in any event lodged its application for the judgment to be set aside on 1   October 2009, that is, well within the statutory time-limit of fifteen days. The applicant could not be said to have acted negligently or to have erred given that the dies a quo had been in dispute and the Administrative Division of the High Court of Justice had not looked into the allegations on which the application had been based. That had been done later by the Criminal Division of the High Court of Justice, which had allowed the applicant’s request for the judge’s withdrawal. The particularly strict interpretation by the Administrative Division of the High Court of Justice and by the Constitutional Court of a procedural rule had deprived the applicant of the possibility of having its appeal on grounds of nullity examined. Conclusion : preliminary objection dismissed; admissible (unanimously). The Court also found a violation of Article 6 §   1 on account of the lack of impartiality of the Administrative Division of the High Court of Justice. Article 41: EUR 12,000 in respect of non-pecuniary damage; claim in respect of pecuniary damage dismissed.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes