CEDH · PRESS;CHAMBERJUDGMENTS;ENG — 24 septembre 2009

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Norway (application no. 3338/05)   NORWEGIAN HIGH COURT’S IMPARTIALITY NOT IN DOUBT IN CIVIL DISPUTE OVER SECURITIES DEALINGS   No violation of Article 6 § 1 (right to a fair trial) of the European Convention on Human Rights (The judgment is available only in English .)   Principal facts   The applicant, Procedo Capital Corporation, is a limited liability company registered in Panama. The case concerned Procedo’s complaint about the lack of impartiality of the Norwegian High Court as a whole, after the disqualification of one of its lay members, in proceedings with regard to a dispute with Sundal Collier, a Norwegian securities broker.   In October 1998 Sundal Collier brought proceedings against Procedo requesting that it pay for shares purchased on its behalf; in December 1999 Procedo brought a counter-action requesting compensation on account of the fact that information and advice provided by Sundal had caused it losses. In January 2002 Oslo City Court found in favour of Sundal and dismissed Procedo’s counter-claim.   Procedo appealed and Borgarting High Court held an oral hearing over 19 days between October and November 2003. Four and half days into the hearing lay member A., invited to sit with the High Court to provide financial expertise, revealed that he had certain links with Sundal. In particular, he was a partner with a consultancy firm, PricewaterhouseCoopers, and had been involved in one of its auditing and accounting assignments for ABG Sundal Collier, a parent company of Sundal Collier. As a result, on 23 October 2003, the other High Court members, although finding nothing to indicate that lay member A. would not have been “fully able to reach an impartial decision in the case”, upheld Procedo’s request that he withdraw. Those High Court members further decided to provisionally disjoin the proceedings. On 27 October 2003 the High Court rejected Procedo’s claim that, as a consequence of lay member A.’s participation, the High Court as a whole should be disqualified and the proceedings discontinued.   On 17 November 2003, after 11 more days of hearings and two days of deliberations, the High Court, reiterating that the proceedings should be disjoined, decided to close the proceedings and adjudicate the case. In January 2004 the High Court upheld the City Court’s judgment in the main and ordered Procedo to pay Sundal’s legal costs. Procedo’s appeal to the Supreme Court was refused in July 2004.   Complaints, procedure and composition of the Court   Relying on Article Article   6   §   1 (right to a fair hearing), the applicant company complained about lay member A.’s participation in the first part of the oral hearing before the Norwegian High Court and about the latter’s refusal, following the disqualification, to discontinue the proceedings and refer the case to a differently composed High Court.   The application was lodged with the European Court of Human Rights on 13 January 2005 and declared partly admissible on 29 April 2008.   Judgment was given by a Chamber of seven judges, composed as follows:   Christos Rozakis (Greece), President , Nina Vajić (Croatia), Anatoly Kovler (Russia), Khanlar Hajiyev (Azerbaijan), Sverre Erik Jebens (Norway), Giorgio Malinverni (Switzerland), George Nicolaou (Cyprus), judges , and also Søren Nielsen , Section Registrar .   Decision of the Court [2]   First, the Court found that there was no evidence to suggest that lay member A. had been personally biased against Procedo.   Furthermore, the reasons for doubting lay member A.’s objective impartiality, although legitimate, had not been particularly strong. His assignment had only been indirectly linked to Sundal Collier and had involved providing advice of an essentially technical character. There had been no direct link between lay member A. and the opposing party in the proceedings and he had had no direct interest in the outcome of the case.   Moreover, lay member A.’s presence had been limited to and terminated at a relatively early phase of the hearing.   Nor was the Court persuaded that lay member A. could have contaminated the rest of the proceedings by having influenced the other members against Procedo. Any misgivings of that nature had been adequately addressed by the High Court members’ decisions of 23 and 27 October 2003 that, respectively, lay member A. should withdraw and that his disqualification did not disqualify them. Indeed, the provisional decision of 23   October 2003 and the final decision of 17   November 2003 to disjoin the proceedings had been reached in lay member A.’s absence.   In conclusion, the nature, timing and short duration of lay member A.’s involvement in the proceedings did not raise legitimate doubts as to the impartiality of the High Court as a whole. The High Court had not therefore been under any obligation to discontinue the proceedings and restart them before a differently composed High Court. Accordingly, the Court held unanimously that there had been no violation of Article 6 § 1.   ***   This press release is a document produced by the Registry; the summary it contains does not bind the Court. The judgments, with the composition of the Court, are accessible on its Internet site ( http://www.echr.coe.int ).   Press contacts Tracey Turner-Tretz (tel : + 33 (0)3 88 41 35 30) or Stefano Piedimonte (tel : + 33 (0)3 90 21 42 04) or Kristina Pencheva-Malinowski (tel : + 33 (0)3 88 41 35 70) Céline Menu-Lange (tel : + 33 (0)3 90 21 58 77) Frédéric Dolt (tel : + 33 (0)3 90 21 53 39)   The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. [1] Under Article 43 of the Convention, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17 ‑ member Grand Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer. 2.     This summary by the registry does not bind the Court.