CASE OF GUROV v. MOLDOVA
(Application no. 36455/02)
11 July 2006
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 Gurov v. Moldova,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
Sir Nicolas Bratza, President,
Mr J. Casadevall,
Mr M. Pellonpää,
Mr S. Pavlovschi,
Mr L. Garlicki,
Ms L. Mijović,
Mr J. Šikuta, judges,
and T.L. Early, Section Registrar,
Having deliberated in private on 20 June 2006,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
II. RELEVANT DOMESTIC LAW
The judges ...shall be elected by the Supreme Soviet for a term of office of ten years.
... V.D. is appointed as a judge at the Supreme Court of Justice...
V.D. is dismissed from the position of judge.
Section 19. The grounds for challenging a judge
A judge shall not be admitted to sit in a case and shall be challenged in the following cases:
1) if he or she participated in an earlier stage of the proceedings as a witness, expert, interpreter, representative, prosecutor, registrar;
2) if he or she is personally interested, directly or indirectly, in the outcome of the proceedings or if there are other reasons for which his impartiality could be doubted;
3) if he, his spouse, his ascendants or descendants have any interest in the outcome of the proceedings...;
4) if his spouse... is a relative of one of the parties to the proceedings...;
5) if he is a tutor... of one of the parties to the proceedings.
Section 162. Adjourning the hearing
It is possible to request the adjournment of a hearing when one of the parties, a witness, an expert or an interpreter is absent, or when it is necessary to present new evidence or when there are other circumstances which render impossible the holding of the hearing.
18. On 12 June 2003 a new Code of Civil Procedure entered into force. Section 449, so far as relevant, reads as follows:
“Grounds for revision
Revision may be requested:
k) When the European Court of Human Rights has found a violation of fundamental rights and liberties, as well as when it has found that the interested person could obtain, in accordance with domestic law, at least partial reparation by way of annulment of a judgment pronounced by a domestic court....”
The relevant part of Article 6 § 1 reads as follows:
“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ...”
I. ADMISSIBILITY OF THE COMPLAINTS
A. The complaint about the alleged secret deal between ASITO and the Government and the alleged abuse of the right of petition
B. Failure to exhaust domestic remedies
In the present case the applicant could have challenged the judge in accordance with the provisions of section 19 of the Code of Civil Procedure in force at the material time. Had the applicant not known at the time of the hearing that Judge V.D.’s mandate had expired, she could have asked for an adjournment of the hearing, in accordance with section 162 of the Code. The Government accepted that there was no domestic case-law to confirm the effectiveness of the remedy suggested by them.
In conclusion, the applicant argued that the lack of remedies was confirmed by the absence of any relevant case-law.
26. The Court recalls that under Article 35 § 1 of the Convention normal recourse should be had by an applicant to remedies which are available and sufficient to afford redress in respect of the breaches alleged. The existence of the remedies in question must be sufficiently certain not only in theory but in practice, failing which they will lack the requisite accessibility and effectiveness (see, among other authorities, the Akdivar and Others v. Turkey judgment of 16 September 1996, Reports of Judgments and Decisions 1996-IV, p. 1210, § 66).
C. Conclusion on admissibility
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“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.”
B. Costs and expenses
C. Default interest
FOR THESE REASONS, THE COURT UNANIMOUSLY
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, EUR 1,200 (one thousand two hundred euros) in respect of costs and expenses, to be converted into the national currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Done in English, and notified in writing on 11 July 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
T.L. Early Nicolas Bratza
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the concurring opinion of Mr Garlicki, joined by Mr Pellonpää is annexed to this judgment.
CONCURRING OPINION OF JUDGE GARLICKI JOINED BY JUDGE PELLONPÄÄ
I am not sure, however, whether the real deficiency in this case resulted from the fact that one of the judges continued his duties after his term of office had expired. On the one hand, I am not impressed by the manner in which the relevant domestic law is presented. The Court quotes Article 151 of the 1989 Constitution of the Soviet Socialist Republic of Moldova, but it gives no information as to the subsequent 1994 Constitution. Article III.6 of Chapter VIII of that Constitution provided for an extension of the term of office of all judges who had already completed 15 years of service. It would be interesting to know whether there has been any other regulation concerning judges of lesser seniority. On the other hand, the Government indicated that there had been a general practice of tacit prolongation of the functions of all judges whose term of office had expired but whose reappointment was still awaiting a formal decision.
In my opinion it would be safer to assume that the judge in question had the right to exercise his functions. Yet, the violation of the Convention arose from that judge’s lack of impartiality and independence.
As has already been found in Strasbourg case-law, a fixed term of office of a relatively short duration is allowed in respect of special administrative tribunals or disciplinary tribunals (see Le Compte, Van Leuven and De Meyere v. Belgium, judgment of 23 June 1981, Series A no. 43, § 57, and Campbell and Fell v. the United Kingdom, judgment of 28 June 1984, Series A no. 80, § 80). However, such tribunals differ from regular courts of law and may have different standards of independence. Also, in respect of regular courts, an initial appointment for a fixed probationary period is not as such incompatible with the Convention.
There may also be countries where the tradition of periodic reappointments of “regular” judges has become so well established that it would not affect their impartiality and independence to a degree incompatible with the Convention. However, such situations are but rare exceptions. The general approach to the judicial function in Europe is that judges should be appointed for life and if – as in the case of several
constitutional courts – their term of office is to be limited in time, no reappointment should be permitted. The same considerations prompted the drafters of Protocol No. 14 to adopt a single term of office for the judges of the European Court of Human Rights and it should be recalled that this decision was also a fruit of practical experience, by no means limited to the new Member States.
First of all, the whole reappointment process lacked transparency and normality. There was no comprehensive parliamentary regulation of criteria, procedures and deadlines for reappointment. The final decision was left entirely to the discretion of the President of the Republic.
Secondly, the case in which Judge V. D. was participating required him to decide on the legal claims and liabilities of the ASITO Company. This Company, on account of its history and importance, did not entirely remain outside the Government’s sphere of interest.
Last, but certainly not least, the general context of the so-called post-communist countries should be kept in mind. Under the Communist regime, judges had, in almost all those countries, been “elected” for a limited period of time and decisions as to possible “re-election” remained vested with the executive branch. This system led to an almost total destruction of judicial independence. Any attempt to revive it, in one form or another, on a permanent or transitional basis, would be perceived as an attempt to restore old practices and would destroy public confidence in the independence of the judiciary.