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PANYIK v. HUNGARY - 12748/06 [2011] ECHR 1105 (12 July 2011)
URL: http://www.bailii.org/eu/cases/ECHR/2011/1105.html
Cite as:
[2011] ECHR 1105
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SECOND
SECTION
CASE OF PANYIK v. HUNGARY
(Application
no. 12748/06)
JUDGMENT
STRASBOURG
12 July 2011
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 Panyik v. Hungary,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise
Tulkens,
President,
Danutė
Jočienė,
David
Thór Björgvinsson,
Dragoljub
Popović,
András
Sajó,
Işıl
Karakaş,
Guido
Raimondi,
judges,
and Stanley Naismith,
Section Registrar,
Having
deliberated in private on 21 June 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 12748/06) against the Republic
of Hungary lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Hungarian national, Mr Tibor Panyik (“the
applicant”), on 20 March 2006.
The
applicant, who had been granted legal aid, was represented by Ms G.
Lanczner, a lawyer practising in Tatabánya. The Hungarian
Government (“the Government”) were represented by Mr L.
Höltzl, Agent, Ministry of Public Administration and Justice.
On
9 March 2010 the Court decided to communicate the applicant’s
complaint concerning the impartiality of the Regional Court to the
respondent Government. It declared the remainder of the applicant’s
complaints inadmissible.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1954 and lives in Tata.
At
the request of his former employer, on 7 November 2002 the Tata
District Court issued a payment order in the amount of approximately
42,000 Hungarian forints (HUF) against the applicant, a lawyer.
Following his objection to the order, the case continued as civil
litigation.
On
17 December 2002 it was transferred to the Komárom District
Court, as the judges of the geographically competent Tata District
Court felt biased on account of the applicant’s legal practice
being attached to their court.
The
Komárom District Court found for the plaintiff on 19 April
2005. The applicant appealed.
In
the proceedings before the Komárom-Esztergom County Regional
Court, a panel of three judges, including judges Dr D. and Dr K.,
withdrew themselves from the case on 4 July 2005. According to
their reasoning:
“In view of the fact that the respondent acts as a
lawyer in the county, [and] we are in a work relationship, we find it
justified for the sake of the impartial adjudication of the legal
dispute that another county court proceeds in the case.”
The case was transferred
to another panel of the same court.
On
11 October 2005 the applicant challenged this second panel for bias,
and subsequently extended his request to the whole court. He observed
that the panel president, Dr V., had already declared himself biased
in two other cases against him due to their daily work relationship.
In one of these proceedings, Dr D. had declared herself biased as
well.
On
26 January 2006 the Győr Court of Appeal dismissed the
applicant’s motion for bias. It pointed out that the judges of
the panel had declared themselves impartial, along with two other
judges of the court. Moreover, it argued that:
“... Bias may, however, only be based on such
facts [and] circumstances from which it follows objectively [and]
logically that an impartial judgment is not ensured. The reason
adduced by the respondent against the declarations of the five judges
stating their impartiality is not suitable to establish bias.”
The
applicant subsequently lodged another complaint for bias against the
presiding judge, Dr V. Despite the antecedents, Dr V. again
maintained that he was impartial. Therefore, the Regional Court found
that there was no obstacle to deliver judgment, but nevertheless
ordered the transfer of the complaint to the appeal court. However,
it was ultimately dealt with by another panel of the Regional Court
(see paragraph 13 below).
On
14 March 2006 a three-member panel of the Regional Court, with Dr V.
acting as presiding judge, upheld the first-instance judgment. This
decision was served on the applicant on 23 May 2006.
On
21 April 2006 another panel of the Regional Court, presided by Dr D.
and including Dr K., dismissed the applicant’s second motion
for bias filed against Dr V. It argued that
“If the reason for disqualification according to
section 13(1) e) of the Code of Civil Procedure is reported by a
party and the judge does not consider himself partial in the case,
then what needs to be ascertained is whether the actual existence of
the reasons [and] facts reported to prove bias indeed justify the
disqualification of the judge. ... [I]t is not of legal relevance
that the judge previously, in a different type of case, agreed to
his/her disqualification. As evidenced by the dispositions of the
act, a judge is to be considered as biased if the objective
adjudication of the given case may not be expected from him/her for
some reason. The fact that the respondent already lodged motions of
bias against the court or against certain judges of the court in
several previous cases does not necessarily entail that the judges
concerned become biased towards the party. In connection with the
present case the respondent did not adduce any concrete ground or
reason that the impartial adjudication of the present case could not
be expected from the panel president. Considering moreover that the
respondent did not lodge a motion for bias against the two [other]
members of the panel, the Regional Court rejected the motion for
disqualification (section 18 (1) of the Code of Civil Procedure).”
II. RELEVANT DOMESTIC LAW
The rules governing
disqualification of judges can be found in Act no. III of
1952 on the Code of Civil Procedure, which, in its relevant part,
provides as follows:
Section
13
“(1) Cannot participate as judge in the
administration of the case and is disqualified thereof:
a) the party, the person authorised or obliged jointly
with the party, those who fully or in part claim the subject of the
action for themselves, or whose rights or obligations might be
affected by the result of the action,
...
e) who cannot be expected to
ascertain the case objectively due to other reasons”
Chapter
XIV of the Code of Civil Procedure contains the dispositions relative
to petition for review before the Supreme Court. According to section
271(2), petition for review is precluded in a property law case if
the disputed value does not exceed HUF 1,000,000.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
The
applicant complained that the tribunal which heard his civil case was
not impartial. He relied on Article 6 § 1 of the Convention,
which provides as relevant:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair ... hearing within a
reasonable time by an ... impartial tribunal...”
The
Government contested that argument.
A. Admissibility
The
Government submitted that the application should be rejected for
non-exhaustion of domestic remedies, since the applicant had not
availed himself of the possibility to lodge a petition for review
with the Supreme Court, which would have been able to fully examine
the merits of his case, including the issue of impartiality. They
relied on the Court’s case law according to which the States
must have an opportunity to redress the alleged damage by domestic
means within the framework of their own legal systems.
The
applicant contested this argument, considering that a complaint
concerning the refusal to exclude a judge may only be lodged through
an appeal, whereas petition for review may not be submitted in such
auxiliary questions. He further argued that in any event, review by
the Supreme Court would not have been an effective remedy in his
case.
The
Court points out that in the present case the disputed value was HUF
42,000 plus default interest and court fees. As a consequence,
petition for review with the Supreme Court was in any case not a
possibility as it was excluded by section 271(2) of the Code of Civil
Procedure (see paragraph 15 above), the statutory threshold
being one million Hungarian forints. It follows that the application
cannot be rejected for non-exhaustion of domestic remedies. Moreover,
it is not manifestly ill-founded within the meaning of Article 35 §
3 of the Convention or inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. The parties’ submissions
The
applicant argued that while the competent court of his residence had
voluntarily excluded itself based on their work relationship, along
with the first panel of the Regional Court, the second panel of the
Regional Court had refused to consent to the exclusion even though
its judge had acknowledged his bias in the past. The applicant
further emphasised that the panel who had decided about his motion
for bias against the second panel had declared itself biased earlier.
The
Government pointed out the difference between the two grounds of
disqualification laid down in the Code of Civil Procedure. On the one
hand, point a) of section 13(1) describes a situation which entails
an obligation to exclude the judge from the case, leaving no margin
of appreciation for the court (“absolute ground of exclusion”).
On the other hand, point e) of the same section gives the courts a
possibility to decide on a case-by-case basis in light of the
circumstances of the particular case whether the judge is capable of
administering the case objectively (“relative ground of
exclusion”).
As
regards the reasons for disqualification mentioned by the applicant,
the Government emphasised that these cases had not been identical. On
the first two occasions the judges themselves had declared that they
were biased and consented to their exclusion; therefore, no deeper
analysis or reasoning was required to ascertain the cause of bias. In
the third occasion, however, the judge had not accepted that they had
been biased and the applicant had not adduced any further concrete
reasons which would clearly substantiate that the judge had
nonetheless lacked objectivity.
The
Government were therefore of the opinion that the proceedings in
question and the decision concerning the bias had not been contrary
to the requirements set forth under Article 6 § 1 of the
Convention.
2. The Court’s assessment
a. General principles
The Court reiterates at the outset that it is of
fundamental importance in a democratic society that the courts
inspire confidence in the public. To that end Article 6 requires a
tribunal falling within its scope to be impartial. Impartiality
normally denotes the absence of prejudice or bias and its existence
or otherwise can be tested in various ways. The Court has thus
distinguished between a subjective approach, that is endeavouring to
ascertain the personal conviction or interest of a given judge in a
particular case, and an objective approach, that is determining
whether he or she offered sufficient guarantees to exclude any
legitimate doubt in this respect (see Piersack v. Belgium, 1
October 1982, § 30, Series A no. 53; and Grieves v. the
United Kingdom [GC], no. 57067/00, § 69, ECHR 2003 XII
(extracts)).
In
applying the subjective test, the Court has consistently held that
the personal impartiality of a judge must be presumed until there is
proof to the contrary (see Hauschildt v. Denmark, 24 May 1989,
§ 47, Series A no. 154). As regards the type of proof
required, the Court has, for example, sought to ascertain whether a
judge has displayed hostility or ill will or has arranged to have a
case assigned to himself for personal reasons (see De Cubber
v. Belgium, 26 October 1984, § 25, Series A no. 86). The
principle that a tribunal shall be presumed to be free of personal
prejudice or partiality is long-established in the case-law of the
Court (see, for example, Le Compte, Van Leuven and
De Meyere v. Belgium, 23 June 1981, § 58, Series A no. 43).
Although
in some cases it may be difficult to procure evidence with which to
rebut the presumption, it must be remembered that the requirement of
objective impartiality provides a further important guarantee
(see Pullar v. the United Kingdom, 10 June 1996, §
32, Reports of Judgments and Decisions 1996 III). In
other words, the Court has recognised the difficulty of establishing
a breach of Article 6 on account of subjective partiality and for
this reason has in the vast majority of cases raising impartiality
issues focused on the objective test. However, there is no watertight
division between the two notions since the conduct of a judge may not
only prompt objectively held misgivings as to impartiality from the
point of view of the external observer (objective test) but may also
go to the issue of his or her personal conviction (subjective test).
As
to the second test, when applied to a body sitting as a bench, it
means determining whether, quite apart from the personal conduct of
any of the members of that body, there are ascertainable facts which
may raise doubts as to its impartiality. In this respect even
appearances may be of some importance (see Castillo Algar v.
Spain, 28 October 1998, § 45, Reports 1998 VIII;
and Morel v. France, no. 34130/96, § 42,
ECHR 2000 VI). When it is being decided whether in a
given case there is a legitimate reason to fear that a particular
body lacks impartiality, the standpoint of those claiming that it is
not impartial is important but not decisive. What is decisive is
whether the fear can be held to be objectively justified (see
Ferrantelli and Santangelo v. Italy, 7 August 1996, § 58,
Reports 1996 III; and Wettstein v. Switzerland,
no. 33958/96, § 44, ECHR 2000 XII).
b. Application of the above principles to the present
case
Turning
to the particular case, the Court observes that the applicant
complains about the alleged impartiality of the Regional Court, as
the panel judge deciding his action on appeal had, in a previous case
of his, declared himself biased, and two out of three judges deciding
about his motion for impartiality against this judge had earlier
withdrawn themselves from the case on account of their personal
prejudice. The Court’s task is therefore to assess whether the
particular circumstances of the case raise objectively justified
doubts as to the neutrality of the Regional Court.
Concerning
the Government’s argument that the applicant did not adduce any
evidence to substantiate bias of the panel judge Dr V., the Court
observes that indeed his personal prejudice had not been proven, as,
apart from his earlier declaration of being biased in another case,
there had been no particular signs or acts showing prejudice on his
side. The Court therefore acknowledges that the personal impartiality
of Dr V. should be presumed. However, this corresponds only to the
subjective test established by the Court.
It
remains to be ascertained whether the appearance of impartiality was
observed under the objective test. The Court draws attention to the
fact that the reason for which Dr V. withdrew voluntarily from a
previous case involving the applicant was their daily work
relationship (see paragraph 9). This situation had not changed since
then and the applicant was at the material time still working as a
lawyer in that region. While the Court does not consider that the
existence of a work relationship between a judge and a lawyer
practising in the court concerned necessarily entails a lack of
impartiality on the part of the former, the decisive factor in the
present case is the fact that Dr V. had previously withdrawn on that
very ground, which still pertained when he later participated in the
decision to dismiss the applicant’s appeal. Therefore, the
Court finds that no sufficient guarantees were provided to exclude
legitimate doubt as to his impartiality towards the applicant. For
the Court, this is so despite the fact that the neutrality of the
remaining two judges in the panel has not been called into question,
because the doubt as to bias on the side of the president of the
panel casts doubt on the impartiality of the whole panel.
The
applicant’s fear of the Regional Court’s lack of
impartiality was even more aggravated by the fact that two out of
three judges deciding on his second motion for bias against Dr V. had
previously declared themselves biased (see paragraphs 8 and 9 above).
The
Court therefore observes that, on the facts of the case, the
impartiality of the Regional Court was capable of appearing open to
doubt. The applicant’s fears in this respect can thus be
considered to have been objectively justified and the Regional Court
accordingly failed to meet the required Convention standard under the
objective test.
The
Court thus concludes that there has been a violation of Article 6 §
1 of the Convention.
II. 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.”
A. Damage
The
applicant claimed HUF 1,000,000 (approximately 3,800 euros (EUR)) in
respect of non-pecuniary damage.
The
Government contested this claim.
The
Court considers that the applicant must have suffered some
non-pecuniary damage and awards him the full sum claimed.
B. Costs and expenses
The
applicant has not submitted a separate costs claim.
C. Default interest
The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Declares the remainder of the application
admissible;
Holds that there has been a violation of Article
6 § 1 of the Convention;
Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 3,800
(three thousand eight hundred euros), plus any tax that may be
chargeable, in respect of non-pecuniary damage, to be converted into
Hungarian forints at the rate applicable at the date of settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount 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 12 July 2011, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Stanley Naismith Françoise Tulkens
Registrar President
