European Court of Human Rights

 

 

 

FIFTH SECTION

 

 

 

 

 

 

 

CASE OF HIT D.D. NOVA GORICA v. SLOVENIA

 

(Application no. 50996/08)

 

 

 

 

 

 

 

JUDGMENT

 

 

 

STRASBOURG

 

5 June 2014

 

 

 

 

 

 

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 HIT d.d. Nova Gorica v. Slovenia,

The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:

          Mark Villiger, President,
          Angelika Nußberger,
          Boštjan M. Zupančič,
          Ann Power-Forde,
          Ganna Yudkivska,
          Vincent A. De Gaetano,
          Aleš Pejchal, judges,
and Claudia Westerdiek, Section Registrar,

Having deliberated in private on 15 April 2014,

Delivers the following judgment, which was adopted on that date:

PROCEDURE




  The case originated in an application (no. 50996/08) against the Republic of Slovenia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by HIT d.d. Nova Gorica (“the applicant”), a public limited company with its registered office in Nova Gorica, on 15 October 2008.




  The applicant company was represented by Ms B. Avsec, a lawyer practising in Ljubljana. The Slovenian Government (“the Government”) were represented by their Agent, Mrs V. Klemenc, State Attorney.




  The applicant company alleged, in particular, that its case had not been heard by an impartial tribunal, as the same judge had taken part in two different appellate stages.




  On 15 May 2012 the application was communicated to the Government.

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE




  The Slovenian-based applicant company operates gaming and entertainment centres.




  On 19 June 1996, the applicant company’s then new managing director instituted disciplinary proceedings against one of its employees, N.N., in respect of the disciplinary offence of excessive and irresponsible use of the company’s funds. The new managing director had been informed about the alleged offence two days earlier. On 21 October 1996 the disciplinary board terminated N.N.’s employment on the grounds that she had seriously breached her employment obligations. An appeal lodged by N.N. against that decision was dismissed. On 24 December 1996 N.N. brought a claim before the Koper Labour Court, requesting that the termination of her employment be declared null and void. She alleged, inter alia, that the disciplinary proceedings against her were time-barred.




  In a judgment of 30 September 1997 the Labour Court dismissed N.N.’s request. Having considered that the applicant company’s former managing director had not had sufficient knowledge of the acts constituting the disciplinary offence, the Labour Court concluded that the three-month time-limit for the institution of disciplinary proceedings had started to run from the date on which N.N.’s disciplinary offences had been discovered by the new management of the applicant company. The court therefore held that disciplinary proceedings had not been time-barred. N.N. appealed against the judgment.




  On 17 December 1999 the Higher Labour and Social Court, sitting in a panel of three judges, which included judge M.K., upheld N.N.’s appeal and ordered the applicant company to reinstate her. Relying on a statement made by the applicant company’s former managing director, it concluded that he had had sufficient knowledge of N.N.’s actions to be able to institute disciplinary proceedings against her if he had considered that to be necessary. Accordingly, the higher court held that the disciplinary proceedings against N.N. had in fact been time-barred. The applicant company lodged an appeal on points of law before the Supreme Court.




  On 7 November 2000 the Supreme Court upheld the applicant company’s appeal on points of law, as the higher court had established the facts differently from the first-instance court without having conducted an oral hearing. The Supreme Court therefore found that the adversarial principle had been breached in the appeal proceedings and set aside the second-instance judgment. The case was remitted to the Higher Labour and Social Court for fresh consideration.




  On 7 December 2000 the Higher Labour and Social Court, sitting in a panel presided by judge M.K., held that the facts which had affected the expiry of the statutory limitation period for commencing disciplinary proceedings had not been duly established, and remitted the case to the first-instance court for fresh consideration.




  On 12 April 2001 the Koper Labour Court rendered an interim judgment, finding again that the disciplinary proceedings had not been time-barred and thus dismissing N.N.’s request for annulment of the decision to terminate her employment. N.N. appealed against the judgment.




  On 3 July 2003 the Higher Labour and Social Court again established quite the opposite, namely that the disciplinary proceedings had been time-barred, and upheld N.N.’s appeal. Judge M.K. did not take part in the proceedings. The applicant company appealed on points of law.




  On 15 June 2004 the Supreme Court again upheld the applicant company’s appeal on the grounds that the adversarial principle had been breached in the appeal proceedings. The case was remitted for fresh consideration to the Higher Labour and Social Court, sitting in a panel composed of different judges.




  On 3 February 2005 the Higher Labour and Social Court found that the facts of the case had still not been sufficiently established, and remitted the case to the first-instance court for fresh consideration.




  On 10 November 2006 the Koper Labour Court found, in its third consideration of the case, that the disciplinary proceedings had been time-barred, as the former managing director had been fully informed about N.N.’s actions that had constituted the disciplinary offence. Accordingly, the court granted N.N.’s claim and declared the termination of her employment null and void. The decision on her compensation claim against the applicant company was postponed. Both parties appealed.




  On 29 March 2007 the Higher Labour and Social Court upheld the appeal lodged by N.N. and dismissed the applicant company’s appeal in which it contended, inter alia, that the statements made by the former managing director of the applicant company in the later stages of the proceedings had conflicted with his earlier accounts of the facts and had obviously been made in order to exculpate N.N., with whom he had close personal ties.




  The applicant company lodged an appeal on points of law. On 26 February 2008 the Supreme Court dismissed the applicant company’s appeal and reaffirmed the judgment of the lower courts that the disciplinary proceedings had been time-barred.




  On 7 May 2008 the applicant company, represented by a lawyer, lodged a constitutional appeal alleging, inter alia, that in the determination of whether disciplinary proceedings against N.N. had been time-barred, the principle of equality of arms had been breached. In addition, the applicant company contended that the labour courts’ position regarding the limitation period for commencing disciplinary proceedings in the particular circumstances at issue had contravened its free economic initiative enshrined in the Constitution. It argued that if the former managing director had known about N.N.’s actions, that in itself had constituted a disciplinary offence and should not have been interpreted in her favour. On 8 May 2008 the Constitutional Court informed the applicant company that its constitutional appeal had been assigned to judge rapporteur M.M.




  On 15 May 2008 the Koper Labour Court decided on N.N.’s claim for compensation for the unlawful termination of her employment. It ordered the applicant company to pay N.N. compensation for lost wages and various benefits for the period when she had not been employed or had been paid a lower salary by other employers. The remainder of N.N.’s claim was dismissed.




  On 23 September 2008 the Constitutional Court, in a three-judge panel in charge of the examination of constitutional appeals in the field of administrative law, which included judge M.K., refused to accept the applicant company’s constitutional appeal for consideration, stating that its fundamental rights and freedoms had not been violated. The decision, which included the information on the composition of the panel, was taken in camera and without the attendance of the applicant company or the respondent party.

II.  RELEVANT DOMESTIC LAW




  The relevant provisions of the Constitutional Court Act on the disqualification of judges read as follows:

Article 31

“(1) In deciding on an individual case, the Constitutional Court may disqualify a Constitutional Court judge by applying, mutatis mutandis, the reasons for disqualification in court proceedings.

...”

Article 32

“Immediately upon a Constitutional Court judge learning of any reason for his disqualification as referred to in the preceding article, he must stop working on the case and notify the President of the Constitutional Court of such.”

Article 33

“(1) A motion for disqualification may be submitted by the participants in the proceedings until the beginning of the public hearing, if such hearing is scheduled, or respectively until the beginning of the closed session of the Constitutional Court at which the case is to be decided. The motion must include a statement of reasons.

...”




  The relevant provisions of the Civil Procedure Act on this issue, applicable to the proceedings before the Constitutional Court, read as follows:

Article 70

“A judge or a lay judge shall be prohibited from exercising judicial functions:

...

(5) if he or she participated in the same proceedings before a lower court ...”

Article 71

“Immediately after learning of the existence of any ground for disqualification under clauses 1 to 5 of the preceding Article, the judge or lay judge shall discontinue forthwith any activity in the proceedings and shall notify thereupon the president of the court, who shall appoint a substitute judge or lay judge.

...”

Article 72

“The disqualification of a judge may also be requested by the parties.

A party shall be required to bring a motion to disqualify a judge or a lay judge immediately after learning of any grounds for disqualification and not later than before the end of the hearing before the competent court or, if there is no hearing, before the judgment is passed.

...”




  The Constitutional Court is composed of nine judges. In the constitutional appeal proceedings, the admissibility, and in cases involving well-established case-law also the merits, of individual cases are considered by three panels of three judges each. Pursuant to the Rules of Procedure of the Constitutional Court, information regarding the division of work by areas between the civil, criminal and administrative panels and their respective composition is accessible on the court’s website. It is also included in the “Work Schedule of the Constitutional Court” published twice a year, for the autumn and spring terms, in the Official Gazette. The work schedule includes the names of the judges who sit in the individual panels, as well as the names of the substitute judges designated to replace individual members of the three panels in the event of their absence or disqualification. According to the court’s Work Schedule, the administrative panel adjudicates on, inter alia, constitutional appeals against individual acts issued in labour dispute proceedings.

THE LAW

I.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION




  The applicant company complained that its case had not been heard by an impartial tribunal, as the same judge had taken part in two different appellate stages. It relied on Article 6 § 1 of the Convention, which reads, in so far as relevant, as follows:

“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.”

A.  Admissibility




  The Government objected that the applicant company had failed to exhaust domestic remedies, as it could have challenged judge M.K. In support of their argument, the Government submitted that the information on the composition of the individual panels of the Constitutional Court had been published in the Official Gazette and on the court’s website. Moreover, this information had evidently shown that judge M.K. was a member of the administrative panel in charge of examining constitutional appeals in the field of employment law. Therefore, in the Government’s opinion, the right to challenge a judge constituted an effective domestic remedy whereby a party could obtain the disqualification of a Constitutional Court judge, provided that the statutory conditions were met.




  The applicant company responded that it had not been required to challenge judge M.K., as the domestic law clearly imposed that duty on the judge herself. It argued that under the Constitutional Court Act, judge M.K. should have withdrawn from the present case of her own motion, as under the Civil Procedure Act, her continued involvement had constituted a grave procedural error. If such an error had occurred before the lower courts, it would have constituted grounds for the annulment of the judgment. The applicant company also submitted that given M.K.’s extensive experience as a judge, it could be assumed that she had been aware of the requirement to withdraw from the proceedings, but had made a conscious decision not to do so.




  The general principles on the exhaustion of domestic remedies are set out in Sejdovic v. Italy ([GC], no. 56581/00, §§ 43-46, ECHR 2006-II). Applying these principles to the remedy invoked by the Government, the Court points out at the outset that the rule of exhaustion of domestic remedies is neither absolute nor capable of being applied automatically; in reviewing whether the rule has been observed, it is essential to have regard to the particular circumstances of the individual case. This means, amongst other things, that the Court must take realistic account not only of the existence of formal remedies in the legal system of the Contracting Party concerned but also of the general context in which they operate, as well as the personal circumstances of the applicants (see Akdivar and Others v. Turkey [GC], 16 September 1996, § 69, Reports of Judgments and Decisions 1996-IV).




  In Barberà, Messegué and Jabardo v. Spain, the Court found that whilst it was not open to an applicant to complain about the participation of a judge before he was aware that the judge would participate, he was required to raise the issue when he knew of the judge’s involvement (Barberà, Messegué and Jabardo v. Spain, 6 December 1988, § 59, Series A, no. 146). A claim of non-exhaustion in circumstances similar to those of the present case arose in Švarc and Kavnik v. Slovenia, no. 75617/01, 8 February 2007. In that case, the Court accepted that it would have been open to the applicants to challenge the participation of a specific judge, even though they did not know which judges of the Constitutional Court would deal with their case. The point was not, however, decided on that basis, as the challenge would not, on the facts, have provided an effective remedy for the purposes of Article 35 § 1 of the Convention (see Švarc and Kavnik, § 27).




  Turning to the present case, the Court notes that the alleged breach of the principle of impartiality occurred before the highest domestic judicial authority against whose decisions no appeal lies, and therefore could not have been rectified at the domestic level ex post facto. It is further noted that the constitutional appeal proceedings were held in camera and without the attendance of the parties. Indeed, the applicant company was informed in advance of the identity of the judge rapporteur in the case, but not of the other two judges who would sit (see paragraph 17 above). Accordingly, the Government did not claim that the applicant company had actual knowledge that judge M.K. would sit. Rather, they claimed that because the names of all judges of the Constitutional Court are publically available (see paragraph 23 above), as are the names of the judges who sit in the various panels, the applicant company should have found out that judge M.K. was entitled to sit, and should have made representations that she be excluded. In this connection, the Court points out that the publication of the composition of individual panels does not guarantee that a particular member will sit in each case decided by the panel in the period of several months for which the Constitutional Court’s work schedule applies. Accordingly, each panel is assigned a substitute judge to act in place of an absent member of the panel. Thus, to accept the Government’s argument would be to accept that the applicant company was required to challenge judge M.K. based on the likelihood, and not the certainty, that she would sit in its case. However, in the Court’s opinion it would be excessive to require the applicant company to make such a challenge on essentially precautionary grounds in order to ensure its right to an impartial judge.




  It follows that the Government’s objection of non-exhaustion of domestic remedies should be rejected.




  Moreover, the Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B.  Merits

1.  The parties’ submissions




  The applicant company alleged that the Constitutional Court panel of three judges that had dismissed its constitutional appeal had been biased, as judge M.K., who had sat on the panel, had previously decided on the case in two separate hearings before the Higher Labour and Social Court. Furthermore, in its observations in reply to those of the Government, the applicant company pointed out that the proceedings at issue had attracted considerable media attention, so that judge M.K. must have remembered the case well. Having regard to this and the judge’s extensive experience, the applicant company was of the view that judge M.K.’s failure to withdraw from the constitutional appeal proceedings had not been incidental, but the result of a conscious decision and showed that the judge was biased. Lastly, according to the applicant company, the question of whether judge M.K.’s participation in the proceedings had affected the impartiality of the Constitutional Court panel in deciding its case and/or the lawfulness and regularity of the panel’s decision was of little relevance, as it had in any event constituted a grave violation of the domestic procedural rules.




  The Government emphasised that it was not evident from the decision of the Constitutional Court that judge M.K. had been personally biased against the applicant company. They argued that the fact the same judge had taken part in adjudication at two different levels of jurisdiction did not in itself prove that he or she was biased. Arguing that the present case was distinguishable from that of San Leonard Band Club v. Malta (no. 77562/01, § 63, ECHR 2004-IX), the Government pointed out that the employment dispute had twice been remitted for a new trial in which judge M.K. had not taken part. In deciding the constitutional appeal, the Constitutional Court had thus examined the decisions issued in an entirely new trial in which the courts had been free in their legal assessment. The prior involvement of judge M.K. at the appellate stage was therefore not sufficient reason to doubt the impartiality of the Constitutional Court that had later decided on the applicant company’s constitutional appeal.

2.  The Court’s assessment




  The Court reiterates that the question of whether a tribunal is impartial for the purposes of Article 6 § 1 of the Convention must be determined by applying a subjective test, that is on the basis of the personal conviction of a particular judge in a given case, and an objective test, that is, by ascertaining whether the judge offered guarantees sufficient to exclude any legitimate doubt in this respect (see Wettstein v. Switzerland, no. 33958/96, § 42, ECHR 2000-XII).




  As regards the subjective test, a judge must be presumed to be impartial until there is proof to the contrary (see Wettstein, cited above, § 43). In the present case, the applicant company alleged that judge M.K. must have remembered its case, as it had received considerable media coverage at the time of the trial. On this basis, the applicant company stated that the judge’s involvement in the constitutional appeal proceedings had been a conscious decision on her part, which showed her personal bias. However, the Court notes that almost eight years elapsed between judge M.K.’s involvement in the proceedings in the capacity of a Higher Labour and Social Court judge and her later participation in the constitutional appeal proceedings. Having regard to the fact that the judge was not challenged by the applicant company and in the absence of any indication in the parties’ observations that she remembered her prior involvement in the proceedings, the Court is unable to share the applicant company’s position that she must have been aware of her earlier involvement in the proceedings. Moreover, it must be noted that the mere participation of judge M.K. in the administrative panel of the Constitutional Court deciding its case cannot be considered, in itself, to constitute sufficient proof of her personal bias (see, in this regard, Golubović v. Croatia, no. 43947/10, § 51, 27 November 2012, and the references cited therein).




  Under the objective test, it must be determined whether, quite apart from a judge’s personal conduct, there are ascertainable facts which may raise doubts as to his or her impartiality. In this respect, even appearances may be of importance. What is at stake is the confidence which the courts in a democratic society must inspire in the public. This implies that in deciding whether in a given case there is legitimate reason to fear that a particular judge lacks impartiality, the standpoint of the party concerned is important but not decisive. What is decisive is whether this fear can be held to be objectively justified (see Wettstein, cited above, § 44).




  In the present case, the applicant company complained that the same judge who had first participated in the adjudication of its case in two separate hearings before the Higher Labour and Social Court later participated in the Constitutional Court panel that dismissed its constitutional appeal. In the Court’s opinion, this situation could raise doubts on the part of the applicant company as to the impartiality of the Constitutional Court; however, it has to be determined whether such doubts were objectively justified.




  The Court notes that judge M.K.’s initial involvement in the applicant company’s case entailed the examination of the appeal lodged by N.N. against the first-instance judgment dismissing her claim. On 17 December 1999 the three-member panel of the higher court, including judge M.K., upheld the appeal, reasoning that the disciplinary proceedings against N.N. had been time-barred and that she should accordingly be reinstated to her former position. Following the Supreme Court’s judgment in favour of the applicant company, the case was remitted to the Higher Labour and Social Court where, once again, judge M.K. participated in the panel which on 7 December 2000 decided that the facts of the case were not sufficiently clarified and remitted the case to the first-instance court in order to further establish the facts. After the case was heard three more times by the Higher Labour and Social Court and twice more by the Supreme Court, and resolved in the final instance in N.N.’s favour, the applicant company lodged a constitutional appeal, challenging the last three decisions rendered by the Koper Labour Court, the Higher Labour and Social Court and the Supreme Court (see paragraphs 15-17 above). On 23 September 2008 the constitutional appeal was dismissed by a three-member panel including judge M.K (see paragraph 20 above).




  In this connection, it is true that judge M.K. did not participate in the rendering of the decisions challenged by the applicant company before the Constitutional Court. However, the core issue complained of in the constitutional appeal proceedings entailed the question of whether disciplinary proceedings against N.N. had been time-barred, which was also the very focus of the entire employment proceedings, whether they may be regarded as three separate trials or one single set of proceedings. Judge M.K. had therefore already examined this question in her previous capacity of Higher Labour and Social Court judge and was accordingly well acquainted with the facts of the case; moreover, she had expressed her view on the matter. It should be further noted that it was precisely this view - namely, that disciplinary proceedings against N.N. were time-barred - that ultimately prevailed in the employment proceedings and was challenged before the Constitutional Court.




  While the attention of the Constitutional Court panel deciding on the admissibility of the applicant company’s constitutional appeal was drawn to the constitutional perspective of the case, the examination of the case necessarily entailed, at least to a certain extent, reconsideration of the earlier decisions upholding N.N.’s arguments (see, mutatis mutandis, Procola v. Luxembourg, 28 September 1995, §§ 44-45, Series A no. 326, and Indra v. Slovakia, no. 46845/99, § 53, 1 February 2005). Thus, although the Constitutional Court panel including judge M.K. did not formally review the decisions of the Higher Labour and Social Court in which the judge took part, it was in fact called upon to ascertain whether the view on the expiry of the statutory limitation period taken earlier by judge M.K. raised any concerns of a constitutional nature. The Government’s argument that the constitutional review had not been linked to the first two trials therefore cannot be accepted.




  These circumstances are sufficient to enable the Court to conclude that the applicant company’s fears regarding the composition of the Constitutional Court panel were objectively justified.




  There has accordingly been a breach of Article 6 § 1 of the Convention.

II.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION




  The applicant company complained under Article 6 § 1 of the Convention that it had been denied a fair hearing due to the arbitrariness of the domestic courts’ interpretation of the relevant provisions concerning the time-barring of disciplinary proceedings.




  Lastly, relying on Article 1 of the Protocol No. 1 to the Convention, the applicant company complained that its possessions and solvency were at risk as a result of the compensation it was required to pay to N.N.




  In the light of all the material in its possession, the Court finds that these complaints do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. Accordingly, this part of the application must be rejected as manifestly ill-founded and declared inadmissible pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

III.  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 company claimed 1,191,350 euros (EUR) in respect of pecuniary damage, which consisted of the amount it had been ordered to pay N.N. in the domestic proceedings.




  The Government argued that there was no causal link between the alleged violation and the damage sought, because it was impossible to speculate on the outcome of the domestic proceedings had the violation not occurred. They requested the Court not to award any damages in the event of the finding of a violation.




  The Court agrees with the Government that it is not possible to speculate as to the outcome of the proceedings concerned had there been no violation of the Convention (see Pélissier and Sassi v. France [GC], no. 25444/94, § 80, ECHR 1999-II). It therefore rejects the claim in respect of pecuniary damage. As regards non-pecuniary damage, the Court, in the absence of any claim by the applicant company, makes no award under this head.

B.  Costs and expenses




  The applicant company also claimed EUR 8,977 for the costs and expenses incurred before the domestic courts and EUR 2,892 for those incurred before the Court.




  The Government argued that the applicant company’s claim was entirely unspecified and unsubstantiated. As regards the reimbursement of the costs and expenses incurred in the domestic proceedings, the Government contended that the applicant company’s claim was without foundation in the Court’s case-law. Moreover, as to the costs and expenses incurred in the proceedings before the Court, the applicant company’s claim was, in the Government’s opinion, excessively high.




  According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court rejects the claim for costs and expenses in the domestic proceedings and considers it reasonable to award the sum of EUR 2,000 for the proceedings before the Court.

C.  Default interest




  The Court considers it appropriate that the default interest rate 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

1.  Declares, unanimously, the complaint concerning the lack of impartiality of the Constitutional Court admissible and the remainder of the application inadmissible;

 

2.  Holds, by six votes to one, that there has been a violation of Article 6 § 1 of the Convention;

 

3.  Holds, by six votes to one,

(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 2,000 (two thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses 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 amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

 

4.  Dismisses, unanimously, the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 5 June 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Claudia Westerdiek                                                                Mark Villiger
       Registrar                                                                              President

 

 

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge G. Yudkivska is annexed to this judgment.

 

 

M.V.

C.W.

 




DISSENTING OPINION OF JUDGE YUDKIVSKA

I regret that I am unable to follow the majority in finding a violation of Article 6 § 1 of the Convention as concerns the lack of impartiality of the Constitutional Court, and I find the approach adopted by the Chamber merely formalistic.

I am perfectly aware of, and have great respect for, the importance of “appearances”, the principle which is constantly followed in our case-law. The Court has many times reiterated that “justice must not only be done, it must also be seen to be done”. What is at stake is the confidence which the courts must inspire in the public in a democratic society (see De Cubber v. Belgium, 26 October 1984, § 26, Series A no. 86).

The principles concerning the impartiality of a judge who had already been involved at an earlier stage of the proceedings in a particular case were outlined in the case of Morel v. France (no. 34130/96, § 45, ECHR 2000-VI), in which the Court held as regards measures previously taken by a judge in such circumstances: “... [T]he mere fact that a judge has already taken pre-trial decisions cannot by itself be regarded as justifying concerns about his impartiality. What matters is the scope and nature of the measures taken by the judge before the trial. ...Nor does a preliminary analysis of the available information mean that the final analysis has been prejudged. What is important is for that analysis to be carried out when judgment is delivered and to be based on the evidence produced and argument heard at the hearing.”

In this connection I would refer to the Court’s judgment in the case of Mancel and Branquart v. France^[1], in which the assessment of the constituent elements of the same offence was carried out by an almost identically composed bench of the Court of Cassation in two successive appeals. The Court found a violation of Article 6 by a very narrow majority. The dissenting judges referred to Paul Martens’ concept of the “tyranny of appearances” and stressed the very special status of the Court of Cassation in the French legal system.

In the instant case the majority went much further than in the case of Mancel and Branquart.

Undoubtedly, the participation of a judge in the assessment of a case in which he or she has previously been involved is unacceptable if the court is required to reassess the same facts and the same legal issues. Indeed, such a judge, to a certain extent, remains bound by the position he or she has already expressed in the case. Thus, his or her impartiality and objectivity can reasonably be challenged. But I believe this is not the case here.

In the present case Judge M.K. had participated in 1999 in a panel of three judges of the Higher Labour and Social Court which, on the basis of the facts as presented at that time, ordered the reinstatement of Ms N.N. That judgment was later quashed by the Supreme Court and the case was referred back to the Higher Labour and Social Court, which, with a panel including the same Judge M.K., remitted the case to the first-instance court because “the facts which had affected [the legal issue at stake] had not been duly established” (see paragraph 10 of the judgment). Thus, the panel admitted that it had taken its previous decision on the basis of doubtful facts. This means that the court (including Judge M.K.) implicitly accepted that the facts, once “duly established”, could lead to a different result.

Judge M.K.’s participation in the proceedings ended at this stage. Several more sets of the same proceedings took place without her, over a subsequent period lasting for more than seven years. The latest judgment was challenged before the Constitutional Court in May 2008, more than eight years after Judge M.K.’s involvement in the case in her capacity as a judge of the Labour and Social Court.

Unfortunately, the majority did not pay sufficient attention to the crucial - in my opinion - point of this case, namely the scope and nature of the applicant company’s constitutional appeal. Firstly, the applicant company complained that the principle of equality of arms had been breached (see paragraph 18). This purely procedural issue obviously concerned only the last set of proceedings (which took place from 2006 to 2008), with which Judge M.K. had nothing to do. Her impartiality in respect of this issue is not in question.

Secondly, the applicant company complained that “the labour courts’ position ... contravened its free economic initiative enshrined in the Constitution”. So, if the issue before Judge M.K. in 1999 was simply whether or not disciplinary proceedings against N.N. were time-barred based on the relevant legislation and the practice regarding its application, in 2008 she had to analyse a completely different legal issue, namely whether the labour courts’ existing practice in respect of the limitation period for disciplinary proceedings was in conformity with the constitutional provision guaranteeing free economic initiative. Although it is true that judges must apply legislation in the light of constitutional principles, an issue of “free economic initiative” was definitely not at stake before the labour court back in 1999.

Thus, I completely disagree with the majority’s findings that the “core issue complained of in the constitutional appeal proceedings entailed the question of whether disciplinary proceedings against N.N. had been time-barred” (see paragraph 39 of the judgment) and that “the examination of the case necessarily entailed ... reconsideration of earlier decisions upholding N.N.’s arguments” (paragraph 40). These conclusions do not correspond to the nature of the applicant company’s constitutional complaint as described in paragraph 18. Moreover, they do not correspond to the very special place the Constitutional Court occupies in the legal system of the State concerned. Whilst the labour court judges could only resort to an interpretation of the legislation in question and remained bound to observe it, the Constitutional Court judges could declare it null and void.

I also think that the lapse of time is a significant argument in the present case. Furthermore, I wonder whether the case file before the Constitutional Court included all decisions taken in this case or only the decisions adopted in the last set of proceedings. It is hard to imagine that after so many years, Judge M.K. could still remember this case (and the majority agreed with that aspect in paragraph 35).

In sum, I fail to see any legitimate doubts as to Judge M.K.’s impartiality - namely, that she could have held a preconceived idea as to the applicant company’s constitutional complaint. Not only were the proceedings in question significantly remote in time, but their subject matter was different.

 “Worshipping at the altar of appearances”, to use the expression by Judge De Meyer^[2], was not justified in the present case.

 




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[1] no. 22349/06, judgment of 24 June 2010

[2] See partly dissenting opinion of Judge De Meyer in the case of Ferrantelli and Santangelo v. Italy, judgment of 7 August 1996.