European Court of Human Rights

 

 

FOURTH SECTION

CASE OF TEMEȘAN v. ROMANIA

(Application no. 37113/17)

 

 

 

 

 

 

JUDGMENT

STRASBOURG

20 June 2023

 

This judgment is final but it may be subject to editorial revision.

In the case of Temeșan v. Romania,

The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:

          Faris Vehabović, President,
          Iulia Antoanella Motoc,
          Branko Lubarda, judges,
and Crina Kaufman, Acting Deputy Section Registrar,

Having regard to:

the application (no. 37113/17) against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 17 May 2017 by a Romanian national, Mr Răzvan-Liviu Temeșan, born in 1951 and living in Cornu de Jos (“the applicant”) who was represented by Ms A. Temeşan, a lawyer practising in Bucharest;

the decision to give notice of the complaint concerning the impartiality and independence of judges to the Romanian Government (“the Government”), represented by their Agent, Ms O.F. Ezer and to declare inadmissible the remainder of the application;

the fact that the applicant died on 8 October 2022 and his son, Mr Bogdan Șerban Temeșan, expressed his wish to pursue the application before the Court;

the Government’s objection to the examination of the application by a Committee and the Court’s decision to reject it;

the parties’ observations;

Having deliberated in private on 30 May 2023,

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

SUBJECT MATTER OF THE CASE

1.  The case pertains to the alleged lack of impartiality of the judges who finally determined a labour dispute between the applicant and his employer.

2.  In 1994 the applicant was appointed as the head of a state-owned commercial bank, known as B. In 1999, the said bank was acquired and subsumed by a state-owned commercial bank called Banca Comercială Română (“BCR”), resulting in the applicant being summarily discharged from his post.

3.  A lengthy succession of legal proceedings ensued between the applicant and BCR, however, the Court shall limit itself to referring to a select few that are relevant for the matter at hand.

4.  In 2003 the applicant initiated legal proceedings against BCR seeking re-employment. By virtue of a final judgment of 8 April 2005, the Bucharest Court of Appeal dismissed the claim on the ground that the employment contract was rendered null and void following the merger between B. and BCR. One of the judges sitting on the Court of Appeal’s panel was Judge C.

5.  Following a sequence of both extraordinary and ordinary appeals and other legal proceedings, the applicant succeeded in securing a judicial decision ordering re-employment with BCR and payment of damages. Nonetheless, the above judicial decision was not fully executed, and the applicant was never reinstated at the bank.

6.  In 2014 BCR launched legal proceedings against the applicant seeking a verdict that his employment contract had been null and void from 2007 onwards. By a judgment dated 16 December 2015, the Bucharest Regional Court dismissed the BCR’s claim. Both parties filed appeals.

7.  Before the Bucharest Court of Appeal, the case was referred to a bench composed of two judges, C. and U, whom the applicant raised objections against and lodged a motion for their recusal.

8.  With respect to Judge C., the applicant contended that she had participated in rendering the judgment of 8 April 2005 (see paragraph 4 above) which concerned a factually and legally related set of civil proceedings between the same parties. Additionally, the applicant asserted that Judge C. had an ongoing banking relationship with BCR and had outstanding loans procured from that bank, although the particulars of the said loans were not known to him.

9.  With regard to Judge U., the applicant argued that the counsel representing BCR in the proceedings was formerly her superior from 1998 to 2000, when she served as the director of a department at the Ministry of Justice, while he served as the Minister. The applicant further contended that during the course of the proceedings, Judge U. had obtained a loan from BCR amounting to 189,000 lei (RON) (equivalent to approximately 42,000 euros (EUR)) to finance the purchase of an apartment. The terms and conditions of the loan were unknown to the applicant.

10.  On 7 November 2016 a different panel of the Bucharest Court of Appeal rejected the applicant’s motion for recusal. It found that a judge’s participation in a case involving the same parties and related to the same subject matter was not problematic, as the authority of the res judicata obtained by the initial decision represented a guarantee for the parties. Therefore, a judge could not deviate from a previous solution, not due to vanity, but because the law did not allow it. As to the prior professional relationship between Judge U. and BCR’s attorney, the court considered that such an association was not proof of moral or professional subservience. Finally, the court concluded that there was no issue with both judges being clients of BCR and having secured loans from it. It held that BCR was one of the foremost financial institutions in the market, and it was open to judges as well as to any other citizens to borrow from it.

11.  On 17 November 2016 the panel of the Bucharest Court of Appeal composed of Judges C. and U. upheld the appeal lodged by BCR against the judgment of the Bucharest Regional Court of 16 December 2015 (see paragraph 6 above), finally determining that the employment contract between BCR and the applicant had become null and void as of 2007.

12.  Before the Court the applicant complained under Article 6 § 1 of the Convention about the lack of impartiality of Judges C. and U.

THE COURT’S ASSESSMENT

ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

13.  The Court notes at the outset that the applicant died after lodging the present application and that his son has expressed his wish to continue the proceedings. The Court discerns no impediment to the applicant’s son continuing with the present application on his father’s behalf (see Ergezen v. Turkey, no. 73359/10, §§ 29-30, 8 April 2014 and Tagiyev and Huseynov v. Azerbaijan, no. 13274/08, § 24, 5 December 2019). However, for reasons of convenience, the text of the judgment shall continue referring to Mr Răzvan-Liviu Temeșan as “the applicant” albeit with the understanding that only Mr Bogdan Șerban Temeșan is now to be regarded as having the status of applicant before the Court (see also Isayeva v. Azerbaijan, no. 36229/11, § 62, 25 June 2015).

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

15.  The general principles concerning the requirement of impartiality under Article 6 § 1 of the Convention have been summarized in Micallef v. Malta [GC], no. 17056/06, §§ 93-99, ECHR 2009 where it was established that  the existence of impartiality for the purposes of Article 6 § 1 must be determined according to a subjective test where regard must be had to the personal conviction and behaviour of a particular judge, that is, whether the judge held any personal prejudice or bias in a given case; and also according to an objective test, that is to say by ascertaining whether the tribunal itself and, among other aspects, its composition, offered sufficient guarantees to exclude any legitimate doubt in respect of its impartiality.

16.  Even appearances may be of a certain importance. What is at stake is the confidence which the courts in a democratic society must inspire in the public. Accordingly, any judge in respect of whom there is a legitimate reason to fear a lack of impartiality must withdraw. This implies that in deciding whether in a given case there is a 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 v. Switzerland, no. 33958/96, § 44, ECHR 2000-XII).

17.  Turning to the facts of the present case and, more particularly, to the subjective test of such impartiality, the Court notes that there is nothing to indicate in the present case to any prejudice or bias on the part of judges C. and U.

18.  As regards the objective test, the Court notes from the outset that both judges who examined the appeal and rendered a final judgment in the matter involving the applicant and BCR were clients of the latter institution and had outstanding loans acquired from it. As a matter of fact, one of the judges, U., borrowed a sum of money from BCR during the very proceedings underpinning the present case.

19.  In dismissing the applicant’s motion for recusal, the Bucharest Court of Appeal found, in its decision of 7 November 2016, that BCR was the largest bank on the market and considered that judges, like any individual, were at liberty to avail themselves of the services of that bank without any prejudice to their impartiality (see paragraph 10 above).

20.  While, at the relevant time, BCR may have been the preeminent bank in Romania, as suggested by the domestic courts, the Court notes that it was not alleged that the relevant judges were unable to obtain personal loans from other banks on the market.

21.  Furthermore, in the Court’s view, it is not unreasonable to assume that a client’s relationship with his or her bank was decisive for the operation of a loan. Banks are generally afforded a degree of discretion in setting and adjusting the terms and conditions of loans. Hence, a judge who finds himself in the position of a private client of a bank which is a party in judicial proceedings to be adjudicated by that judge may reasonably be perceived as biased. Owing money to that bank may consciously or subconsciously influence the judge’s decision-making process, rendering him or her more inclined to adjudicate in favour of the bank. Such a state of affairs would undoubtedly jeopardise the integrity of the judicial process and erode public trust in the judiciary.

22.  Therefore, the Court is of the view that the situation wherein all members of the bench of the Bucharest Court of Appeal were private clients of the bank which was a party in the proceedings before them, having acquired loans from it, could have given rise to legitimate fears in the applicant that the said bench was not approaching his case with the requisite impartiality.

23.  The fact that judge C. had participated in rendering a judgment which concerned a factually and legally related set of civil proceedings between the same parties (see paragraph 8 above) and that judge U. used to have BCR’s counsel as her superior (see paragraph 9 above), while only of limited relevance, could be seen as further increasing the applicant’s fear that the judges in question were lacking impartiality (see Wettstein, cited above, § 48).

24.  In the Court’s view, the above circumstances objectively justify the applicant’s fear that judges C. and U. of the Bucharest Court of Appeal did not possess the necessary impartiality. Consequently, there has been a violation of Article 6 § 1 of the Convention with respect to the requirement of an impartial tribunal.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

25.  The applicant claimed 30,000 euros (EUR) in respect of pecuniary damage and EUR 2,000,000 in respect of non-pecuniary damage, as well as EUR 5,000 in respect of costs and expenses.

26.  The Government contested these claims arguing that they were excessive and unsubstantiated.

27.  The Court reiterates that it found a violation of Article 6 § 1 of the Convention in the present case owing to the lack of impartiality of two judges. The Court does not therefore discern any causal link between the violation found and the pecuniary damage alleged. Consequently, it rejects this claim.

28.  On the other hand, having regard to all the circumstances of the present case, the Court accepts that the applicant must have suffered non‑pecuniary damage which cannot be compensated solely by the finding of a violation. Making its assessment on an equitable basis, the Court awards the applicant EUR 6,000 in respect of non-pecuniary damage, plus any tax that may be chargeable thereon. Furthermore, having regard to the documents before it, the Court considers it reasonable to award the applicant EUR 3,000 for costs and expenses, plus any tax that may be chargeable to them.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1.      Declares the application admissible;

2.      Holds that there has been a violation of Article 6 § 1 of the Convention;

3.      Holds

(a)  that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 6,000 (six thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 3,000 (three thousand euros), plus any tax that may be chargeable to the applicants, in respect of costs and expenses;

(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 the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 20 June 2023, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

            Crina Kaufman                                                  Faris Vehabović
    Acting Deputy Registrar                                                President