EHRM, 08-02-2007, nr. 75617/01

The Government maintained that the domestic remedies had not been exhausted. They submitted, inter alia, that, under the Constitutional Court Act 1994, any person may lodge a constitutional complaint alleging a breach of his or her human rights.

The applicants contested that argument, claiming that the remedies available were not effective.

The Court notes that the present application is similar to the cases of Belingerand Lukenda (see Belinger v. Slovenia (dec.), cited above; and Lukenda v. Slovenia, cited above). In those cases the Court dismissed the Government's objection of non-exhaustion of domestic remedies, finding that the legal remedies at the applicants' disposal were ineffective.

The Court finds that the Government have not submitted any convincing arguments in the instant case which would require the Court to distinguish it from its established case-law.

The Court further notes that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. Nor is it inadmissible on any other grounds. It must therefore be declared admissible.

The Government maintained that the domestic remedies had not been exhausted. They claimed that the applicants neither referred in their constitutional appeal to the fact that Mr Ude's expert opinion was submitted to the first-instance court, nor did they attach that opinion to their appeal. Although the composition of the Constitutional Court had been known to the public, and therefore also to the applicants, they had never sought Mr Ude's withdrawal. Their concern about possible bias on the part of the said justice was raised for the first time in their application to the Court. Since they had failed to challenge Mr Ude in accordance with the applicable domestic provisions, this complaint should be declared inadmissible.

Further on in their observations, however, the Government argued that Mr Ude's opinion was merely a scientific opinion in the case. They alleged that, according to section 31 of the Constitutional Court Act 1994, such an opinion was not a reason for a judge to step down.

The applicants made no reply.

The Court recalls that, in accordance with Article 35 of the Convention, it is not required to decide whether or not the facts alleged by the applicant disclose any appearance of a violation, unless all domestic remedies have been exhausted according to the generally recognised rules of international law (see, for example, Tričković, cited above). It falls to a Government pleading non-exhaustion to prove that the remedy in question was available to the applicant in theory and in practice at the material time. Once this burden of proof has been discharged, it is incumbent on the applicant to establish that the remedy relied on by the Government was in fact exhausted or was inadequate and ineffective in the particular circumstances of the case, or that there existed special circumstances absolving him or her from the requirement (see Lukenda, cited above, §§ 43 and 44).

Furthermore, the applicant is generally required to raise in substance and in due form in the domestic proceedings the complaints addressed to the Court, including the procedural means that might have prevented a breach of the Convention (see Barberà, Messegué and Jabardo v. Spain, judgment of 6 December 1988, Series A no. 146, § 59).

In the present case, the Court notes that the applicants neither challenged the impugned judge in their constitutional appeal nor called the Constitutional Court's attention to Mr Ude's prior role in the proceedings. Even though the applicants did not know which of the Constitutional Court's judges would examine the admissibility of their complaints, they could have sought in their constitutional appeal that Mr Ude be excluded from reviewing their appeal, in accordance with the relevant domestic legislation. In this much, the Court allows the Government's arguments.

However, the Court observes that the Government have also submitted that, in application of section 31 § 2 of the Constitutional Court Act 1994, it would have been futile to seek Mr Ude's withdrawal on the ground that he had delivered an opinion in this particular case when it was pending before the first-instance court. In the absence of any argument or case-law that would prove the opposite, the Court accepts this line of reasoning. In such circumstances, it is the Court's opinion that the Government have not shown that, in the circumstances of this case, seeking Mr Ude's withdrawal, was a remedy which the applicants were requested to exhaust for the purposes of Article 35 § 1 of the Convention.

The Government did not allege that the applicants should have availed themselves of any other remedies.

Consequently, the objection of non-exhaustion must be rejected.

The Court further notes that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. Nor is it inadmissible on any other grounds. It must therefore be declared admissible.

The applicants alleged that the panel of three judges of the Constitutional Court which declared their constitutional appeal inadmissible was biased, in that it had been presided over by Mr Ude and Mrs Wedam-Lukić was a member of it.

The Government first emphasised the distinction of the two roles played by Mr Ude in the impugned proceedings. Before the first-instance court, he delivered a scientific opinion, widely accepted in legal theory, on the jurisdiction of the Slovenian courts. As a justice of the Constitutional Court, he was deciding on the admissibility of the applicants' complaints under Article 22 of the Constitution, which guarantees equal protection of rights. The relevant Constitutional Court decision did not concern the merits of the applicants' complaints, nor did it refer to Mr Ude's scientific opinion. In any event, the applicants did not submit the said opinion with their constitutional appeal, nor did any of the decisions by the lower courts refer to it. Moreover, Mr Ude's expert opinion concerned questions that were not the focus of the domestic courts.

The Government have referred to the Court's findings in the case of Delange and Magistrello v. France and claimed that the mere fact that a judge actively participated in the preliminary proceedings to which the applicant was a party and had detailed knowledge of the facts of the case was not sufficient to raise any doubts as to his impartiality when he was presiding over the case later on in the proceedings (see Delage and Magistrello v. France (dec.), no. 40028/98, ECHR 2002-III). They further emphasised the distinction between the present case and that of Pescador Valero v. Spain, because Mr Ude had not been in a close relationship with the applicants' adversary (see Pescador Valero v. Spain, no. 62435/00, ECHR 2003-VII).

According to the Court's constant case-law, when the impartiality of a tribunal for the purposes of Article 6 § 1 is being determined, regard must be had to the personal conviction and behaviour of a particular judge in a given case — the subjective approach — as well as to whether it afforded sufficient guarantees to exclude any legitimate doubt in this respect — the objective approach (see Kyprianou v. Cyprus[GC], no. 73797/01, § 18, ECHR 2005-…; Thomann v. Switzerland, judgment of 10 June 1996, Reports of Judgments and Decisions 1996-III, p. 815, § 30; and Predojević, Prokopović, Prijović, and Martinović v. Slovenia (dec.), nos. 43445/98, 49740/99, 49747/99, 54217/00, 9 December 2004).

Firstly, as to the subjective test, the tribunal must be subjectively free of personal prejudice or bias. In this respect, the personal impartiality of a judge must be presumed until there is proof to the contrary (see, among other authorities, Padovani v. Italy, judgment of 26 February 1993, Series A no. 257-B, p. 20, § 26, and Morel v. France, no. 34130/96, § 41, ECHR 2000-VI).

In the present case, in the absence of any evidence to the contrary, there is no reason to doubt Mr Ude's personal impartiality.

Secondly, under the objective test, it must be determined whether, quite apart from the judge's personal conduct, there are ascertainable facts which may raise doubts as to his impartiality, since ‘justice must not only be done; it must also be seen to be done’. In this respect 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 (see Morris v. the United Kingdom, no. 38784/97, § 58, ECHR 2002-I). 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, among many other authorities, Pescador Valero v. Spain, cited above, § 23).

When determining the objective justification of the applicant's fear, such factors as the judge's dual role in the proceedings, the time which elapsed between the two participations, and the extent to which the judge was involved in the proceedings may be taken into consideration (see, for example, Walston v. Norway, no. 37372/97, 3 June 2003; Wettstein v. Switzerland, no. 33958/96, ECHR 2000-XII; and McGonnell v. the United Kingdom, no. 28488/95, ECHR 2000-II).

In this regard, the Court notes that the applicants did not challenge any member of the Constitutional Court at the time they lodged a constitutional appeal, nor did they attach Mr Ude's opinion to the said appeal or refer to it therein. The Court acknowledges that well over four years and four months elapsed between the date on which Mr Ude delivered the opinion and the date on which the applicants lodged a constitutional appeal. An additional two years and ten months passed before the Constitutional Court delivered a decision on the admissibility of the applicants' appeal. There is no indication in the observations made by the parties that Mr Ude was either reminded of his prior involvement in this particular case or that his opinion was included in the case file before the Constitutional Court.

The Court observes, in general, that there is a risk of problems arising in a system which lacks safeguards to ensure that judges are reminded of their prior involvement in particular cases, above all where such matters rely on the judges' own assessment, which may, inevitably, suffer from a lack of recollection of a particular instance of prior involvement (see Puolitaival and Pirttiaho v. Finland, no. 54857/00, § 44, 23 November 2004). However, the Court refers to its findings with regard to the Government's preliminary objections (see paragraph 27 above) and will not expand further on this subject, because its role in the proceedings at hand is confined to the question of whether the applicant's fears about Mr Ude's and Mrs Wedam-Lukić's impartiality were legitimate, given the relations between the two judges and the other party to the proceedings, and whether these relations cast doubt on the judges' objective impartiality.

To this end, the Court observes that, at WA's request, Mr Ude delivered an opinion on whether the Slovenian courts had jurisdiction to examine the applicants' claims in the impugned proceedings. This opinion was served on the applicants, who objected to it in their submissions to the first-instance court, and was included in the case file. The outcome of the proceedings was in line with Mr Ude's opinion, although the court's decision made no reference to it. When the applicants received the decision of the Constitutional Court, they were informed that Mr Ude had been the president of the bench and that Mrs Wedam-Lukić also sat on the bench.

As to Mrs Wedam-Lukić's alleged partiality, the Court considers that the applicants' fear has no legitimate ground. She had been a colleague of Mr Ude at the Faculty of Law in Ljubljana when the latter delivered his opinion in the applicants' case. She was not directly involved in the impugned proceedings prior to sitting on the Constitutional Court's bench, and the applicants' assertions that she might have had previous knowledge of the case solely by virtue of working in close proximity to Mr Ude at the material time is too vague to procure any objective doubt of her impartiality.

On the contrary, Mr Ude did have a detailed knowledge of the facts of the case and had been retained by the applicant's adversaries in the proceedings before the first-instance court, essentially as a professional expert. His role as a justice of the Constitutional Court was, admittedly, quite different, and was limited to determination of the admissibility of the applicants' complaints made under the Constitution. Nonetheless, the Court finds that due to his previous involvement in the proceedings, the impartiality of the ‘tribunal’ was open to doubt, not only in the eyes of the applicants but also objectively.

There has accordingly been a violation of Article 6 § 1.