EHRM, 05-07-2007, nr. 31930/04

In their pleadings, the Government emphasised the need to take into account the particular demographic situation in Iceland, with a relatively small population, and the difficulty of finding suitable experts who did not have any ties to the NUH. In as much as it implies that variable standards should apply to the competent ‘tribunal’ depending on practical considerations, the Court does not accept the Government's reasoning (see Walston v. Norway, no. 37372/97 (dec.), 11 December 2001). The question whether a tribunal is impartial for the purposes of Article 6 § 1 must be determined solely according to the principles laid down in the Court's case-law, namely according to a subjective test, that is on the basis of the personal conviction of a particular judge in a given case, and also according to an objective test, that is ascertaining whether the judge offered guarantees sufficient to exclude any legitimate doubt in this respect (see Pétur Thór Sigurðsson v. Iceland, no. 39731/98, § 37, ECHR 2003-IV; Wettstein v. Switzerland, no. 33958/96, § 42, ECHR 2000-XII).

As to the subjective test, the personal impartiality of a judge must be presumed until there is proof to the contrary.

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. 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. 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 (ibid.).

The Court notes that in disputing the Supreme Court's impartiality in the present case, the applicant advanced a variety of arguments, all related to the SMLB. These could be divided into two groups, one relating to the manner and purpose of the consultation of the SMLB by the Supreme Court and another concerning the SMLB's composition and its position and role in the proceedings before the Supreme Court.

As to the first group of arguments, the Court is not convinced by the applicant's submission that the Supreme Court's decision to request an expert opinion from the SMLB without the parties' consent gave rise to any misgivings under Article 6 § 1. The Court sees no reason to call into doubt the correctness of the Supreme Court's interpretation and application of domestic law to the effect that it was empowered to request an opinion from the SMLB irrespective of the parties' stance on that question. As explained by the respondent Government, the impugned request had a legal basis in sections 2 and 3 of the SMLB Act and this was an exception to the general rule of Icelandic law on civil procedure that the parties to a civil case had the power of disposition over the subject matter of the action. The Court further reiterates that the Convention does not lay down rules on evidence as such. In the Court's view, a decision to appoint an expert, be it with or without the parties' consent, is a matter that normally falls within the national court's discretion under Article 6 § 1 in assessing the admissibility and relevance of evidence, which has been recognised by the Court in its case-law (see Eskelinen and Others v. Finland, no. 43803/98, § 31, 8 August 2006; Schenk v. Switzerland, judgment of 12 July 1988, Series A no. 140, p. 29, § 46).

Nor does the Court find any support for the applicant's argument that the Supreme Court's purpose in appointing the SMLB to give an expert opinion was to overturn the District Court's findings made on the basis of the expert conclusions at first instance. As can be seen from the Supreme Court's decision, its motive related to the complexity and unclearness of the evidence submitted to it. The applicant has adduced no proof to the effect that the decision was founded on any personal bias against her. Nor were there any objective justifications for doubting the Supreme Court's impartiality in taking the decision.

In these circumstances the Court is satisfied that the Supreme Court's decision to commission an expert opinion from the SMLB clearly fell within its discretion under Article 6 § 1 of the Convention and disclosed no lack of impartiality or unfairness for the purposes of this provision.

The second group of arguments is more problematic, in that it does not concern the composition of the Supreme Court but that of the SMLB and its procedural position and role in the proceedings before the Supreme Court. It should be noted that Article 6 § 1 of the Convention guarantees a right to a fair hearing by an independent and impartial ‘tribunal’ and does not expressly require that an expert heard by that tribunal fulfils the same requirements (see, mutatis mutandis, Mantovanelli v. France, judgment of 18 March 1997, Reports of Judgments and Decisions 1997-II, p. 436, § 33). However, the opinion of an expert who has been appointed by the competent court to address issues arising in the case is likely to carry significant weight in that court's assessment of those issues. In its case-law the Court has recognised that the lack of neutrality on the part of a court appointed expert may in certain circumstances give rise to a breach of the principle of equality of arms inherent in the concept of fair trial (see Bönisch v. Austria, judgment of 6 May 1985 (Merits), Series A no. 92, §§ 30–35; Brandstetter v. Austria, judgment of 28 August 1991, Series A no. 211, p. 21, § 33). In particular, regard must be had to such factors as the expert's procedural position and role in the relevant proceedings (see Bönisch, cited above, §§ 31–35).

In the instant case, the four members of the SMLB who were employed as doctors at the NUH, but who had not had any prior involvement in the case, did not withdraw, unlike the Chairperson who withdrew because he had been thus involved in his capacity as the Medical Director of Iceland. Three of the four members in question had been those three members constituting the Board's Forensic Chamber which (with the assistance of two other experts) had prepared the Board's own examination before it submitted its final report to the Supreme Court. The Court considers that the ties of those four members to the NUH could give rise to certain apprehensions on the part the applicant. While such apprehensions may have a certain importance, they are not decisive; what is decisive is whether the doubts raised by appearances can be held objectively justified (see Brandstetter v. Austria, judgment of 28 August 1991, Series A no. 211, p. 21, § 44).

In this connection, the Court notes that in view of the SMLB's special statutory role as provider of medical opinions to inter alia the courts, it can be assumed that the SMLB's opinions on matters referred to it would carry greater weight in their assessment than those of an expert witness called by any of the parties (see Bönisch v. Austria, judgment of 6 May 1985, Series A no. 92, pp. 15–16, § 33). Indeed, as is apparent from the Supreme Court's own reasoning, the latter attached significant weight to the SMLB's expert opinion in its decision to quash the award of compensation made by the District Court and to reject the applicant's compensation claim (see paragraph 25 above).

An additional factor illustrating the SMLB's dominant role in the proceedings, albeit not as such incompatible with the notion of fairness within the meaning of Article 6 of the Convention (see Sigurdur Gudmundsson v. Iceland (dec.), 31 August 2006), was the fact that, as already mentioned above, the Supreme Court was empowered to request an opinion from the SMLB irrespective of the parties' stance on the matter and that it was the Supreme Court and not the parties that formulated and addressed the written questions to the SMLB.

It is also to be noted that the issue to be determined in the relevant proceedings before the Supreme Court was whether the State was liable to pay compensation on account of medical negligence in connection with the applicant's birth at the same hospital as where the four members were employed, the NUH. Their task was not simply to give an expert opinion on any given subject that might or might not differ from an opinion previously stated by their colleagues and the management at the NUH on the same subject. In preparing the SMLB's expert opinion for the Supreme Court, the four members in question were called to do something more intricate, namely to analyse and assess the performance of their colleagues at the NUH with the aim to assist the Supreme Court in determining the question of their employer's liability. Therefore, the Court is unable to share the Government' view that this was merely a situation of experts being employed by the same administrative authority as was involved in the case (see Bönisch, cited above, § 32; cf. Brandstetter, cited above, p. 21, §§ 44–45; Zumtobel v. Austria, Commission's report of 30 June 1992, § 86, ECHR Series A no. 268-A; Beleggings- en Beheersmaatschappij Indiana B.V. v. the Netherlands (dec.) no. 21491/93, 29 November 1995; and Wolfgang Blum and Klaus Ignaz Jacobi v. Austria (dec.) no. 26527/95 of 18 November 1995).

Furthermore, while the doctors in question were not assigned to the same departments of the hospital as that where the disputed events had taken place, their hierarchical superior, the Chief Medical Executive, had taken a clear stance against the District Court's judgment by endorsing critical statements (see paragraph 12 above) by two hospital doctors that were forwarded to the Solicitor General and joined to the State's appeal to the Supreme Court (see, mutatis mutandis, Sramek v. Austria, judgment of 22 October 1984, Series A no. 84, pp. 19–20, §§ 41–42, relating to the independence of civil servant members of a tribunal in a subordinate position vis-à-vis one of the parties). In the Court's view, this endorsement is an important consideration. On the other hand, it sees no need to consider the applicant's additional argument that the Supreme Court's refusal to exclude the said statements from the case-file disclosed a lack of fairness in the proceedings, which in any event was not specifically mentioned as a complaint in her initial application under the Convention.

In the light of the above, the Court considers that the applicant could legitimately fear that the SMLB did not act with proper neutrality in the proceedings before the Supreme Court. It further transpires that, as a result of this deficiency and of the SMLB's particular position and role, the applicant's procedural position was not on a par with that of the adversary party, the State, in the manner required by the principle of equality of arms.

What is more, the Supreme Court's objective impartiality was compromised by SMLB's composition, procedural position and role in the proceedings before it.

Against this background, the applicant was not afforded a fair hearing before an impartial tribunal before the Supreme Court. Accordingly, there has been a breach of Article 6 § 1 of the Convention.