CASE OF UPĪTE v. LATVIA

FIFTH SECTION

CASE OF UPĪTE v. LATVIA

(Application no. 7636/08)

JUDGMENT

STRASBOURG

1 September 2016

FINAL

01/12/2016

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Upīte v. Latvia,

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

Angelika Nußberger, President,
Khanlar Hajiyev,
André Potocki,
Yonko Grozev,
Síofra O’Leary,
Carlo Ranzoni,
Mārtiņš Mits, judges,
and Milan Blaško, Deputy Section Registrar,

Having deliberated in private on 5 July 2016,

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

PROCEDURE

1. The case originated in an application (no. 7636/08) against the Republic of Latvia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Latvian national, Ms Ženija Upīte (“the applicant”), on 8 January 2008.

2. The applicant was represented by Mr D. Skačkovs, a lawyer practising in Riga. The Latvian Government (“the Government”) were represented by their Agent, Mrs K. Līce.

3. The applicant complained that there had been a breach of the principle of impartiality set out in Article 6 § 1 of the Convention in civil proceedings before the Senate of the Supreme Court, acting as a court of cassation.

4. On 14 January 2013 the above complaint was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1945 and lives in Riga.

A. The events leading to the complaint at issue

6. In the summer of 2007 a book called “Kitchen of Litigation” (Tiesāšanās kā ķēķis) was published, which contained transcripts of allegedly authentic telephone conversations between the lawyers of a well‑known law office in Latvia and judges working in various courts, including the Senate of the Supreme Court. The judiciary’s allegedly unlawful and unethical behaviour provoked considerable public debate and attracted wide media coverage. The Supreme Court and the Prosecutor General’s Office launched an inquiry (pārbaude).

7. On 17 September 2007 the Supreme Court established a working group consisting of five judges. The working group was tasked with carrying out an assessment of whether “the judges of the Supreme Court who were purportedly involved in the telephone tapping scandal, which raises doubts about the independence of the judiciary and the honesty of judges” had violated the Code of Ethics of Judges. On 8 October 2007 the working group received transcripts of the alleged telephone conversations from the Prosecutor General’s Office.

8. On 7 November 2007, during the annual conference of judges, the chairman of the Supreme Court made a speech about the effects of the book and the public debate which followed. He stated:

“More than two months have passed since information emerged about alleged telephone conversations between judges and a particular lawyer. That event further confirmed the conviction of at least some people in society that doubts about the impartiality and the independence of courts, and therefore the lawfulness of their judgments, are justified.

Society sees the information that was published as credible, irrespective of whether it was obtained lawfully or unlawfully and no matter what the result of the investigation carried out by the Prosecutor’s Office will be, and it undermines trust in the judiciary. ...

... I think that the information about the alleged conversations between judges and the lawyer [...] should be treated as a signal or a call to look at the problems in the judiciary in a wider context ...

... In relation to this particular situation, I think it was caused by the attitude to the rule of law and the code of ethics which regulate judges’ behaviour. The superficial, irresponsible and perhaps even the unlawful behaviour of certain judges has fundamentally affected trust in the judiciary ...

Therefore [we] should also talk about the responsibility of judges, [we] should be conscious of the fact that a lack of self-criticism and an inability to apply ethical standards properly pose a threat to the independence of the judiciary ....”

9. On an unknown date the inquiry carried out by the Prosecutor General’s Office concluded that the alleged telephone conversations had taken place between November 1998 and April 2000. As there were no audio records of the conversations, the authenticity of the content of the transcripts could not be established. In the course of the inquiry the Prosecutor General’s Office questioned several judges mentioned in the book.

10. With regard to Judge O.D.J., a judge of the Senate of the Supreme Court, the Prosecutor General’s Office observed that the book had referred to a brief telephone conversation of 24 November 1999 in which the lawyer A.G. had arranged a meeting in the Judge O.D.J.’s office. The impugned conversation had not referred to any specific civil case so the Prosecutor General’s Office concluded that there were insufficient grounds to investigate Judge O.D.J.’s activities.

11. On 30 November 2007 the working group established by the Supreme Court published a report on their inquiry into alleged ethical wrongdoing by judges. The working group identified that two of the fifteen judges, whose conduct had been assessed, had violated the Code of Ethics of Judges, but that Judge O.D.J., whose conversation with the lawyer had been published in the book, had not. It stated:

“... [12.5] In his submissions [5.5] O.D.J. did not deny that he might have had conversations [with the lawyer] but that they had only concerned German compensation claims, however in those cases [the lawyer] had not been representing any of the parties, and therefore the working group concluded that O.D.J. had not violated the Code of Ethics.”

B. Civil proceedings in relation to the applicant

12. In 2004 the applicant and another person brought a civil claim against a third party. On 25 January 2005 the Riga Regional court, as a first‑instance court, dismissed the claim and on 21 November 2006 the Supreme Court, acting as an appellate court, dismissed an appeal by the applicant.

13. In June 2007 the Senate of the Supreme Court granted leave to the applicant to appeal on points of law. The hearing before the cassation court was held on 29 August 2007. The Senate sat as a panel of three judges, including O.D.J. The applicant’s representative raised objections to O.D.J., arguing that the applicant had reasonable doubts as to his impartiality on the grounds that the judge was under several inquiries at the time for allegedly unethical or unlawful behavior. The applicant also alleged that the defendant’s representative was a former employee of the Supreme Court.

14. On 29 August 2007 the other two judges, referring to Article 19(1)(4) of the Civil Procedure Law (see paragraph 16 below), dismissed the objections. They noted that the applicant’s doubts were based only on an assumption and that the objection did not contain evidence allowing to conclude that the applicant’s doubts about the impartiality of Judge O.D.J. in the particular case were reasonable in the terms of the above provision. On the same day the Senate of the Supreme Court upheld the appellate court’s judgment on the merits by which the applicant’s claim was dismissed and it became final in that part, but referred the case back for reconsideration in part on the implementation of the judgment.

II. RELEVANT DOMESTIC LAW AND PRACTICE

A. Law on Judicial Power

15. Section 14 of the Law on Judicial Power provides that a judge does not have the right to participate in the adjudication of a case if he or she, personally, directly or indirectly, has an interest in the outcome of the case, or if there are other circumstances creating well-founded reasons to question the judge’s impartiality. In such cases a judge must withdraw from the case. If a judge or a lay judge has not withdrawn from the case, anyone participating in the proceedings may request such a withdrawal according to a procedure prescribed by law.

B. Civil Procedure Law

16. Sections 17 and 19 of the Civil Procedure Law contain similar provisions to those stated above. In particular, Article 19(1)(4) provides that a judge cannot participate in the adjudication of a case if he or she is personally directly or indirectly interested in the outcome of the case or if there are other circumstances that give rise to reasonable doubts about his or her impartiality.

17. Section 479(1) of the Civil Procedure Law lists circumstances in which final judgments may be reexamined. It includes circumstances which are essential to a case and which existed at the time of examination of the proceedings, but which were not and could not have been known to the applicant.

C. Other documents

18. The Code of Ethics of Judges, adopted on 20 April 1995, includes a provision that a judge must not create the impression that any one person has a particular status that might influence the judge.

D. Relevant Senate of the Supreme Court case-law

19. According to a letter prepared by the Senate of the Supreme Court dated 18 April 2013 and addressed to the Government, in 2007 and the first half of 2008 several challenges against Supreme Court judges had been received from litigants in relation to the impugned book. In cases where any of the parties had been represented by lawyers mentioned in the book, the president of the Civil Cases Department of the Supreme Court excluded from sitting in cases those judges whose names also had been mentioned therein.

20. In April 2008 in the case of SKC-703/2008 L.P. relied on section 479(1) of the Civil Procedure Law and asked the Supreme Court to quash the final judgment adopted by the Riga Regional Court on 24 April 2016 on the grounds that two of the judges sitting in the civil case had been mentioned in the impugned book. On 27 August 2009 the Senate of the Supreme Court in a final decision dismissed the claim finding that there had been no relation between the conversations published in the book and the civil case under consideration.

III. RELEVANT INTERNATIONAL DOCUMENTS

21. Value 4 of the Bangalore Draft Code of Judicial Conduct of 2001, adopted by the Judicial Group on Strengthening Judicial Integrity, as revised at the Round Table Meeting of Chief Justices held in the Hague, November 25-26, 2002, states that a judge shall, in his or her personal relations with individual members of the legal profession who practise regularly in the judge’s court, avoid situations which might reasonably give rise to the suspicion or appearance of favouritism or partiality (paragraph 4.3.). For other principles see Harabin v. Slovakia (no. 58688/11, §§ 107‑108, 20 November 2012).

22. Paragraph 7 of the Opinion no. (2013) 16 on the relations between judges and lawyers, adopted by the Consultative Council of European Judges (CCJE) on 13‑15 November 2013, provides that judges and lawyers must be independent in the exercise of their duties, and must also be, and be seen to be, independent from each other, while paragraph 22 states that public confidence in the judiciary and respect for it are the guarantees of the effectiveness of the judicial system: the conduct of judges in their professional activities is understandably seen by members of the public as essential to the credibility of the courts. In this relation see also Morice v. France ([GC], no. 29369/10, § 60, 23 April 2015).

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

23. The applicant complained that there had been a breach of the principle of impartiality set out in Article 6 § 1 of the Convention on the grounds that Judge O.D.J. had been subjected to inquiries at the time of the cassation proceedings in relation to allegedly unethical relations with lawyers. The relevant part of Article 6 reads:

“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

24. The Government argued that the complaint should be dismissed as unsubstantiated. The Government contended that the applicant had not provided any evidence about Judge O.D.J.’s alleged impartiality, either before the domestic court or before the Court. The applicant had merely referred to general information published by the media in relation to a book which had contained transcripts of allegedly authentic telephone conversations between lawyers and judges working in various courts in Latvia.

25. The applicant did not submit any comments on admissibility.

26. The Court considers that the Government’s submission falls to be examined under the merits of Article 6 of the Convention.

27. 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

28. The Government contended that the tests of Judge O.D.J.’s subjective and objective impartiality had been passed in this case. They noted that the publication of the book had sparked wide discussion and that at the time the court system as a whole had been in the spotlight. However, in support of her complaint about an alleged lack of impartiality the applicant had relied merely on general information about the book, without providing any proof of actual bias on the part of Judge O.D.J. The Government argued that the alleged telephone conversations published in the book had concerned a period between 1999 and 2000. Even though the inquiries afterwards had established that the conversation in question had taken place, the authenticity of the conversation had never been proved. In any event, assuming that the published transcripts were authentic, the conversation between Judge O.D.J and the lawyer – a well-known legal practitioner and scholar – had been extremely vague and had not mentioned the applicant’s case. Referring to the letter provided by the Senate of the Supreme Court (see paragraph 19 above), the Government noted that after publication of the book any judges mentioned in it had recused themselves from cases where parties had been represented by the law office in question.

29. The applicant argued that the Government had grounded its submission on the outcome of the inquiries – a fact that had been unknown to the applicant at the time her case had been under consideration by Judge O.D.J., whose name had figured in the book. She emphasised that the highest authorities in Latvia had considered that the book had raised issues which were serious enough to trigger high-profile inquiries. The applicant’s doubts about the impartiality of the judge had therefore been supported by several public statements made by prominent officials in the judiciary, such as the chairman of the Supreme Court (see paragraph 8 above). She argued that a judge could not be considered impartial if other judges suspected him or her of unethical behaviour.

30. The Court reiterates that impartiality within the meaning of Article 6 § 1 of the Convention normally denotes the absence of prejudice or bias. The question of whether a tribunal is impartial is analysed by applying two tests: a subjective test seeking to determine the personal conviction and behaviour of a particular judge; and an objective test seeking to ascertain whether the tribunal itself offered sufficient guarantees to exclude any legitimate doubt in respect of its impartiality. In the first test, the impartiality of a judge or a tribunal must be presumed until there is proof to the contrary. Under the second test it must be determined whether there are ascertainable facts which may raise doubts as to impartiality of a judge. In deciding whether in a given case there is a legitimate reason to fear that a particular judge or a body sitting as a bench lacks impartiality, the standpoint of the person concerned is important but not decisive. What is decisive is whether this fear can be held to be objectively justified (see Morice v. France [GC], cited above, §§ 73-78).

31. The applicant’s doubts about Judge O.D.J.’s impartiality stemmed from the fact that at the time of review of the applicant’s civil case the State authorities were carrying out inquiries into allegedly unethical relations between several judges and lawyers. According to the applicant, Judge O.D.J. could only have dispelled any doubts about his impartiality by stepping down from the case while the inquiries were going on.

32. In relation to the subjective test, the Court finds no indication that Judge O.D.J. had acted with any personal bias against the applicant.

33. As to the objective test, the Court notes at the outset that the proper administration of justice requires that the relationship between judges and lawyers is based on common ethical values. Judges and lawyers must communicate in a manner which does not raise doubts about their abilities to exercise their duties independently from each other. Be it otherwise, the public confidence in the judiciary would be undermined and the efficiency of the judicial system would be weakened (see paragraphs 21-22 above). The Court observes that in the applicant’s case the scale and intensity of the public debate at national level, including the statements made by the chairman of the Supreme Court about the judiciary in general (see paragraph 8 above), and the media coverage of the inquiry might have caused the applicant anxiety about impartiality of several judges of the Supreme Court, including Judge O.D.J.

34. Nevertheless, the standpoint of a party is not the decisive factor (see paragraph 30 above). The question of whether there is a legitimate reason to fear that a particular judge lacks impartiality is to be assessed not only against the particular circumstances of each case, but also in the light of the sufficiency of safeguards offered by the national procedures for ensuring impartiality (see Micallef v. Malta [GC], no. 17056/06, § 99, ECHR 2009).

35. The Court observes that the book contained one alleged telephone conversation of a general character between Judge O.D.J and the lawyer, who was not in any way related to the applicant or the pending civil proceedings. The alleged conversation took place four years before the applicant brought her civil case to court and eight years before the impugned judge examined the applicant’s appeal on points of law. The book did not disclose any other indication that the relationship between Judge O.D.J. and any lawyers had been of such a nature and degree as to indicate a lack of impartiality on the part of the tribunal (see Pullar v. the United Kingdom, 10 June 1996, § 38, Reports of Judgments and Decisions 1996‑III). In the light of the above circumstances, the fact that the results of the inquiries into possible unethical or even unlawful behaviour by Judge O.D.J. concerning events unrelated to the applicant’s case had been pending cannot automatically lead to the conclusion that the judge lacked impartiality in the particular case.

36. The Court also takes note of the safeguards which were in place. The Senate of the Supreme Court duly examined the applicant’s challenge to Judge O.D.J. (see, to the contrary, the case of Harabin v. Slovakia, cited above, § 137). The dismissal of the applicant’s objections was reasoned and based on the proper legal grounds (see paragraph 14 above). The Court observes that at the material time challenges brought against judges because their names appeared in the book were accepted in cases where any of the parties had been represented by lawyers mentioned in the book (see paragraph 19 above). In addition, two inquiries were started and later concluded with respect to Judge O.D.J.’s conversation published in the book. The Prosecutor’s General Office established that there were not sufficient grounds to open investigation into Judge O.D.J.’s conduct. The working group convened by the Supreme Court found that conversations between Judge O.D.J. and the lawyer had concerned legal issue where the lawyer had not been representing any of the parties and therefore did not find a violation of the Code of Ethics of Judges (see paragraphs 10 and 11 above).

37. In view of the circumstances of the case and the above examined safeguards, the Court finds that the applicant’s complaints about the impartiality of Judge O.D.J. were not objectively justified.

There has accordingly been no violation of Article 6 of the Convention.

II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

38. The applicant also made other complaints under Article 6 of the Convention. Those complaints were not communicated to the Government.

39. In the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court considers that the remaining complaints do not disclose any appearance of a violation of the Article of the Convention relied on. It follows that these complaints are inadmissible under Article 35 § 3 (a) and must be rejected pursuant to Article 35 § 4 of the Convention.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the complaint under Article 6 of the Convention concerning the alleged breach of the principle of impartiality by Judge O.D.J. admissible and the remainder of the application inadmissible;

2. Holds that there has been no violation of Article 6 of the Convention.

Done in English, and notified in writing on 1 September 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Milan BlaškoAngelika Nußberger
Deputy RegistrarPresident

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