Communicated on 1 September 2015
THIRD SECTION
Application no. 41059/11
Iulian Cătălin GOGAN against Romania
lodged on 24 June 2011
STATEMENT OF FACTS
The applicant, Mr Iulian Cătălin Gogan, is a Romanian national, who was born in 1976 and lives in Bucharest.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 3 September 2007 the applicant, who is a lawyer, signed a legal assistance contract with a third party. The third party retained the applicant’s services in order to initiate proceedings seeking to recover a large debt from a former business partner. The legal assistance contract included a clause that the applicant was entitled to a fee of 470,000 euros (EUR) and 250,000 US dollars (USD) if the proceedings opened against the third party’s former business partner were successful, or if the applicant decided to terminate the legal assistance contract on other grounds than the applicant’s professional fault before the aforementioned proceedings were concluded.
On an unspecified date the applicant initiated on the third party’s behalf debt recovery proceedings against the latter’s former business partner. Subsequently, the third party informed the domestic courts examining the debt recovery proceedings that he wished to terminate the proceedings opened against his former business partner because they had reached a friendly settlement.
On an unspecified date the applicant brought proceedings against the third party seeking to enforce the legal assistance contract’s clause entitling him to the fee of EUR 470,000 and USD 250,000.
On 3 November 2008 the third party contested the enforcement proceedings and also asked the domestic courts to annul the impugned contract clause on the ground that it was unlawful.
On 17 August 2010 the Bucharest District Court allowed the third party’s action, terminated the enforcement proceedings initiated by the applicant and declared null the impugned contract clause on the ground that it was unlawful. The applicant appealed on points of law (recurs) against the judgment.
The applicant’s appeal on points of law was examined by the Bucharest County Court sitting in a bench of three judges, namely A.P., C.T. and C.M. A.P. was the president of the panel of judges.
On 10 January 2011 judge A.P. sought to recuse herself from the case. She stated that she was friends with the third party’s daughter and that she was taking riding lessons organised by the company owned by the third party’s daughter.
On the same date the Bucharest County Court, deliberating in chambers in a panel of three judges, including judges C.T. and C.M., and without summoning the parties, dismissed A.P.’s request to recuse herself from the case on the ground that she had not examined the case before.
By a final judgment of 24 January 2011 the Bucharest Court of Appeal dismissed the applicant’s appeal on points of law against the judgment of 17 August 2010 and concluded amongst other things that the impugned contract clause was unlawful.
B. Relevant domestic law
Articles 25 and 27 of the former Romanian Civil Procedure Code provided, amongst other things, that a judge who was aware that there was a ground to be recused in his case had to recuse himself. The judge could be recused if he had received from one of the parties to the proceedings gifts or promises of gifts or other services.
COMPLAINT
The applicant complains under Article 6 of the Convention that the proceedings opened against him by the third party had been unfair in so far as the last-instance court had lacked independence and impartiality given that the president of the panel of judges of the aforementioned court had stated her lack of impartiality.
QUESTION TO THE PARTIES
Did the applicant have a fair hearing in the determination of his civil rights and obligations, in accordance with Article 6 § 1 of the Convention? In particular, was the applicant’s appeal on points of law before the Bucharest County Court dealt with by an independent and impartial tribunal?
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