Communicated on 20 October 2015
THIRD SECTION
Application no. 24599/13
Ilinca Clara POPOACĂ
against Romania
lodged on 29 March 2013
STATEMENT OF FACTS
The applicant, Ms Ilinca Clara Popoacă, is a Romanian national, who was born in 1983 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 an unspecified date the applicant lodged a request before the Bucharest District Court seeking to stay the enforcement of a final judgment granting her former husband visiting rights in respect of their minor daughter. She argued that the impugned judgment had failed to establish exact time intervals during which her minor daughter could be taken away from her home which rendered the enforcement problematic.
By a final interlocutory judgment of 9 October 2012 the Bucharest District Court, sitting as a single judge, namely M.V.L., dismissed the applicant’s action. It held inter alia that the applicant could have herself proposed the time intervals for the meetings of her former husband with their daughter. Although the setting out of precise time intervals by the court would have been an advantage if the parties had failed to cooperate with each other, it would have also amounted to a disadvantage because it would not have allowed for any flexibility if the child would have been unavailable at a particular time, on account of her condition or for other reasons.
On an unspecified date the applicant lodged a second request before the Bucharest District Court to have the final judgment granting her former husband visiting rights stayed. She reiterated the arguments she had already raised during the proceedings of 9 October 2010. In this connection, she also contended that the bailiff’s behaviour had rendered the enforcement unlawful because he had set out a precise time for the meeting between her former husband and her daughter thus changing the judgment he was attempting to enforce.
On 30 October 2012 judge M.V.L. sought to recuse himself from the case on the ground that on 9 October 2012 he had already expressed his opinion on the case.
By a final interlocutory judgment of 1 November 2012 the Bucharest District Court, deliberating in chambers without the parties’ presence, dismissed judge M.V.L.’s request to recuse himself. It concluded that the lawful reason he had relied on for recusal had not been applicable in the case. It held that judge M.V.L. had only examined a different stay of enforcement action initiated by the same applicant in respect of the same enforcement file, and thus had not already expressed an opinion on the request at hand. Moreover, there was no element that could generate a reasonable suspicion to an objective observer that the judge in question lacked impartiality.
By a final interlocutory judgment of 17 November 2012 the Bucharest District Court, sitting as a single judge, namely M.V.L., dismissed the applicant’s second request to have the final judgment granting her former husband visiting rights stayed. It held that the arguments raised by the applicant and dismissed by the court on 9 October 2012 had acquired the status of res judicata and could no longer be examined again. In respect of the applicant’s additional argument it held that the bailiff’s behaviour had been justified and had not rendered the enforcement unlawful as it was natural for him to set out a precise meeting time.
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 already expressed an opinion on the case.
COMPLAINT
The applicant complains under Article 6 of the Convention about the unfairness of the proceedings of 17 November 2012 in so far as her request was not examined by an impartial tribunal.
QUESTION TO THE PARTIES
Did the applicant have a fair hearing in the determination of her civil rights and obligations, in accordance with Article 6 § 1 of the Convention? In particular, was the applicant’s case dealt with on 17 November 2012 by an independent and impartial tribunal?
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