Information Note on the Court’s case-law No. 122
August-September 2009
Procedo Capital Corporation v. Norway - 3338/05
Judgment 24.9.2009 [Section I]
Article 6
Civil proceedings
Article 6-1
Impartial tribunal
Independent tribunal
Decision of appellate court not to discontinue proceedings after withdrawal of one of the judges on objective impartiality grounds: no violation
Facts – On an appeal in litigation between the applicant company and a broker over securities dealings, the high court invited the parties to propose the names of two financial experts to sit as lay members on the bench. The broker proposed the appointment of A., a partner in a large accountancy firm; the applicant company did not object within the specified time-limit. Accordingly, when the hearing of the appeal began, the bench was composed of three professional judges and two lay experts, including A. A few days into the hearing, just after the applicant company’s counsel had made his opening address, A. informed the parties that his firm had been engaged on an assignment for the broker’s parent company in connection with a stock-exchange listing. The high court ordered A. to withdraw from the case, but rejected a motion by the applicant company for the case to be discontinued after finding that A.’s disqualification did not disqualify the remaining judges. Before the European Court, the applicant company complained that the high court had not been impartial.
Law – Article 6 § 1: There had been no evidence of personal bias on A.’s part, but there had been legitimate, if not particularly strong, reasons for doubting his objective impartiality, in view of his position as a partner in a consultancy firm that had provided auditing and accounting services to the parent company of one of the parties to the proceedings. However, the high court had unanimously upheld the applicant company’s request to order A. to withdraw and his presence had been limited to, and terminated after, a relatively early phase of the hearing. The Court was not convinced that the high court as composed after A.’s withdrawal failed to satisfy the impartiality requirement. The suggestion that A. may have influenced the high court’s decision to sever the applicant company’s counterclaim from the main action was unpersuasive as it had been reached in A.’s absence and in substance had endorsed the applicant company’s own position on that point. Any misgivings stemming from the possibility that A. might have exerted influence on other members of the bench by taking part in informal exchanges with them had been adequately addressed by their unanimous order that he withdraw and unanimous decision that his disqualification did not disqualify them. Following A.’s withdrawal, the high court had heard an additional eleven days of argument from both parties and had deliberated for two days before issuing its decision. It could not therefore be said that A. had been involved directly or indirectly in determining the dispute. The nature, timing and short duration of his involvement in the proceedings were not capable of causing the applicant company to have legitimate doubts as to the impartiality of the high court as a whole. Accordingly, the high court had not been under an obligation to discontinue the proceedings and to reconvene in a different composition.
Conclusion: no violation (unanimously).
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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