Legal summary
August 2024
Tsulukidze and Rusulashvili v. Georgia - 44681/21 and 17256/22
Judgment 29.8.2024 [Section V]
Article 6
Civil proceedings
Article 6-1
Impartial tribunal
Participation of judge on Supreme Court three-member panels, his judicial assistant being the daughter of the lawyer representing the respondent company in both sets of proceedings: violation
Facts – The applicants were employed in managerial positions at the main electricity distribution company in Tbilisi before their contracts were terminated as a result of the company’s reorganisation. Both brought separate civil proceedings against their former employer, requesting reinstatement in their positions and the payment of salary arrears. The first applicant’s claim was dismissed on appeal. The second applicant’s claim was granted in part and compensation awarded but his request for reinstatement was dismissed – a decision confirmed on appeal.
Both applicants lodged an appeal on points of law with the Supreme Court. Their respective cases were assigned to a panel of three judges which in both cases included Judge L.M., who also acted as rapporteur and president of the formation dealing with the first applicant’s case. The first applicant requested the recusal of Judge L.M. on two occasions, alleging his impartiality was undermined because his judicial assistant, G.D., was the daughter of the lawyer representing the respondent company in the proceedings. The second recusal request also concerned the remaining two judges on the panel, alleging they were acquaintances of the respondent company’s lawyer. The initial request was examined by a two-judge panel without Judge L.M’s participation and the second request was examined by all three judges. The second applicant requested the recusal of all three judges on the same grounds as the first applicant. This request was examined by a full three-judge panel including Judge L.M.
All of the applicants’ requests for recusal were dismissed as unsubstantiated. Their appeals on points of law were held to be inadmissible.
Law – Article 6 § 1:
There was nothing to indicate that Judge L.M. had acted with personal prejudice in the proceedings concerned and consequently, his personal impartiality had to be presumed. Therefore, the Court addressed the question of the judge’s alleged lack of impartiality in the light of the objective test.
While court officials were not impervious to the requirement of impartiality, the applicability of that condition was dependent on the specificities of the role of the court official in question within the domestic legal and judicial system. Noting the broadly worded description of the judicial assistants’ functions in Georgian national legislation, the Court considered that their work was not only administrative in nature. It found that, depending on the specific tasks entrusted to a judicial assistant, his or her involvement might be of considerable significance to the judicial process, and consequently, an individual performing those tasks had to be impartial for the proceedings to be compliant with Article 6.
It had not been disputed that Judge L.M.’s judicial assistant had been the daughter of the lawyer representing the respondent company. The Court found it difficult to rule on the scope and nature of G.D.’s involvement as the applicants had simply pointed to her general role as a judicial assistant to Judge L.M. and none of the parties had provided any evidence concerning her specific role and functions in the context of the proceedings in question. At the same time, G.D. had been the judicial assistant to Judge L.M. while he had been sitting on the three-judge panels in both cases. In respect of the first applicant’s case L.M. had also been the rapporteur and the president of the formation that had found the appeal to be inadmissible. In such circumstances, it had not been unreasonable for the applicants to assume that G.D. would be providing Judge L.M. with administrative and/or legal support in the preparation of their cases for examination. That had created a situation involving a possible conflict of interest which had required an appropriate response from the Supreme Court. In that connection, the concept of fair trial inherent in Article 6 implied the impartiality of the judicial process as a whole. What was at stake in such situations was the trust of the public in the justice system, where appearances have a high importance. Accordingly, the absence of internal procedural rules setting professional and ethical standards for judicial assistants and the failure to identify and regulate potential conflicts of interest had the potential to taint the impartiality of the judicial process as such.
As judicial assistants did not have a procedural status in the proceedings, there was no procedure in Georgian law governing their removal. The only remedy the applicants had had at their disposal had been a recusal request in respect of Judge L.M., which they had availed themselves of. However, the judicial panels which had dealt with the recusal requests had simply concluded, without engaging in an examination of the nature and scope of G.D.’s involvement in the proceedings and the ensuing potential conflict of interest, that the fact of her “influencing” the judicial process and, in particular, Judge L.M., had not been established. However, the issue had not been one of “influence” but one of appearances and of whether there had been ascertainable facts which might have raised doubts as to the court’s impartiality from the point of view of an external observer. More specifically, the Supreme Court had been expected to address whether the applicants’ misgivings concerning the impartiality of Judge L.M. might be regarded as objectively justified. It could have done so by analysing the role and functions of the legal assistant concerned and applying internal procedures setting relevant professional and ethical standards. The rather cursory examination of the applicants’ allegations had failed to alleviate their fears concerning the impartiality of Judge L.M. In that connection, the first applicant’s second recusal request and the second applicant’s recusal request had concerned not only Judge L.M. but also the other two judges on the panel, on the ground that they had been “close acquaintances” of the legal representative of the respondent company. In such circumstances the fact that the three judges concerned had decided on the application for their own recusals, although in accordance with an express provision of the Code of Civil Procedure, had raised an issue of potential conflict of interest.
The Court also noted the Government’s argument that a requirement for automatic disqualification of a judge on the mere ground of his or her judicial assistant’s family ties with any parties to a case would be too sweeping, given the size of the country. However, the Court had to confine itself to an examination of the concrete case before it and, moreover, the Contracting States were under the obligation to organise their legal systems so as to ensure compliance with the requirements of Article 6 § 1. In that connection, the Government had not argued that there had been any practical difficulties in finding a substitute for Judge L.M. among the other judges.
In sum, under the objective test of impartiality the applicants had been required to show that there had been an appearance of partiality supported by ascertainable facts, rather than to prove that a judge had been actually biased or prejudiced. The participation of Judge L.M. in the adjudication of the applicants’ cases, given the fact that his judicial assistant had been the daughter of the respondent company’s legal representative, coupled with the broad mandate given to judicial assistants in the Georgian judicial system, had created a situation which had been capable of raising legitimate fears as to his impartiality. The applicants had not known to what extent G.D. had been actually involved in their cases and the Supreme Court had failed to elucidate the circumstances of her involvement, thereby failing to dispel the applicants’ doubts concerning the impartiality of Judge L.M. Therefore, the applicants’ doubts on that ground had been objectively justified and they had not been provided with sufficient procedural safeguards in that respect.
Conclusion: violation (unanimously).
Article 41: EUR 3,600 to each applicant in respect of non-pecuniary damage; claim for pecuniary damage dismissed.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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