AS TO THE ADMISSIBILITY OF
Application No. 22340/93
by W. N.
against Austria
The European Commission of Human Rights (First Chamber) sitting
in private on 27 November 1996, the following members being present:
Mrs. J. LIDDY, President
MM. M.P. PELLONPÄÄ
E. BUSUTTIL
A. WEITZEL
B. CONFORTI
N. BRATZA
I. BÉKÉS
G. RESS
C. BÎRSAN
K. HERNDL
M. VILA AMIGÓ
Mrs. M. HION
Mrs. M.F. BUQUICCHIO, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 14 July 1993 by
W. N. against Austria and registered on 26 July 1993 under file
No. 22340/93;
Having regard to:
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the observations submitted by the respondent Government on
10 April 1996 and the observations in reply submitted by the
applicant on 3 June 1996;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is an Austrian citizen, born in 1957, and living
in Axams. He is represented by Mr. A. Heiss, a lawyer practising in
Innsbruck.
The facts of this case, as submitted by the parties, may be
summarised as follows.
The applicant's older brother, A.N., is the owner of the family's
farmhouse which was donated to him by the father in 1970. In 1973 he
constructed a two-storey apartment house on the premises. The applicant
and other family members assisted in the construction works.
When the house was finished, the mother, a sister of the
applicant and his brother, A.N., each occupied an apartment in the new
construction.
In 1979 the applicant's brother, A.N., concluded a user-right
contract with his mother. According to this contract his mother's
user-right ended at the latest on 31 December 2008 unless she died
earlier.
In 1988 the mother died and M.-L.N., another sister of the
applicant, moved into the apartment. Thereupon, the applicant's
brother, A.N., brought an action for eviction against her.
On 11 January 1991 the Innsbruck District Court (Bezirksgericht)
granted this action. The judgment was given by Judge K. while Judge W.
who had dealt with the action earlier had been successfully challenged
by the plaintiff. Judge K. found, on the basis of evidence obtained
from various family members heard as witnesses and also on the basis
of documentary evidence, that there was nothing to show that the
defendant had any valid user-right. She had claimed to have been
authorised to move into the apartment by the applicant. The court
considered that the applicant did have a user-right which however had
expired once he had reached the age of majority.
It appears that subsequently the applicant took possession of the
apartment and his brother, A.N., therefore brought an action for
eviction against him too.
In the new proceedings the plaintiff again challenged Judge W.
The matter was therefore referred to Judge K. who made a request to be
replaced as he also considered himself to be biased in view of the
judgment given in the same matter against the applicant's sister, M.-
L.N., in particular as the question of the applicant's user-right had
played a role in these proceedings.
On 24 September 1991 the President of the District Court
(Gerichtsvorsteher) rejected Judge K.'s request to be replaced. It is
stated in the order that the mere fact that a judge had dealt with a
similar matter on an earlier occasion did not in itself constitute a
reason to doubt his impartiality. A judge had the obligation to obtain
and assess evidence in each case in an impartial manner and the mere
fact that he had decided a parallel matter did not give rise to doubt
that he would not respect this obligation in the new proceedings.
On 30 October 1991 the Innsbruck Regional Court (Landesgericht)
dismissed the applicant's appeal against this decision. This court
pointed out that there were no statutory reasons to replace Judge K.
It noted that the applicant, being the defendant, had not yet made any
submissions in the proceedings at issue. Thus, it was not yet clear
what evidence would be the subject of the new proceedings. Moreover,
the fact alone that a judge, in previous proceedings, had to decide on
a similar or identical matter and to assess similar or identical
evidence did not in itself justify the assumption that in taking his
decision the judge would be influenced or guided by subjective criteria
(unsachliche Kriterien).
On 23 April 1992 Judge K. of the Innsbruck District Court gave
judgment against the applicant. The reasons stated in this judgment
refer inter alia to the evidence taken in the earlier proceedings
against the defendant's sister. Jugde K. pointed out that his
impression of the persons heard as witnesses or of the parties had not
substantially changed. Thus, he saw no reason to assess the evidence
in a different manner than in the earlier proceedings. It is also
pointed out that the user-rights contract concluded between the
plaintiff and his mother in 1979 does in no way mention the applicant
as a successor to his mother's user-right. Also other documentary
evidence in no way indicate that the defendant could invoke his
mother's user-right.
On 10 September 1992 the Innsbruck Regional Court, sitting in
private, rejected the applicant's appeal on grounds of nullity. It
noted the applicant's submissions that the rejection of Judge K.'s
request to be replaced violated his right to a fair trial as guaranteed
by Article 6 of the Convention, in particular as the said Judge, when
assessing the evidence in the present proceedings, had referred to his
findings in the earlier proceedings. However, it found that Judge K.
had not been disqualified. The fact that his request to be replaced had
been rejected did not constitute a ground of nullity.
By decision of the same day, the court, after having held a
public oral hearing, dismissed the applicant's appeal on questions of
fact. It considered that the first instance assessment of the evidence
was unobjectionable.
The Regional Court's decision was served on the applicant on
20 January 1993.
On 19 March 1993 the Innsbruck District Court rejected the
applicant's "appeal on points of law" (Revisionsrekurs). It noted that
it should have been called "appeal" (Rekurs) but found that, in any
case, there was no remedy against a decision by which the appellate
court, sitting in private, rejected an appeal on grounds of nullity.
COMPLAINTS
The applicant points out that Judge K. considered himself to be
biased and therefore requested to be replaced. He argues that in these
circumstances there was justified reason to doubt the impartiality of
Judge K. and consequently the refusal to replace Judge K. violated
Article 6 of the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 14 July 1993 and registered on
26 July 1993.
On 29 November 1995 the Commission decided to communicate the
application to the respondent Government.
The Government's written observations were submitted on
10 April 1996, after an extension of the time-limit fixed for that
purpose. The applicant replied on 3 June 1996.
THE LAW
The applicant complains that the refusal to replace judge K.
violated Article 6 (Art. 6) of the Convention, as he had considered
himself to be biased and there was, thus, justified reason to doubt his
impartiality.
Article 6 para. 1 (Art. 6-1), so far as relevant, reads as
follows:
"In the determination of his civil rights and obligations ...
everyone is entitled to a fair ... hearing ... by an independent
and impartial tribunal ... ."
a. As to the requirements of Article 26 (Art. 26), the Government
argue, that the applicant failed to lodge his application within the
six-months time-limit. They argue that the decision by the Innsbruck
Regional Court of 30 October 1991, rejecting the applicant's appeal
against the refusal to replace Judge K., has to be considered as final
decision. In particular, there was no possibility under the Code of
Civil Procedure (Zivilprozessordnung) to challenge the rejection of a
judge's request for replacement by appeal on grounds of nullity. They
refer to S. 477 para. 1 (1), which explicitly states that a ground of
nullity is only given if a disqualified judge participated in the
decision or in the case of a judge who has been successfully
challenged.
The applicant contests the Government's view. He submits in
particular that at the time of the Regional Court's decision of
30 October 1991 it was still open whether, in the new proceedings,
Judge K. would take the same view as in the previous case. However, he
did so in his decision of 23 April 1992, referring explicitly to his
assessment of evidence in the earlier proceedings. Further, the
applicant argues that the enumeration of grounds of nullity in S. 477
of the Code of Civil Procedure is not exclusive. Thus, violations of
basic principles of the fairness of the proceedings may in any case be
challenged by an appeal on grounds of nullity.
The Commission recalls that the period of six months runs from
the date of the final domestic decision after effective and sufficient
remedies have been used (cf. No. 11763/85, Dec. 9.3.89, D.R. 60
p. 128).
The Commission does not share the Government's view that the
Regional Court's decision of 31 October 1991 has to be considered as
final decision. It notes in particular, that the Regional Court found
that it was not yet clear what evidence would be the subject of the new
proceedings. In these circumstances, the applicant could not be
expected to introduce his application before Judge K. gave his
decision, which was the case on 23 April 1992. Next, it has to be
ascertained whether the appeal on grounds of nullity, which the
applicant brought against this decision was an effective remedy. The
Government contests this, arguing that S. 477 para. 1 (1) of the Code
of Civil Procedure does not provide a possibility to challenge the
decision refusing a judge's request to be replaced. The applicant,
however, claims that the enumeration of grounds of nullity is not
exclusive. The Commission notes that the applicant, in his appeal on
grounds of nullity, mainly argued that Judge K.'s bias had become
manifest as he had referred to his previous assessment of evidence. As
the applicant could not have raised this argument before the decision
of 23 April 1992 was given, the fact that he did so in his appeal on
grounds of nullity should not be held against him. It follows that the
final decision was given by the Regional Court on 10 September 1992.
It was served on the applicant on 20 January 1993. Thus, the
application introduced on 14 July 1993 was lodged within the six-months
time-limit.
In the alternative, the Government submit that the applicant
failed to exhaust domestic remedies. They argue that he could have
lodged an appeal on points of law against the Regional Court's decision
of 10 September 1992. The applicant contests this view.
The Commission notes that the applicant did appeal against the
Regional Court's decision of 10 September 1992. His appeal was rejected
on the ground that there was no remedy against a decision by which the
appellate court, sitting in private, rejected an appeal on grounds of
nullity.
In conclusion, the Commission finds that the applicant complied
with the requirements of Article 26 (Art. 26) of the Convention.
b. As regards Article 6 (Art. 6), the Government, referring to the
Convention organs' case-law, submit that the impartiality of a judge
has to be ascertained by way of a subjective and an objective test.
They argue that Judge K., when requesting to be replaced, in no way
indicated that he was subjectively biased. As to the objective test,
the Government point out that, at the time Judge K. filed his request
for being replaced, it was not yet clear what evidence would be the
subject of the new proceedings. That the judge had formed an opinion
on the basis of the evidence taken in the previous proceedings, did not
mean that he would not deviate from this opinion, if the taking of
evidence provided new results. Moreover, Judge K. did not take any
procedural step or decision, which would give rise to the assumption
that he had a preconceived view of the applicant's position. The mere
fact that a judge had to decide on a similar or identical matter and
to assess similar or identical evidence in previous proceedings is not
sufficient in itself to justify doubts as to his impartiality.
The applicant points out that Judge K. considered himself to be
biased in view of the judgment given in the previous case. Thus, from
the beginning he, the applicant, could not expect a favourable
decision. In fact, Judge K. did not deviate from his opinion in the new
proceedings and even referred explicitly to his prior assessment of
evidence. Thus, there were doubts as to his subjective as well as to
his objective impartiality.
The Commission recalls that the existence of impartiality for the
purposes of Article 6 para. 1 (Art. 6-1) must be determined according
to a subjective test, that is on the basis of the personal conviction
of a particular judge in a given case, and also according to an
objective test, that is ascertaining whether the judge offered
guarantees sufficient to exclude any legitimate doubt in this respect
(Eur. Court H.R., Hauschildt v. Denmark judgment of 24 May 1989, Series
A no. 154, p. 21, para. 46; Thomann v. Switzerland judgment of 10 June
1996, Reports 1996, para. 30).
As to the subjective test, the Commission notes that Judge K.
considered himself to be biased. However, the only reason on which he
relied in his request to be replaced, was that he had already dealt
with the same matter in proceedings concerning the applicant's sister.
It was neither alleged nor shown that Judge K. in fact conducted the
proceedings in a manner that gave rise to doubts as to his personal
impartiality. Thus, his personal impartiality has to be presumed
(Hauschildt judgment, loc. cit., para. 47).
It therefore only remains to be determined under the objective
test, whether, quite apart from the judge's personal conduct, there are
ascertainable facts which may raise doubts as to his impartiality. In
this respect even appearances may be of a certain importance. It is
decisive whether the fear that a particular judge lacks impartiality
can be held to be objectively justified (Hauschildt judgment, loc.
cit., para. 48).
The Commission recalls that it cannot be stated as a general rule
resulting from the obligation to be impartial that a superior court
which set aside an administrative or judicial decision is bound to send
the case back to a different jurisdictional authority or to a
differently composed branch of that authority (Eur. Court HR.,
Ringeisen v. Austria judgment of 16 July 1971, Series A no. 13, p. 40,
para. 97; Diennet v. France judgment of 26 September 1995, Series A
no. 325-A, paras. 37-38). Further, the Commission notes that it is
common in the Convention countries that higher courts deal with similar
or related cases in turn and that the European Court has found this
unobjectionable from the point of view of the right to a fair trial
(Eur. Court H.R, Gillow v. United Kingdom judgment of 24 November 1986,
Series A no. 109, p. 28, para. 73).
The Commission considers that the above principles apply mutatis
mutandis to first instance proceedings in civil matters. The civil
courts may from time to time have to deal with similar or related
cases. Unlike in criminal proceedings where a judge has to form an
opinion on the defendant's guilt, the outcome of civil proceedings
depends in general on evidence unrelated to any question of guilt on
the part of the parties. The Commission notes that in the instant case
the first instance judgment given by Judge K. was not only based on
evidence obtained from witnesses and the appreciation of their
credibility, but also on objective documentary evidence which supported
the plaintiff's allegation that no user-right had been given to his
brother, the applicant.
The applicant was in a position to produce evidence and arguments
also in the light of the result of the previous proceedings brought by
the plaintiff against their common sister. The applicant has not shown
that he did not make use of this possibility and has furthermore not
alleged that Judge K. did not examine in an impartial manner the
arguments and evidence produced by him in the proceedings in which he
was himself the defending party.
In conclusion, the Commission finds that there is no appearance
of a violation of Article 6 (Art. 6) of the Convention.
It follows that the application is manifestly ill-founded within
the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
M.F. BUQUICCHIO J. LIDDY
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy