Concerns regarding a judge’s impartiality against a lawyer. Infringement of fair trial

JUDGMENT

Deli v. the Republic of Moldova 22.10.2019 (no. 42010/06)

see here

SUMMARY

The case concerned, on the one hand, an alleged dispute between a lawyer and a judge during a
court hearing and the lawyer’s resulting fears of bias towards him and his client and, on the other
hand, the judge’s contention that he was attempting to maintain order in court faced with the
lawyer’s disruptive conduct. The lawyer, the applicant in this case, had brought proceedings before
the domestic courts to complain about his conviction for contempt of court and the judge’s bias,
without success.

The Court found in particular that for an independent observer there had been legitimate concerns
as to the judge’s impartiality. The domestic courts had rejected the applicant’s allegations of bias as
a whole without any analysis or real verification of the facts. Furthermore, there had been
procedural shortcomings because the judge had encompassed the roles of both prosecutor and
judge when finding the applicant in contempt of court.

The Court also held that the appeal court examining the case for contempt of court had failed to
properly summon the applicant, whereas the nature of his offence and allegations against the judge
had required that court to hear him in person.

PROVISION

Article 6 par. 1

PRINCIPAL FACTS

The applicant, Teodor Deli, is a Moldovan national who was born in 1960 and lives in Chișinău.
On 15 June 2006 Mr Deli represented a party (X.) in civil litigation. According to Mr Deli, Judge B,
hearing the case on his own, allowed opposing counsel to harass his client and when he tried to
intervene, the judge was abusive, became threatening and finally found him in contempt.

The record of the hearing showed that Mr Deli had insulted opposing counsel and been disruptive.
Mr Deli objected to the record, saying that it was not accurate and that the judge had ordered the
court assistant not to note down their dispute. He never received a reply to these objections or a
court decision addressing them.

During the hearing Mr Deli requested that the judge recuse himself. Another judge rejected the
request on the same day because he found that the grounds relied on did not correspond to any
grounds for challenging a judge under domestic law. Mr Deli then lodged a cassation appeal which
was rejected by the Chișinău Court of Appeal. The appeal court, noting that Mr Deli had been
summoned to its hearing on the case, upheld the lower court’s finding, without giving further
details.

The civil proceedings were subsequently settled.

THE DECISION OF THE COURT

First of all, the Court reiterated that it was essential in a democratic society that courts inspire
confidence. Thus, if there were any legitimate reasons to fear a judge was biased in a case then that
judge should withdraw.

The Court noted that it had both a subjective and objective test for bias. In this case, the applicant
alleged that Judge B. had been biased because of their dispute (subjective point of view) and
because he had been simultaneously pressing charges against the applicant and deciding on the
outcome of those charges (objective point of view).

As concerned the subjective test, it noted that despite the applicant having used all of the means at
his disposal for challenging the judge’s lack of impartiality, none had functioned in the present case.
The national courts had rejected his arguments as a whole without any analysis or real verification of
the facts. In particular, the applicant’s request for the recusal of Judge B. had been dismissed by
another judge in a decision which had made no comment on the allegations of bias and no
exploration of alternative facts. Furthermore, the Chișinău Court of Appeal had simply confirmed the
lower court’s decision, without going into further detail. For an independent observer, that situation
could be seen as giving rise to legitimate concerns about the possibility of bias.

As for the objective test, the Court found that in the contempt of court case against the applicant,
Judge B had encompassed the roles of both prosecutor and judge, and that sufficient safeguards had
not been in place to exclude legitimate fears as to the impact of such a procedure on the judge’s
impartiality. None of the subsequent judgments had remedied that situation because they had
contained no reasons.

The Court therefore held that there had been a violation of Article 6 § 1 as concerned Judge B.’s
impartiality.

Finally, while the Government argued that the applicant had been summoned to the hearing as
proved by the national court’s register, there was no evidence in the file that the applicant had
actually received the summons, as required under domestic case-law. The Court therefore held that
there had been a further violation of Article 6 § 1.

Given the above, the Court also held that no separate issue arose under Article 6 § 1 as concerned
the applicant’s complaint about the alleged lack of reasons for rejecting his appeal.

Just satisfaction (Article 41)

The Court held that the Republic of Moldova was to pay the applicant EUR 1,500 euros (EUR) in
respect of non-pecuniary damage and EUR 17 in respect of costs and expenses.


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