THIRD SECTION

DECISION

Application no. 17749/11 Vladimir Nikolayevich ZUBKOV against Russia

The European Court of Human Rights (Third Section), sitting on 29 September 2020 as a Committee composed of:

Alena Poláčková , President, Dmitry Dedov , Gilberto Felici , judges and Olga Chernishova, Deputy Section Registrar ,

Having regard to the above application lodged on 21 February 2011,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1 . The applicant, Mr Vladimir Nikolayevich Zubkov , is a Russian national who was born in 1936 and lives in Kazan. He was represented before the Court by Mr I. Sholokhov, a lawyer practising in Kazan.

2 . The Russian Government (“the Government”) were initially represented by Mr G. Matyushkin , Representative of the Russian Federation at the European Court of Human Rights, and subsequently by his successor in that office, Mr M. Galperin .

3 . The facts of the case, as submitted by the parties, may be summarised as follows.

4 . On an unspecified date the applicant sued a public hospital for failure to provide him with subsidised medication.

5 . On 15 April 2010 the Moskovskiy District Court of Kazan allowed his claim in part. It held that the applicant ’ s general practitioner had not prescribed him the necessary medication recommended by a cardiologist. The hospital lodged an appeal.

6 . On 3 June 2010 the Supreme Court of Tatarstan , sitting as a bench of three judges – which included Judge Kh ., the presiding judge, and Judges R. and V. – quashed the decision of 15 April 2010 and remitted the case for fresh examination. The Supreme Court held that the first-instance court had, in breach of the relevant law, failed to assess the evidence confirming the damage alleged, how the damage had been inflicted and the extent of responsibility for the damage. It asked the first-instance court to reassess the evidence in order to establish whether the applicant ’ s doctor had prescribed him medication which was equivalent to that recommended by the cardiologist and to summon a representative of the Pharmacy Department of the Ministry of Health to clarify whether the applicant had been provided with adequate treatment.

7 . On 21 July 2010 the Moskovskiy District Court of Kazan, referring to the depositions of the hospital ’ s representative and an opinion of an independent cardiologist, held that the doctor had prescribed the applicant all the medication recommended by the cardiologist, or equivalent medication, and dismissed the applicant ’ s claim.

8 . On 2 August 2010 the applicant lodged an appeal against the decision of 21 July 2010. He also lodged a request for the withdrawal of Judge Kh ., stating that she had already sat on the bench of the appellate court on 3 June 2010.

9 . On 6 September 2010 his appeal was examined and dismissed by a bench of the Supreme Court of Tatarstan composed of Judges Kh ., F. and G. Judge Kh . was both president and rapporteur in the examination of the applicant ’ s appeal. The appellate court held that the first-instance court ’ s conclusion that the applicant ’ s treatment had not prejudiced his health had been grounded on an adequate assessment of the facts and evidence, and that the decision complied with the law.

10 . Judges F. and G. considered the applicant ’ s request for the withdrawal of Judge Kh . and dismissed it as unsubstantiated on the grounds that the Code of Civil Procedure did not prohibit a judge from sitting again in the same case to hear an appeal against a fresh decision of the first ‑ instance court after the previous one had been quashed.

11 . Article 16 of the Code of Civil Procedure (“the Code”) provides that a judge may not take part in the hearing of a case if he or she:

( i ) has previously acted in the case, whether as a prosecutor, courtroom secretary, representative, witness, expert, specialist or interpreter;

(ii) is closely related to any of the parties or their representatives; and

( iii ) has a personal direct or indirect interest in the case or if, for any other reason, his or her impartiality may be called into doubt.

A case may not be assigned to judges who are related to each other.

12 . Under Article 17 of the Code, a judge who has examined a case at the appeal stage may not sit in the proceedings at first instance or in supervisory-review proceedings in the same case.

13 . Article 19 of the Code provides that a request for a judge ’ s withdrawal from a case, by a party or by the judge in question, must be reasoned and submitted prior to the examination of the merits of the case. It is not possible for a judge to withdraw during the examination of the case unless the person requesting withdrawal, or the court, has become aware of grounds for withdrawal after the court has begun its examination of the case on the merits.

14 . In accordance with Article 20 of the Code, when considering a request for a judge ’ s withdrawal the court must take into account the opinion of the parties to the proceedings and that of the judge in question. If a case has been assigned to a bench of judges, that bench will rule on the judge ’ s withdrawal in the absence of that judge.

15 . The Constitutional Court of Russia held in its decision no. 155-O-O of 20 March 2008 and decision no. 465-О-О of 15 July 2008 that the requirement to give a reasoned decision confirming that there were no circumstances which could raise doubts as to the impartiality of a judge, and the possibility of requesting a review before a higher court which would be guided by the Constitution and international law, constituted sufficient guarantees against arbitrariness.

16 . Where a case is assigned to a single judge, he or she will be the presiding judge at the hearing. Where a case is assigned to a bench of a District Court, one of its judges or its president will be the presiding judge. As to other courts, a judge, president or deputy president of the relevant court will assume the functions of presiding judge (Article 156 of the Code).

17 . A presiding judge provides guidance at hearings, contributes to the comprehensive assessment of the evidence and facts of a case, and excludes anything which is irrelevant to a case. A presiding judge must also keep discipline at a hearing. His or her orders are binding on all parties to the proceedings and on persons attending the hearing.

18 . Under Article 356 of the Code, the presiding judge, or one of the judges of the appellate court, reports on the case. The rapporteur describes the circumstances of the case, the content of the first-instance court ’ s decision, the arguments contained in the statement of appeal and objections to the appeal, and any new evidence and other information necessary for the review of the decision under appeal.

19 . In accordance with Article 347 of the Code (as it stood at the material time) an appellate court verifies whether the decision of a first ‑ instance court complies with the law and contains adequate reasoning. The appellate court examines the existing and any new evidence if it establishes that this new evidence coul d not be submitted to the first ‑ instance court, and it endorses the facts and legal relationships or establishes new facts and legal relationships. An appellate court may verify the decision of a first-instance court in its entirety to ensure compliance with the law.

COMPLAINT

20 . The applicant complained under Article 6 of the Convention that he had not been given a fair hearing by an impartial tribunal.

THE LAW

21 . The applicant complained under Article 6 of the Convention that the judicial formation which had heard his case on appeal on 6 September 2010, and of which Judge Kh . was the presiding judge, had been biased. The relevant part of Article 6 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 established by law. ...”

22 . The Government submitted that Judge Kh . ’ s participation in the proceedings had been in compliance with the Code, which did not prohibit a judge of an appellate court who had remitted a case for fresh examination to a first-instance court from participating in the examination of the first ‑ instance court ’ s new decision on appeal. As regards the applicant ’ s request for the withdrawal of the judge, it had been duly examined and the decision to dismiss the request had been duly reasoned.

23 . The applicant submitted that Judge Kh . had already adopted a specific position in his case when hearing it on appeal for the first time. Judge Kh . ’ s participation in the second examination of his case in the appellate court as presiding judge and rapporteur had caused him to doubt the impartiality of that judge.

24 . The Court reiterates that impartiality denotes the absence of prejudice or bias. According to the Court ’ s settled case-law, the existence of impartiality for the purposes of Article 6 § 1 must be determined according to ( i ) a subjective test, where regard must be had to the personal conviction and behaviour of a particular judge – that is, whether the judge held any personal prejudice or bias in a given case; and (ii) an objective test, that is to say by ascertaining whether the tribunal itself and, among other aspects, its composition offered sufficient guarantees to exclude any legitimate doubt in respect of its impartiality (see, among other authorities, Micallef v. Malta [GC], no. 17056/06, § 93, ECHR 2009; Ramos Nunes de Carvalho e Sá v. Portugal [GC], nos. 55391/13 and 2 others, § 145, 6 November 2018; and Oleksandr Volkov v. Ukraine , no. 21722/11, § 104, ECHR 2013).

25 . As regards the objective test, even appearances may be of a certain importance or, in other words, “justice must not only be done, it must also be seen to be done” (see Micallef , cited above, § 98; and Oleksandr Volkov , cited above, § 106).

26 . In the present case, the applicant alleged bias on the part of Judge Kh . as presiding judge and rapporteur on the bench, which comprised two other judges whose impartiality the applicant did not question. The Court will therefore seek to ascertain whether Judge Kh . was not impartial owing to the fact that she examined the applicant ’ s case on appeal twice, and whether, taking into account her role on the bench, she might have influenced the other judges ’ position on the case to the extent that the whole bench of judges may be deemed to have been biased.

27 . As regards the subjective test for assessing impartiality, there is nothing in the case file to suggest that Judge Kh . had any personal prejudice.

28 . As regards the objective impartiality test, in the case of judges sitting as a bench the Court has held that the fact that some of the judges had previously examined a case is not sufficient in itself to conclude that the bench as a whole was not impartial. In situations of this kind, it is necessary to take other factors into account, such as the number of judges involved in adopting the relevant position and their role on the bench in question (see Fazlı Aslaner v. Turkey , no. 36073/04, §§ 36-37, 4 March 2014), together with the scope of the review at each stage (see Mancel and Branquart v. France , no. 22349/06, § 35, 24 June 2010).

29 . In the present case, the appellate court reviewed the applicant ’ s case twice. On the first occasion the judges held that the first-instance court had incorrectly interpreted the legal provisions on damage and had failed to properly assess the evidence as required by law (see paragraph 6 above). They did not adopt a final decision on the case but remitted it for fresh examination. When the case came back to the appellate court, the judges reviewed the lawfulness and reasoning of the first-instance court ’ s decision and this time upheld it. Thus, it cannot be concluded that the judges, including Judge Kh ., took a specific position on the case during its first examination as the applicant alleged (see paragraph 23 above); on the contrary, they held that the first-instance court had failed to comply with the requirements of law and indicated the relevant clarifications to be made. Their position on the case was thus formulated in the second appeal judgment (see paragraph 9 above).

30 . The Court must further examine whether there were any elements in the relationship between Judge Kh ., as presiding judge and rapporteur, and the two other judges on the bench which were capable of compromising their internal independence. At a more general level the question is whether the powers conferred on the presiding judge and rapporteur were capable of generating latent pressure on the other judges or of making them reluctant to contradict the wishes of the former (see Parlov-Tkalčić v. Croatia , no. 24810/06, § 91, 22 December 2009).

31 . There is nothing in the case file to suggest that Judge Kh . was the President of the Supreme Court of Tatarstan . She did not, therefore, perform any supervisory function with regard to the other judges which could pose a certain risk to their internal independence. Under Russian law, although a presiding judge or rapporteur has certain powers relating to the examination of the case and to the keeping of discipline, a judge acting in those capacities does not have any power of control over other judges on the bench (see paragraphs 16 - 18 above). Nor is there anything in the case file to suggest that Judge Kh . attempted to influence the outcome of the proceedings.

32 . Lastly, Judge Kh . was only one judge on the three-judge bench which examined the applicant ’ s appeal for the second time (see paragraphs 6 and 9 above). That being so, from the standpoint of an objective observer, it cannot be said that the whole bench was tainted by the applicant ’ s objection to the participation of Judge Kh . (see OOO “ Vesti ” and Ukhov v. Russia , no. 21724/03, § 83, 30 May 2013, and Rustavi 2 Broadcasting Company Ltd and Others v. Georgia , no. 16812/17, § 363, 18 July 2019).

33 . Accordingly, this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 22 October 2020 .

Olga Chernishova Alena Poláčková Deputy Registrar President