FOURTH SECTION

DECISION

Application no. 18073/13 Ion BRÄ‚DIÈšEANU against Romania

The European Court of Human Rights (Fourth Section), sitting on 17 December 2019 as a Committee composed of:

Faris Vehabović, President, Iulia Antoanella Motoc, Carlo Ranzoni, judges, and Andrea Tamietti, Deputy Section Registrar ,

Having regard to the above application lodged on 12 March 2013,

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 Ion Brădițeanu, is a Romanian national, who was born in 1951 and lives in Voineșița. He was represented before the Court by Mr C. Lupu, a lawyer practising in R â mnicu-V â lcea.

2 . The Romanian Government (“the Government”) were represented by their Agent, Ms C. Brumar, of the Romanian Ministry of Foreign Affairs.

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

4 . On 22 November 2010 the applicant was dismissed by his employer on grounds of serious disciplinary misconduct.

5 . On an unspecified date the applicant brought court proceedings against his former employer, seeking the annulment of the decision terminating his employment.

6 . On 17 November 2010 the V â lcea County Court (“the County Court”) allowed the applicant ’ s action. It also granted his request that it order his employer to re-employ him on the same post and his claim for compensation. It held that the employer ’ s decision had been invalid in so far as it had not complied with the procedural requirements set out by the relevant domestic legislation for issuing such a decision.

7 . On 24 March 2011 the Pite ş ti Court of Appeal (“the Court of Appeal”), sitting as a bench of three judges, namely V.B., F.A., and J.D., allowed an appeal on points of fact and law lodged by the employer and quashed the first-instance court ’ s judgment. It held that the employer ’ s decision had complied with the procedural requirements set out by the relevant domestic legislation and that it was therefore valid. Consequently, the court remitted the case to the lower court and instructed it to examine only the merits of the case, in particular whether the evidence proved that the applicant had committed the serious acts of misconduct imputed to him.

8 . On 16 December 2011 the County Court allowed the applicant ’ s actions and quashed the decision terminating his employment. It held that some of the acts imputed to the applicant had not been confirmed by the available evidence. In addition, the employer ’ s right to punish the applicant for those acts imputed to him which had been confirmed by the available evidence had become time-barred.

9 . On 13 February 2012 the Court of Appeal allowed an appeal on points of fact and law lodged by the employer against the judgment. It quashed the judgment and remitted the case to the first-instance court for re-examination of the merits of the case. It held that according to the available evidence, the employer ’ s right to punish the applicant for the acts imputed to him had not been time-barred.

10 . On 8 May 2012 the County Court dismissed the action brought by the applicant against his employer. It held that according to the available evidence, the applicant had committed some of the acts imputed to him repeatedly and continuously, and that his employer ’ s decision to take the most severe disciplinary action against him had therefore been justified.

11 . The applicant appealed on points of fact and law against the judgment before the Court of Appeal. The case was assigned to a bench of three judges, namely V.B., F.A., and J.D.

12 . On 31 August 2012 the applicant complained that Judge V.B. was biased, arguing that she had been part of the bench of judges who had delivered the judgment of 24 March 2011 (see paragraph 7 above). That judgment had decided the merits of the case in so far as the lawfulness of his employer ’ s decision was concerned and the legal grounds on which it had been based. Therefore, the conditions set out by Article 27 § 7 of the Code of Civil Procedure (“the CCP”) had been met, as Judge V.B. had already expressed her opinion in the case.

13 . On the same date Judges V.B., F.A., and J.D. applied for leave to withdraw from the case. They argued that they had already delivered the judgment of 24 March 2011 in the case, where they had quashed the judgment of the lower court and had remitted the case for re-examination. In so doing they had decided on points of law which, according to the parties ’ submissions during the present proceedings, had not been complied with. They relied on Articles 24 et seq. of the CCP.

14 . By an interlocutory judgment of 7 September 2012, which was not amenable to appeal, the Court of Appeal, deliberating in chambers in a panel of three judges which included Judges F.A. and J.D., dismissed the applicant ’ s complaint of bias concerning Judge V.B. (see paragraph 12 above). It held that under Article 27 of the CCP the conditions for the removal of judges from a case were provided for by law in a strict and express manner. Taking into account the applicant ’ s complaint and the available evidence, the arguments raised by him did not fall within the ambit of the aforementioned legal provision.

15 . On the same date, the Court of Appeal, deliberating in chambers in a panel of three judges, delivered an interlocutory judgment, which was not amenable to appeal. It dismissed the application lodged by Judges V.B., F.A. and J.D. (see paragraph 13 above), holding that the conditions set out by the legal provisions they had relied on had not been met in their case.

16 . By a final judgment of 14 September 2012 the Court of Appeal, sitting as a bench of three judges, namely V.B., F.A., and J.D., dismissed the applicant ’ s appeal on points of fact and law (see paragraph 11 above). It held that the applicant had been responsible for the damage suffered by his employer following his actions. In addition, the applicant ’ s arguments concerning the validity of his employer ’ s decision had already been examined by the final judgments of 24 March 2011 (see paragraph 7 above) and 13 February 2012 (see paragraph 9 above), and the court ’ s conclusions in that regard had acquired the status of res judicata .

17 . The provisions of the CCP, as in force at the relevant time, concerning the impartiality of judges can be found in Ilie v. Romania ([Committee] (dec.), no. 26220/10, § 20, 3 September 2019).

18 . Relevant comparative law material concerning the impartiality of judges can be found in Ilie (decision cited above, §§ 21-27).

19 . Relevant international material concerning the impartiality of judges can be found in Harabin v. Slovakia (no. 58688/11, §§ 104-10, 20 November 2012).

COMPLAINT

20 . The applicant complained that the proceedings which had been concluded by the final judgment of the Pite ÅŸ ti Court of Appeal of 14 September 2012 (see paragraph 16 above) had been unfair because the bench of judges who had delivered the aforementioned judgment had lacked impartiality. Those judges had sought to recuse themselves from sitting in the case, which proved that they had had a preconceived idea about the case.

THE LAW

21 . The applicant complained that the panel of judges which had delivered the final judgment of 14 September 2012 had lacked impartiality. He relied on Article 6 of the Convention, which, in so far as relevant, reads as follows:

“1. In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by an ... impartial tribunal ...”

22 . The Government contended that Judges V.B., F.A. and J.D. had been competent to deliver the final judgment of 14 September 2012. Their circumstances had not fallen under any of the grounds of incompatibility expressly set out by the relevant domestic law. Moreover, they had applied for leave to withdraw from the case only to alleviate any suspicion of bias on their part. Their application had not contained any indication that they had considered themselves biased. Furthermore, the applicant ’ s request to have Judge V.B. removed had relied on legal grounds which had not been applicable in the case. In particular, Judge V.B. had not expressed a personal opinion on the case when it had been pending before her during or outside the hearings held in the case.

23 . The judgment of 24 March 2011 (see paragraph 7 above) had not touched on or addressed the merits of the case and therefore had had a different objective than the judgment of 14 September 2012 (see paragraph 16 above). Moreover, the points examined by the bench of judges in the judgment of 24 March 2011 had acquired the status of res judicata and had not been re-examined during the proceedings of 14 September 2012.

24 . The applicant submitted that Judges V.B., F.A. and J.D. had not been competent to deliver the final judgment of 14 September 2012. Under the relevant domestic law any judge who had already delivered a judgment in a case was not competent to sit in the same case again. The law had not made any distinctions based on whether the judge who had delivered the judgment had been sitting in a bench of judges at first or last-instance level.

25 . By delivering the judgment of 24 March 2011 (see paragraph 7 above), Judges V.B., F.A. and J.D. had already expressed their opinion on the case. They had implicitly touched on the merits of the case because they had quashed a lower court ’ s judgment which had also examined the merits of the case.

26 . The Court reiterates the principles set out in its case-law concerning judges ’ lack of impartiality (see, amongst other authorities, Micallef v. Malta [GC], no. 17056/06, §§ 93-99, ECHR 2009).

27 . In the instant case, the Court observes that there is no evidence that the judges who delivered the judgment of 14 September 2012 acted with any personal bias against the applicant.

28 . The Court also observes that the applicant ’ s concerns regarding the impartiality of the bench of judges which delivered the final judgment of 14 September 2002 (see paragraph 16 above) originated in the fact that the same bench of judges, namely V.B., F.A. and J.D., sitting likewise as a last-instance court, had also delivered the judgment of 24 March 2011 (see paragraph 7 above) in the previous rounds of proceedings concerning the same case. It can be accepted that this situation could have raised doubts in the applicant ’ s mind about the impartiality of those judges.

29 . However, the Court has to decide whether those doubts were objectively justified. The answer to this question depends on the circumstances of the case (see Korzeniak v. Poland , no. 56134/08, § 52, 10 January 2017).

30 . In this connection, the Court considers it appropriate to examine whether there was a close link between the issues examined by the Court of Appeal on 24 March 2011 and those it examined subsequently on 14 September 2012.

31 . On 24 March 2011 Judges V.B., F.A. and J.D. quashed the first ‑ instance judgment and remitted the case to the lower court. However, the remittal was because the bench of three judges had reached a different conclusion from that of the lower court on the question concerning the procedural validity of the employer ’ s decision to terminate the applicant ’ s employment. The examination of the case by the Court of Appeal concerned exclusively that specific preliminary point and did not touch on the merits of the case (see paragraph 7 above). Moreover, the Court of Appeal ’ s assessment of the validity of the employer ’ s decision was final and acquired the status of res judicata (see paragraph 16 above). The Court observes that when the Court of Appeal remitted the case to the lower court, it clearly instructed the first-instance court to limit its examination of the case to the merits, namely whether the available evidence proved that the applicant had committed the serious acts of misconduct imputed to him (see paragraph 7 above).

32 . When the case reached the appellate stage during the third round of proceedings, the Court of Appeal, sitting as the bench of judges who had delivered the judgment of 24 March 2011, was called on to review only the first-instance court ’ s assessment of the merits of the case. It is true that in its judgment of 14 September 2012 the Court of Appeal referred to aspects concerning the procedural validity of the employer ’ s decision. However, that reference constituted merely an acknowledgement of the points raised by the applicant in this regard and was made only to indicate to him that those points had been addressed by the court ’ s earlier judgment and had become res judicata (see paragraph 16 above), meaning that Judges V.B., F.A. and J.D and any other judge were bound by the findings made by the same court in this regard in its previous judgment (see, mutatis mutandis , Ilie v. Romania [Committee] (dec.), no. 26220/10, § 42, 3 September 2019).

33 . In these circumstances the Court is not convinced that there was a link between the significant elements examined by Judges V.B., F.A. and J.D. in the judgment delivered on 24 March 2011 and those in the judgment delivered on 14 September 2012. There was no room for the Court of Appeal, on 14 September 2012, to review the validity of the judgment delivered during the previous round of proceedings, which had become final. Thus, on 14 September 2012, the Court of Appeal was not called upon to assess and determine whether it had correctly applied the relevant domestic law to the applicant ’ s case or whether it had committed an error in interpreting or applying the relevant law in the previous round of proceedings (contrast San Leonard Band Club v. Malta , no. 77562/01, §§ 63-64, ECHR 2004-IX).

34 . The Court notes that during the third set of proceedings, the applicant complained that Judge V.B. was biased because she had already expressed her opinion in the case by delivering the judgment of 24 March 2011 (see paragraph 12 above). Moreover, Judges V.B., F.A. and J.D. sought to recuse themselves from the case by indicating that they had already delivered a judgment in the case which had touched on questions of law (see paragraph 13 above). However, the judges did not refer to any specific ground concerning the merits of the case which had been touched upon during the previous round of proceedings. Consequently, the Court takes the view that their application for leave to withdraw was merely a precautionary measure.

35 . The Court further notes in this connection that both the applicant ’ s complaint of bias and the recusal application of Judges V.B., F.A. and J.D. were dismissed after they had been duly examined by the courts, sitting in benches which did not include the judges whose impartiality was in question (see paragraphs 14 and 15 above). The courts explained that none of the grounds for disqualification or withdrawal provided for by Article 24 § 1 and/or Article 27 § 7 of the CCP had been met with regard to the judges in question.

36 . Having regard to the express provisions of the relevant domestic law and the absence of such a close link between the two rounds of proceedings as would cast doubt on the impartiality of the three judges, the Court takes the view that the reasons put forth by the domestic courts in dismissing the complaint of bias and the application for recusal were neither arbitrary nor unreasonable. Although succinct, they were sufficient to dispel any concerns about a lack of impartiality on the part of the judges in question.

37 . The Court is not persuaded in this regard by the applicant ’ s arguments, which seemed to suggest that the relevant domestic law implied that any judge who had already delivered a judgment in a case was not competent to sit in the same case again (see paragraph 24 above).

38 . The Court reiterates that it is primarily for the national authorities, notably the courts, to resolve problems of interpretation of domestic legislation (see Waite and Kennedy v. Germany [GC], no. 26083/94, § 54, ECHR 1999 ‑ I). Save in the event of evident arbitrariness, it is not the Court ’ s role to question the interpretation of the domestic law by the national courts (see Nejdet Åžahin and Perihan Åžahin v. Turkey [GC], no. 13279/05, § 50, 20 October 2011, and Lupeni Greek Catholic Parish and Others v. Romania [GC], no. 76943/11, § 90, 29 November 2016). In this connection, the Court notes that the applicant did not put forth any evidence that would suggest that the interpretation given by the domestic courts to the relevant legal provisions concerning impartiality of judges had amounted to an arbitrary or unreasonable application of that law in the particular circumstances of his case.

39 . In view of the foregoing, the Court finds that the applicant ’ s misgivings about the impartiality of the judges who examined the third set of proceedings cannot be regarded as objectively justified.

40 . It follows that the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 16 January 2020 .

Andrea Tamietti Faris Vehabović Deputy Registrar President