FOURTH SECTION

DECISION

Application no. 60293/13 Mihai CRAIOVAN and O thers 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 6 September 2013,

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

Having deliberated, decides as follows:

THE FACTS

1 . The applicants – Mr Mihai Craiovan, Mrs Dana-Lucia Craiovan, Ms Floare Varga and Mr Florin Varga – are four Romanian nationals. Mr and Mrs Craiovan (“the Craiovan applicants”) were born in 1962 and live in Giroc. Mr and Mrs Varga (“the Varga applicants”) were born, respectively, in 1971 and on an unspecified date, and live in Timi ş oara and Chi şineu-Criş.

2 . The applicants were represented by Ms D. Cotuna, a lawyer practising in Timi ş oara. The Romanian Government (“the Government”) were represented by their Agent, Ms C. Brumar, of the Ministry of Foreign Affairs.

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

4 . On 22 May 2007 D.V., the father and husband, respectively, of the Varga applicants, signed a preliminary purchase contract with company R. in respect of (i) a house that was under construction and (ii) the appurtenant land. A preliminary purchase contract – providing an initial advance payment of a portion of the price of the purchased house and land – was notarised. The Varga applicants are the heirs of D.V., who died in 2011.

5 . On 23 January 2008 the Craiovan applicants signed a preliminary purchase contract, similar to the one mentioned above, with company R.

6 . On 5 March 2009 bankruptcy proceedings were opened against company R. under Law no. 85/2009 on bankruptcy proceedings.

7 . On an unspecified date the Craiovan applicants, D.V. and Mrs Varga brought an action in the Timi ş County Court (“the County Court”) seeking a court order that would compel the administrator in bankruptcy of company R. (“the administrator”) to sign notarised sale contracts with them in respect of their houses and the respective appurtenant land.

8 . By an interlocutory judgment of 20 May 2010 the County Court allowed the action and ordered the administrator to sign the above-mentioned notarised sale contracts. In addition, the court ordered the cancelation of the registration of the collateral over the buyers ’ respective houses and land that had been registered in the local Land Register in favour of the bank that had financed company R. ’ s building project (“the bank”).

9 . On 12 July 2010 the Craiovan applicants, D.V. and Mrs Varga signed notarised purchase contracts for the houses and the respective appurtenant land. The contracts stated that the aforementioned immovable properties were free of any property security rights.

10 . On 10 August 2010 the bank appealed on points of law against the interlocutory judgment of 20 May 2010 (see paragraph 8 above). It asked the court to quash the interlocutory judgment and to maintain its mortgage rights in respect of the buyers ’ respective houses and land.

11 . By a final judgment of 18 January 2011 the Timi ş oara Court of Appeal (“the Court of Appeal”), sitting as a bench of three judges – namely C.B.N., A.R.S. and M.O.G. – allowed the bank ’ s appeal. It held that a sale contract concerning mortgaged immovable properties could not be signed if that contract disregarded the priority right of the relevant financing bank (as the holder of the mortgage in question) to collect the sums obtained from the liquidation of the mortgaged assets. Specifically, in the instant case, the buyers had not paid the price for the immovable property during the collective enforcement proceedings, and the bank – as a creditor holding guarantees – had not benefited from a priority distribution of the realised funds. Such a situation was unacceptable, as it would result in circumstances whereby a creditor ’ s right that stemmed from a pre-purchase contract generating only an obligation for the seller to make a future sale would cancel a mortgage. In other words, the court held that the bank ’ s mortgage rights could not be cancelled by the signing of the impugned sale contracts as long as the bank had not collected the money due to it from the liquidation of the mortgaged assets.

12 . The court added that at the time of the signing of the pre-purchase contracts the seller had not taken on an obligation to transfer to the buyers a property right over an immovable property that was free of any property security rights. Rather, the seller had only taken on an obligation to sign a sale contract for a mortgaged property. The buyers had been aware of the legal status of the property and of the fact that the mortgage would be cancelled only when the creditor holding the mortgage was paid. The bank had agreed to cancel the mortgage only after the company had repaid the loan taken out for the purpose of implementing the building project.

13 . The domestic law did not allow a court to grant priority to unsecured creditors (such as the buyers in the instant case) over a creditor holding guarantees (such as a bank). Such a solution would be unfair so far as the creditor holding guarantees was concerned and would endanger both the entire civil legal system and the entire banking system.

14 . On 2 November 2011 the Court of Appeal, sitting as a bench of three judges (namely C.B.N., A.R.S. and M.O.G.), rejected as inadmissible an extraordinary appeal to review lodged by the applicants against the final judgment of 18 January 2011.

15 . On 30 July 2010 the bank brought an action in the County Court contesting the sale contracts signed (i) between the administrator and the Craiovan applicants and (ii) between the administrator on the one side and D.V. and Mrs Varga on the other side (see paragraph 9 above). Mr Varga became a party to those proceedings after D.V. ’ s death.

16 . On 6 October 2011 the County Court allowed the bank ’ s action. It quashed the impugned sale contracts in part and ordered the administrator to restore to the local Land Register the entries regarding the collateral (registered in the bank ’ s favour) over the applicants ’ respective houses and land (see paragraph 8 above). The applicants appealed on points of law against that judgment. The examination of the appeal on points of law was assigned to a panel of three judges, namely C.B.N., A.R.S. and M.O.G.

17 . On 7 February 2012 the applicants sought to have judges C.B.N., A.R.S. and M.O.G. removed from the case on the grounds that some of the legal points that they were called on to examine within the context of the current proceedings had been examined under a previous set of proceedings that had ended with the judgment of 18 January 2011 (see paragraphs 11 - 13 above). The applicants relied on Article 27 § 7 of the Code of Civil Procedure (“the CCP”), according to which a judge should be removed if he or she has already expressed his or her opinion with regard to the case under examination.

18 . On the same date the above-mentioned judges sought to recuse themselves from the case by relying on similar grounds to the ones raised by the applicants.

19 . By an interlocutory judgment of 16 February 2012 not amenable to appeal, the Court of Appeal, sitting as a bench of three judges (namely M.B., R.S. and D.I.T.) dismissed the above-mentioned applications for removal and self-recusal as ill-founded.

20 . By a final judgment of 6 March 2012 the Court of Appeal, sitting as a bench of three judges (namely C.B.N., A.R.S. and M.O.G.), dismissed the applicants ’ appeal on points of law. It held that the judgment of 18 January 2011 (establishing that there were no grounds for cancelling in the Land Register the entries regarding the above-mentioned collateral – see paragraphs 11 - 13 above) had acquired the status of res judicata .

21 . On 20 October 2011 the applicants brought an action in the County Court seeking to contest the registration in the list of creditors of the bank ’ s loan to company R.

22 . On 14 June 2012 the County Court dismissed the applicant ’ s action. The applicants lodged an appeal on points of law with the Court of Appeal against that judgment. The examination of the appeal on points of law was assigned to a panel of three judges, which included A.R.S. and M.O.G.

23 . On 21 November 2012 the aforementioned two judges sought to recuse themselves from the case. Relying on Article 27 § 1 of the CCP they argued that some of the legal points that they were called on to examine within the context of the current proceedings had been examined under previous sets of proceedings that had ended with judgments delivered by themselves – namely the judgments of 18 January 2011 (see paragraphs 11 - 13 above) and 2 November 2011 (see paragraph 14 above).

24 . On an unspecified date the third member of the panel of judges assigned to examine the applicant ’ s appeal on points of law was replaced by C.B.N. On 3 December 2012 the latter sought to withdraw from the case, relying on the same grounds as had judges A.R.S. and M.O.G (see paragraph 23 above).

25 . By an interlocutory judgment of 6 December 2012 not amenable to appeal, the Court of Appeal, sitting as a bench of three judges (namely M.B., R.S. and D.I.T.) dismissed the above-mentioned applications for self ‑ recusal. It held that the CCP provision that was applicable in respect of the case was Article 27 § 7 . The Court of Appeal further noted that the subject matter of the three sets of proceedings was different – during the first two sets of proceedings the judges had had to examine disputed points other than those raised during the proceedings in respect of the current appeal on points of law.

26 . It was true that in the current proceedings the applicants were seeking to remove the bank from the list of creditors whose loans were guaranteed by the mortgages on the applicants ’ immovable properties. It was also true that in its judgment of 18 January 2011 (unlike in its judgment of 2 November 2011), the Court of Appeal had ruled on the question of whether to cancel or maintain the registration of the existing collateral over the applicants ’ respective houses and land, which had been sold by the administrator as being free of any property security rights. However, even though the judgment of 18 January 2011 had touched on the question of mortgages within the context of the appeal on points of law lodged during the aforementioned set of proceedings, that did not mean that by delivering that judgment the judges had already also expressed their opinion regarding the current appeal on points of law.

27 . By a final judgment of 20 March 2013 the Court of Appeal, sitting as a bench of three judges (namely C.B.N., A.R.S. and M.O.G.), dismissed the applicants ’ appeal on points of law. As regards the applicants ’ argument that the bank ’ s mortgage had ceased to exist because they had paid the prices of their respective immovable properties, the court held that that argument had already been refuted. In its judgment of 18 January 2011 the Court of Appeal had established that the applicants had indeed paid the price agreed upon in full or in part. However, the money had not been paid during the collective enforcement proceedings and had not been passed on to the bank. Therefore, the cancellation of the mortgages concerning the applicants ’ respective houses and land had not been justified.

28 . The relevant provision of the CCP, as in force at the relevant time, concerning the impartiality of judges is cited in the case of Ilie v. Romania ([Committee] (dec.), no. 26220/10, § 20, 3 September 2019).

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

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

COMPLAINT

31 . The applicants complained that the proceedings that had been concluded by the final judgment of the Court of Appeal of 20 March 2013 (see paragraph 27 above) had been unfair because all the judges who had delivered that judgment had lacked impartiality. The panel of judges of that court had recused themselves from sitting in the case, which proved that they had had a preconceived view of the case.

THE LAW

32 . The applicants complained that the panel of judges that had delivered the final judgment of 20 March 2013 had lacked impartiality. They 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 independent and impartial tribunal established by law.”

33 . The Government argued that under the relevant domestic law and practice a judge could not simply withdraw from a case. An application for self-recusal had to be examined by the judge ’ s peers in order to determine if it was actually justified or not. Such a review was necessary, because without it judges could be tempted to choose the cases they wished to examine.

34 . Judges C.B.N., A.R.S. and M.O.G. had each lodged an application for self-recusal once they had known that they had been called on to examine the appeal on points of law lodged by the applicants against the judgment of 14 June 2012 (see paragraphs 23 and 24 above). Their applications had been examined by a panel of three other judges and had been dismissed. Even though none of the conditions set out by the relevant rules of procedure concerning self-recusal and the removal of judges had been met in their case, there is no reason to believe that the court called on to examine their applications had rejected them automatically, without examining them.

35 . There was no evidence in the file to suggest that judges C.B.N., A.R.S. and M.O.G. had had any personal interest in the case. The mere fact that they had examined two other previous sets of proceedings concerning the applicants which had had concerned a different matter than had the proceedings of 20 March 2013 could not suffice to raise legitimate doubts regarding their impartiality. Moreover, nothing in the three judges ’ conduct, demeanour, and professional relations with the parties involved in the proceedings had been of a nature indicating a subjective bias against the applicants. Furthermore, the answer provided by the courts to the recurrent question concerning the cancellation or preservation of the entries in the local Land Register regarding the collateral over the applicants ’ respective houses and land – which all three sets of proceedings had addressed – had acquired the status of res judicata following the final judgments of 18 January 2011 (see paragraphs 11 - 13 above) and 2 November 2011 (see paragraph 14 above). Therefore, no judge could have reached a different conclusion with regard to that point and thus have been forced to dismiss the applicants ’ appeal on points of law.

36 . The applicants submitted that judges C.B.N., A.R.S. and M.O.G. had already expressed an opinion with regard to the issues at stake during the previous set of proceedings examined by them concerning the same parties. Moreover, the respective subject matter of the two sets of proceedings in question had not been completely different, and the merits of the respective cases had concerned the same issue. The fact that the Court of Appeal had relied on the principle of res judicata in reaching its conclusions did not mean that the applicants ’ rights had not been breached. Furthermore, their right to have their case examined by an impartial tribunal had also been breached because the applications for self-recusal lodged by judges C.B.N., A.R.S. and M.O.G. had been examined by the same panel of judges during both the second and third sets of proceedings (see paragraphs 19 and 25 above) – even though the grounds submitted for their self-recusal had been the same on both occasions.

37 . The fact that the three judges themselves had each lodged an application for self-recusal in respect of the case proved that they had had an inner belief that they could not be impartial. Moreover, the fact that the three judges had delivered other judgements in respect of the same parties in proceedings that had been closely connected to the proceedings of 20 March 2013 reinforced the perception that they had lacked impartiality.

38 . The applicants contested the Government ’ s submission that the conditions set out by the relevant rules of civil procedure concerning self-recusal and the removal of judges had not been met in their case. Moreover, they also contested the Government ’ s submission that none of the judges had had a professional relationship with the bank (see paragraph 35 above). Specifically, they submitted evidence that judge C.B.N. had been an associate lecturer at the same university of which the bank ’ s lawyer had been serving as dean. The applicants acknowledged, however, that they had not raised this specific point in their initial application to the Court.

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

40 . In the instant case, notwithstanding the applicants ’ arguments, the Court notes that there is no evidence suggesting that the three judges who delivered the final judgment of 20 March 2013 acted with any personal bias against them.

41 . Given the circumstances, the Court has to examine whether, having regard to the nature and extent of the involvement of judges C.B.N., A.R.S. and M.O.G. in the proceedings concluded by the above-mentioned final judgment, there were objectively justified fears of bias stemming from the involvement of the same judges as those who had overseen the previous sets of proceedings concerning the applicants. That would be the case, for instance, where questions with which they had successively had to deal were similar – or at least if the difference between them was negligible (see, amongst other authorities, Fazlı Aslaner v. Turkey , no. 36073/04, § 32, 4 March 2014, with further references).

42 . The applicants ’ fears regarding the three judges ’ possible lack of impartiality were based on the fact that they had, from 2011 onwards, repeatedly adopted decisions in three separate sets of proceedings involving, on the one hand, the applicants and/or their antecedents and, on the other hand, a bank and a related subject – namely the cancelation of the mortgages (held by the bank) on their houses and land. In particular, judges C.B.N., A.R.S. and M.O.G. delivered final judgments that were not favourable to the applicants on 18 January (see paragraphs 11 - 13 above) and 2 November 2011 (see paragraph 14 above), 6 March 2012 (see paragraph 20 above) and 20 March 2013 (see paragraph 27 above).

43 . The Court notes that the proceedings of 20 March 2013 originated in the previous sets of proceedings involving judges C.B.N., A.R.S. and M.O.G. However, it cannot be said that that set of proceedings concerned the same facts or the same evidence as the first two sets of proceedings. The proceedings in question related solely to the registration in the list of company R. ’ s creditors of the bank ’ s loan to company R. (see paragraph 21 above), whereas the first two sets of proceedings related to the signing and a challenge against the signing of sale contracts for the applicants ’ properties (see paragraphs 7 and 15 above). Within that context there was no room for reviewing the validity of the judgments delivered during the previous sets of proceedings, which had become final and enforceable. Thus, during the proceedings of 20 March 2013, the court was not called upon to assess and determine whether they had correctly applied the relevant domestic law when hearing the applicants ’ or the bank ’ s cases or whether or not they had committed an error when interpreting or applying the relevant law during the previous sets of proceedings (contrast, San Leonard Band Club v. Malta , no. 77562/01, §§ 63-64, ECHR 2004-IX).

44 . It is true that in the reasoning for their judgment of 20 March 2013 judges C.B.N., A.R.S. and M.O.G. referred back to the judgment delivered during the proceedings of 18 January 2011 (see paragraph 27 above), which was later confirmed by the judgment of 2 November 2011 (see paragraph 14 above). However, the Court notes that the aforementioned reference concerned only the fact that the said judgment had become res judicata – meaning that judges C.B.N., A.R.S. and M.O.G. – or any other judges – were bound by the findings reached by the court in those sets of proceedings with regard to the point concerning the cancelation of the mortgages (held by the bank) on the applicants ’ respective houses and land (see, mutatis mutandis , Ilie v. Romania [Committee] (dec.), no. 26220/10, § 42, 3 September 2019).

45 . The Court furthermore notes that judges C.B.N., A.R.S. and M.O.G. sought to recuse themselves from the case because they were due to re-examine some of the legal points that they had had to examine during the previous sets of proceedings – in particular the proceedings that had been concluded by the judgments of 18 January and 2 November (see paragraphs 23 and 24 above).

46 . The Court observes in this respect, however, that their applications for self-recusal were dismissed after they had been duly examined by a court (sitting as a bench that did not include the judges whose impartiality was in question). The court explained that none of the grounds for disqualification stipulated by Article 27 § 7 of the CCP had been met with regard to the judges in question (see paragraphs 25 - 26 above).

47 . Having regard to the express provisions of the relevant domestic law (see paragraph 17 above) and the absence of such a close link between the sets of proceedings as would cast doubt on the impartiality of the three judges, the Court takes the view that the reasons set out by the domestic courts in dismissing the applications for self-recusal were neither arbitrary nor unreasonable and that they were sufficient to dispel any concerns about a lack of impartiality on the part of the judges in question.

48 . In view of the foregoing, the Court finds that the applicants ’ misgivings about the impartiality of the judges who delivered the final judgment of 20 March 2013 cannot be regarded as objectively justified.

49 . The Court ’ s conclusion is not affected by the applicants ’ complaints and/or arguments that (i) on the one hand, the applications for self-recusal lodged by judges C.B.N., A.R.S. and M.O.G. had been examined by the same panel of judges both during the proceedings concluded by the final judgment of 6 March 2012 and those concluded by the final judgment of 20 March 2013, even though the grounds submitted for their self-recusal had been the same and (ii) on the other hand, that judge C.B.N. was a subordinate of the bank ’ s lawyer at a university where they both worked (see paragraph 35 above).

50 . In this connection the Court notes that even assuming that the above-mentioned complaints and/or arguments fall to be examined within the context of the present application, they concern a final interlocutory judgment and a judgment that were delivered, respectively, on 6 December 2012 (see paragraph 25 above) and on 6 March 2012 (see paragraph 20 above), which is more than six months prior to the date of introduction of the application (6 September 2013). Moreover, the Court cannot help but notice that as far as the second complaint and/or argument is concerned, there is no evidence in the case-file to indicate that the applicants attempted to air it at any stage of the proceedings before the domestic courts.

51 . It follows that the application as a whole 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