FOURTH SECTION

DECISION

Application no. 24599/13 Clara-Ilinca POPOACÄ‚ against Romania

The European Court of Human Rights (Fourth Section), sitting on 12 November 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 29 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, Ms Clara-Ilinca Popoacă, is a Romanian national who was born in 1983 and lives in Bucharest. She was represented before the Court by Ms O. Budușan, a lawyer practising in Bucharest.

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 an unspecified date the applicant brought court proceedings, seeking to challenge the enforcement of a final judgment granting her husband (from whom she was separated) contact rights in respect of their daughter, who was a minor. Those proceedings were dismissed as ill-founded by a final judgment of 18 December 2013 of the Bucharest District Court (“the District Court”).

5 . On 3 October 2012 the applicant lodged an application with the District Court, seeking to temporarily stay the enforcement of the final judgment granting her husband contact rights in respect of their daughter, pending the outcome of the above-mentioned proceedings (see paragraph 4 above). She argued that the judgment had failed to set out exact times when her daughter could be taken away from her home, which rendered the enforcement problematic.

6 . By an interlocutory judgment of 9 October 2012 not amenable to appeal, the District Court, sitting as a single judge, namely Judge L.M.V., dismissed the applicant ’ s application. It held that her husband ’ s contact rights could easily be enforced if the parties were willing to cooperate. The applicant herself could propose times for the meetings between her husband and daughter. Although it would have been an advantage for the court which had given the judgment to set out precise times in case the parties failed to cooperate with each other, it would also have been a disadvantage, because this would not have allowed for any flexibility if the child was unavailable at a particular time, on account of her state of health or because of other reasons.

7 . Besides, according to the documents submitted by the applicant, her husband was able to spend time with the child on the days when he had contact with her at her mother ’ s home, even if the judgment setting out his contact rights had not set out exact times for his contact sessions on those days. Also, the judgment did not compel the applicant ’ s husband to notify her of his permanent place of residence or the activities he intended to participate in with the child before he exercised his rights. The arguments concerning the circumstances in which the child could have contact concerned the merits of the case, and could not be examined within the context of the interlocutory proceedings. Up until that date, the behaviour of both the bailiff dealing with the case and the applicant ’ s husband had been lawful.

8 . On 24 October 2012 the applicant lodged a second application with the District Court to have the final judgment granting her husband contact rights temporarily stayed. She argued that new elements and questions concerning the merits which had not been examined during the first set of proceedings could result in a different outcome in the case. She reiterated the arguments which she had already raised in her application of 3 October 2012 (see paragraph 5 above). In this connection, she also contended that the bailiff ’ s behaviour had rendered the enforcement unlawful, because he had set out a precise time for the meetings between her husband and her daughter, thus changing the judgment which he was attempting to enforce.

9 . On 30 October 2012 Judge L.M.V. sought to withdraw from the case on the grounds that on 9 October 2012 he had already expressed his opinion on it (see paragraph 6 above). He relied on Article 27 § 7 of the Code of Civil Procedure (“the CCP” – (see paragraph 19 below).

10 . By an interlocutory judgment of 1 November 2012 not amenable to appeal, the District Court, sitting as a single judge, namely Judge A.M.P., deliberating in chambers in the absence of the parties, dismissed Judge L.M.V. ’ s application. It concluded that the legal reason he had relied on for withdrawing was not applicable in the case, because whilst exercising his functions he had examined a different action to stay enforcement initiated by the same applicant in respect of the same enforcement file, and thus had not already expressed an opinion on the application at hand.

11 . Moreover, even if the two applications to temporarily stay enforcement relied on the same grounds and concerned the same circumstances, the legal rules that could be applied in the case were not those concerning the withdrawal of judges, but rather those concerning the principle of res judicata . The solution that could prove to be pertinent in the case was an objective one, flowing from the legal reality and the relevant rules – namely the existence of a judgment concerning an application lodged by the same applicant under the same circumstances and for the same reasons – and not a subjective one, such as the one provided for by Article 27 § 7 of the CCP.

12 . Lastly, the court noted that there was no element that could breach the parties ’ right to fair proceedings within the meaning of Article 6 of the Convention or make an objective observer have a reasonable suspicion that the judge in question lacked impartiality .

13 . On 17 November 2012 the District Court, sitting as a single judge, namely Judge L.M.V., allowed the parties to submit oral arguments with regard to the applicant ’ s second application to have the judgment granting her husband contact rights temporarily stayed. However, it instructed them to limit their arguments to only the circumstances that had changed since the interlocutory judgment of 9 October 2012 had been delivered.

14 . The court noted that, according to the applicant ’ s lawyer ’ s submissions, what had changed since the last set of proceedings was the fact that the bailiff had rendered the enforcement unlawful because he had set out a precise time for the meetings between the applicant ’ s husband and her daughter, thus changing the judgment he was attempting to enforce (see paragraph 8 in fine above). Also, the child ’ s father ’ s duty to inform the applicant of the child ’ s whereabouts during the contact sessions was implicit. In addition, the applicant had proposed a specific time for her husband ’ s contact sessions, but he had refused.

15 . By an interlocutory judgment not amenable to appeal delivered on the same date, the District Court, sitting as a single judge, namely Judge L.M.V., dismissed the applicant ’ s second application to have the final judgment granting her husband contact rights temporarily stayed. It held that the arguments raised by her and dismissed by the court on 9 October 2012 (see paragraphs 6 and 7 above) had acquired the status of res judicata , and could not be examined again.

16 . As regards the new circumstances which had arisen following the delivery of the interlocutory judgment of 9 October 2012, the court held that the bailiff ’ s behaviour had been justified and had not rendered the enforcement unlawful, as it was natural for him to set out a precise meeting time. In addition, the court could not accept the applicant ’ s argument that the moment of the child ’ s return could not be calculated in the absence of a fixed time-limit. The two-hour period granted to her husband for his contact session started from the moment he first had contact with the child.

17 . Even though it was clear that it would have been in the child ’ s interests to have contact with her father without a bailiff being present, a bailiff ’ s presence was necessary when the enforcement of a judgment was not accepted willingly. The applicant ’ s behaviour was important in this regard. She could not be granted legal protection because she disagreed with the way in which the father ’ s contact rights had been set out by a court judgment or was willing to accept enforcement of the judgment only under certain conditions. She was not dispensed from complying with the court judgment just because she had encouraged her child to have contact with her father in the absence of an enforceable judgment and at times other than the times mentioned in the judgment.

18 . Lastly, the arguments regarding the circumstances of the contact concerned the merits of the case and could not be examined within the context of the interlocutory proceedings. Similar considerations were also applicable to the arguments concerning the applicant ’ s husband ’ s character.

19 . The provision 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).

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

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

COMPLAINT

22 . Relying on Article 6 of the Convention, the applicant complained that the proceedings terminated with the judgment of 17 November 2012 had been unfair, in so far as her application had not been examined by an impartial tribunal.

THE LAW

23 . The applicant alleged that the proceedings terminated with the judgment of 17 November 2012 (see paragraphs 15-18 above) had been unfair. She 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....”

24 . The Government submitted that Article 6 was not applicable in the applicant ’ s case. The proceedings to temporarily stay the enforcement of the judgment granting her husband contact rights in respect of their daughter had not concerned the determination of her civil rights and obligations.

25 . In any event, the application was manifestly ill-founded. The two applications which the applicant had lodged with the District Court to have the judgment granting her husband contact rights temporarily stayed concerned different factual and legal issues. The court which had examined Judge L.M.V. ’ s application to withdraw from the case had reached the same conclusion, after it had thoroughly examined his application and the relevant domestic law. Moreover, Judge L.M.V. had asked to withdraw from the case in order to dispel any suspicion that might arise with regard to his objectivity, and not because he had actually thought that he lacked impartiality. Furthermore, the fact that the same judge had previously examined another application made by the applicant to temporarily stay the enforcement of the judgment was not sufficient in itself to cast legitimate doubt on his impartiality.

26 . There was no evidence justifying subjective or objective fears of bias stemming from Judge L.M.V. ’ s involvement in both sets of proceedings. Also, the applicant ’ s divorce from her husband had become final on 3 May 2016, following a court judgment which had also set out new contact rights for him. Thus, the judgment whose enforcement the applicant had sought to temporarily stay had been rendered moot.

27 . The applicant argued that the enforcement of the judgment granting her husband contact rights in respect of their daughter had concerned her and her daughter ’ s civil rights and obligations. Her applications to temporarily stay the enforcement had sought to protect her and her daughter ’ s private life and the latter ’ s best interests.

28 . Judge L.M.V. himself had asked to withdraw from the proceedings because he had already examined proceedings concerning the same subject and involving the same parties. Therefore, he had taken the view that he lacked impartiality in the case.

29 . The applicant contested the Government ’ s submissions, arguing that the two sets of proceedings in question had concerned different circumstances (see paragraph 25 above). A judge ’ s impartiality was affected whenever he or she was called upon to re-examine matters which were analogous to ones which he or she had already examined in previous sets of proceedings.

30 . In the instant case, the Court notes that the Government argued that Article 6 was not applicable in the present case (see paragraph 24 above). The Court takes the view that it is not necessary to examine this objection, because even assuming that it would be dismissed, the application is in any event inadmissible for the following reasons.

31 . 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).

32 . The Court notes that there is no evidence that the judge who examined the proceedings of 17 November 2012 (see paragraphs 13-18 above) acted with any personal bias against the applicant.

33 . In these circumstances, having regard to the nature and extent of Judge L.M.V. ’ s involvement in that set of proceedings, the Court has to examine whether there were objectively justified fears of bias stemming from his being involved in the proceedings of 9 October 2012 (see paragraphs 6 and 7 above) as well. This would be the case, for instance, if the questions which he had to deal with successively 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).

34 . The applicant ’ s fears about Judge L.M.V. ’ s lack of impartiality were based on the fact that on 9 October and 17 November 2012 he had made two decisions in two separate sets of proceedings involving the same parties and a related subject, namely the temporary stay of the enforcement of a final judgment granting the applicant ’ s former husband contact rights in respect of their daughter. In particular, in both sets of proceedings Judge L.M.V. had dismissed the applicant ’ s applications for a temporary stay of the enforcement of the judgment.

35 . The Court notes that the proceedings of 17 November 2012 concerning the applicant and her former husband originated in proceedings granting the husband contact rights in respect of their daughter. However, it cannot be said that those proceedings concerned the same facts or the same evidence as the proceedings of 9 October 2012. In fact, the proceedings of 17 November 2012 concerned only new circumstances that had not been examined during the proceedings of 9 October 2012 (see paragraphs 13-15 above). In that context, there was no room for reviewing the validity of the judgment delivered during the previous set of proceedings, which had become final. Thus, during the proceedings of 17 November 2012, the domestic court was not called upon to assess and determine whether it had correctly applied the relevant domestic law to the applicant ’ s case or that of her former husband, or whether it had committed an error in interpreting or applying the relevant law in the previous set of proceedings (contrast San Leonard Band Club v. Malta , no. 77562/01, §§ 63-64, ECHR 2004-IX).

36 . It is true that during the proceedings of 17 November 2012 Judge L.M.V. referred back to the judgment delivered during the proceedings of 9 October 2012 (see paragraph 15 above). However, the Court notes that that reference concerned only the point that the earlier judgment had become res judicata , meaning that Judge L.M.V. and any other judge was bound by the findings made by the court in that set of proceedings with regard to circumstances that were not new or had not changed during the two sets of proceedings.

37 . The Court further notes that during the second set of proceedings in dispute Judge L.M.V. sought to withdraw from the case because on 9 October 2012 he had already expressed his opinion on it (see paragraph 9 above), and that he relied on Article 27 § 7 of the CCP as grounds for his withdrawal.

38 . The Court notes, however, that Judge L.M.V. ’ s application for withdrawal was dismissed after it was duly examined by a court composed of a judge whose impartiality was not in question. The court concluded that Article 27 § 7 of the CCP was not applicable in the case, because Judge L.M.V. had only examined a different stay of enforcement action initiated by the same applicant in respect of the same enforcement file, and thus had not already expressed an opinion on the application at hand. Moreover, even if the second application for a temporary stay of enforcement relied on the same grounds and concerned the same circumstances as the first application, the legal rules that could be applicable in the case were not those concerning the withdrawal of judges, but rather rules concerning the principle of res judicata (see paragraphs 10 and 11 above).

39 . Having regard to the express provisions of the relevant domestic law (see paragraph 19 above), and the absence of such a close link between the two sets of proceedings as would cast doubt on the impartiality of Judge L.M.V., the Court takes the view that the reasons put forward by the domestic court in dismissing his application for withdrawal were neither arbitrary nor unreasonable, and were sufficient to dispel any concerns about a lack of impartiality on his part.

40 . In view of the foregoing, the Court finds that the applicant ’ s misgivings about the impartiality of the judge who examined the proceedings of 17 November 2012 cannot be regarded as objectively justified and that no appearance of violation of Article 6 § 1 of the Convention can be disclosed in the present case.

41 . 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 5 December 2019 .

Andrea Tamietti Faris Vehabović Deputy Registrar President