FOURTH SECTION

CASE OF STUR UA v. GEORGIA

( Application no. 45729/05 )

JUDGMENT

STRASBOURG

28 March 2017

FINAL

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Stur ua v. Georgia ,

The European Court of Human Rights ( Fourth Section ), sitting as a Chamber composed of:

Ganna Yudkivska, President, Vincent A. De Gaetano, András Sajó, Nona Tsotsoria, Krzysztof Wojtyczek, Gabriele Kucsko-Stadlmayer, Marko Bošnjak, judges, and Andrea Tamietti , Deputy Section Registrar ,

Having deliberated in private on 7 March 2017 ,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1 . The case originated in an application (no. 45729/05) against Georgia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Georgian national, Mr Mitrop h ane Stur ua (“the applicant”), on 29 November 2005 .

2 . The applicant was represented by Mr N. Kvaratskhelia , a lawyer practising in Tbilisi. The Georgian Government (“the Government”) were represented by their Agent, Mr D. Tomadze , of the Ministry of Justice.

3 . The applicant alleged that , contrary to Article 6 § 1 of the Convention, the disciplinary proceedings against him had been unfair, that his appeal had been heard by a body lacking impartiality and that he did not have access to a court.

4 . On 27 August 2007 the application was communicated to the Government .

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5 . The applicant was born in 1953 and lives in Tbilisi .

6 . On 15 May 1999 t he applicant was appointed President of the Abasha District Court for a ten-year term .

7 . On 3 December 2004 the Supreme Council of Ju stice initiated disciplinary proceedings against the applicant under s ection 2(2)-(e) of the Act of 22 February 20 00 on Disciplinary Proceedings a gainst Judges of Ordinary Courts ( hereinafter, “the Disciplinary Proceedings Act” – see paragraphs 15 - 18 below ). He was accused in particular of having retained a criminal case file for six months after withdraw i n g from the case on 29 October 2003.

8 . On 23 December 2004 a Panel of the Disciplinary Council of J udges ( hereinafter, “the Panel”), composed of Mr K.K. (the President of the Panel and rapporteur), Mr G.Ch, Mr D.S. and Mr Th.Th. , considered the case at an oral hearing. According to the transcript of the hearing, the applicant admitted to the act of negligence he had been accused of. After examin ing the circumstances of the case , the P anel found the applicant guilty of the misconduct in question. It considered his conduct all the more serious because the defendants in the case had been in detention at the time and because he had had a duty, under Article 6 of the Convention, to act promptly and without fault. The P anel took into account the nature of the misconduct, which it classified as serious, and the existence of another disciplinary measure against the applicant in the past , and decided to remove him from office.

9 . On 29 December 2004 t he applicant lodged an appeal with the Disciplinary Council of Judges ( hereinafter, “the Disciplinary Council”) on points of fact and law under section 60(1) of the Disciplinary Proceedings Act (see paragraph 17 below) . He question ed the assessment of the circumstances of the case and the application of the legal provisions to the established facts in the decision of 23 December 2004 . His appeal was examined at a plenary session of the Disciplinary Council composed of eight members, including the same four, Mr K.K., Mr G.Ch., Mr D.S. and Mr Th.Th, who had sat at the first hearing . As before, Mr K.K. acted as President and rapporteur in the examination of the applicant ’ s appeal.

10 . By a decision of 27 January 2005 , the Disciplinary Council unanimously upheld the Panel ’ s decision of 23 December 2004 in its entirety. The appellate instance confirmed that the lower body had correctly established the facts and applied the relevant law to th e factual findings.

11 . The applicant then lodged an appeal on points of law with the Supreme Court under section 74 of the Disciplinary Proceedings Act , as amended on 25 February 2005 (see paragraph 18 below) . He argued that he had not been given notice that he could appear before the Panel and that the re had been a delay in the Disciplinary Council examin ing his appeal. He also stated that under Article 6 of the Convention the four members of the Panel who had taken the decision of 23 December 2004 had not ha d the right to sit subsequently in the Disciplinary Council appeal hearing .

12 . In a judgment of 11 July 2005 , the Supreme Court dismissed the applicant ’ s cassation appeal as ill-founded. B ased on the transcript , it found that he had in fact been present at the Panel hearing on 23 December 2004 and had been able to state his case without impediment, contrary to his allegation . At the hearing the applicant had admitted to the act of negligence with which he had been charged. The Supreme Court rejected the allegation of a delay in the examination of the case by the Disciplinary Council by not ing that the latter had given its ruling within the statutory time-limit of one month. The Supreme Court also found that the presence of four members of the P anel as participants in the subsequent Disciplinary Council proceedings had not contravene d the requirements of sections 22 and 24 of the Disciplinary Proceedings Act (see paragraph 17 below) .

II. RELEVANT DOMESTIC LAW

A. Guarantees on the irremovability of judges in the domestic law

13 . Pursuant to sections 48(1) and 49(1) of the Act of 13 June 1997 on Courts of Ordinary Jurisdiction, as in force at the time of the applicant ’ s appointment to the judicial post in 1999 (see paragraph 6 above), President of Georgia was empowered to appoint qualified candidates as judge for the ten years ’ term of office.

14 . Articles 84 and 86 of the Constitution of Georgia, the provisions proclaiming the principles of independence and irremovability of judges, read, at the material time of the relevant events , as follows:

Article 84 §§ 1-3

“1. A judge shall be independent in his/her activity and shall be subject only to the Constitution and law. Any pressure upon the judge or interference with his/her activity with the aim of influencing his/her decision shall be prohibited and punishable by law.

2. The removal of a judge from the consideration of a case, his/her early dismissal from office or transfer to another judicial position shall be permissible only in the circumstances defined by law.

3. No one shall have the right to hold a judge accountable for a case under his/her consideration.”

Article 86 § 2

“2. The term of office of an appointed judge shall be no less than ten years. The procedures for selection of judicial candidates, their appointment to or early removal from office shall be de termined by law.”

B. The Disciplinary Proceedings Act

15 . As in force at the time of the opening of the disciplinary proceedings against the applicant, S ection 2(2)-(e) of the Disciplinary Proceedings Act provided that a judge who had contributed to making the examination o f a case protracted without any valid reason was considered to be in breach of his or her official duties.

16 . Prior to 30 June 2004 , the Disciplinary Proceedings Act, notably s ection 62(2), explicitly forb ade the members of the Panel which had examined a disciplinary case at first instance from sitting in the case when the Disciplinary Council review ed i t on appeal. In addition, s ection 66(1) stated that if the President of the Disciplinary Council ha d participated in a Panel then he or she should withdraw from presiding over a Disciplinary Council session during the appellate review of the same case. A n a mendment of 30 Jun e 2004 removed the above-mentioned provisions by rewording s ections 62(2) and 66(1) .

17 . After the a mendment of 30 June 2004, t he most relevant provisions of a procedural nature in the Disciplinary Proceedings Act read as follows:

Section 22 (1), (2), (3) and (4)

“1. The Disciplinary Council of J udges of O rdinary C ourts shall be composed of eight members.

2. The members of the Council ... , of whom four shall be judges of ordinary courts, shall be elected by the Conference of J udges of O rdinary C ourts by a majority vote, on a proposal from the Supreme Council of Justice ...

3. Within the Council, Panels of four members each shall be formed. ...

4. The Council shall have a President who is also one of its member s . The President shall chair the Council ’ s sessions. ... ”

Section 24 (4)

“The term of office of members of the Disciplinary Council shall be four years.”

Section 56(3)

“Once a decision has been taken by a D isciplinary P anel to remove a judge from office, the judge in question shall be disqualified, in accordance with the procedure prescribed by law, from considering cases and from other activities arising out of the exercise of his or her office.”

Section 60(1)

“A decision by a D isciplinary P anel may be reconsidered on appeal before the plenary of the Disciplinary Council of J udges.”

Section 62(1)

“The Disciplinary Council shall consider the case ... within a month of the appeal being lodged.”

Section 66(1)

“ ... Hearings [before the plenary of the Council] shall be chaired by the President of the Council or, by decision of the President, by another member of the Council.”

Section 68(1)

“Decisions of the Disciplinary Council , sitting in plenary session, shall be taken by a simple majority vote. In the event of a tie, the President shall have the casting vote.”

18 . Prior to 25 February 2005, s ection 74 of the Disciplinary Proceedings Act stated that a Disciplinary Council appellate decision in disciplinary proceedings, which had reviewed th e factual and legal well ‑ founde d n ess of a first-instance decision taken by a Panel, was final and enforce able . However, an a mendment of section 74 o n 25 February 2005 allow ed the Supreme Court of Georgia, the cassation instance, to carry out a further review of Disciplinary Council appellate decisions . Such reviews can only be on points of law .

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

19 . The applicant complained that his case had not been heard by an impartial tribunal as the same judges had taken part in the first and appellate disciplinary proceedings. He relied on Article 6 § 1 of the Conve n tion which reads, in its relevant parts, as follows:

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

A. Admissibility

1. The parties ’ submissions

20 . Firstly, t he Government contended that Article 6 of the Convention did not apply in the present case. A mong other arguments, they relied on the Court ’ s decision in the case of Pitkevich v. Russia ((dec.), no. 47936/99, 8 February 2001) and maintained that disputes relating to dismissal from the judiciary f e ll outside the scope of the provision in question.

21 . The Government also submitted that the applicant had not exhausted domestic remedies , as required by Article 35 § 1 of the Convention. They stated that the applicant should have applied to the Constitutional Court of Georgia and requested that the impugned provisions of the Disciplinary Proceedings Act, which allowed for the same judges to sit both at first instance and at appeal , be repealed as being unconstitutional.

22 . The applicant disagreed with the Government ’ s objections, considering them to be misplaced and not supported by the Court ’ s relevant case-law.

2. The Court ’ s assessment

23 . The Court reiterates that Article 6 § 1 of the Convention applies under its civil head to a dispute (“ contestation ” in the French text) over a “civil right” which can be said, at least on arguable grounds, to be recognised under domestic law, irrespective of whether it is also protected under the Convention. The dispute must be genuine and serious; it may relate not only to the actual existence of a right but also to its scope and the manner of its exercise. The result of the proceedings must be directly decisive for the right in question, mere tenuous connections or remote consequences not being sufficient to bring Article 6 § 1 into play (see Micallef v. Malta [GC], no. 17056/06, § 74, ECHR 2009, and Boulois v. Luxembourg [GC], no. 37575/04, § 90, ECHR 2012).

25 . The Court notes that in Vilho Eskelinen and Others v. Finland , it held that in order for a respondent Government to be able to argue before the Court that Article 6 § 1 of the Convention does not apply under its “civil” limb to employment disputes between the authorities and public servants, two conditions must be fulfilled. First ly , the Government must show that the respondent State ’ s national law expressly excludes access to a court for the post or category of staff in question and, s econdly, the exclusion must be justified on objective grounds in the State ’ s interest ( see Vilho Eskelinen and Others v. Finland [GC], no. 63235/00, § 62, ECHR 2007 ‑ II ).

26 . The Court further observes that i n the context of the first condition it is not prevented from classifying a particular domestic body, outside the domestic judiciary, as a “court” for the purpose s of the Vilho Eskelinen test (see Oleksandr Volkov v. Ukraine , no. 21722/11 , § 88, ECHR 2013). This test is equally applicable with respect to both ordinary civil servants and judges (see Baka , cited above, § 104). Furthermore, the Vilho Eskelinen test covers all types of employment disputes concerning civil servants and judges, including those relating to recruitment/appointment, career/promotion, transfer and termination of service (see Baka , cited above, § 105, with further references, and Olujić v. Croatia , no. 22330/05, § § 3 1 ‑ 44 , 5 February 2009 , where the Court held Article 6 to be applicable to the proceedings concerning the disciplinary dismissal of the President of the Supreme Court ).

27 . Returning to the circumsta n ces of the present case, the Court notes that the disciplinary charge against the applicant was examined by the Disciplinary Council of J udges at first instance and on appe a l . At first instance, it sat as a four-member Panel whil e at the appellate level it examined the case in plenary session. The D isciplinary Council took reasoned decisions on the applicant ’ s dismissal, which were then reviewed by the Supreme Court of Georgia, sitting as an ordinary final court of cassation (see paragraphs 8 - 12 above) . G iven therefore that the disciplinary proceedings against the applicant were conducted by bodies which clearly perform ed a judicial function, with the Disciplinary Council clearly representing “a tribunal” within the meaning of Article 6 § 1 of the Convention, it cannot be concluded that domestic law “expressly excluded access to court” in the applicant ’ s case (see , mutatis mutandis , Oleksandr Volkov , cited above, §§ 89-91 ; H. v. Belgium , 30 November 1987, § 50, Series A no. 127 ‑ B ; and Belilos v. Switzerland , 29 April 1988, § 66, Series A no. 132 ) . The first condition of the Vilho Eskelinen test has therefore not been met and Article 6 applies under its “civil” head to the impugned disciplinary proceedings (compare with Olujić, cited above , §§ 31 - 4 4 ; Saghatelyan v. Armenia , no. 7984/06 , § § 31-35, 20 October 2015 ; Gerovska Popčevska v. the former Yugoslav Republic of Macedonia , no. 48783/07 , § 38, 7 January 2016; and Tato Marinho dos Santos Costa Alves dos Santos and Figueiredo , cited above, § § 40-42 ).

29 . As regards the Government ’ s objection of non-exhaustion of domestic remedies (see paragraph 21 above ) , the Court reiterates that it has already found the lodging of an individual constitutional complaint in Georgia to be an ineffective remedy for the purposes of Article 35 of the Convention, mainly on account of the Constitutional Court ’ s inability to set aside individual decisions by the public authorities or courts which directly affect complainants ’ rights (see Apostol v. Georgia , no. 40765/02 , §§ 35 -4 6 , ECHR 2006 - XIV ; Mumladze v. Georgia , no. 30097/03, § 37, 8 January 2008; and Khoniakina v. Georgia , no. 17767/08 , § 59, 19 June 2012 ).

30 . Consequently, the Court dismiss es both of the Government ’ s inadmissibility objection s and concludes that the applicant ’ s complaint concerning the impartiality of the Disciplinary Council is neither manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention nor inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The parties ’ submissions

31 . The Government argued in essence that domestic law had offered sufficient guarantees about the independence and impartiality of the Disciplinary Council. It had been lawful for the same four members of th e Council to sit first in the Panel and then in the plenary meeting. The plenary of the Disciplinary Council should not be viewed as an ordinary appellate instance. O verlap in the composition of the Disciplinary Council when sitting in two different bodies was inevitable in the light of the relevant domestic legal framework, but that fact could not taint the validity of the decisions taken by the collegial body by majority vote. In addition , there had been no indication of personal bias on the part of any of the impugned four members of the Disciplinary Council who had examined the applicant ’ s case at two stages of the same procedure. The fact that the same four judges had taken part in adjudication of the issues at two different stages did not in itself prove that they had been biased .

32 . The applicant maintained that his case had not been considered by an “independent and impartial tribunal”. In particular, th o se requirements had not been met by the Disciplinary Council when it had s a t in its plenary formation . He argued that since four members of th e plenary, including the President, had examined his case at first instance , they had not been able to en sure an adequate rehearing of the issues on appeal.

2. The Court ’ s assessment

33 . The Court reiterates that Article 6 § 1 of the Convention requires a tribunal falling within its scope to be impartial. Impartiality normally denotes absence of prejudice or bias and its existence can be tested in various ways. The Court has thus distinguished between a subjective approach, that is endeavouring to ascertain the personal conviction of a given judge in a given case, and an objective approach, that is determining whether he offered guarantees sufficient to exclude any legitimate doubt in this respect (see , amongst many other authorities, Piersack v. Belgium , 1 st October 1982, § 30, Series A no. 53 ). Under the latter approach, what is decisive is whether the fear that a particular judge lacks impartiality can be held, irrespective of the judge ’ s real personal standpoint , to be objectively justified (see Wettstein v. Switzerland , no. 33958/96, § 44, ECHR 2000 ‑ XII ). Indeed, whilst it may often be difficult to procure evidence with which to rebut the presumption of the personal impartiality of a judge, the requirement of objective impartiality provides , in this respect, a further important guarantee (see Pullar v. the United Kingdom , 10 June 1996, § 32, Reports of Judgments and Decisions 1996-III). In other words, the Court has recognised the difficulty of establishing a breach of Article 6 on account of subjective partiality and for this reason has in the vast majority of cases raising impartiality issues focused on the objective test. However, t here is no watertight division between the two notions, since a judge ’ s conduct may not only prompt objectively held misgivings as to impartiality from the point of view of the external observer (objective test), but may also go to the issue of his or her personal conviction (subjective test) (see Kyprianou v. Cyprus [GC], no. 73797/01, § 119, ECHR 2005 ‑ XIII ; and Olujić , cited above, § 58).

34 . The Court observes that in the present case four members of the Disciplinary Council of J udges had first gathered as a Panel to examine, in the capacity of a judicial body of first instance , the well-founded n ess of the disciplinary charge brought against the applicant. The Panel conducted a hearing, examined all the evidence and then delivered a reasoned decision o n 23 December 2004 finding the applicant guilty of a disciplinary offence and punishing him with dismissal (see paragraph 8 above) . The judicial decision contained an interpretation and application of the relevant legal provisions to the facts of the case.

36 . There has accordingly been a breach of Article 6 § 1 of the Convention.

II . OTHER ALLEGED VIOLATIONS OF THE CONVENTION

37 . Relying on Article 6 § 1 of the Convention, the applicant also complained, on the one hand, that he did not have access to a court and, on the other, that the outcome of the disciplinary proceedings had been based on an erroneous assessment of the facts and a wrongful application of the law by the Disciplinary Council and the Supreme Court of Georgia.

38 . As regards the complaint about the inability to have access to a court, the Government submitted that it was manifestly ill-founded given that, by virtue of the amendment of 25 February 2005 to section 74 of the Disciplinary Proceedings Act (see paragraph 18 above), the applicant had availed himself of the possibility to app eal to the Supreme Court of Georgia against the outcome of the disciplinary proceedings (see paragraph 11 above) .

39 . The applicant disagreed with the Government ’ s above-mentioned arguments , maintaining that he had not benefited from a proper judicial review of the disciplinary charge against him.

40 . H aving regard to its findings about the applicability of Article 6 § 1 of the Convention to the disciplinary proceedings in question, the Court reiterates that the Disciplinary Council of Judges , albeit a body outside the ordinary judiciary, clearly constituted in itself “a tribunal” for the purposes of Article 6 § 1 of the Convention (see paragraphs 26 and 27 above).

41 . As regards the applicant ’ s complaint about the outcome of the disciplinary proceedings , the Court reiterates that it cannot act as a fourth instance and will not therefore question the domestic judicial bodies ’ findings of fact and law , unless their findings can be regarded as arbitrary or manifestly unreasonable (see, for instance, Bochan v. Ukraine (no. 2) [GC], no. 22251/08, § 61, 5 February 2015 ). In the present case, the Court does not see any appearance of arbitrariness in the conclusions of the domestic courts.

42 . It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

III . APPLICATION OF ARTICLE 41 OF THE CONVENTION

43 . Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

44 . The applicant claimed 15,000 Georgian l aris (GEL) ( approximately 6,400 euros (EUR) at the relevant time ) in respect of non-pecuniary damage.

45 . The Government submitted that the amount claimed was excessive.

46 . The Court accepts that the applicant suffered non-pecuniary damage which is not sufficiently compensated for by the finding of a violation (see, for instance, Toziczka v. Poland , no. 29995/08 , § 56, 24 July 2012 , and Fazlı Aslaner , cited above, § 62) . Making its assessment on an equitable basis and having regard to the circumstances of the case, the Court awards the applicant EUR 3,500 under this head.

B. Costs and expenses

47 . The applicant claimed GEL 7,900 ( approximately EUR 3,380 at the relevant time ) in respect of his representation before the Court. In support of this claim, he submitted a contract for legal services that he had concluded with his representative on 26 February 2008 together with an itemi s ed invoice breaking down the services provided into hours and fees – forty ‑ three hours and forty minutes at a rate of GEL 180 ( approximately EUR 77) per hour . Th e itemis ed list also indicated the dates and exact types of legal services rendered.

48 . The Government argued that the applicant ’ s claims were mostly unsubstantiated and excessive.

49 . According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria , the Court considers it reasonable to award the sum of EUR 3,380 for costs and expenses in the proceedings before the Court.

C. Default interest

50 . The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT , UNANIMOUSLY,

1. Declares the complaint under Article 6 § 1 of the Convention concerning the alleged lack of impartiality of the Disciplinary Council admissible and the remainder of the application inadmissible;

2 . Holds that there has been a violation of Article 6 § 1 of the Convention;

3 . Holds

(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

( i ) EUR 3,500 ( three thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii ) EUR 3,380 ( three thousand three hundred and eighty euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

4 . Dismisses the remainder of the applicant ’ s claim for just satisfaction.

Done in English, and notified in writing on 28 March 2017 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Andrea Tamietti Ganna Yudkivska              Deputy Registrar President