Information Note on the Court’s case-law 38

January 2002

Delage and Magistrello v. France (dec.) - 40028/98

Decision 24.1.2002 [Section I]

Article 6

Civil proceedings

Article 6-1

Impartial tribunal

Impartiality of Commercial Court due to cumulation of functions of president and juge-commissaire in declaration of personal bankruptcy: inadmissible

Ms Delage was the manager of a private company ( société à respo nsabilité limitée ) that was unable to pay its debts owing to financial difficulties. The commercial court, which was presided over by Judge M.K., made an order for the judicial reorganisation of the company under the simplified procedure and appointed M.K. as substitute insolvency judge. A differently constituted bench of the court subsequently ordered the company’s liquidation, renewed the appointment of the insolvency judges and appointed a liquidator. At a later date the court ordered an audit of the com pany of its own motion and appointed M.K. as the full insolvency judge. The liquidator issued proceedings in the same court against Ms Delage, in her capacity as de iure manager of the company, and against Mr Magistrello, in his capacity as the de facto ma nager, requesting a receivership order against them, a declaration that they were jointly and severally liable to pay the shortfall in the company’s assets and a ruling on whether they were personally bankrupt. State Counsel’s Office made submissions at th e hearing requesting an order declaring the applicants personally bankrupt. The commercial court, presided over by M.K. assisted by two wing members, made a receivership order and, on the basis of the insolvency judge’s report, an order for the liquidation of their assets. Lastly it declared them personally bankrupt for a period of thirty years. The applicants’ appeals to the court of appeal and the Court of Cassation were dismissed on the ground that the fact that the insolvency judge had sat on the trial bench was compatible with domestic law and his inclusion in the court that had made the liquidation order against the applicants was compatible with Article 6 of the Convention, even though he was already the insolvency judge responsible for overseeing the company’s liquidation.

Inadmissible under Article 6 § 1: since the judge’s subjective impartiality was not disputed, the Court had to examine whether ascertainable facts existed that might raise doubts as to the objective impartiality of the collegiate co urt that decided the case. Firstly, although it was true that Judge M.K. had presided over the court that had made the order for the judicial reorganisation of the applicants’ company, that had been only at an initial stage of the proceedings. Further, in his capacity as substitute insolvency judge, M.K. had not been on the bench that had ordered the company’s liquidation having become the full insolvency judge only at a later date, such that there was no appearance of a violation of Article 6 on the facts. The remainder of the complaint concerned the fact that the same judge had acted both as the president of the court and as the insolvency judge when the personal bankruptcy order was made against the applicants. That was a factor that could cause the appli cants’ doubts as to the court’s impartiality. The Court had to examine whether such doubts were objectively justified. The answer depended on the circumstances of the case. The fact that a judge had taken pre-trial decisions, had detailed knowledge of the case file or had carried out a preliminary analysis of the available information could not in itself justify fears of a lack of impartiality. It was necessary to determine whether, regard being had to the nature and extent of the judge’s functions before t he trial and of the measures adopted, he or she had displayed bias with regard to the decision to be taken at the hearing. That would be the case if the issues dealt with by the insolvency judge were analogous to the issues on which he ruled as a member of the court. In the instant case, in his capacity as insolvency judge, M.K. had made only one order out of a total of seven and that order had not dealt with the issue of the applicants’ conduct as managers of the company or the matters that were examined b y the court when it declared them personally bankrupt. As to the decision of the court presided over by M.K. to order an audit, summary investigative measures of that type could not suffice to give rise to an objectively justified concern. Furthermore, the court presided over by M.K. had not assumed jurisdiction to consider the applicants’ alleged misconduct as it had been entitled to do but had decided that issue in proceedings brought against the applicants by the liquidator after hearing the submissions of the representative of State Counsel’s Office at the hearing. In upholding the allegations of misconduct against the applicants the court had relied on the expert’s report and documents produced by the liquidator. There was no reference in the reasons se t out in the judgment to the insolvency judge’s report or the order he had made. Moreover, the court had not delivered its decision until the parties had been permitted to exchange notes to the court in deliberations and had produced further evidence. The applicants had raised no objection to the fact that the president of the commercial court had acted as the insolvency judge either at the hearing, in which Judge M.K. himself had sat with his wing members, or in a note to the court in deliberations. In det ermining the applicants’ liability, the court had made no reference to the insolvency judge’s report. Lastly, the commercial court’s judgment had been upheld on appeal after an adversarial hearing. Accordingly, there was no objective reason for believing t hat the nature and extent of the insolvency judge’s functions during the prior proceedings would lead to bias on the separate issue to be decided by the commercial court regarding the managers’ conduct. Even supposing that domestic remedies had been exhaus ted despite the failure to challenge the judge concerned, the applicants’ fears were not objectively justified in the instant case: manifestly ill-founded.

[This decision applies the principles established in the case of Morel v. France of 6 June 2000, pub lished in ECHR 2000-VI.]

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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