Published on 19 February 2024

FOURTH SECTION

Application no. 79920/17 Anna POGHOSYAN against Armenia lodged on 2 November 2017 communicated on 30 January 2024

SUBJECT MATTER OF THE CASE

The case concerns the alleged lack of impartiality of the Civil Court of Appeal when examining the applicant’s appeal in a civil dispute.

The applicant was sued by a private party for failure to pay her debt under a loan contract.

The applicant brought an appeal against this judgment mainly complaining with regard to the administration of evidence by the first instance court.

On 13 January 2017 the applicant filed an application requesting that two of the three judges of the bench withdraw from her case. Relying on Article 91 § 1 (1) of the Judicial Code in force at the material time, she argued that judges K.C. and T.N. were prejudiced against her due to the fact that back in 2011 both of them had been subjected to disciplinary measures by the then Council of Justice based on her husband’s application who was an advocate in one of their cases. She stressed the fact in question would not in and of itself cast doubt on the impartiality of those judges had she simply been the client of the advocate who had had them disciplined. However, since she was the wife of that advocate, such a doubt was inevitable. Both judges refused to withdraw stating that Article 91 of the former Judicial Code was not applicable. That provision, as far as relevant, reads as follows:

“1. A judge should recuse himself/herself if he/she is aware of any fact or circumstances which may cast reasonable doubt on his/her impartiality in the given case. Grounds for recusal include, inter alia , cases where:

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1) the judge has a partial attitude (prejudice) against a party of the proceedings, their representative, defendant, other participant of the proceedings.”

Judges K.C. and T.N. stated that, since the applicant’s husband was acting in neither capacity within the meaning of Article 91 § 1 (1) (he had been a representative in another case examined by them), there were no grounds for them to withdraw from the applicant’s case. They also indicated that the applicant’s doubt was merely theoretical and that they had never shown any sign of hostility or ill will against her that could possibly cast doubt on their impartiality within the meaning of the provision in question. To the contrary, they had granted the applicant’s procedural requests, such as extension of the deadline for paying the state fee and so on. Finally, if not for the applicant’s request, they would have not known that the applicant’s husband, who was referred to in the case materials, was the same advocate who had submitted a disciplinary complaint against them.

On 26 January 2017 the Civil Court of Appeal rejected the applicant’s appeal and upheld the judgment against her.

The applicant lodged an appeal on points of law raising, inter alia , the issue of the two judges’ refusal to withdraw from her case.

On 3 May 2017 the Court of Cassation declared the applicant’s appeal on points of law inadmissible for lack of merit. The decision was sent on 10 May 2017.

The applicant complains under Article 6 § 1 of the Convention that she did not receive a fair hearing by an impartial tribunal given that judges K.C. and T.N. of the Civil Court of Appeal were prejudiced against her.

QUESTION TO THE PARTIES

Did the applicant have a fair hearing in the determination of her civil rights and obligations, in accordance with Article 6 § 1 of the Convention? In particular, was the bench at Civil Court of Appeal, which dealt with the applicant’s appeal, impartial, as required by that provision?