CASE OF UPĪTE v. LATVIA
Remainder inadmissible;No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Impartial tribunal)
André Potocki;Angelika Nußberger;Carlo Ranzoni;Khanlar Hajiyev;Mārtiņš Mits;Síofra O’Leary;Yonko Grozev
5. The applicant was born in 1945 and lives in Riga. 6. In the summer of 2007 a book called “Kitchen of Litigation” (Tiesāšanās kā ķēķis) was published, which contained transcripts of allegedly authentic telephone conversations between the lawyers of a wellknown law office in Latvia and judges working in various courts, including the Senate of the Supreme Court. The judiciary’s allegedly unlawful and unethical behaviour provoked considerable public debate and attracted wide media coverage. The Supreme Court and the Prosecutor General’s Office launched an inquiry (pārbaude). 7. On 17 September 2007 the Supreme Court established a working group consisting of five judges. The working group was tasked with carrying out an assessment of whether “the judges of the Supreme Court who were purportedly involved in the telephone tapping scandal, which raises doubts about the independence of the judiciary and the honesty of judges” had violated the Code of Ethics of Judges. On 8 October 2007 the working group received transcripts of the alleged telephone conversations from the Prosecutor General’s Office. 8. On 7 November 2007, during the annual conference of judges, the chairman of the Supreme Court made a speech about the effects of the book and the public debate which followed. He stated: “More than two months have passed since information emerged about alleged telephone conversations between judges and a particular lawyer. That event further confirmed the conviction of at least some people in society that doubts about the impartiality and the independence of courts, and therefore the lawfulness of their judgments, are justified. Society sees the information that was published as credible, irrespective of whether it was obtained lawfully or unlawfully and no matter what the result of the investigation carried out by the Prosecutor’s Office will be, and it undermines trust in the judiciary. ... ... I think that the information about the alleged conversations between judges and the lawyer [...] should be treated as a signal or a call to look at the problems in the judiciary in a wider context ... ... In relation to this particular situation, I think it was caused by the attitude to the rule of law and the code of ethics which regulate judges’ behaviour. The superficial, irresponsible and perhaps even the unlawful behaviour of certain judges has fundamentally affected trust in the judiciary ... Therefore [we] should also talk about the responsibility of judges, [we] should be conscious of the fact that a lack of self-criticism and an inability to apply ethical standards properly pose a threat to the independence of the judiciary ....” 9. On an unknown date the inquiry carried out by the Prosecutor General’s Office concluded that the alleged telephone conversations had taken place between November 1998 and April 2000. As there were no audio records of the conversations, the authenticity of the content of the transcripts could not be established. In the course of the inquiry the Prosecutor General’s Office questioned several judges mentioned in the book. 10. With regard to Judge O.D.J., a judge of the Senate of the Supreme Court, the Prosecutor General’s Office observed that the book had referred to a brief telephone conversation of 24 November 1999 in which the lawyer A.G. had arranged a meeting in the Judge O.D.J.’s office. The impugned conversation had not referred to any specific civil case so the Prosecutor General’s Office concluded that there were insufficient grounds to investigate Judge O.D.J.’s activities. 11. On 30 November 2007 the working group established by the Supreme Court published a report on their inquiry into alleged ethical wrongdoing by judges. The working group identified that two of the fifteen judges, whose conduct had been assessed, had violated the Code of Ethics of Judges, but that Judge O.D.J., whose conversation with the lawyer had been published in the book, had not. It stated: “... [12.5] In his submissions [5.5] O.D.J. did not deny that he might have had conversations [with the lawyer] but that they had only concerned German compensation claims, however in those cases [the lawyer] had not been representing any of the parties, and therefore the working group concluded that O.D.J. had not violated the Code of Ethics.” 12. In 2004 the applicant and another person brought a civil claim against a third party. On 25 January 2005 the Riga Regional court, as a firstinstance court, dismissed the claim and on 21 November 2006 the Supreme Court, acting as an appellate court, dismissed an appeal by the applicant. 13. In June 2007 the Senate of the Supreme Court granted leave to the applicant to appeal on points of law. The hearing before the cassation court was held on 29 August 2007. The Senate sat as a panel of three judges, including O.D.J. The applicant’s representative raised objections to O.D.J., arguing that the applicant had reasonable doubts as to his impartiality on the grounds that the judge was under several inquiries at the time for allegedly unethical or unlawful behavior. The applicant also alleged that the defendant’s representative was a former employee of the Supreme Court. 14. On 29 August 2007 the other two judges, referring to Article 19(1)(4) of the Civil Procedure Law (see paragraph 16 below), dismissed the objections. They noted that the applicant’s doubts were based only on an assumption and that the objection did not contain evidence allowing to conclude that the applicant’s doubts about the impartiality of Judge O.D.J. in the particular case were reasonable in the terms of the above provision. On the same day the Senate of the Supreme Court upheld the appellate court’s judgment on the merits by which the applicant’s claim was dismissed and it became final in that part, but referred the case back for reconsideration in part on the implementation of the judgment.