Statute governing the Administrative and Fiscal Courts – composition of the court
Regime governing the disqualification of judges
RULING No. 281/11
7 of June of 2011
An interpretation of a norm contained in the Statute governing the Administrative and Fiscal Courts such that the composition of the court that hears appeals on the grounds of contradictory rulings can include judges who intervened in the ruling against which the appeal is being brought, or in the ruling on which the appeal is based, is not unconstitutional. The guarantee of a judge’s impartiality is gauged on the basis of any functions he/she previously exercised in the same case; in the absence of other factors, even the entire history of the prior interventions by given judges in that case is not in itself sufficient reason to say that there are justified reasons to fear a lack of impartiality on the part of those judges.
The issue before the Court was a possible breach of the principle of impartiality and of the right to fair process, which the appellant alleged to have come about because, when the Plenary of the Supreme Administrative Court heard an appeal on the grounds of contradictory rulings, some of the judges who composed it had intervened in the decision that formed the object of the ruling against which the latter appeal was being lodged. Four of the judges who made up the court which handed down the ruling against which that appeal was brought were also members of the court which found that the preconditions for the admissibility of the appeal on the grounds of contradictory rulings were not met. The ruling which was appealed to the Constitutional Court said that this coincidence between the two compositions did not make the four judges in question parties to the question that was decided by the Plenary, nor did it restrict the impartiality they were bound to observe in their consideration of and verdict on the case.
The Constitutional Court recalled that the right to fair process implies that the whole of the latter be underlain by the principle of fairness, which is in turn seen as the guarantor that both the way in which the legislator shapes the respective procedure is itself fair, and that at every moment of the procedure the latter will be imbued with the material principles of justice.
The guarantee that the judge will be impartial is a corollary of the right to fair process. In encompassing the right that the cause will be judged by an impartial court, the right to fair process involves the guarantee that each and every judge will be impartial, which is a true personal right: everyone has the right that judicial organs be composed of judges who are independent and impartial and who thus offer a guarantee of neutrality towards the parties.
It is this guarantee that judges will be impartial which leads to the imposition of a regime governing disqualifications. The jurisprudence of the European Court of Human Rights (ECHR) has both confirmed and emphasised that the guarantee of fair process in turn presupposes and requires this guarantee of an impartial court, with both a subjective dimension which takes account of the personal convictions of a given judge on a given occasion, and an objective one which seeks to ensure that each judge offers guarantees that are sufficient to exclude any legitimate doubt as to his/her impartiality and to determine whether he/she is in a position to hand down a free judgement, thereby excluding any fear of partiality. When these fears are assessed, the theory of appearances plays an important role, in the sense that whenever there is a legitimate reason to doubt a judge’s impartiality, he/she must be excluded. The decisive element in this assessment is the existence or otherwise of an objectively justified fear of a lack of impartiality. This perspective does not look to the judge’s personal behaviour, but considers the functions that he/she has previously exercised in the same case. His/her objective impartiality is assessed in the light of the functions that he/she has exercised, and not of his/her attitude or convictions.
In the present case, the doubts which the appellant raised with regard to the impartiality of four of the seven judges who heard the appeal on the grounds of contradictory rulings were based on the fact that they had previously intervened in the same case – i.e. that they had participated in the earlier decision.
Supporting its position with jurisprudence from the European Court of Human Rights, the Constitutional Court distinguished between two hypotheses: a situation in which the same judge successively exercises different jurisdictional functions in the same case; and one in which, as the result of an appeal, he/she successively exercises the same jurisdictional functions. The first of the two represents the accumulation of functions linked to the prosecution, the fact-finding phase and the trial, or of consultative and jurisdictional functions. The ECHR has condemned the successive exercise of consultative and jurisdictional functions. With regard to the second situation, the ECHR considers that the simple accumulation of functions is not enough to automatically entail a breach of the right to fair process; the key in this case is an assessment of the judge’s effective role in his/her various interventions, with a view to determining whether the interested party’s fears are objectively justified.
The Constitutional Court said that it shared the view expressed by the ECHR, and that it considered that when a judge judges, he/she must act with independence and impartiality and his/her judgement must appear to the public to be objective and impartial; and importance must therefore be attached to the content of the decisions he/she has handed down.
In the present situation, the first of the successive interventions of the four judges addressed the substance of the case, while the second occurred as part of an appeal on the grounds of contradictory rulings – an extraordinary appeal directed at an object other than that of the original decision.
When a judge who decided at first instance intervenes in a subsequent appeal, what is at stake is not only the principle of impartiality, but also the raison d’être of the challenge – if the decision at first instance and that on the challenge against it were to be given by the same judge, then both the very existence of the appeal and thus the very right to appeal itself would be undermined.
However, the situation before the Court in the present appeal on the grounds of unconstitutionality was a different one. Jurisprudential standardisation rulings possess a function of providing guidance to other courts on how they should interpret the legal question of whether there is a divergence in the jurisprudence, and such rulings are sought in the interests of the unity of the law and have no effective influence on the decision in the concrete case in question.
The appeal on the grounds of contradictory rulings is an extremely specific procedural format. In the phase that concerns us here, the aim of the appeal is not even to analyse the essence of the case, but only to determine whether ‘opposition’ exists – i.e. whether, with regard to the same legal grounds and in the absence of any substantial change in the legal regulations, the court handed down an opposite solution to that adopted in an earlier ruling issued by the same jurisdiction.
This is a procedural format that is designed to solve conflicting situations derived from contradictions concerning the same fundamental question of Law between different rulings given by senior courts, in such a way as to ensure that substantially identical situations are treated in the same way. Given that the goal is to resolve jurisprudential conflicts between senior courts, it is essential that a substantial number of judges take part in the judgement, so that the latter truly represents the understanding of the majority of the judges who make up the court.
Inasmuch as in the case before it, the judges’ first and second interventions had addressed different questions, the Constitutional Court was of the view that there were no reasonable grounds for the view that the second intervention would have been biased by a prior opinion formed during the first one. The types of intervention that judges are called on to undertake at these first and second points in time mean that the successive exercise in the same proceedings of functions in the judgement of the essence of the case on the one hand, and in the appeal on the grounds of contradictory rulings on the other, was not incompatible.
The appellant also raised another question of unconstitutionality, based on the fact that the same judge simultaneously intervened as deputy judge and president of the court, with the consequence that the president could have had the competence to intervene as one of the judges who judged the case. The Constitutional Court held that the powers of president of the court and deputy judge are not incompatible. Indeed, this is the rule in benches composed of several judges, where one of the latter takes the powers of president while naturally also retaining his/her functions as judge in the case itself. The functions with which the law entrusts the same judge in cases in which the president is substituted by a deputy judge are those of directing discussions on the one hand, and voting on the other. In the case sub judice the decision was unanimous, and so the deputy judge was not called on to give a president’s casting vote in order to produce a majority and thus enable the court to issue a ruling.