Concurrent judicial functions in the same case
II. RELEVANT DOMESTIC LAW AND PRACTICE A. Administrative Court of the Canton of Zürich 20. The Administrative Court of the Canton of Zürich consists of both full-time and part-time judges, the latter also acting as practising lawyers on a part-time basis. 21. Section 34 of the Administrative Judiciary Procedure Act ( Verwaltungsrechtspflegegesetz ) of the Canton of Zürich of 1959 concerns “incompatibility” ( Unvereinbarkeit ) and stated in the version in force at the relevant time: “1. The office of a full-time judge of the Administrative Court is incompatible with any other full-time professional activity [ hauptberufliche Tätigkeit ]. Full-time judges may not be members of the Federal Assembly nor members or registrars of a municipal or district council. They are not allowed legally to represent third persons before courts and administrative bodies. An authorisation of the cantonal parliament is required if they wish to belong to the administration or management of a commercial company or cooperative acting for commercial purposes. 2. Part-time judges may not be employed full-time by an administrative authority or a court, and may not be members or registrars of a municipal or district council.” 22. The Administrative Judiciary Procedure Act was revised in 1997 and section 34 now states: “1. The office of a full-time member of the Administrative Court is incompatible both with any other full-time professional activity and with the professional representation of third persons before courts or administrative authorities. 2. The office of a part-time member of the Administrative Court is incompatible with the professional representation of third persons before the Administrative Court ...” B. Situation in Switzerland 23. In Switzerland no particular magistrate's training is required to enter the judicial profession. This explains, inter alia, the comparatively high number of practising lawyers (legal representatives) acting as part-time or substitute judges. 1. Federal level 24. The Federal Court consists of thirty full-time and fifteen part-time judges, and the Federal Insurance Court consists of nine full-time and nine part-time judges. Part-time judges may exercise the profession of practising lawyer. According to section 22 of the Federal Judiciary Act ( Organisationsgesetz ), judges shall stand down if, in a particular case, they have participated in another capacity, inter alia as legal adviser or as practising lawyer. The First Public Law Division of the Federal Court furthermore avoids appointing as part-time judges persons resident in the canton in which the case originates. 25. In various federal appeals commissions ( Rekurskommissionen ) provision is made for full-time and part-time judges. Whatever other functions the latter exercise, these functions may not compromise the accomplishment of their tasks or the independence and reputation of the appeals commission. 2. Situation in the cantons 26. In various cantons, no particular regulations exist as to part-time judges acting as practising lawyers, for example for certain judges of the Cantons of Appenzell Inner Rhodes, Graubünden and Valais. Other cantons have specific legislation on the matter. 27. For instance, certain cantonal courts are composed exclusively of full-time judges who exercise no other legal profession, for instance the Cantonal and Administrative Courts of the Cantons of Berne and of Lucerne; the Administrative Court of the Cantons of Fribourg and Ticino; the Cantonal Court of the Canton of Thurgau; and the Cantonal Court and the Court of Appeal of the Canton of Schaffhausen. In the Canton of Graubünden, as from 2001, eight of the eleven presidents of the first-instance courts will act as full-time judges. 28. In some cantons, certain part-time judges are prohibited from acting as practising lawyers, for instance in the Canton of Basle Rural (part-time judges of the Court of Appeal in criminal cases) and in the Canton of Aargau (part-time judges of the Cantonal Court and the specialised administrative courts and the presidents of the district courts). In the Canton of Berne a new law has been proposed which, as from 2001, intends to prohibit part-time judges from acting as practising lawyers, although this function will continue to be possible for substitute judges. In the Canton of St Gall, part-time district court judges may not act as practising lawyers in the district in question. 29. In various cantons part-time judges of a court may not appear before that court as practising lawyers, for instance in the Cantons of Schwyz, Obwalden, Zug, Aargau (in respect of the Administrative Tribunal), Basle Urban (in respect of the regular judge at the Court of Appeal in administrative matters), St Gall (in respect of part-time judges who are otherwise employed for more than 40% of their time), Graubünden (in respect of judges of the administrative courts and their respective divisions and, as from 2001, in respect of district and regional court presidents and their deputies). The Canton of Basle Rural is currently revising its relevant legal norms along these lines. 30. Certain cantonal courts envisage the possibility for substitute judges to act as practising lawyers, for instance in the Cantons of Aargau (labour courts), Berne (Cantonal and Administrative Court), Basle Urban, Geneva, Fribourg (Administrative Court), Ticino, Solothurn and Schaffhausen (Court of Appeal and Cantonal Court). C. Case-law of the Federal Court 31. The Federal Court has pronounced on various occasions on the question of the impartiality of lawyers acting as judges, in particular the danger of a link of dependency between the judge and one of the parties. For instance, a lawyer may not act as judge in a case where he or she is representing one of the parties to the case, or where in separate pending proceedings he or she is representing the opposing party. On the other hand, as a rule no issue will arise where the lawyer once represented a party and the mandate has been completed. The mere fact that the lawyer generally advises in building matters does not imply that as a judge he will necessarily favour a plaintiff who is involved in the construction of a house (see judgment of 15 May 1992, Schweizerisches Zentralblatt für Staats - und Verwaltungsrecht 94, 1993, 87; and the judgment of 20 December 1990, Arrêts du Tribunal fédéral suisse (ATF), vol. 116 Ia, p. 485). THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 of the Convention 32. The applicant complained of the lack of impartiality of the two administrative court judges R. and L. These judges had themselves, or through their office partner W., acted against the applicant in other proceedings. The applicant relied on Article 6 § 1 of the Convention which provides, in its relevant parts: “1. In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing ... by an independent and impartial tribunal ...” 33. The Government submitted that the proceedings complied with Article 6 § 1 of the Convention. A. The parties' submissions 1. The applicant 34. The applicant submitted that in some areas of administration in Switzerland there were particularly close links between practising lawyers and the judiciary. In view of the problems which have arisen, the Canton of Zürich has revised its legislation which now excludes for part-time judges the professional representation of third parties. As a result of these changes, the office in which lawyers R., L. and W. worked no longer exists. 35. The applicant referred to everyday legal practice where a conflict of interests experienced by an individual lawyer in a partnership consisting of several lawyers implied that not only this lawyer but all other staff were equally excluded from taking on the same work. The applicant referred to the strict standards applying to lawyers, for instance that a lawyer may not act for two opposing parties and may not accept a request from a third party to represent him or her against a previous client. These standards also applied to courts with a mixed composition. In the present case, it was not therefore important which of the three lawyers were affected by the conflict of interests. 36. The applicant contended that the lawyers should not have been allowed to act as judges. There was always a danger of at least a potential conflict of interests for administrative court judges: either they considered the possibility of obtaining future work from the public authorities concerned and did not want to annoy them by voting against them; or they did not want to lose their goodwill when taking future decisions on granting planning permission, on which they were dependent for their private clients who wanted to carry out construction projects. The interrelated interests of a total of two out of five judges in the instant case amounted to an appearance of lack of impartiality. 2. The Government 37. The Government submitted, with reference to the Federal Court's case-law, that in the present case there was no link of dependency between judge R. and the party opposing the applicant in the administrative court proceedings. R. had represented another municipality – Küsnacht and not Kloten – and in proceedings concerning a matter completely unrelated to the present case. R.'s representation of the Küsnacht municipality had been terminated when the Administrative Tribunal gave its decision. One could not therefore say that judge R. in any way appeared to favour the Kloten municipality. Lawyer W., on the other hand, acted in a completely different case and did not represent Kloten. The applicant had not submitted that the three lawyers R., L. and W. undertook a concerted action in order to favour Kloten. Indeed, it could be expected from a part-time judge that he distinguished between his different professional activities. 38. In the Government's opinion, Article 6 of the Convention did not exclude “mixed” courts where, as for instance in the Sramek v. Austria case, practising lawyers acted as judges (see the judgment of 22 October 1984, Series A no. 84, p. 19, § 40). In the present case, there were no grounds to doubt the impartiality of judges R. and L. on subjective grounds. As regards the objective grounds, appearances could be of a certain importance for the accused person, although they could not be decisive. What was decisive was whether the fear of lack of impartiality could be objectively justified. Doubts alone could not suffice. The Government pointed out that judge R. never represented the Kloten municipality as a lawyer before the Administrative Court. In the light of the Sramek case, her impartiality would not even be called in question if she had represented Kloten in other proceedings. 39. The Government contended that there was no link ratione loci, materiae or personae between the different proceedings in which R. and L. were involved as judges, on the one hand, and W. as a lawyer, on the other. In any event, W. had not represented the Kloten municipality. 40. The Government emphasised that the part-time judiciary was of central importance for the cantons. Most courts were composed of part-time judges who had additional professional activities, among them that of practising lawyer. Those cantons which did not have part-time judges had often made provisions for substitute judges who acted as practising lawyers. B. The Court's assessment 41. The Court recalls at the outset that in proceedings originating in an individual application it has to confine itself, as far as possible, to a examination of the concrete case before it (see the Minelli v. Switzerland judgment of 25 March 1983, Series A no. 62, p. 17, § 35). Accordingly, in the present case there is no reason to doubt that legislation and practice on the part-time judiciary in general can be framed so as to be compatible with Article 6. What is at stake is solely the manner in which the proceedings were conducted in the applicant's case. 42. According to the Court's constant case-law, when the impartiality of a tribunal for the purposes of Article 6 § 1 is being determined, regard must be had to the personal conviction and behaviour of a particular judge in a given case – the subjective approach – as well as to whether it afforded sufficient guarantees to exclude any legitimate doubt in this respect – the objective approach (see the Thomann v. Switzerland judgment of 10 June 1996, Reports of Judgments and Decisions 1996 ‑ III, p. 815, § 30). 43. As regards the subjective aspect of such impartiality, the Court notes that there was nothing to indicate in the present case any prejudice or bias on the part of judges R. and L. 44. There thus remains the objective test. Here, it must be determined whether, quite apart from the judge's conduct, there are ascertainable facts which may raise doubts as to his impartiality. In this respect even appearances may be of a certain importance. What is at stake is the confidence which the courts in a democratic society must inspire in the public (see the Castillo Algar v. Spain judgment of 28 October 1998, Reports 1998-VIII, p. 3116, § 45). This implies that in deciding whether in a given case there is a legitimate reason to fear that a particular judge lacks impartiality, the standpoint of the person concerned is important but not decisive. What is decisive is whether this fear can be held to be objectively justified (see the Ferrantelli and Santangelo v. Italy judgment of 7 August 1996, Reports 1996-III, pp. 951 - 52, § 58). 45. Turning to the present case, the Court notes that judge R. acted against the applicant in separate building proceedings as the legal representative of the Küsnacht municipality. Judges R. and L. both shared office premises with lawyer W. who had previously acted as legal representative in other building proceedings in the Kloten municipality. This situation arose in the Canton of Zürich where, as with the courts of many other cantons, the Administrative Court is composed of both full-time and part-time judges. The latter may practise as legal representatives. The Administrative Judiciary Procedure Act in force at the relevant time contained no provisions as to the incompatibility of such legal representation with judicial activities. Section 34(2) of the Act currently in force provides that part-time judges may not act as legal representatives before the Administrative Court. 46. It is true that there was no material link between the applicant's case before the Administrative Court and the separate proceedings in which R. and W. acted as legal representatives. Furthermore, R. and W. had been acting as trained lawyers who were called upon to represent the interests of constantly varying parties. 47. Nevertheless, the Court notes that, when on 15 February 1995 the applicant instituted the present proceedings before the Administrative Court with R. as a judge on the bench, the parallel proceedings in which R. acted as legal representative for the Küsnacht municipality against the applicant were pending before the Federal Court, which gave its decision eight months later on 24 October 1995 (see paragraph 11 above). Less than two months after these proceedings had been terminated the Administrative Court gave its judgment on 15 December 1995. There was, therefore, an overlapping in time of the two proceedings with R. in the two functions of judge, on the one hand, and of legal representative of the opposing party, on the other. As a result, in the proceedings before the Administrative Court, the applicant could have had reason for concern that judge R. would continue to see in him the opposing party. In the Court's opinion this situation could have raised legitimate fears in the applicant that judge R. was not approaching his case with the requisite impartiality. 48. The fact that W., an office colleague of judges R. and L., had in other proceedings represented the party opposing the applicant, while only of minor relevance, could be seen as further confirming the applicant's fear that judge R. was opposed to his case. 49. In the Court's view, these circumstances serve objectively to justify the applicant's apprehension that judge R. of the Administrative Court of the Canton of Zürich lacked the necessary impartiality. 50. Consequently, in the present case there has been a violation of Article 6 § 1 of the Convention as regards the requirement of an impartial tribunal. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 51. 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 52. The applicant claimed 368,200 Swiss francs (CHF) for pecuniary damage resulting from the fact that the Kloten municipality had used his property without compensation during forty-two years. The Government saw no connection between the pecuniary damage alleged and the conduct of the Swiss authorities. 53. The Court notes that the applicant is in fact requesting damages of the same amount as in the action which he introduced before the Administrative Court of the Canton of Zürich on 15 February 1995 (see paragraph 13 above). However, the Court cannot speculate as to what the outcome of proceedings compatible with Article 6 § 1 of the Convention would have been (see the Incal v. Turkey judgment of 9 June 1998, Reports 1998-IV, p. 1575, § 82). In the present case it perceives no causal link between the breach of Article 6 § 1 of the Convention and the alleged pecuniary damage. There is, therefore, no ground for an award under this head. B. Costs and expenses 54. Under this head the applicant claimed a total of CHF 65,120.05, namely CHF 29,486.50 for lawyer's costs in the domestic proceedings; CHF 20,133.55 for lawyer's costs in the Strasbourg proceedings; and CHF 15,500 for procedural costs incurred in the domestic proceedings. 55. The Government contended that only the public-law appeal proceedings before the Federal Court could have served to redress the alleged violation of Article 6 § 1 of the Convention, although these proceedings also concerned other complaints raised by the applicant. In respect of the Strasbourg proceedings the Government submitted that only one of the applicant's complaints had been declared admissible and that this particular complaint concerned only a minor part of the observations submitted by the applicant during the admissibility proceedings. The Government considered as adequate the sum of CHF 2,000 for the lawyer's costs in the domestic proceedings; CHF 3,000 for the lawyer's costs in the Strasbourg proceedings; and CHF 3,000 for the procedural costs incurred in the domestic proceedings; namely a total of CHF 8,000. 56. The Court, in accordance with its case-law, will consider whether the costs and expenses claimed were actually and necessarily incurred in order to prevent or obtain redress for the matter found to constitute a violation of the Convention and were reasonable as to quantum (see, for instance, Nilsen and Johnsen v. Norway [GC], no. 23118/93, § 62, ECHR 1999-VIII). 57. The Court finds the applicant's claims excessive. Making an assessment on an equitable basis, the Court awards him CHF 2,000 for the lawyer's costs in the domestic proceedings; CHF 4,000 for the lawyer's costs in the Strasbourg proceedings; and CHF 3,000 for the procedural costs incurred in the domestic proceedings; namely the total sum of CHF 9,000. C. Default interest 58. According to the information available to the Court, the statutory rate of interest applicable in Switzerland at the date of adoption of the present judgment is 5% per annum.
The Court held that there had been a violation of Article 6 § 1 of the Convention as regards the requirement of an impartial tribunal. It noted in particular that, while there was no material link between the applicant’s case and the separate proceedings in which the two lawyers had acted as legal representatives, there was in fact an overlap in time, since the latter proceedings were still pending before the Federal Court when the former were instituted and indeed only ended two months before the Administrative Court’s judgment. The applicant could therefore have reason for concern that the judge in question would continue to see him as the opposing party and this situation could have raised legitimate fears that the judge was not approaching the case with the requisite impartiality. The fact that another colleague had represented the applicant’s opponent in further proceedings, while of minor relevance, could be seen as confirming these fears.