French Courts Denied Exequatur to a Turkish Judgment
“All happy families resemble one another, each unhappy family is unhappy in its own way.”
Impartiality and independence of the person who declares the verdict is key to a fair trial. If a judge does not respect the fundamental principle of fair trial, then his or her decision may suffer the same consequences of disrespect and disregard. In other words, a court decision may be set aside or denied enforcement where a judge lacked independence and impartiality required for a fair hearing.
The Paris Court of Appeal readdressed in one of its latest decisions this legal duty vested upon judges, which will be further discussed below. However, before examining this noteworthy decision, it may be of help to remind the reader of what impartiality and independence stand for. Obligations of impartiality and independence in judges mostly arise from state constitutions and multinational conventions. Impartiality means that the decision maker will not favor one party more than the other, while independence requires that the decision maker remain free from the control of either party.
The recent decision rendered by the higher court of Paris may shed some light on the standard of impartiality.
A Family Affair
On 3 November 2020, the Paris Court of Appeal refused exequatur to the decision rendered by the 8th Criminal Court of First Instance of Istanbul on the grounds that the criminal court lacked impartiality. Below is a summary of the proceedings that eventually came before the Paris Court of Appeal.
On 29 March 2013, the 8th Criminal Court of First Instance of Istanbul sentenced the defendant to imprisonment for aggravated embezzlement and decided, inter alia, on compensation of the damages suffered by the bank in question. On 22 August 2017, the liquidator, assigned as the representative of the bank, requested partial exequatur of this judgment before the Court of First Instance of Paris. However, the local court denied exequatur and dismissed the claim on the grounds that the judgment rendered by that court did not conform to international public order as the Turkish criminal court lacked impartiality. The local court reasoned that the prosecutor in the case, having drafted the indictment, was married to the presiding judge of the criminal court which, at the end, decided that the defendant was guilty as charged. This marital relationship between the prosecutor and the presiding judge damaged the impartiality of the panel of judges and the judicial process they conducted.
The liquidator of the bank appealed the decision of the Court of First Instance of Paris on 4 April 2019. The appellant bank argued that (i) the request for exequatur was made for enforcement of the compensation of civil damages, as well as for the recovery of the principal debt owed by the defendant, (ii) there is no Turkish law prohibiting a marital relationship between a prosecutor and a judge, (iii) there is no extrinsic evidence supporting the impartiality of the court other than the marital bond, (iv) the indictment prepared by the prosecutor was reviewed and approved initially by another judge prior to the formation of the criminal tribunal, and (v) the impartiality of the majority of the panel had never come into question. Thus, the appellant asked the Paris Court of Appeal to reverse the decision of the local court.
The defendant responded that the decision rendered by the Turkish criminal court was, in fact, contrary to international public order due to the apparent bias of the bench.
The Paris Court of Appeal agreed with the defendant. The Court of Appeal held that to grant exequatur, a French judge must ensure that three conditions are always met; (i) the foreign judge is the competent judge to hear the dispute, (ii) international public order is complied with, and (iii) the rights recognized by the European Convention on Human Rights (“Convention”) are respected.
Pursuant to Article 6(1) of the Convention, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. The Court of Appeal provided that the matrimonial bond which united the prosecutor and the presiding judge is likely to give rise to a legitimate doubt about the impartiality of the tribunal, even when the decision was rendered collegially, because the opinion of a single magistrate may in fact, change the course of the entire decision rendered. The Court of Appeal rendered that the prosecutor’s role is also material in this criminal litigation since it is he who sent the defendant before the criminal tribunal. Also, the fact that the indictment was reviewed and approved by another judge does not mitigate the major involvement of the presiding judge upon the verdict.
The Court of Appeal also noted that the defendant requested the recusal of the presiding judge, but his motion was not granted. Even though the Court of Cassation in Ankara dismissed the causes for appeal, the Paris Court of Appeal found it noteworthy to mention one of the dissenting opinions of the justices at the Court of Cassation, who provided that there was legitimate doubt of bias, given the marital bond between the prosecutor and the presiding judge which ultimately, hindered the court’s impartiality.
The Paris Court of Appeal held that the Turkish criminal court that convicted the defendant was apparently biased because of the marital relationship between the prosecutor and the presiding judge and the enforcement of a judgment rendered by such an impartial and apparently biased court would be a violation of the Convention, as well as international public order. As a consequence, the Paris Court of Appeal upheld the decision rendered by the Court of First Instance of Paris and denied exequatur.
Guidance from the Convention
It is important to note that the Paris Court of Appeal’s decision is, nonetheless compatible with the case law of the European Court of Human Rights (“Court”). As mentioned before, Article 6(1) of the Convention requires a tribunal to be impartial, which denotes the absence of prejudice or bias, and its existence can be tested in various ways by the Court; namely, using (i) a subjective standard and (ii) an objective standard. Here, we will only focus on the objective standard for the sake of this article.
Under the objective test, when applied to a person sitting on a bench, it must be determined whether there exist facts raising doubts as to his or her impartiality. The objective test mostly concerns hierarchical or other links between the judge and other persons involved in the proceedings, which objectively justify misgivings as to the impartiality of the tribunal and, thus, fail to meet the Convention standard under the objective test. As rightfully put by the Court, itself, “What is at stake is the confidence which the courts in a democratic society must inspire in the public, including the accused. Thus, any judge in respect of whom there is a legitimate reason to fear a lack of impartiality must withdraw” .
Previous case law has already dealt with similar situations. On the one hand, in Dorozhko and Pozharskiy v. Estonia, the Court concluded that objectively justified doubts as to the impartiality of the presiding judge of the trial court were found to exist when her husband was the head of the team of investigators dealing with the applicants’ case.
On the other hand, the Court did not come to the same conclusion in Pastörs v. Germany, where two judges who dealt with the applicant’s case at the first and third level of jurisdiction were married. The Court found no violation of Article 6(1) of the Convention on the grounds that the applicant’s complaint of bias had been submitted to the subsequent control of a judicial body with sufficient jurisdiction, and which offer the guarantees of Article 6 of the Convention. The Court also noted that the applicant had not given any concrete arguments why a professional judge – being married to another professional judge – should be biased when deciding on the same case at a different level of jurisdiction. What distinguishes this judgment from the Dorozhko and Pozharskiy case at the end is that the involvement of the second judge from the third level of jurisdiction did not entail direct review of his/her spouse’s decision which rendered the doubts of impartiality unjustified.
Conclusion and Remarks
It is clear that family affiliation with one of the parties could give rise to doubts about a judge’s impartiality. It is generally accepted that such appearance must be objectively justified which would very much depend on the circumstances of the specific case. However, in this particular case at hand, Turkish and French courts, both signatories of the Convention, do not agree on the specific circumstances resulting in lack of impartiality.
What is expected from judges is that they protect the dignity of the judicial process as a whole. Any judge in respect of whom there is a legitimate reason to fear a lack of impartiality must withdraw at least for two reasons; one, for the sake of the integrity of the judicial process itself, and two; for practical reasons. After all, it does not make sense to render a decision, which might be tainted with bias and which would suffer from the inevitable ending of unenforceability.
‘The confidence that the public, including the accused’, have for an impartial and independent judiciary is a pillar for a democratic society and the judges should not let any kind of family affair, either personal or political, get in the way of their duty to conduct themselves like Lady Justice.
 For CARON, D. & CAPLAN, L.; The UNCITRAL Arbitration Rules: A Commentary, 3rd edition, 2013, p. 213. please refer to OGLINDA, Bazil; Key Criteria in Appointment of Arbitrators in International Arbitration, Judicial Tribune, Volume 5, Issue 2, December 2015, p. 125.
 To review CA Paris, Pôle 1 - Ch. 1, 3 Nov. 2020, n° 19/07329, Please refer to https://www.doctrine.fr/d/CA/Paris/2020/CE68D8FD5BCBFDA8F9D11.
 Article 6 (1) of the ECRH: “In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.”
 European Court of Human Rights, Guide on Article 6 of the European Convention on Human Rights, Right to a Fair Trial (Criminal Limb), updated on 31 August 2020, p. 23.
 European Court of Human Rights, p. 24.
 Dorozhko and Pozharskiy v. Estonia, nos. 14659/04 and 16855/04, paras. 56-58, 24 April 2008.
 Pastörs v. Germany, no. 55225/14, paras. 58-70, 3 October 2019.
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