60
MORICE v. FRANCE JUDGMENT – SEPARATE OPINIONS
on an illegitimate suspicion. However, the applicant was denied any
opportunity to raise this issue in the domestic proceedings.
Thus, much more important than the “bare” fact of Judge J.M.’s presence
on the bench is that the Government failed (or did not even attempt) to show
that there were compelling reasons making that presence absolutely
necessary (see Fazlı Aslaner v. Turkey, no. 36073/04, § 40, 4 March 2014)
or, put otherwise, making his non-exclusion from the composition justified.
I personally believe that there were no such grounds whatsoever. On the
other hand, there could also hardly have been any weighty grounds to
exclude that judge from the composition solely on the basis that he had
expressed his support for Judge M. many years before and in an entirely
different context. The two situations were unrelated, save for the fact that
they involved opposition between the same protagonists, but even this
formal connection had been erased, or at least substantially alleviated, by
the long time-span between the two events and by the fact that even the
applicant himself admitted that Judge J.M. had not displayed any personal
bias against him (see paragraph 67 of the present judgment). The
presumption of judicial integrity should matter. And if it really does, given
all the circumstances of the case, allegations as to Judge J.M.’s “partiality”
should have been dismissed, had they been raised in the domestic
proceedings. Moreover, it is not unlikely that the applicant, reasonably
enough, would not have raised this issue at all, in view of its apparent
groundlessness. What really could and did make him legitimately suspicious
was the fact that the composition of the judicial body which decided his
case had not been made known to him. The Government failed to give any
explanation for this non-disclosure. Could the Government have succeeded
in respect of this complaint had they provided such an explanation? I am
sure that, in any event, they could not have found a plausible one, for even if
there may be compelling reasons (however debatable) of a formal legal or
factual nature for the inclusion of a given judge in a particular judicial
composition, there simply cannot be any reason whatsoever for not making
the names of those on the bench known to the person whose case that
judicial body is to decide. In this respect, the Government’s case was
destined to fail from the outset.
Consequently, of the two circumstances discussed here, only the second
one matters, whereas the first is merely ancillary in nature. In the
combination of the two, it has no independent significance. But is that not
what the majority meant when admitting that the mere presence of
Judge J.M. was “not decisive for the objective-impartiality issue under
Article 6 § 1”? In other words, am I simply repeating, in a more longwinded manner, essentially the same argument? I think I am not, or at least
that is not my intention. The devil hides in the detail. In the majority’s
reasoning, it hides in one single detail, which is the consideration, in
paragraph 89 of the judgment, of Judge J.M.’s “unascertained influence” on
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