58
MORICE v. FRANCE JUDGMENT – SEPARATE OPINIONS
CONCURRING OPINION OF JUDGE KŪRIS
1. My disagreement with the majority concerns two issues. Neither of
them are to be considered so prominent as to cast doubt on the overall
finding of a violation of Articles 6 § 1 and 10 of the Convention, to which I
subscribe.
2. The reasoning, as laid out in paragraphs 89 to 91 of the judgment,
includes two factual circumstances that are important for the finding of a
violation of Article 6 § 1. The first is that Judge J.M. was a member of the
bench which had decided the applicant’s case, although it is explicitly
acknowledged that “it is impossible to ascertain [his] actual influence on
that occasion”. The argument that Judge J.M. was merely one of ten judges
in that formation “is not decisive for the objective-impartiality issue under
Article 6 § 1”, it being his “unascertained influence” which is regarded as
tainting the impartiality of that court with “a genuine doubt” (see
paragraph 89 of the judgment). In this context, the point about impartiality
being “open to a genuine doubt” is meant to refer to the objective
impartiality of Judge J.M. himself and, by extension, that of the whole
bench. The Court is not willing to openly question Judge J.M.’s subjective
impartiality; rather it is of the view that the fact that the applicant could
have thought that he had some grounds on which to question Judge J.M.’s
subjective impartiality had a bearing on the objective impartiality of that
judge and of the formation as a whole. Although the Court does not
question Judge J.M.’s subjective impartiality explicitly and directly, it does
so implicitly and indirectly, because the very hint of that judge’s influence
on the outcome of the case suggests that it could also have been such as to
determine a conclusion which was unfavourable to the applicant and that,
but for that influence, the outcome might have been different.
The second circumstance is that the applicant had not been informed that
Judge J.M. would be sitting on the bench in his case. On the contrary, the
information available to him at the material time gave him no reason to
expect that this particular judge would be in the composition of the judicial
body which had to decide his case. Because of this concealment (whatever
the reason), the applicant “had no opportunity to challenge [Judge] J.M.’s
presence or to make any submissions on the issue of the judicial body’s
impartiality in that connection” (see paragraph 90 of the judgment and
paragraph 52 referred to therein).
In my opinion, the first of these two circumstances is by itself of no legal
importance. We do not and cannot know whether any opinion that Judge
J.M. may have expressed in the deliberations in that case was at all
unfavourable to the applicant. Thus, it is mere speculation that the judge
could have had a greater or lesser influence on the outcome of the
applicant’s case. One could equally speculate on the lack of impartiality of –
as they are routinely called – “national” judges of this Court, in cases
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