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MORICE v. FRANCE JUDGMENT
A. The Chamber judgment
66. After noting that the applicant had not been in a position to request
the judge’s withdrawal, as he had not been informed before the hearing of
the change in the composition of the bench that was to examine his appeal
on points of law and that the procedure was mainly written, the Chamber
examined the complaint in terms of objective impartiality. It noted that
Judge J.M., one of the judges who had sat on the bench of the Criminal
Division of the Court of Cassation ruling on an appeal from Judge M. and
from the applicant stemming from a dispute between them, had, nine years
earlier, publicly expressed his support for and trust in Judge M. in
connection with another case in which she had been the investigating judge
and the applicant had been acting for a civil party. Having regard to the
facts, there was clear opposition between the applicant and Judge M., both
in the case for which she had received the support of Judge J.M. and in the
case in which J.M. was sitting as a judge of the Court of Cassation.
Moreover, J.M.’s support had been expressed in an official and quite
general context, at the general meeting of the judges of the Paris tribunal de
grande instance. The Chamber found that there had been a violation of
Article 6 § 1, as serious doubts could be raised as to the impartiality of the
Court of Cassation and the applicant’s fears in that connection could be
regarded as objectively justified.
B. The parties’ submissions before the Grand Chamber
1. The applicant
67. The applicant recognised that it was not established that Judge J.M.
had displayed any personal bias against him, but argued that regardless of
his personal conduct, his very presence on the bench created a situation
which rendered his fears objectively justified and legitimate. In his
submission, the fact that J.M. had sat on the bench of the Criminal Division
of the Court of Cassation sufficed in itself to show that there had been a
violation of Article 6 § 1 of the Convention. Judge J.M. had in the past
expressed his support for Judge M., when the latter was conducting the
judicial investigation in the “Scientology” case, in response to criticisms of
her professional conduct from the civil parties, whose representatives
included the applicant, and by the public prosecutor. The applicant pointed
out that Judge M. had ultimately been taken off the case at his request and
that on 5 January 2000 the French State had been found liable for failings in
the public justice system.
68. He argued that he had not been in a position to seek the withdrawal
of Judge J.M., as he had not known, and could not reasonably have known,
that this judge was going to sit in his case: the report of the reporting judge,
the online workflow for the case and the notices to the lawyers had all given