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

Select target paragraph3

Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents