JOINT DISS E NT ING OPINION OF JU D GES RAIMONDI, KARAKAÅž AND KELLER

(Translation)

1. We disagree with the majority position to the effect that in the present case there was a violation of A rticle 6 § 1 of the Convention. Firstly , we t a k e the view that the case -law of the Court does not provide a sufficient basis f or the conclusions reached by the majority . Secondly , we consider the Court ’ s reasoning set out in paragraph 40 of the judgment excessively strict.

Case-law

2. The a ssessment of the impartiality of a body sitting as a bench does not depend on a straightforward numerical analysis . However, it is difficult to find precise criteria on this matter in the Court ’ s case-law .

3. The instant cas e raises two questions: firstly , was there a lack of objective impartiality on the part of the General Ass embl y owing to the fact that three of the judges w h o sat o n the bench in question had previousl y been involved in examining the first appeal on po ints of law? Secondly , was the assessment of objective impartiality altered by the fact that one of the judges previously i nvolved in examining the case presided over the General Ass embl y ?

4. In connection with the first question, we note that in a number of cases the Court has dismissed complaints similar to those submitted by the applic ant on the grounds of the small proportion of judges concerned sitting on the bench in question . This was the case , for example , in Diennet v . France (n o. 18160/91, 26 September 1995, § 38, Series A n o. 325 ‑ A), in which it held that “ no ground for legitimate suspicion can be discerned in the fact that three of the seven members of the disciplinary section had taken part in the first decision ” , in Ferragut Pallach v . Spain ( ( d e c. ) n o. 1182/03, 28 February 2006) and in Garrido Guerrero v . Spain ( ( d ec. ) n o. 43715/98, ECHR 2000 -III ), in which it held that there was no justifi cation for fearing a lack of impartiality because one of the judges on the bench had previously sat in the chamber which had ruled on the case . By the sa me token , in a more recent cas e ( see OOO ‘ Vesti ’ and Ukhov v . Russia , n o. 21724/03, 30 May 2013, §§ 82 ‑ 85), the Court held that prio r participation in the proceedings against the applic ant by the p resident of a three- judge bench did not infringe the l atter ’ s impartiality under A rticle 6 § 1.

5. It is true that in other cases the Court has found a violation of A rticle 6 § 1. However, this finding was based both on the large proportion of judges concerned and on the fact that they had discharged the duties of president or judge rapporteur in the body sitting as a bench (see § 39 of the judgment). In Cardona Serrat v . Spain (n o. 38715/06, 26 October 2010, §§ 37-38), for instance, it held that i n the particular circumstances of the case, the objective impartiality of the trial court might appear questionable because two of the three members of the division which had con victed the applic ant, including its president , had previously implemented investigative measures in respect of him . Similarly , in Perote Pellon v . Spain (n o. 45238/99, 25 July 2002, § 51) and Castillo Algar v . Spain (n o. 28194/95, 28 October 1998, §§ 46 et 50), the Court considered that the trial court ’ s impartiality could give rise to serious doubts because two of the five judges on the bench , including the president and the reporting judge , had previously been in volved in investigative measures taken in respect of the applic ant

6. G iven the small proportion of judges concerned in the present case, that is to say three judges out of a total of thirty-one , the case has more in common with the first category of cases tha n wi t h the second (see paragraph 4 above ).

7. Where the second question is concerned , i t should be noted that the role of the president in the instant case was confined to leading the d iscuss ions. Under the Turkish system , the president of the bench is primus inter pares . I n other words he or she does not have any greater administrative or other powers than the other judges of the Supreme Administrative Court . His or her role is confined to leading the discussions and deciding on which items a vote must be taken during the proceedings .

8. Consequently , we consider that the number of judges concerned by a possible lack of objective impartiality , namely three out of thirty -one judges , is negligible , e ven though one of those judges was serving as president .

Reasoning

9. Th e majority ’ s main line of r easonin g is set out in paragraph 40 of the judgment . In a departure from its previous case-law , the Court now establishe s an extremely strict new criterion under which the decisive point is not the number o r proportion of the judges concerned by a possible lack of objective impartiality but whether or not there is a compelling reason making it absolu tely necessary for those judges to be members of the bench with entitlement to vote .

10. We find this “ absolute necessity ” criterion particularly problematic . This is the first time the Court has u sed such a criterion . Furthermore , the majority explain neither the reasons why such a new concept i s needed nor what is meant by “ absolu tely necessary ” . While it is easy to imagine cas es where the participation of a particular judge might be necessary , we find it difficult to conceive of situations in which this necessity would be absolute . I t should be noted here that even our Court would find it difficult to comply with this criterion : where a case is referred to the Grand Chamber , the national judge i s also part of the Grand Chamber , even though he or she has already pronounced on the case as a member of the C hamber . It could hardly be contended that his or her participation in the Grand Chamber is absolu tely necessary .

11. I t might be useful here to point out that the General Assembly of the Administrative Proceedings Division s of the Supreme Administrative Court is the highest judicial authority in Turke y in matters of administrative law , and that its decisions are binding on all administrative court s, including the divis ions of the Supreme Administrative Court . I t is therefore u n surprising that all the senior judges who are members of the judicial divisions of the Supreme Administrative Court sit in the General Assembl y in order to consolidate even further and more effectively the authority and legitimacy of this high judicial body ’ s decisions . M ore over , the result of the voting ( twenty-two votes to nine ) makes it clear that the abstention of the three judges in question or their participation without entitlement to vo te would not have altered the outcome of proceedings .

12. We therefore consider that in the instant case there was no violation of A rticle 6 § 1.