DISSENTING OPINION OF JUDGE CASADEVALL JOINED BY JUDGE STRÁŽNICKÁ

(Translation)

1. I do not share the view of the majority in the present case. In my opinion, the case raises problems concerning objective impartiality and appearances, and as a result Article 6 § 1 of the Convention has been breached.

2. Although it is not my place to call into question the Finnish system whereby a person may act simultaneously or successively as a judge and as counsel (see paragraph 23 of the judgment), and although such a combination of functions should not in principle impair the right to a fair hearing set forth in Article 6, I consider that in certain situations there are minimum requirements in terms of protective and precautionary measures. Over and above statutory provisions and judicial precedent, the principle established by the Court that “ any judge in respect of whom there is a legitimate reason to fear a lack of impartiality must withdraw ” should prevail in order to preserve the confidence which the courts must inspire in the public in a democratic society [1] .

3. The present case may be distinguished from Walston v. Norway (no. 37372/97, decision of 11 December 2001 ), in which a judge had been employed several years previously by a bank that was a party to the proceedings in issue. It bears a much closer resemblance, however, to the case of Wettstein v. Switzerland (no. 33958/96, ECHR 2000-XII), which concerned the position of part-time judges who also practised – or had practised – as lawyers. In the present case, the applicants ' dispute against a bank was heard by the Court of Appeal, one of whose members was Judge P.L., who had previously acted as counsel for the opposing party in a separate set of proceedings. The two sets of proceedings came before the Court of Appeal within the space of a few months, but the applicants did not have the opportunity to challenge the judge because they did not know in advance that she was to sit in their case.

4. Having regard to the facts of the case and to the consideration that even appearances may be of a certain importance, I am of the opinion that the applicants could have had objectively justified concerns about the judge in question [2] . It is understandable that the applicants should have continued to see P.L., who had previously been counsel for an opposing party, as someone whose interests were contrary to theirs and who might give them cause to doubt her impartiality.

5. For the following reasons, I am not persuaded by the majority ' s arguments in favour of finding that there has been no violation.

(a) The applicants raised the question (see paragraph 31 of the judgment) whether P.L. ' s law firm had had a database or system to detect any conflicts of interest. On this point, I share the majority ' s view (see paragraph 44 of the judgment) that the lack of such a system for carrying out checks at the Court of Appeal and the fact that the matter is left entirely to the judges ' own assessment may inevitably entail the risk of forgetting an incident or involvement in a previous case.

(b) The applicants complained (see paragraph 32 of the judgment) about the procedure in the Court of Appeal whereby they were unable to challenge the judge because the names of the judges sitting in the case were not disclosed in advance. On this point, the majority merely note (see paragraph 53 of the judgment) that Judge P.L. ' s statement of 26 March 1999 was communicated by the Supreme Court to the applicants ' legal representative, but they omit to mention that the statement was communicated for information only and that the applicants were not given the opportunity to contest it (see paragraphs 19 and 30 of the judgment).

(c) As to the applicants ' argument that the first and second sets of proceedings before the Court of Appeal overlapped between February 1992 and February 1993, the majority conclude (see paragraph 47 of the judgment) that the two sets of proceedings were simultaneously pending for approximately two to three months, between December 1992 and February 1993. The Court therefore accepts that the applicants ' two cases overlapped before the national appellate court. Bearing in mind appearances and the legitimate doubts on the litigants ' part, whether the overlap lasted three months, six months or one year does not alter the essence of the problem.

(d) The Court observes (see paragraph 48 of the judgment) that P.L. ' s activities as counsel were limited to drafting and signing the notice of appeal of 4 March 1992 in the first set of proceedings and that there is no indication of any further intervention on her part. A supposed “limitation” of this kind does not appear either relevant or sufficient to me. In any event, it is indisputable that any lawyer, after examining a particular case file, will have access to a whole range of information about the opposing party which may easily, even if unconsciously, influence his or her personal judgment regarding that party.

(e) Lastly, it should be pointed out that although the judge in question admitted in her statement of 26 March 1999 to the Supreme Court that her law firm had represented a client in a case against the applicants and that J.I. had acted as counsel in the proceedings before the District Court and J.V. as counsel before the Court of Appeal “... as I found that it was not appropriate for me to continue with the case in the Court of Appeal ”, she nonetheless omitted to mention that she had drafted and signed the notice of appeal, merely citing a lapse of memory and her personal view that there was no reason to doubt her impartiality (see paragraph 18 of the judgment).

[1] 1. See, among other authorities , Castillo Algar v. Spain , § 45, cited in paragraph 42 of the judgment.

[2] 2. See Wettstein v. Switzerland , §§ 42 et seq. , cited in paragraphs 32 and 45 of the judgment .