DISSENTING OPINION OF JUDGE SERGHIDES

1. This case concerns the dismissal of the applicant from office as a judge after she had served in different judicial posts for almost a quarter of a century – the last post being in the Constitutional Court – as decided by the Independent Qualification Commission (IQC) and, subsequently, on appeal, by the Special Appeal Chamber (Appeal Chamber) based on the Transitional Re-evaluation of Judges and Prosecutors Act (Law no. 84/2016) – the “Vetting Act” – challenging her financial capacity to acquire certain assets.

It appears that the assets acquired by the applicant jointly with her partner consisted of two flats measuring about 101 sq. m and 59 sq. m, a plot of land measuring about 222 sq. m , and they were also found to have a certain amount in liquid assets. However, it is to be noted that both the applicant and her partner had been working for many years; without this meaning that the applicant, being a judge, would not be subjected to any vetting process.

It can be emphasised from the outset that the applicant did not have any record of misconduct, or of causing a miscarriage or denial of justice, or of any other disciplinary offence.

2. I respectfully disagree with points 4-7 of the operative part of the judgment in finding no violation of Article 6 § 1 of the Convention and I submit that there has been a violation of this provision.

3. It is clear from the Vetting Act, especially sections 5, 41(1), 63 and 66, that both judicial vetting bodies, namely, the IQC and the Appeal Chamber, were absolutely necessary and indispensable components or elements of the vetting system established under this Act.

4. Presumably, both the IQC and the Appeal Chamber were intended by the drafters of the Vetting Act to be “tribunals established by law” within the meaning of Article 6 § 1, vested with the power to examine the issues entrusted to them including the dismissal of a judge from office, as both judicial vetting bodies did in the case of the applicant.

5. Unlike the judgment, this opinion will argue that the IQC cannot be considered a “tribunal established by law” within the meaning of Article 6 § 1 of the Convention .

6. Acting always as the same judicial vetting body, the IQC, apart from its function of examining and deciding on the merits of an “accusation” which seeks to dismiss a judge from office, has many other concurrent functions under the Vetting Act, which include carrying out the preliminary administrative investigation, framing and bringing administrative proceedings (“the accusation”), making preliminary findings and inviting an applicant to discharge the burden of proof and adduce evidence to the contrary. I humbly submit that these other functions, especially the bringing of administrative proceedings, cannot by their nature render a body which also hears and decides a case, with such drastic powers that may be devastating to the career and personal life of a judge, an independent and impartial “tribunal established by law” within the meaning of Article 6 § 1. There is a well-established general principle of law: “nemo potest esse simul actor et judex” (13 Queen’s Bench 327, meaning that no one can be at the same time suitor and judge). With all due respect, such a body, which was intended to be an indispensable component of the vetting system, by its very establishment under the Vetting Act, thus, by its genesis, was doomed to lack institutional and therefore objective independence and impartiality, and therefore cannot be considered a “tribunal established by law” for the purposes of Article 6 § 1 of the Convention.

7. A judicial body cannot be considered a “tribunal established by law” if its establishment or function is contrary to the Convention; and it runs counter to Article 6 § 1 of the Convention if a judicial body lacks institutional independence and impartiality, as the IQC did in the present case. The requirements of “independence” and “impartiality”, referring to a “tribunal established by law” in Article 6 § 1, are not only separate and necessary requirements of the right to a fair trial expressly provided for in that provision, but are also necessary components of the requirement of a “tribunal established by law” in the same provision. To put it otherwise, the “independence” and “impartiality” requirements are intrinsic and inseparable qualities related to the very existence of a “tribunal established by law”.

8. As held in Guðmundur Andri Ástráðsson v. Iceland ([GC], no. 26374/18, 1 December 2020), the expression “tribunal established by law” under Article 6 § 1 of the Convention “reflects the principle of the rule of law which is inherent in the system of protection established by the Convention and its Protocols, and which is expressly mentioned in the preamble to the Convention” (ibid., § 211). The Court in that case went on to reiterate that “‘law’, within the meaning of Article 6 § 1 of the Convention, comprises not only legislation providing for the establishment and competence of judicial organs, but also any other provision of domestic law …. This includes, in particular, provisions concerning the independence of the members of a court … and their impartiality” (ibid., § 212). It also reiterated (ibid., § 232):

“… a judicial body which does not satisfy the requirements of independence … may not even be characterised as a ‘tribunal’ for the purposes of Article 6 § 1. Similarly, when determining whether a ‘tribunal’ is ‘established by law’, the reference to ‘law’ comprises any provision of domestic law – including, in particular, provisions concerning the independence of the members of a court …” .

9. The present case is even stronger than Guðmundur Andri Ástráðsson as regards its facts and the impact of a lack of impartiality and independence on the requirement of a “tribunal established by law” , because unlike that case , where the issue was the participation of a judge whose appointment had been vitiated by undue executive discretion without effective domestic court review and redress, in the present case the lack of impartiality and independence of the IQC was not something affecting only the applicant and the facts of the present case; it was an institutional or a functional lack of impartiality.

10. Furthermore, the above-mentioned unsatisfactory situation of a lack of institutional or functional independence and impartiality on the part of the IQC, which was derived from the Vetting Act itself, could not be rectified or compensated for by a decision of the Appeal Chamber in a particular case, as, for example, in the present case, but only by the legislature, once and for all, by leaving outside the competence of the IQC any powers that were not compatible with its purely judicial powers.

11. It is submitted that, without a tribunal of first instance “established by law”, the very foundation of the whole vetting system would collapse. To use two Latin legal maxims which may support the argument being made here: “ parte quacunque integrante sublata tollitur totum ” (an integral part being taken away, the whole is taken away – see 9 Coke’s Reports , 41); and “ sublato fundamento cadit opus ” (remove the foundation, the structure falls – see Jenkins, Centuries or Reports , 106).

12. Consequently, the main cause for finding a violation of Article 6 § 1 in the present case is, in my humble opinion, the Vetting Act itself, which prevented the applicant or any applicant in a similar situation from having a fair trial before a “tribunal established by law”.

13. Undoubtedly, the function and the role of an appeal court is to exercise, on appeal, its power to change or not to change a decision of a lower court. When a system of law, such as the Albanian vetting system, intends to have two tiers of tribunals, an indispensable requirement triggering the exercise of the competence or power of the appeal court is the lodging of an “appeal”, which is inconceivable without the existence of a first-instance “tribunal established by law”. I therefore have serious doubts as to whether the Appeal Chamber in the present case, and also in the vetting system in general, could have a function, role and competence in a vacuum, or as to whether the Appeal Chamber could stand alone in that system of law, if there was no first-instance “tribunal established by law” for the purposes of Article 6 § 1, and therefore if there was no institutionally valid appeal before it.

14. It would be an oxymoron, and surely it would not be the role of an appeal court, to act both as a first-instance court and a second-instance court at the same time – irrespective of any ample powers or full jurisdiction it may have under the law.

15. Article 6 § 1 does not compel member States to establish a system of appeal courts (see, inter alia, Case “relating to certain aspects of the laws on the use of languages in education in Belgium” (merits), 23 July 1968, p. 33, § 9, Series A no. 6). H owever, if a State does set up such appellate tribunals, these cannot exist and operate without the existence of a first ‑ instance “tribunal established by law”. That is so, because otherwise the operation of the appeal courts would be contrary to the law of their establishment and therefore also contrary to Article 6 § 1 of the Convention.

16. If the IQC were not a first-instance “tribunal established by law”, not only there would be no valid appeal to the Appeal Chamber, there would also be no valid “accusation”, since everything the IQC engaged in would be defective and invalid. If, on the other hand, the Appeal Chamber were to engage also in bringing the “accusation”, then the same issue of lack of institutional independence and impartiality as that of the IQC would exist with regard to the Appeal Chamber.

17. It should be clarified that my submission is not that the Appeal Court or Chamber does not exist or legally function in the Albanian legal system in general. What I argue is that a fundamental flaw or defect in the impartiality and independence of the IQC, preventing it from being considered “a tribunal established by law” in the Albanian vetting system, may have a detrimental impact on that system as a whole, with the result of stripping the Appeal Chamber of its function, role, and competence within the system, and, therefore, also preventing it from being considered a “tribunal established by law” under Article 6 § 1. And, of course, a system which collapses for want of an institutionally independent and impartial “tribunal established by law” cannot be an effective system.

18. In my humble view, a vetting system which has institutionally and fundamentally collapsed, as submitted above, and which has resulted in ending the professional career of a high-ranking and experienced judge, cannot be regarded as being compatible with Convention standards.

19. On the other hand, if the requirements of independence and impartiality were not considered also to be components of the requirement of a “tribunal established by law”, as suggested above on the basis of Guðmundur Andri Ástráðsson (cited above), then neither of the two judicial vetting bodies, the IQC and the Appeal Chamber, would have a problem for not being a “tribunal established by law” for the purposes of Article 6 § 1. Thus the issue as to whether the impartiality and independence requirements are, or are not, components of the requirement of a “tribunal established by law” is not only theoretical but may have serious practical consequences as to whether or not in a particular case there has been a violation of Article 6 § 1. The said approach, as adopted by the Court in Guðmundur Andri Ástráðsson (ibid.) favours more the right to a fair trial and the alleged victim than the opposite approach. One may argue that the approach followed by the Court in that Grand Chamber case can strongly be supported by the principle of effectiveness – an overarching principle of the Convention underlying every Convention provision securing a human right – both in its capacity as a norm of international law and as a method of interpretation (see about this principle in both of its capacities, §§ 15-19 of my concurring opinion in Muhammad and Muhammad v. Romania [GC], no. 80982/12, 15 October 2020).

20. To sum up and further clarify, this opinion argues: (a) that the principle of effectiveness supports the approach adopted by the Court in Guðmundur Andri Ástráðsson (cited above), whereby the requirements of independence and impartiality are necessary components of the requirement of a “tribunal established by law” for the purposes of Article 6 § 1 of the Convention; and (b) that the said principle would be undermined if the requirement of Article 6 § 1 for a “tribunal established by law” were to be interpreted and applied such as to cover: (i) a body which was institutionally, by the law of its establishment, doomed not to be independent and impartial due to the fact of accumulating within its competence, apart from judicial functions, other functions incompatible with the former; and (ii) an appeal chamber within a system of law specifically intended to decide “appeals” coming from a judicial body lacking in institutional independence and impartiality.

21. Furthermore, to my mind, since the public hearing before the IQC cannot be regarded as a public hearing before a “tribunal established by law”, and since the Appeal Chamber – irrespective of whether it was or was not a “tribunal established by law” – did not allow for a public hearing, the requirement of Article 6 § 1 for a public hearing was not satisfied in the present case and therefore there has been a violation of this provision also on that basis.

22. Regrettably, in my humble view, while the Vetting Act’s goal, as stated in section 1 of that Act, was “to guarantee the proper functioning of the rule of law, the true independence of the judicial system, as well as the restoration of public trust in the institutions of [that] system” (see paragraph 120 of the judgment), ultimately it can be said that the Act turned out to be lacking itself in what it was intended to prevent. This is a very serious consequence in an area of law which is very sensitive in Albania, but, at the same time, it may also have repercussions for the rule of law in general, including, of course, the administration of justice, the independence of judges and the separation of powers.

23. Having already concluded that there was no “tribunal established by law” to hear and decide on the merits of the applicant’s case, I do not consider it necessary to deal with the other two grounds raised by the applicant concerning the lack of independence and impartiality of the IQC, namely, (i) that it was composed of non-judicial members who lacked the requisite professionalism and experience, and (ii) that the members of the IQC were appointed by Parliament without any involvement of the judiciary.

24. As my distinguished colleague Judge Dedov has also done in his dissenting opinion appended to the present judgment, I wish to refer to what the Court observed in Baka v. Hungary [GC], 20261/12, § 172, 22 June 2016, regarding the principle of the irremovability of judges as a key element for the maintenance of their independence:

“Furthermore, although the applicant remained in office as judge and president of a civil division of the new Kúria , he was removed from the office of President of the Supreme Court three and a half years before the end of the fixed term applicable under the legislation in force at the time of his election. This can hardly be reconciled with the particular consideration to be given to the nature of the judicial function as an independent branch of State power and to the principle of the irremovability of judges, which – according to the Court’s case-law and international and Council of Europe instruments – is a key element for the maintenance of judicial independence … Against this background, it appears that the premature removal of the applicant from his position as President of the Supreme Court defeated, rather than served, the very purpose of maintaining the independence of the judiciary ...”

25. Reference should also be made to Kamenos v. Cyprus (no. 147/07, 31 October 2017). In that case the Supreme Court of Judicature (SCJ) in Cyprus had charged, tried and convicted the applicant by dismissing him from his judicial post. The Court found a breach of the principle of impartiality and, therefore, it concluded that there had been a violation of Article 6 § 1. To use the words of the Court (§ 109):

“The Court therefore finds that on the facts of the case and considering the functional defect which it has identified, the impartiality of the SCJ was capable of appearing open to doubt. The applicant’s fears in that regard can thus be considered as objectively justified.”

26. The Kamenos judgment (ibid.) supports the proposed view that the IQC was not an impartial tribunal, since, apart from trying and deciding the applicant’s case it was also engaged in bringing the “accusation” against her. The lack of impartiality is even worse in the case of the IQC than in the case of the SCJ in Kamenos , since in the latter case, the investigating judge for the alleged disciplinary offence was not a member of the SCJ but a different judge, the then President of the District Court of Nicosia. In addition, unlike the IQC and the Appeal Chamber in the Albanian vetting system, the SCJ was the only court in Cyprus dealing with disciplinary proceedings regarding judges, consisting of all the judges of the Supreme Court, thus being the highest court in the country. sIt is to be noted that in Kamenos only the issue of doubt as to the impartiality of the SCJ was discussed. The issue as to whether the SCJ was a “tribunal established by law” for the purposes of Article 6 § 1 was not raised and discussed. Thus one cannot read Kamenos as separating the existence of a “tribunal established by law” from its impartiality and independence. In any event, Guðmundur Andri Ástráðsson (cited above) is a Grand Chamber judgment and its principle, as explained above, namely that a judicial body cannot be characterised as a “tribunal established by law” within the meaning of Article 6 § 1 if it does not satisfy the requirements of impartiality and independence, should be followed in the present case.

27. In the light of what has been said above, it is apparent to me that not only have the requirements of Article 6 § 1, a “tribunal established by law”, an “independent and impartial tribunal” and a “public hearing”, been breached, there has also been a failure to satisfy the test of “a fair hearing” and to uphold the principle of legal certainty also enshrined in that provision. All the above requirements can be considered as indispensable components or aspects of the right to a fair trial under Article 6 § 1 and whenever any of them or not satisfied, the said right will be breached. As regards the lack of legal certainty I endorse the views of my eminent colleague Judge Dedov in his dissenting opinion in the present case.

28. Turning now to the Article 8 complaint, I respectfully disagree with point 8 of the operative part of the judgment in finding no violation. In my view, the decisions of the IQC and the Appeal Chamber were catastrophic for the professional life of the applicant with serious consequences also for her private life. In my submission, there has been a violation of Article 8 of the Convention since no sufficient reasons were given for the dismissal of the applicant from office. Consequently, in my view, no fair balance test was made and the principle of proportionality was not applied. And to reiterate, as I have proposed, the applicant’s dismissal was not decided by a “tribunal established by law” within the meaning of Article 6 § 1 of the Convention such that this Convention violation has rendered even more acute the impact of the judicial vetting bodies’ verdict on the professional and private life of the applicant.

29. I would propose an award to the applicant in respect of pecuniary and non-pecuniary damage as well as costs and expenses, the amount of which, however, does not need to be determined, since I am in the minority.

30. It is hoped that this case will provide an opportunity for the vetting system in Albania to be reconsidered and improved by, inter alia , sustaining the institutional independence and impartiality of the IQC, and therefore making it compatible with the requirements of Article 6 § 1 of the Convention.