CONCURRING OPINION OF JUDGE NICOLAOU

Judge M. of the Paris tribunal de grand instance had, for some time, already been seised as investigating judge of the so-called “Scientology” case when, in 1997, she was assigned, jointly with a colleague, the unrelated Borrel case, a particularly sensitive case which has given rise to the present proceedings before the Court. The applicant acted as lawyer for the civil parties in both cases and was dissatisfied with Judge M.’s conduct of the respective investigations, although not for exactly the same reasons.

In June 2000, at a time when important developments were taking place in the Borrel case, an unpleasant turn of events occurred in the “Scientology” case. Following a suit brought by the applicant, as counsel, in which the State had been found liable for gross negligence in respect of the handling of the “Scientology” file, disciplinary proceedings were brought against Judge M. in that connection. It was said that she had failed to show the requisite care and attention, leaving the case practically untouched for five years; that, in a friendly-settlement procedure to which she had had recourse, she had overstepped the bounds of her jurisdiction; and that she had not prepared copies of all the documents in the file, thus making its reconstruction impossible after parts of it had disappeared from her chambers. These matters were referred to the disciplinary board for judges by decision of the Minister of Justice.

Unfortunately, the Minister’s decision was made public at a press conference given by the director of her private office before Judge M. herself and the court’s president had been notified. This prior publicity sparked off a protest on the part of judges serving in the same court. They expressed sympathy for their colleagues who had been snubbed in this way and reasserted the right of judges to be treated with due respect; a right that can be no less than that which is owed to members of the public. At a general meeting held a few days later, the judges of that court unanimously adopted the following motion:

“The general meeting of judges of the Paris tribunal de grande instance held on 4 July 2000, without disputing the authority conferred on the Minister of Justice to take disciplinary proceedings in the conditions prescribed by law, is surprised to learn from the press that such proceedings have been initiated against Judge [M.], investigating judge in Paris, whereas to date neither the judge herself nor her judicial hierarchy have been officially informed thereof.”

The present Article 6 § 1 issue turns on what one of the judges said at that meeting. He expressed himself in this way:

“We are not prohibited, as grassroots judges, from saying that we stand by Judge [M.]. It is not forbidden to say that Judge [M.] has our support and trust.”

Nine years later the Court of Cassation, sitting in a formation of ten members, heard at final instance the applicant’s appeal against conviction on a criminal charge brought against him for statements he had made about Judge M. in connection with the present case, i.e., the Borrel case. The judge who had made the above-quoted statement about the way in which the Ministry of Justice had acted in the “Scientology” case and who, in the meantime, had risen to become a judge of the Court of Cassation, was a member of the formation which heard the appeal. The applicant has acknowledged that it has not been shown that there was any actual bias on the part of the judge. He submitted, however, that his very presence on the bench had been enough to create, in an objective sense, a legitimate fear or suspicion of a lack of impartiality.

The Grand Chamber agrees with that proposition. It takes the view that the language that had been used by the judge in question in support of Judge M. was capable of raising doubts in the applicant’s mind regarding the impartiality of the Court of Cassation. It considers that this is supported by the “very singular context of the case” (see paragraph 84 of the present judgment), comprising as it does the interplay of various relations and factors, and particularly by the fact that the professional conflict between Judge M. and the applicant had taken on the appearance of a personal conflict, since it was the former who had filed the complaint against the latter. Further, the Grand Chamber observes that the Court of Appeal had itself seen a connection between the two cases to which an “ex post facto settling of scores” could be ascribed.

The essential question is whether one can have a reasonable doubt regarding the impartiality of the Court of Cassation by reason of the inclusion in its composition of the judge in question. It remains unknown whether that judge had any recollection of what he had actually said nine years earlier or whether it occurred to him, when seised of the case, that anything he had done or said in relation to Judge M. might be taken to reflect on his impartiality. If he had thought about it at all, one would have expected him to inform the other members of the bench. It is not known whether he did or did not remember or, if he did, whether he thought there was cause to reflect on the matter. It may be that he did not; or it may be that he did but that the bench thought nothing of it, for otherwise one would have expected the matter to be resolved quite simply by his withdrawal from the case, or otherwise by a decision of the court after giving the applicant an opportunity to be heard.

The Government have not suggested that in such cases the French system provides a means of redress of which the applicant should have availed himself. It must therefore be understood that the applicant had no way of bringing the matter before the Court of Cassation when, after judgment was handed down, he became aware of the participation of the judge in question (compare In Re Pinochet [1999] UKHL 52 (15 January 1999), where the House of Lords, faced with a similar situation, set aside its own judgment). The Court is, therefore, in the unhappy position of having to examine the matter at first instance.

The integrity of judicial proceedings must be demonstrated to all in no uncertain terms. In order to achieve this, it is necessary to adopt a concept of reasonableness that is as broad as possible, one that would encompass and accommodate even the most fastidious view of the appearance of things. It is “of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done” (per Lord Hewart in Rex v. Sussex Justices, ex parte McCarthy [1924] KB 256, at 259). At the same time it is necessary to firmly exclude fanciful interpretations or propositions that are wholly unrealistic.

In the present case there is no indication whatsoever that the judge in question had any connection with Judge M. other than that which all the other judges attending the meeting also had with her as a colleague. He used the first-person plural form, thus expressing collegial, not personal, support. He spoke in the context of a meeting of judges at which they collectively remonstrated about what was certainly a cavalier attitude on the part of the relevant ministry towards them. That attitude, having a more immediate and direct impact on Judge M., could be perceived as denoting contemptuous disregard for her. In this situation, language such as that used by the judge in question would merely be aimed at redressing the balance. He could certainly have made a better choice of words; but no one should have thought that his statement was intended to express a view on the merits of the pending disciplinary proceedings or, in other words, a value judgment on the manner in which Judge M. had acted. Moreover, what was said related exclusively to how Judge M. had, up until that point, dealt with the “Scientology” case. It had nothing at all to do with what was to happen later in the Borrel case. Nine years had passed since that statement had been made and, presumably, people had gone their separate ways. There is absolutely nothing to suggest that the Court of Cassation judge had any reason to hold, or that he might have held, any view as to how Judge M. had behaved or conducted her investigations in any of the cases assigned to her.

Are judges then to be so distrusted that one might, in such circumstances, legitimately think that a judge’s impartiality could be doubted? To answer this question the Court must discern what view the public at large take of the integrity of judges. That is determinative of the respect in which they may be held and of the confidence that may or may not be reposed in them. Within limits, the greater the confidence the less one would be inclined to think that certain circumstances give rise to suspicion. Judges will themselves have contributed, over time, to the manner in which they are perceived. The concept of objective impartiality cannot, in my opinion, consist of a mere abstraction devised solely from principle, without regard to social realities which set practical standards. Judges may not be perfect – indeed, not all judges are perfect – but, even so, I have found it difficult to accept that one could seriously have thought that there was, in the present case, the possibility of an appearance of bias. One could, however, look at the matter from another angle and say that even in a hypothetical world of perfect judges, enjoying unbounded confidence and respect, it would still be necessary to demonstrate that the justice system itself is in this regard immaculate and is a system from which the faintest hint of doubt is excluded – a rather absolutist approach for which I have little sympathy.

Whichever may be the best approach to the matter under consideration, I have finally decided that the view taken by all the other members of the Grand Chamber as to what the result should be might conceivably be shared by right-minded persons today and, therefore, on such a question of assessment, it was right to defer to that view.