CONCURRING OPINION OF JUDGE KŪRIS

1. My disagreement with the majority concerns two issues. Neither of them are to be considered so prominent as to cast doubt on the overall finding of a violation of Articles 6 § 1 and 10 of the Convention, to which I subscribe.

2. The reasoning, as laid out in paragraphs 89 to 91 of the judgment, includes two factual circumstances that are important for the finding of a violation of Article 6 § 1. The first is that Judge J.M. was a member of the bench which had decided the applicant’s case, although it is explicitly acknowledged that “it is impossible to ascertain [his] actual influence on that occasion”. The argument that Judge J.M. was merely one of ten judges in that formation “is not decisive for the objective-impartiality issue under Article 6 § 1”, it being his “unascertained influence” which is regarded as tainting the impartiality of that court with “a genuine doubt” (see paragraph 89 of the judgment). In this context, the point about impartiality being “open to a genuine doubt” is meant to refer to the objective impartiality of Judge J.M. himself and, by extension, that of the whole bench. The Court is not willing to openly question Judge J.M.’s subjective impartiality; rather it is of the view that the fact that the applicant could have thought that he had some grounds on which to question Judge J.M.’s subjective impartiality had a bearing on the objective impartiality of that judge and of the formation as a whole. Although the Court does not question Judge J.M.’s subjective impartiality explicitly and directly, it does so implicitly and indirectly, because the very hint of that judge’s influence on the outcome of the case suggests that it could also have been such as to determine a conclusion which was unfavourable to the applicant and that, but for that influence, the outcome might have been different.

The second circumstance is that the applicant had not been informed that Judge J.M. would be sitting on the bench in his case. On the contrary, the information available to him at the material time gave him no reason to expect that this particular judge would be in the composition of the judicial body which had to decide his case. Because of this concealment (whatever the reason), the applicant “had no opportunity to challenge [Judge] J.M.’s presence or to make any submissions on the issue of the judicial body’s impartiality in that connection” (see paragraph 90 of the judgment and paragraph 52 referred to therein).

In my opinion, the first of these two circumstances is by itself of no legal importance. We do not and cannot know whether any opinion that Judge J.M. may have expressed in the deliberations in that case was at all unfavourable to the applicant. Thus, it is mere speculation that the judge could have had a greater or lesser influence on the outcome of the applicant’s case. One could equally speculate on the lack of impartiality of – as they are routinely called – “national” judges of this Court, in cases against the State in respect of which they were elected, because when a case which has been decided by the Chamber is referred to the Grand Chamber under Article 43 of the Convention, such judge finds himself or herself in the situation where he or she has already sat in that case as a member of the Chamber. However, such speculation is rebutted by reference to Article 26 § 4 of the Convention, which explicitly requires that the judge elected in respect of the High Contracting Party concerned be an ex officio member of the Grand Chamber. Accordingly, the inclusion of the “national” judge in the composition of the Grand Chamber is, in the most formal way, compelled by the Convention itself and is, in this respect, absolutely necessary.

In view of such situations pertaining to the continuous practice of this Court, the plausibility of any speculation regarding the objective “partiality” of Judge J.M. and the whole bench vis-à-vis the applicant is close to zero. That judge had expressed his support for Judge M. (whose relationship with the applicant appeared to be, so to say, problematic) many years before and in an entirely different context, and there are no indications that he had ever expressed an opinion on Mr Morice’s case or personality, or on the whole politically sensitive context of that case, prior to its being decided by the bench of which he was part.

I am certainly not implying that in a French (or other national) court the “absolute necessity” of the inclusion of a particular judge in the composition of a judicial body which has to decide a particular case can be substantiated exhaustively by, say, mere reference to a statute which explicitly requires such inclusion, in the same way that the Convention requires inclusion of “national” judges in the Grand Chamber. Even had such a statute been in place, it probably would have been legally reproachable. However – and not merely in theory – there can be other reasons (not only of a formal legal but also of a factual nature) which would compel the inclusion of a particular judge in the composition of a bench or, to put it in a somewhat milder way, justify his or her non-exclusion therefrom. In the Court’s case-law, one can find decisions and judgments where the previous involvement of a judge in the same case had not amounted to a violation of the right to a fair trial protected by the Convention. To give just a couple of examples, even the mere fact that a judge had already taken decisions regarding a particular person “cannot in itself be regarded as justifying doubts as to his or her impartiality” (see Ökten v. Turkey (dec.), no. 22347/07, § 41, 3 November 2011); in an even earlier case the Court had held that “no ground for legitimate suspicion [could] be discerned in the fact that three of the seven members of the disciplinary section had taken part in the first decision” (see Diennet v. France , 26 September 1995, § 38, Series A no. 325-A). Every case has to be decided on its own merits. In the present case, had the issue of Judge J.M.’s “partiality” been raised by the applicant in the proper course, such allegation would have been authoritatively dismissed as based 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 long-winded 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 the outcome of the applicant’s case. I am sure that this unfortunate hint should have been omitted. Any speculation about that judge’s “actual influence” on the outcome of the case casts an unnecessary and – even more importantly – unjustified shadow of doubt on that judge’s integrity. This finding, last but not least, is not in line with the Court’s case-law and mission.

3. My other disagreement with the majority relates to paragraph 132 of the judgment. Therein the Court repeats its dictum , incautiously employed, inter alia , in the Grand Chamber judgment in Kyprianou v. Cyprus (as well as in some Chamber cases), that the “special status” (or “specific status” here in paragraph 132) of lawyers gives them “a central position in the administration of justice” as “intermediaries between the public and the courts” (see Kyprianou v. Cyprus [GC], no. 73797/01, § 173, ECHR 2005 ‑ XIII).

I cannot agree with such a characteristic. This is a matter of principle. The adjectives “special” or “specific” do not mean “central”. A lawyer always represents a party and by definition is not able to occupy “a central position in the administration of justice”. A party is never “central”, nor can its representative be. Those with a “central position in the administration of justice” are the judges (for good or, as is unfortunately sometimes the case, for ill). The “intermediaries between the public and the courts” are the courts’ spokespersons, press representatives or – in their own right – journalists, but in no way lawyers, who represent parties. A lawyer acts in a party’s interests, for the benefit of a client and, as a rule, is remunerated by the latter. A lawyer has to heed the represented party’s interests even when they are in opposition to those of “the public”, i.e., society and the State. This is not meant to deny or diminish the importance of the function of lawyers. It is true that they can and do contribute to seeking justice and help courts to exercise their mission, but lawyers may also aim at obstructing the pursuit of justice in the interests of their clients – and occasionally do so. It depends. A party represented by a lawyer may find himself or herself in the courtroom because he or she seeks justice, but it is probably no less frequent for the lawyer to represent a party against whom justice is sought.

Every dictum has the potential to be developed, in some future case, into a ratio . Regarding this particular dictum , I should probably say “danger” rather than “potential”. Repetition, in yet another judgment of this Court’s Grand Chamber, of the mantra about lawyers ostensibly occupying “a central position in the administration of justice” and of being “intermediaries between the public and the courts”, especially when such a characteristic is not, in the Court’s case-law, attributed anywhere to the other party, i.e., the prosecution, distorts the picture. As to the case at hand, it could have been decided, with no disadvantage to the Court’s findings, without recourse to this uncritical repetition.