CONCURRING OPINION OF JUDGE ZUPAN ČIČ

This is a case concerning impartiality. In the Grand Chamber judgment, especially in the key paragraph 128, we refer in turn to “personal partiality”, “ personal involvement on the part of the judges” and their “sense of indignation and shock, which runs counter to the detached approach expected of judicial pronouncement ” . These are the elements of the s o-called “subjective partiality ” , which the European Court of Human Rights detected in this case. My intention here is simply to contribute an additional elucidation as to why, for example, a “personal involvement ” should be seen as a negation of impartiality.

I do not think that “impartiality” in law is different from any other impartiality as for example in science, i n historiography , etc. However, t he Court ' s different formulas concerning “objective” and “subjective” impartiality, in my opinion, do not have a great explanatory value. In other words, if someone were to ask: “What, in the end, is impartiality?” , I do not think he or she could derive a clear answer from our jurisprudence. Yet it would be useful to give a clear definition providing some further guidance.

Impartiality is clearly a mental attitude. That this attitude must be without prejudice and bias seems to be clear. Rational law-finding and adjudication require, on the part of the adjudicator, certain objectivity. This is why the objective rule of law is distinguishable from the subjective rule of the judges. The premise is t hat it is the judges personally who discover and interpret and apply the law – but that law nevertheless exists objectively and independently from the judges. In a very real sense, the complex meaning of “fair trial ” is wholly about the impartial attitude of the judges.

The adversary nature of legal proceedings, too, serves the idea of impartiality. In law it is the conflict (adversariness) that both requires and produces impartiality. In a monocentric adjudicatory setting, judicial impartiality is a by-product of the two expected and accepted partialities of the two opposing parties. This may be the specificity of the judicial impartiality as distinguished, for example, from the scientific objectivity where, through scientific experiment, the objective reality itself is permitted to confirm or disconfirm the hypothesis advanced in the experiment.

Yet empirical scientists, because they are interested in the underlying perennial laws of nature, deal with repeatable events. The concrete and transient events are experimentally tested as mere “symptoms” of the underlying constant and continuing (in time) scientific law – the only real focus of scientific exploration.

In law, however, the events cannot be reiterated. We usually say that the legally rele vant happenings are “historical ” . The idiom “historical events” derives from historiography because there, too, the object of a historian ' s scholarship cannot be replicated. Historical events thus cannot be

experimentally tested as to their objective veracity. In short, the epistemology of historical events is lacking compared to the scientific-empirical epistemology. We say that it lacks objectivity.

Yet, even in scientific epistemology it is the correctness of experimental procedure that guarantees its repeatability by other scientists. The confirmation of the underlying scientific p rinciple depends on its falsifi ability, in other words, on the possibility to disprove it in an unlimited number of further experiments. The legitimacy of the scientific hypothesis depends on the correctness of this procedure.

How much more so in judicial procedures where the histori cal event cannot be reproduced!

This is why the legitimacy of legal truth-finding depends completely and totally on the legitimacy of the procedure followed by the courts. A procedure flawed as to any element of the fairness of the trial, equality of arms , etc. , cannot lead to a legitimate result. In legal matters, because it is impossible to ascertain a past historical event, the so-called “truth” can easily, as it did in witch trials, become a self-referential and non-falsifiable myth. These anomalies, at the time, were a direct consequence of the epistemologically flawed inquisitorial structure of legal procedure. In other words, a fair trial is not just an individual entitlement and a human right. A f air trial, with all its complex guarantees, is an intellectual, if not directly scientific, necessity. A f air trial is thus a key to the legitimacy of all adjudication.

This brings us to one of the elements of a fair trial, namely, to impartiality. Impartiality, to put it simply, is an open-mi nded mental attitude characteris ed by indecision. In a monocentric adjudicatory setting , an undecided judicial mind remains open to the influx of contradictory data coming from the two opposing parties. Impartiality means that the relevant channels of communications are not cut, in other words, that these d ata continue to be admitted. Article 6 of the European Convention on Human Rights , and more specifically §§ 2 and 3 ( b ) , ( c ) and ( d ) , can, for example, be seen not as human rights but as epistemologi cal minimal standards [3] .

The opposite of impartiality is pre-judice . As the etymology of the word “ pre-judicium ” illustrates, “having a prejudice” denotes having a decision in mind before all the data are in. A pre-judiced judge does not listen to one or to both parties.

This prejudice may be exacerbated if the judge subscribes to criteria of premature decision that are extrinsic to the case at hand or to law in general. If, for example, we speak of “racial prejudice,” we are referring to the employment of the legally extrinsic racial criterion where it has nothing to do with the legal substance of the case. If the judge dislikes one of the parties, he is deciding on the basis of an extrinsic, legally irrelevant and forbidden criterion. Needless to say, an impartial, objective, etc. , attitude requires wisdom and experience in order that the judge may maintain the requisite distance from the evolving process before him. The institution of the lay jury, wholly passive and more receptive to the shifting burden of proof, too, may serve the enhancement of impartiality in the judicial process.

The word “decision ” , too , is appropriate. Its etymology indicates cutting off. Indeed, a de cision, while it may be the end result of an impartial decision-making process (fair trial), is by definition partial. One is decided once he or she has cut off the influx of data that are contrary to the content of his or her decision.

The issue is therefore, first ly , the timing of the decision and , second ly , the absence of extrinsic decision-making criteria.

It follows logically that maintaining the channels of information open as long as possible duri ng an adversary legal procedure is what impartiality is all about. The adversary nature of the trial in which the judge is not required to form a hypothesis as to the guilt of the accu sed – as is, for example, the c ontinental investigatory judge in the inquisitorial model of procedure [4] – and in which he may maintain a receptive passivity, is conducive to impartiality. Moreover, if the burden of proof de facto shifts due to the persuasive effect obtained by one of the opposing parties, this contributes to the result that the judge will be of two minds and thus ambivalent. To be ambivalent also means to remain undecided.

In various codes of criminal procedure there are provisions as to what the trial court may do if the criminal event takes place before the very eyes of the judges during the same trial in the same courtroom. Often, the relevant provision permits the “eyewitness” court to adjudicate directly and pronounce the sanction forthwith.

Yet, resolution of the instant situation obtains from the tacit assumption that the court ' s role is limited to truth-finding. In such immediate situations the truth of the incriminated event seems so obvious. The assumption is, therefore, that the eyewitness judges themselves are in an ideal truth-finding situation.

Still, the role of any adjudicatory body is not only in truth-finding. The objective and impartial ascertainment of truth is merely an instrument to the resolution of the conflict. Judicial truth-finding is not an end in itself. Once the truth has been established to the best of their abilit ies , the judges must apply the law [5] .

As is clear in the case before us, the application of the law, too, may be biased. This probability of bias, if the judge is a judex in causa sua, persists despite the fact th at the incriminated event, called here the “contempt of court” , is palpably obvious, true , etc.

This case is an excellent illustration of just how absurd the legal interpretation of the factual trivia may become.

In view of histor ical considerations since the Magna Carta of 15 June 1215, concerning the greater independence of t he judiciary within the common-l aw jurisdictions, I would be the first to extend the indulgence of the margins of appreciation to the adversary model of criminal procedure. As I have pointed out elsewhere, this independence had been the source of much liberty and political stability.

It was truly an inspiration to the rest of the world.

So , many centuries later , i t is therefore ironic that the c om mon-l aw jurisdictions should be inclined to defen d this patent anomaly in a case which flies in the face of every precept derived fro m the above two legal sources. “ C ontempt of court” is nothing other than an inquisitorial anomaly within an adversary model of criminal procedure. The very same model, which was the true legal and moral source both of the general fair - trial doctrine and of the European Convention ' s Articles 5 and 6 .