DISSENTING OPINION OF JUDGE BORREGO BORREGO

(Translation)

I regret that I am unable to agree with the reasoning and the conclusion of the majority in the present case.

In my opinion, the separation of powers is an essential component of a State based on the rule of law and presupposes the separation of the relevant bodies.

As far back as 1980 the European Commission of Human Rights stated: “the term independent , appearing in Article 6 ... [means] that the courts must be independent both of the executive and of the parties ... , and ... the same independence must be established in respect of the legislature, i.e. Parliament” (see Crociani and Others v. Italy , nos. 8603/79, 8722/79, 8723/79 and 8729/79, Commission decision of 18 December 1980, Decisions and Reports 22, p. 220 ). Recently, the Court reiterated: “Article 6 § 1 of the Convention requires the courts to be independent not only of the executive and the parties but also of the legislature” (see Filippini v. San Marino (dec.), no. 10526/02, 26 August 2003 ).

For eight years, from 1987 to 1990 and from 1995 to 1998, M.P. was simultaneously a member of the Helsinki Court of Appeal and a member of the Finnish p arliament. In December 1997 M.P., at the time a member of p arliament, sat on the bench of the Court of Appeal that dismissed the applicant company ' s appeal.

Is it acceptable for a member of a national parliament to be able to act as a judge at the same time? The majority of the Chamber consider that it is: “this principle [of separation of powers] is not decisive in the abstract” (see paragraph 34 of the judgment). Having regard to the circumstances of the present case, the majority conclude that there has been no violation.

I would refer here to Montesquieu, father of the theory of separation of powers: “Nor is there liberty if the power of judging is not separate from legislative power and from executive power. If it were joined to legislative power, the power over the life and liberty of the citizens would be arbitrary, for the judge would be the legislator. If it were joined to executive power, the judge could have the force of an oppressor .”

I believe that this is the first time the Court has examined a complaint concerning the simultaneous exercise of legislative and judicial functions by the same person. I consider – humbly, as befits a minority voice, yet with strong conviction – that in the present case the requirement of independence of the courts from the legislature, as set forth in our case-law, was not observed. In addition, “the concepts of independence and objective impartiality are closely linked” (see Findlay v. the United Kingdom , judgment of 25 February 1997, Reports of Judgments and Decisions 1997-I, p. 281, § 73). I can only conclude that the applicant company ' s concerns about the independence and impartiality of the court that considered its case were objectively justified and that there was a violation of Article 6 § 1 of the Convention.