DISSENTING OPINION OF JUDGE MOUROU-VIKSTRÖM

(Translation)

1. I am unable to subscribe to the majority’s view that there has been no violation of Article 6 of the Convention.

2. The question posed by this case is a fundamental question of principle concerning the independence of the Supreme Court of Serbia, or more precisely the independence of the judges comprising the country’s highest court.

3. The question is a simple one: was the meeting between members of the judicial authorities and a representative of the executive contrary to the requirements of Article 6? Is the impartiality of the Supreme Court judges who took part in the meeting open to question?

4. Even though the authority which initiated the meeting is not known, it is established that on an unspecified date, but in any event before March 2004, some judges of the Supreme Court (the President of the Supreme Court itself and the President of the Civil Division) and a first-instance court judge had a meeting with a representative of the Ministry of Defence (the Head of the Department for Property and Legal Affairs).

5. Members of the judiciary therefore had a conversation with a representative of the executive on a legal and technical issue liable to have a major impact on the military budget and hence on a part of the public finances. But above all, the meeting concerned matters which had already come before the first-instance courts and which would in all likelihood be submitted to the Supreme Court for consideration.

6. According to the Government, the meeting had simply decided on a procedure for the courts’ handling of cases concerning the determination of the coefficient for calculating military salaries. In the Government’s view, no issue of impartiality arose out of the fact that the parties present at the meeting had agreed that the first-instance courts would adopt an initial, partial decision on the legal basis for claims lodged by military personnel and that the Supreme Court would then give a final ruling after examining the admissibility and merits of each case.

7. The mere fact that the meeting took place raises an issue regarding the appearance of independence and impartiality of the Supreme Court.

Moreover, it should be noted that important information concerning the meeting was not disclosed.

8. What was on the agenda for the meeting? What was the content of the discussions? Did the meeting simply set out a procedural timetable or did it address matters of substance?

9. No record was drawn up after the meeting, a fact which lends it the confidential character of an “institutional closed circle”.

In addition to this lack of transparency, the fact that no one representing the interests of military personnel was invited to take part in the meeting upset the fundamental balance that must be struck in dealing with court cases.

10. A neutral outside observer might legitimately discern in such a meeting a wish to discuss not just the procedural handling of large numbers of cases, but also how they should be dealt with on the merits. As such, it raises an issue under Article 6.

11. In concluding that the impartiality of the Supreme Court is not open to question the majority attribute considerable weight to the fact that, at the time the meeting was held, no case was pending before the Supreme Court. Nevertheless, some cases had already been dealt with in civil proceedings from 2003 onwards, and the prospect of an influx of cases of the same type had of course been anticipated by the authorities.

12. The meeting could quite easily have been conducted in a way that would not have cast doubt on the impartiality of the Supreme Court judges.

13. For instance, simply having a representative of military personnel present at the meeting would have sufficed to allay any suspicion of a risk to the impartiality of the Supreme Court.

14. Similarly, the members of the Supreme Court could have met without the representative of the Ministry of Defence, who could have been asked to submit an explanatory memorandum on the method of calculating salaries. That document could also have been submitted to representatives of military personnel for comments.

15. Furthermore, in the course of the judicial proceedings, and in accordance with the adversarial principle, questions could have been put to the Ministry of Defence concerning the method of calculating salaries. Here again, representatives of military personnel could usefully have made observations, and challenged or approved the calculation methods and indexes.

16. The decision to involve a representative of the executive, a potential party to future judicial proceedings, in the meeting was liable to give rise to doubts as to the impartiality of the Supreme Court and its divisions, which play a key role in appeal proceedings and non-contentious procedures, and whose legal opinion of 31 May 2005 was directly connected to the proceedings in which the applicants were involved.

The meeting therefore constituted an event incompatible with the requirements of Article 6 of the Convention