PARTLY DISSENTING OPINION OF JUDGE JEBENS JOINED BY JUDGE SPIELMANN

1. I agree that there has been a violation of Article 6 § 1 of the Convention on account of the excessive length of the proceedings. However, for the reasons set out below I disagree with the majority that there has been no violation of Article 6 § 1 on account of the lack of impartiality of the court.

2. There exist in my opinion ascertainable facts with regard to the initial procedure before the Zlatar County Court which may raise doubts as to that court ' s impartiality in the civil case against the applicant. The combination of these facts and the internal relationships within the court shows in my view that the applicant ' s fear of the judges ' lack of impartiality was objectively justified.

3. First, it should be noted that though the President of the Zlatar County Court, like all state officials, must report on criminal offences which came to his knowledge, he would first have to make his own evaluation as to the question of criminal liability. Thus, there is an element of discretion when it comes to reporting a possible criminal offence to the Prosecutor ' s office, which implies that the President is not obliged to pass on any allegation of a criminal offence.

4. In the present case it should be noted that the Court President had been approached by a lawyer employed with the insurance company C. O., who had explained the company ' s claim to him. The President sided with the company ' s view, and filed a criminal complaint against the applicant with the Zlatar Municipal State Attorney ' s Office. He stated that the applicant had refused to return “the unlawfully appropriated money”, and added that “for which reason the civil proceedings ... were instituted against her”. Furthermore, he stated that the applicant ' s act “also contains elements of criminal liability”, for which reason “we are reporting it to you with a view to investigating it and, possibly, instituting criminal proceedings (against her) ... ”, see para. 9 of the judgment.

5. It follows from this that the intervention by the President of the Zlatar County Court was relevant for that court ' s adjudication of the civil claim against the applicant in several ways. Firstly, the President referred to, and indeed confirmed the veracity of the same objective facts as those which were relevant in the civil case. Secondly, he had presented arguments in support even of the applicant ' s subjective liability, by stating that she was also liable to criminal prosecution. Therefore, while the opinion expressed by the Court President referred to the civil claim, it went beyond what was necessary in a civil case. Thirdly, the Court President had filed the criminal complaint at the request of the insurance company C.O., which was the plaintiff in the civil case against the applicant.

6. In these circumstances, I cannot see that it matters that the Court President filed the criminal complaint against the applicant in his official capacity, as argued by the majority, or that it is important that he had no personal interest in the proceedings against her, see para. 85 of the judgment. I attach more weight to the ties which exist between the President and the judges of the same court, and in which respect the Zlatar County Court is no exception.

7. It is of course true that the President could not instruct the judges who participated in the civil case against the applicant on how to vote, as stated by the majority in Para . 88 of the judgment. However, the President was charged with administrative duties, of which some directly affected the judges.

8. One important duty of the President was to assign cases to the judges at the court. With respect to this the majority has stressed that the cases were not distributed by the President at his own discretion, and argued at length that the Court rules on this gave the President practically no room for choice. However, I cannot accept as a fact that the President was stripped of practically any power in this respect, as the majority seems to suggest, see paras 89 and 90 above. Therefore, there is in my view no reason to make a distinction between the present case and the Daktaras case (cited above) in this respect.

9. The Court President also had considerable influence on questions concerning the other judges ' career, whether it was advancement or disciplinary proceedings against judges. I refer in this respect to the facts described in detail by the majority in para. 92 of the judgment, but disagree with the conclusion that the President ' s powers “were rather limited”, see para. 93. For instance, I cannot see that it matters much that the President ' s unfavourable appraisal of a judge can be appealed against or that his opinion on which judges should be appointed permanently and which should not is not a final decision. The fact that the President had a strong influence in such matters is in my opinion more important in this respect.

10. For these reasons I conclude that the Court President ' s far-reaching opinion with respect to the applicant ' s case deprived the other judges in the same court of their impartiality, because of their subordinate position and dependence of the President in different respects. The present case should therefore have been transferred to another court, as was done in the criminal case against the applicant, for the same reasons, see para. 11 of the judgment, in that the lapse of time between the President ' s expressed opinion and the civil proceedings is in my opinion not relevant in this respect.