DISSENTING OPINION OF JUDGE GYULUMYAN

I regret that I am unable to subscribe to the majority ’ s opinion that there has been no violation of Article 6 §1 of the Convention in this case.

As the majority rightly observe in respect of judges ’ impartiality, even appearances may be of a certain importance, in other words, “justice must not only be done, it must also be seen to be done” (see Dorozhko and Pozharskiy v. Estonia , n os. 14659/04 and 16855/04, § 52, 24 April 2008; Micallef v. Malta , no. 17056/06, § 75 , 15 January 2008; and De Cubber v. Belgium , 26 October 1984, § 26, Series A no. 86).

I consider that there was at least an appearance of a lack of impartiality on the part of the judges X and Y, who took part in the applicant ’ s first-instance trial and had previously delivered judgments against the applicant ’ s co-accused C3 and C4 in which the applicant was named as a person involved in the crimes concerned.

I accept the approach of the majority in examining the judgments handed down by the Regional Court to the applicant ’ s co-accused C3 and C4, but I cannot agree with the finding that in both judgments “the names of the applicant and others are mentioned in passing” and that “there is no specific qualification of the involvement of the applicant or of acts committed by him, criminal or otherwise”.

The Regional Court ’ s judgments concerning the applicant ’ s co-accused C3 and C4 contained numerous references to the acts committed by the applicant, particularly the judgment in the case of C3 which included the following statement:

“As far as the export of amphetamine is concerned, D was also the organiser of this and C3 the financier. C2 supplied the drugs, while K, [the applicant] and H carried out the actual work.”

I believe that referring to the applicant ’ s carrying out the actual work in a criminal organisation is a specific description, even a qualification, of the involvement of the applicant and of the acts committed by him.

These circumstances are sufficient to hold the applicant ’ s fears as to the lack of impartiality of the judges concerned to be objectively justified.

The re-hearing of the applicant ’ s case on appeal did not cure the problem because the Court of Appeal did not recognise the procedural violation and make reparation for it (see De Cubber v. Belgium , cited above, § 33).

To complete the picture, I should add that in the same circumstances a differently composed bench of the same Court of Appeal accepted that the applicant ’ s co-accused C3 had an objectively justified fear of bias on the part of the first-instance court. The fact that the Court of Appeal reached a different conclusion in a case similar to his could reasonably give rise to feelings of injustice on the part of the applicant.