CONCURRING OPINION OF JUDGE GARLICKI JOINED BY JUDGE PELLONPÄÄ

1. I am ready to accept that there has been a violation of Article 6 § 1 of the Convention because a “tribunal” meeting the requirements provided for in that Article has not heard the applicant ’ s case.

I am not sure, however, whether the real deficiency in this case resulted from the fact that one of the judges continued his duties after his term of office had expired. On the one hand, I am not impressed by the manner in which the relevant domestic law is presented. The Court quotes Article 151 of the 1989 Constitution of the Soviet Socialist Republic of Moldova, but it gives no information as to the subsequent 1994 Constitution. Article III.6 of Chapter VIII of that Constitution provided for an extension of the term of office of all judges who had already completed 15 years of service. It would be interesting to know whether there has been any other regulation concerning judges of lesser seniority. On the other hand, the Government indicated that there had been a general practice of tacit prolongation of the functions of all judges whose term of office had expired but whose reappointment was still awaiting a formal decision.

In my opinion it would be safer to assume that the judge in question had the right to exercise his functions. Yet, the violation of the Convention arose from that judge ’ s lack of impartiality and independence.

2. A judge whose reappointment (and, alternatively, dismissal) is under consideration by the executive branch can hardly be regarded as satisfying the requirements of impartiality and independence. It does not necessarily mean that each and every judicial system in which judges are appointed to a limited term of office subject to subsequent reappointments must, per se , be disqualified under the Convention.

As has already been found in Strasbourg case-law, a fixed term of office of a relatively short duration is allowed in respect of special administrative tribunals or disciplinary tribunals (see Le Compte , Van Leuven and De Meyere v. Belgium , judgment of 23 June 1981, Series A no. 43, § 57, and Campbell and Fell v. the United Kingdom , judgment of 28 June 1984, Series A no. 80, § 80). However, such tribunals differ from regular courts of law and may have different standards of independence. Also, in respect of regular courts, an initial appointment for a fixed probationary period is not as such incompatible with the Convention.

There may also be countries where the tradition of periodic reappointments of “regular” judges has become so well established that it would not affect their impartiality and independence to a degree incompatible with the Convention. However, such situations are but rare exceptions. The general approach to the judicial function in Europe is that judges should be appointed for life and if – as in the case of several

constitutional courts – their term of office is to be limited in time, no reappointment should be permitted. The same considerations prompted the drafters of Protocol No. 14 to adopt a single term of office for the judges of the European Court of Human Rights and it should be recalled that this decision was also a fruit of practical experience, by no means limited to the new Member States.

3. The lack of external appearances of impartiality and independence in the case of Judge V. D. stemmed from the very fact that he was exercising his judicial function in the awareness that his future depended on Presidential approval of his reappointment. This – generally unacceptable – situation was aggravated by three additional factors.

First of all, the whole reappointment process lacked transparency and normality. There was no comprehensive parliamentary regulation of criteria, procedures and deadlines for reappointment. The final decision was left entirely to the discretion of the President of the Republic.

Secondly, the case in which Judge V. D. was participating required him to decide on the legal claims and liabilities of the ASITO Company. This Company, on account of its history and importance, did not entirely remain outside the Government ’ s sphere of interest.

Last, but certainly not least, the general context of the so-called post-communist countries should be kept in mind. Under the Communist regime, judges had, in almost all those countries, been “elected” for a limited period of time and decisions as to possible “re-election” remained vested with the executive branch. This system led to an almost total destruction of judicial independence. Any attempt to revive it, in one form or another, on a permanent or transitional basis, would be perceived as an attempt to restore old practices and would destroy public confidence in the independence of the judiciary.