CASE OF VAN ORSHOVEN v. BELGIUMCONCURRING OPINION OF JUDGE MIFSUD BONNICI

Doc ref: • ECHR ID:

Document date: June 25, 1997

Doc ref: • ECHR ID:

Document date: June 25, 1997

Cited paragraphs only

CONCURRING OPINION OF JUDGE MIFSUD BONNICI

I form part of the majority. However for the sake of

precision, I feel bound to note that I do not think it proper for the

judgment to contain in its obiter dicta the statements contained in

paragraph 38, that is to say, in the first place:

"... the procureur général's department acts with the

strictest objectivity."

The Court, in reality did not have the opportunity of examining

whether the procureur général acted objectively or otherwise. Indeed

it did not have to as that question was not before it. What was before

it was that, since the procureur général had to intervene in the case,

then the applicant had the right of reply. To state that that

intervention is carried out "with the strictest objectivity" not only

hands out an unwarranted blanket certificate on the permanent quality

and nature of the modus operandi of the procureur général, but it also

weakens the considerations on which the judgment is based because this

"strictest objectivity" once it exists would not justify the finding

of a violation which is anything else but formal.

The question is further loaded in this objectionable sense

when, in the same paragraph, the Court approves what it had said in

previous judgments:

"... regarding the independence and impartiality of the

Court of Cassation and its procureur général's department

remain wholly valid."

From my point of view, therefore, paragraph 38 should not form

part of the judgment.

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