DISSENTING OPINION OF JUDGE SABATO

1 . In one set of proceedings (“the second set of proceedings” – see paragraphs 17 et seq. of the majority ’ s judgment) the applicant filed a request for the recusal (also referred to as disqualification or withdrawal) of a judge of the Pazin Minor Offences Court who was to rule on the challenge against a fine that the applicant had been given for traffic violations. The judge wrote a statement for the attention of the president of the court in which he acknowledged that he had been in conflict with the applicant ’ s mother, herself a member of the judiciary. On 14 June 2012 the president of the court endorsed the disqualification of the judge, who did not hear the case.

2 . In a different set of proceedings (“the first set of proceedings” – see paragraphs 6 et seq. of the judgment) another penalty for traffic violations had been challenged before the Pazin Minor Offences Court. On 13 June 2012, in the framework of this challenge, the same judge – whose disqualification would be endorsed the next day by the president of the court in the second set of proceedings – summoned the person concerned for a hearing to be held on 6 July 2012. The person did not appear at this hearing. On the same day the penalty was upheld by the judge.

3 . As I will state below, in my opinion it is uncertain whether the judge realised – at the time of issuing the summons, at the hearing, or later – that the person who challenged the fine in the first set of proceedings was the same person who had previously requested his withdrawal in the second set of proceedings, that is to say, the applicant before our Court, whose mother was not on good terms with the judge. It is a small world after all.

4 . The majority found (see paragraph 45 of the judgment) that it was unnecessary to establish whether the applicant, as he claimed, had actually lodged a request for the judge ’ s disqualification in this different (first) set of proceedings or whether, as the respondent State expressly objected in their observations of 18 January 2016 and 31 March 2016, no such request had ever been submitted. I regret that I cannot agree. I consider – again, for the reasons I will state below – that it was indeed necessary to establish the facts and that, since the Government expressly objected that the applicant had not filed a request for recusal, the rule of the burden of proof should have led to a finding that no request for recusal existed (see paragraph 24 of the majority ’ s judgment). The Government noted that the applicant claimed to have sent a fax asking for the judge ’ s withdrawal, without then appearing at the hearing, but never filed a fax transmission report with our Court. The Government, for their part, produced excerpts of the log from the local court ’ s electronic filing system, containing no mention of the fax.

5 . Having said this, I prefer not to deal with the objection – which the Government also clearly raised in their observations of 18 January 2016 and 31 March 2016 – that, because the applicant had omitted to lodge a request for recusal, domestic remedies had not been exhausted. Dealing with this issue, in fact, would involve complex assessments in law and in fact, including with regard to the role of recusal of judges vis-à-vis self ‑ disqualification in the domestic system, as well as the nature (in the light of its effectiveness) of the complaint which the applicant, instead of filing a request for recusal, brought before the Constitutional Court of Croatia seeking the setting-aside of the Pazin court ’ s judgment of 6 July 2012 (see, mutatis mutandis, with reference to a different constitutional-law framework, Horvat v. Croatia , no. 51585/99, §§ 41-45, 26 July 2001). Such complex assessments are made unnecessary by the approach I will take as to the object of the applicant ’ s complaint before our Court and the extent of our Court ’ s assessment of judicial impartiality. I will nonetheless discuss a few general implications of the need for a request for the recusal of a judge – if such a remedy is available at the domestic level – to be brought in the domestic courts before an issue of judicial impartiality is raised before our Court.

6 . My approach differs radically from the one adopted by the majority of the Chamber in determining the object of the applicant ’ s complaint before our Court. I find that the applicant did not complain – at least, not directly – of a possible violation of Article 6 § 1 of the Convention deriving from the fact that the judge did not withdraw from the case (in the first set of proceedings), after he had agreed to withdraw in another case (in the second set of proceedings). On the contrary, the applicant stated clearly that, in his view, it was the decision of the Constitutional Court of the Republic of Croatia of 17 October 2012 which was in violation of Article 6 § 1 of the Convention, since that court had allegedly neglected to consider that the Pazin court ’ s decision had been taken by a partial judge and thereby infringed the domestic Constitution (Article 29). Furthermore, the applicant assumed that the Constitutional Court “[had] not read” his complaint, as the allegedly “superficial” reasoning that it gave stated that no fundamental right was at stake (whereas, according to the applicant, the issue of judicial impartiality had been clearly argued by him). Consequently, the applicant sought the “overturning” of both the Constitutional Court ’ s and the Pazin court ’ s decisions, as well as the reopening of the proceedings.

7 . In its decision of 17 October 2012, in my reading of it, the Constitutional Court ruled that no specific violations of human rights and fundamental freedoms were to be found in the judgment of the Pazin court. In my opinion (which, again, differs from that of the majority), this decision is in full conformity with Article 6 § 1 of the Convention as far as the principle of judicial impartiality is concerned. Such conformity may be affirmed on two grounds: firstly, because the decision was itself taken by a “tribunal” meeting the requirements of Article 6 § 1 (since no doubt at all has been cast on the fact that the Constitutional Court judges were impartial); and, secondly, because the issue of the impartiality of the Pazin court, brought to the attention of a Constitutional Court with the power to quash the allegedly unlawful judgment (see, for instance, mutatis mutandis, Süssmann v. Germany [GC], no. 20024/92, § 41 et. seq., and in particular § 43, ECHR 1996-IV; Kyprianou v. Cyprus [GC], no. 73797/01, § 134, ECHR 2005-XIII; and Micallef v. Malta [GC], no. 17056/06, § 57, ECHR 2009), had been resolved within the domestic system by a decision rejecting the applicant ’ s arguments.

8 . The Constitutional Court ’ s proceedings, in my view, are one example of the many national remedial mechanisms aiming at establishing whether the judex suspectus is or is not impartial. The most common remedy, however, is a request for recusal, the omission of which has been noted by the Government. Regardless of the differences between such remedies, the case-law of our Court states that the existence of national procedures for ensuring impartiality, namely rules governing the withdrawal of judges, is a relevant factor in assessing the impartiality of national tribunals. As our Court has found in the past, such rules manifest the national legislature ’ s concern to remove all reasonable doubts as to the impartiality of the judge and constitute an attempt to ensure impartiality by eliminating the causes of such concerns. In addition to ensuring the absence of actual bias, they are directed at removing any appearance of partiality, and so serve to promote the confidence which the courts in a democratic society must inspire in the public. Our Court takes such rules into account when making its own assessment as to whether a tribunal was impartial and, in particular, whether the applicant ’ s fears can be held to be objectively justified (see, for instance, mutatis mutandis , Pescador Valero v. Spain , no. 62435/00 , §§ 24-29, ECHR 2003-VII; Micallef , cited above, § 99; and Pasquini v. San Marino , no. 50956/16, § 144, 2 May 2019).

9 . The majority of the Chamber substantially disagreed with the assessment made by the domestic Constitutional Court. Making their own assessment as to whether the Pazin court was impartial, they considered insufficient the fact that there had been a domestic review of the issue and, in the circumstances of the case, held that Article 6 § 1 of the Convention required that the judge should have disqualified himself (as I mentioned, the majority considered it unnecessary to ascertain whether a recusal had been requested). I respectfully dissent for reasons of fact and law.

10 . As to the facts, I would suggest that, since no request for recusal had been submitted to the judge (see above, regarding the total lack of evidence), and neither the applicant nor his counsel appeared at the hearing to challenge the court ’ s impartiality, it may well be that the judge was totally unaware that the person whose case he was trying in absentia on 6 July 2012 was the same person whose mother he had admitted not being on friendly terms with. Aside from the possible difficulty of identifying persons by name only, one should also consider that the applicant has a surname different from his mother ’ s and that in the previous set of proceedings the judge had been able to recognise the applicant as his mother ’ s son only after a recusal clarifying the issue had been filed with the court. In saying this, I regret that I further disagree with my distinguished colleagues of the majority, who found that the judge had been aware of the circumstances and should therefore have reported the situation to the president of the court (see paragraph 45 of the judgment). I do not need to recall, in this context, the reasons for which the personal impartiality of the judge is presumed. However, I do need to state that, in my opinion, the previous withdrawal from another case, in the particular setting of that case (which was conducted in a “small claims” court and in absentia ), cannot constitute enough evidence to rebut this presumption.

11 . This consideration, taken together with the finding that the reason for possible withdrawal was indicated as a mere alleged animosity deriving from a lack of communication in a professional environment, leads me to conclude that the facts by themselves show that a better decision would have been to abide by the domestic ruling: no violation of Article 6 § 1 should have been found.

12 . But, as I mentioned, there are also issues at law to be considered, concerning the extent to which our Court, in my opinion, should review the national assessment of judges ’ impartiality by other judges (for example, judges hearing recusal cases, or judges before whom a decision is impugned for reasons relating to alleged bias of the court which gave a previous decision). In my opinion, failure to comply with the rules concerning self ‑ disqualification should in principle constitute sufficient reason for the parties to request a recusal, so that, in the absence of such a request by the interested party, any impact of the aforementioned failure on the lawfulness of the proceedings and decision, as well as on their compliance with Article 6 § 1, should normally be excluded.

13 . I should recall that, adopting this line of interpretation of Article 6 § 1 as regards judicial impartiality, our Court has held as follows ( Zahirović v. Croatia , no. 58590/11, § 35-36, 25 April 2013):

“ ... when the domestic law offers a possibility of eliminating the causes for concerns regarding the impartiality of the court or a judge ... , it would be expected (and in terms of the national law required) of an applicant who truly believes that there are arguable concerns on that account to raise them at the first opportunity. This would above all allow the domestic authorities to examine the applicant ’ s complaints at the relevant time and ensure that his rights are respected. ... In the present case, however, the applicant failed to use the opportunity to submit his complaints about the ... alleged lack of impartiality at the trial stage of the proceedings. Therefore, owing to that failure, the Court is not able to conclude that the alleged procedural defect complained of interfered with the applicant ’ s right to a fair trial ... ”

I subscribe to this principle and, in doing so, I respectfully disagree with the majority of the Chamber, who took the view that the case at hand was to be distinguished from Zahirović and other similar case-law. I would have applied the Zahirović standard to the case at hand.

14 . The impartiality of judges is, however, too delicate a topic to be left to procedural law alone. Since the Zahirović standard is substantially a procedural one, I must admit that in some exceptional instances the procedural defect linked to the lack of impartiality could interfere with the right to a fair trial, and consequently could entail a violation of Article 6 § 1, even if the applicant had failed to raise his or her concerns by using an appropriate remedy in the domestic system. One example that comes to mind is that of a member of the judiciary deciding a case even if he or she has a direct and personal interest in it, placing him or her substantially in the position of a party to the proceedings. In such cases the violation would be blatant, in that the decision was given a non iudice, that is, by a tribunal so evidently lacking impartiality that the decision was in rem propriam .

15 . A final remark concerns the link between the impartiality and independence of judges, the importance of which our Court has often underlined. In view of this link, I would not underestimate the risk to the independence of national judges which the majority ’ s decision entails. Litigants who have not duly requested the recusal of a judge in their domestic system might raise issues of bias directly before our Court, even on the basis of minor suspicions different from the serious ones I just mentioned. In most systems, the delicate position of the judge is protected from suspicions of bias raised at a late stage by the provision of specific remedies subject to strict deadlines for challenging impartiality, which otherwise is to be presumed. A judge whose impartiality is subject to public scrutiny for too long is less independent, as he or she may fear that, at all stages of the procedure, justice administered by a judge may be transformed into justice trying the judge. It is true that, in the case at hand, the Croatian system offered a domestic remedy in the form of a complaint to the Constitutional Court (a complaint whose role, as I said, could be further clarified vis-à-vis the role of a request for recusal). But this is not true for all European systems, in many of which the only remedy is an application for recusal (and, if recusal is not requested, bias may no longer be a ground for appeal). The non-existence in many countries of domestic remedies other than an application for recusal, therefore, entails the danger – given that the majority substantially considered a previous application for recusal to be unnecessary – that national judges may be placed in the uncomfortable situation of seeing their impartiality directly challenged in Strasbourg.