PARTLY DISSENTING OPINION OF JUDGE DEDOV

I regret that I could not agree with the majority on one small issue (admissibility of complaint relating to impartiality of judge A.) which may, however, lead to serious consequences as regards access to the courts at domestic and international levels.

Domestic remedies and the absolute character of impartiality

Needless to say, the impartial court is a fundamental value for the maintaining of democracy and the rule of law. A violation of the right to a fair trial by an impartial court should normally lead to the annulment of the verdict on procedural grounds and the consequent rehearing of the case. Therefore, such a complaint should survive throughout the domestic proceedings.

In the present case, the applicant appealed to the Supreme Court and the Constitutional Court complaining of a lack of impartiality on the part of judges A. and Sa. Both supreme courts found that the applicant had failed to exhaust previous domestic remedies under section 223 of the Organic Law on the Judiciary, as he had not sought the judges ’ withdrawal at the start of the proceedings.

There is too much inconsistency in the Chamber ’ s reaction to those developments. The Supreme Court stated that the decision by judge A. requesting additional investigation and the relationship with a university of judge Sa. could not have undermined the objective impartiality of those judges during the trial. However, the Chamber decided differently as to the admissibility of the applicant ’ s complaints in respect of each judge.

I believe that the absolute nature of the right to an impartial court requires examination of such a complaint at any stage of judicial supervision, because (i) a failure to challenge a judge ’ s presence in the trial court of first instance should not prevent the applicant from appealing on impartiality as a point of law before the national supreme courts, and (ii) because the national supreme courts continue to provide effective domestic remedies for the purposes of the proceedings before this Court. Therefore, the applicant has exhausted domestic remedies in respect of judge A.

Consistency with the case-law

There are some examples as to how impartiality could be examined on the merits without any barriers.

In Margu Å¡ v. Croatia ([GC], no. 4455/10, 27 May 2014) the Court (Chamber and Grand Chamber) examined the complaint on the merits and reiterated that the mere fact that a trial judge had made previous decisions concerning the same offence could not be found, in itself, to justify fears as to a lack of impartiality in respect of the pre-trial decisions. Moreover, in that case the applicant had used the domestic remedies only at the level of the Supreme Court (see paragraphs 24 and 84-89 of the Margu Å¡ judgment).

Paragraph 85 of the Margu Å¡ judgment refers, inter alia , to the decision of the Court in the case of Romero Martin v. Spain ((dec.), no. 32045/03, 12 June 2006) where the circumstances were similar to those of the present case (the applicant had not sought the withdrawal of judges in the lower courts), but where, by contrast, the national supreme courts and this Court examined the merits of the complaint on the basis of both subjective and objective criteria and found it unsubstantiated.

Lastly, in the Pinochet case ( In Re Pinochet [1999] UKHL 52) , the impartiality of one of the judges in the United Kingdom ’ s House of Lords was successfully challenged in spite of the fact that information about links between a participant and the judge was publicly available from the outset.

Principle

In the present case, I believe that participation in pre-trial decisions should not prevent the examination of the merits by the same judge, and I agree with the conclusion of the Supreme Court, which I cannot consider a “mere observation” as proposed by the majority in paragraph 27 of the judgment. However, the application of the same admissibility approach in another case could entail the risk that a violation of the right to a fair trial might never be found, even if the circumstances are evident.

It is clear from section 223 of the Organic Law on the Judiciary that the challenging of a judge ’ s participation can only be used as a procedural instrument within the proceedings in the trial court. After the decision is issued, the withdrawal of the judge from the trial is technically impossible. However, consequently, the applicant should not be prevented from using another procedural instrument, namely, an appeal on impartiality as a point of law.

As was stressed in the decision of the House of Lords, Pinochet ’ s “claim was based on the requirement that justice should be seen to be done as well as actually being done”. Justice is two-fold in this context: if there is a risk that the judge is biased, the applicant ’ s obligation to challenge the judge is balanced by the judge ’ s responsibility to withdraw from the case before the trial starts. But the protection of justice must not be forgotten afterwards, within the judicial supervisory review process.