DISSENTING OPINION OF JUDGE YUDKIVSKA

I regret that I am unable to follow the majority in finding a violation of Article 6 § 1 of the Convention as concerns the lack of impartiality of the Constitutional Court, and I find the approach adopted by the Chamber merely formalistic.

I am perfectly aware of, and have great respect for, the importance of “appearances”, the principle which is constantly followed in our case-law. The Court has many times reiterated that “justice must not only be done, it must also be seen to be done”. What is at stake is the confidence which the courts must inspire in the public in a democratic society (see De Cubber v. Belgium , 26 October 1984, § 26, Series A no. 86).

The principles concerning the impartiality of a judge who had already been involved at an earlier stage of the proceedings in a particular case were outlined in the case of Morel v. France (no. 34130/96, § 45, ECHR 2000 ‑ VI), in which the Court held as regards measures previously taken by a judge in such circumstances: “... [T]he mere fact that a judge has already taken pre-trial decisions cannot by itself be regarded as justifying concerns about his impartiality. What matters is the scope and nature of the measures taken by the judge before the trial. ...Nor does a preliminary analysis of the available information mean that the final analysis has been prejudged. What is important is for that analysis to be carried out when judgment is delivered and to be based on the evidence produced and argument heard at the hearing.”

In this connection I would refer to the Court ’ s judgment in the case of Mancel and Branquart v. France [1] , in which the assessment of the constituent elements of the same offence was carried out by an almost identically composed bench of the Court of Cassation in two successive appeals. The Court found a violation of Article 6 by a very narrow majority. The dissenting judges referred to Paul Martens ’ concept of the “tyranny of appearances” and stressed the very special status of the Court of Cassation in the French legal system.

In the instant case the majority went much further than in the case of Mancel and Branquart.

Undoubtedly, the participation of a judge in the assessment of a case in which he or she has previously been involved is unacceptable if the court is required to reassess the same facts and the same legal issues. Indeed, such a judge, to a certain extent, remains bound by the position he or she has already expressed in the case. Thus, his or her impartiality and objectivity can reasonably be challenged. But I believe this is not the case here.

In the present case Judge M.K. had participated in 1999 in a panel of three judges of the Higher Labour and Social Court which, on the basis of the facts as presented at that time, ordered the reinstatement of Ms N.N. That judgment was later quashed by the Supreme Court and the case was referred back to the Higher Labour and Social Court, which, with a panel including the same Judge M.K., remitted the case to the first-instance court because “the facts which had affected [the legal issue at stake] had not been duly established” (see paragraph 10 of the judgment). Thus, the panel admitted that it had taken its previous decision on the basis of doubtful facts. This means that the court (including Judge M.K.) implicitly accepted that the facts, once “duly established”, could lead to a different result.

Judge M.K. ’ s participation in the proceedings ended at this stage. Several more sets of the same proceedings took place without her, over a subsequent period lasting for more than seven years. The latest judgment was challenged before the Constitutional Court in May 2008, more than eight years after Judge M.K. ’ s involvement in the case in her capacity as a judge of the Labour and Social Court.

Unfortunately, the majority did not pay sufficient attention to the crucial – in my opinion – point of this case, namely the scope and nature of the applicant company ’ s constitutional appeal. Firstly, the applicant company complained that the principle of equality of arms had been breached (see paragraph 18). This purely procedural issue obviously concerned only the last set of proceedings (which took place from 2006 to 2008), with which Judge M.K. had nothing to do. Her impartiality in respect of this issue is not in question.

Secondly, the applicant company complained that “the labour courts ’ position ... contravened its free economic initiative enshrined in the Constitution”. So, if the issue before Judge M.K. in 1999 was simply whether or not disciplinary proceedings against N.N. were time-barred based on the relevant legislation and the practice regarding its application, in 2008 she had to analyse a completely different legal issue, namely whether the labour courts ’ existing practice in respect of the limitation period for disciplinary proceedings was in conformity with the constitutional provision guaranteeing free economic initiative . Although it is true that judges must apply legislation in the light of constitutional principles, an issue of “ free economic initiative ” was definitely not at stake before the labour court back in 1999.

Thus, I completely disagree with the majority ’ s findings that the “core issue complained of in the constitutional appeal proceedings entailed the question of whether disciplinary proceedings against N.N. had been time-barred” (see paragraph 39 of the judgment) and that “the examination of the case necessarily entailed ... reconsideration of earlier decisions upholding N.N. ’ s arguments” (paragraph 40). These conclusions do not correspond to the nature of the applicant company ’ s constitutional complaint as described in paragraph 18. Moreover, they do not correspond to the very special place the Constitutional Court occupies in the legal system of the State concerned. Whilst the labour court judges could only resort to an interpretation of the legislation in question and remained bound to observe it, the Constitutional Court judges could declare it null and void.

I also think that the lapse of time is a significant argument in the present case. Furthermore, I wonder whether the case file before the Constitutional Court included all decisions taken in this case or only the decisions adopted in the last set of proceedings. It is hard to imagine that after so many years, Judge M.K. could still remember this case (and the majority agreed with that aspect in paragraph 35).

In sum, I fail to see any legitimate doubts as to Judge M.K. ’ s impartiality – namely, that she could have held a preconceived idea as to the applicant company ’ s constitutional complaint. Not only were the proceedings in question significantly remote in time, but their subject matter was different.

“Worshipping at the altar of appearances”, to use the expression by Judge De Meyer [2] , was not justified in the present case.

[1] n o. 22349/06 , judgment of 24 June 2010

[2] See partly dissenting opinion of Judge De Meyer in the case of Ferrantelli and Santangelo v. Italy , judgment of 7 August 1996 .