DISSENTING OPINION OF JUDGE DEDOV

I am not satisfied with the analys i s of the impartiality issue made by the Court in this case. In paragraph 2 8 the Court note s that “ whether the Supreme Court panel examining the case for the second time could be considered to be a ‘ tribunal established by law ’ takes precedence over any doubts as to the objective impartiality of the judge ”, and then goes on to examine whether the composition of judges of the national Supreme Court was established in compliance with the requirements of the domestic law .

However, t he national Supreme Court quashed the decision of the lower court for l a ck of a factual basis to make a decision on the merits. In these circumstances the objective impartiality of a judge would be undermined only if the same judge had participate d in the examination of the case in a lower (or a higher ) court. So security measures to protect the objective impartiality of judges should be created in such a manner as to ensure that the same judge cannot supervise , or be supervised by , himself , and thus to avoid a conflict of interest. As it appears from the case file , the judge concerned acted twice in the same capacity.

The Court was reluctant to interpret the domestic law as being intended to avoid such conflicts of interest , although there was nothing to prevent it from doing so, as Article 109.1.6 of the Code of Criminal Procedure (see paragraph 12 of the judgment) is worded in very broad terms . Such a formalistic approach could adversely affect the functioning of the national judicial system s of the Contracting State s and raise difficulties without any reasonable and proportional basis.