DISSENTING OPINION OF JUDGE PACZOLAY

In this case the majority of the Chamber, despite the particular features of the case, was satisfied that the proceedings gave sufficient guarantees to exclude aby doubt in respect of the impartiality of the Court of Appeal. I understand the arguments of the judgment, however I cannot overlook the serious errors made by the Court of Appeal at the beginning of the procedure.

On 29 August 2016 the Court of Appeal, sitting as a bench of three judges, held an oral hearing in the presence of the applicant, and announced that it intended to deliver a decision within thirty days (see paragraph 8 of the judgment). In fact, not only the decision was not delivered in thirty days but not even in almost three months. In my view this is already in itself a serious violation of the fairness of the trial.

Instead of delivering the decision what happened was that Judge L., who was Acting Chief Justice replacing the President of the Court of Appeal for four-day term between 21 and 24 November, on 23 November decided that the case should be transferred to an extended composition of seven judges. The judgment itself acknowledges that there was no document explaining to the Court what prompted Judge L. at that time to transfer the case to an extended composition (paragraph 9 of the judgment). The actual and not the acting President of the Court of Appeal could have decided during almost a year to transfer the case.

The detailed explanations of the majority of the divided Supreme Court are sophisticated but do not justify neither the delay nor the reasons of the transfer, and especially its strange circumstances. Even the Government admits that the provision making possible the transfer to an enlarged chamber is regarded in the legal literature as ‘highly discretionary’ (paragraph 50 of the Government’s observations).

I agree with the reasoning of the majority that our Court is not a fourth instance court. Nevertheless, as emphasized by our Court, the power of appreciation is not unlimited. The domestic margin of appreciation thus goes hand in hand with a European supervision. Our Court under Article 6 is very severe in protecting the independence of judges. On the other hand, we should apply the same severity when adjudicating the fairness and impartiality of judges. We cannot ignore and overlook situations that might undermine the credibility of the judiciary.

One of the criteria applied by the Court is that not enough to be impartial, it also necessary to appear impartial. For me the behaviour of the Court of Appeal does not appear as impartial. In my evaluation the initial omission to deliver the decision, and the suspicious circumstances of the transfer to an extended chamber create such an original error that cannot be absolved by the Supreme Court. Therefore, with all my respect to the argumentation of the majority I could not conclude and vote for no violation.