European Court of Human Rights - case of Mežnarić v. Croatia (2005) (excerpts)

European Court of Human Rights - case of Mežnarić v. Croatia (2005) (excerpts)

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32.  In this respect even appearances may be of a certain importance or, in other words, “justice must not only be done, it must also be seen to be done” (see De Cubber v. Belgium, judgment of 26 October 1984, Series A no. 86, p. 14, § 26). What is at stake is the confidence which the courts in a democratic society must inspire in the public (see Wettstein v. Switzerland, loc. cit.; and Castillo Algar v. Spain, judgment of 28 October 1998, Reports 1998-VIII, p. 3116, § 45).

33.  The fact that a judge has acted in different capacities in the same case may in certain circumstances compromise a tribunal's impartiality. In Piersack v. Belgium (judgment of 1 October 1982, Series A no. 53, pp. 14-16, §§ 30-31) the fact that a judge had presided over a criminal trial after having been the head of the public prosecutor's office in charge of the prosecution in the case was capable of making the tribunal's impartiality open to doubt, in breach of Article 6 § 1 of the Convention. In Wettstein (cited above, § 47) there was an overlapping in time of two sets of proceedings in which R. exercised the function of judge in one case, and that of legal representative of the party opposing the applicant in the other. As a result, the applicant had reason for concern that Judge R. would continue to see him as the opposing party. The Court concluded that this situation could have raised legitimate fears in the applicant that Judge R. was not approaching the case with the requisite impartiality. Further, in Walston v. Norway ((dec.), no. 37372/97, 11 December 2001) the time-frame was regarded as relevant when assessing the significance of a judge's previous relationship to the opposing party.

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36.  However, unlike the cases cited above, the present case concerns the dual role of a judge in a single set of proceedings. This fact, reinforced by the involvement of Judge M.V.'s daughter, created, in the Court's view, a situation which was capable of raising legitimate doubts as to Judge M.V.'s impartiality.

37.  In these circumstances the Court finds that there has been a violation of Article 6 § 1 of the Convention as regards the requirement of an impartial tribunal.