Right of Access to a Court
Article 6.1 of the Convention
“1. In the determination of … any criminal charge against him, everyone is entitled to a … hearing … by [a] tribunal …”
10. The “right to a court” is no more absolute in criminal than in civil matters. It is subject to implied limitations (Deweer v. Belgium, 1980,.49; Kart v. Turkey [GC], 2009,.67).
However, these limitations must not restrict the exercise of the right in such a way or to such an extent that the very essence of the right is impaired. They must pursue a legitimate aim and there must be a reasonable proportionality between the means employed and the aim sought to be achieved.
The guarantees offered by both types of parliamentary immunity (non-liability and inviolability) serve the same need – that of ensuring the independence of Parliament in the performance of its task. Without a doubt, inviolability helps to achieve the full independence of Parliament by preventing any possibility of politically motivated criminal proceedings and thereby protecting the opposition from pressure or abuse on the part of the majority (Kart v. Turkey [GC], 2009,.90, citing references to civil cases). Furthermore, bringing proceedings against members of parliament may affect the very functioning of the assembly to which they belong and disrupt Parliament’s work. This system of immunity, constituting an exception to the ordinary law, can therefore be regarded as pursuing a legitimate aim (ibid.,.91).
However, without considering the circumstances of the case no conclusions can be drawn as to the compatibility with the Convention of this finding of the legitimacy of parliamentary immunity. It must be ascertained whether parliamentary immunity has restricted the right of access to a court in such a way that the very essence of that right is impaired. Reviewing the proportionality of such a measure means taking into account the fair balance which has to be struck between the general interest in preserving Parliament’s integrity and the applicant’s individual interest in having his parliamentary immunity lifted in order to answer the criminal charges against him in court. In examining the issue of proportionality, the Court must pay particular attention to the scope of the immunity in the case before it (ibid., §§ 92-93). The less the protective measure serves to preserve the integrity of Parliament, the more compelling its justification must be. Thus, for example, the Court has held that the inability of a member of parliament to waive his immunity did not infringe his right to a court, since the immunity was simply a temporary procedural obstacle to the criminal proceedings, being limited to the duration of his term of parliamentary office (ibid., §§ 92-93, 95 and §§ 111-113).
These are, for example, the admissibility requirements for an appeal. Article 6 of the Convention does not compel the Contracting States to set up courts of appeal or of cassation (Dorado Baúlde
v. Spain (dec.), 2015,.18). However, where such courts do exist, the guarantees of Article 6 must be complied with, for instance in that it guarantees to an applicant an effective right of access to the court (Maresti v. Croatia, 2009,.33; Reichman v. France, 2016,.29).
Although the right of appeal may of course be subject to statutory requirements, when applying procedural rules the courts must avoid excessive formalism that would infringe the fairness of the proceedings (Walchli v. France, 2007,.29; Evaggelou v. Greece, 2011,.23). The particularly strict application of a procedural rule may sometimes impair the very essence of the right of access to a court (Labergère v. France, 2006,.23), particularly in view of the importance of the appeal and what is at stake in the proceedings for an applicant who has been sentenced to a long term of imprisonment (ibid.,.20).
The right of access to a court is also fundamentally impaired by a procedural irregularity, for example where a prosecution service official responsible for verifying the admissibility of appeals against fines or applications for exemptions acted ultra vires by ruling on the merits of an appeal himself, thus depriving the applicants of the opportunity to have the “charge” in question determined by a community judge (Josseaume v. France, 2012,.32).
The same applies where a decision declaring an appeal inadmissible on erroneous grounds led to the retention of the deposit equivalent to the amount of the standard fine, with the result that the fine was considered to have been paid and the prosecution was discontinued, making it impossible for the applicant, once he had paid the fine, to contest before a “tribunal” the road-traffic offence of which he was accused (Célice v. France, 2012,.34).
A further example: the applicant suffered an excessive restriction of his right of access to a court where his appeal on points of law was declared inadmissible for failure to comply with the statutory time-limits, when this failure was due to the defective manner in which the authorities had discharged their obligation to serve the lower court’s decision on the applicant (Davran v. Turkey, 2009, §§ 40- 47; Maresti v. Croatia, 2009, §§ 33-43, contrast with Johansen v. Germany, 2016, §§ 46-57).
Requirement of enforcement of a previous decision
As regards the automatic inadmissibility of appeals on points of law lodged by appellants who have failed to surrender to custody although warrants have been issued for their arrest:
- where an appeal on points of law is declared inadmissible on grounds connected with the applicant’s having absconded, this amounts to a disproportionate sanction, having regard to the signal importance of the rights of the defence and of the principle of the rule of law in a democratic society (Poitrimol v. France, 1993,.38; Guérin v. France [GC], 1998,.45; Omar v. France [GC], 1998,.42);
- where an appeal on points of law is declared inadmissible solely because the appellant has not surrendered to custody pursuant to the judicial decision challenged in the appeal, this ruling compels the appellant to subject himself in advance to the deprivation of liberty resulting from the impugned decision, although that decision cannot be considered final until the appeal has been decided or the time-limit for lodging an appeal has expired. This imposes a disproportionate burden on the appellant, thus upsetting the fair balance that must be struck between the legitimate concern to ensure that judicial decisions are enforced, on the one hand, and the right of access to the Court of Cassation and the exercise of the rights of the defence on the other (ibid., §§ 40-41; Guérin v. France [GC], 1998,.43).
The same applies where the right to appeal on points of law is forfeited because of failure to comply with the obligation to surrender to custody (Khalfaoui v. France, 1999,.46; Papon v. France (no. 2), 2002,.100).
However, the requirement to lodge a deposit before appealing against a speeding fine – the aim of this requirement being to prevent dilatory or vexatious appeals in the sphere of road-traffic offences – may constitute a legitimate and proportionate restriction on the right of access to a court (Schneider v. France (dec.), 2009).
They may occur, for example, where an accused person is persuaded by the authorities to withdraw an appeal on the basis of a false promise of remission of the sentence imposed by the first- instance court (Marpa Zeeland B.V. and Metal Welding B.V. v. the Netherlands, 2004, §§ 46-51); or where a court of appeal has failed to inform an accused person of a fresh time-limit for lodging an appeal on points of law following the refusal of his officially assigned counsel to assist him (Kulikowski v. Poland, 2009,.70).
There will also be a restriction on access to court if an applicant is unable to challenge a fine imposed by an administrative authority before a tribunal having sufficient power of review of the administrative decision (Julius Kloiber Schlachthof GmbH and Others v. Austria, 2013, §§ 28-34).
General guarantees: institutional requirements
Article 6.1 of the Convention
“1. In the determination of … any criminal charge against him, everyone is entitled to a … hearing … by an independent and impartial tribunal established by law ”
The concept of a “tribunal established by law”, together with the concepts of “independence” and “impartiality” of a tribunal, forms part of the “institutional requirements” of Article 6.1. In the Court’s case-law, there is a very close interrelationship between these concepts (Guðmundur Andri Ástráðsson v. Iceland [GC], 2020,.218).
The Court has held, in particular, that a judicial body which does not satisfy the requirements of independence – in particular from the executive – and of impartiality may not even be characterised as a “tribunal” for the purposes of Article 6.1. Similarly, when determining whether a “tribunal” is “established by law”, the reference to “law” comprises any provision of domestic law – including, in particular, provisions concerning the independence of the members of a court – which, if breached, would render the participation of one or more judges in the examination of a case “irregular”.
Moreover, when establishing whether a court can be considered to be “independent” within the meaning of Article 6.1, the Court has regard, inter alia, to the manner of appointment of its members, which pertains to the domain of the establishment of a “tribunal”. Accordingly, while they each serve specific purposes as distinct fair trial guarantees, there is a common thread running through the institutional requirements of Article 6.1, in that they are guided by the aim of upholding the fundamental principles of the rule of law and the separation of powers .
The Notion of a “tribunal”
In the Court’s case-law a tribunal is characterised in the substantive sense of the term by its judicial function, that is to say, determining matters within its competence on the basis of rules of law and after proceedings conducted in a prescribed manner. It must also satisfy a series of further requirements – independence, in particular of the executive; impartiality; duration of its members’ terms of office; guarantees afforded by its procedure – several of which appear in the text of Article 6.1 itself (Belilos v. Switzerland, 1988,.64; Coëme and Others v. Belgium, 2000,.99; Richert v. Poland, 2011,.43). In addition, it is inherent in the very notion of a “tribunal” that it be composed of judges selected on the basis of merit – that is, judges who fulfil the requirements of technical competence and moral integrity to perform the judicial functions required of it in a State governed by the rule of law (Guðmundur Andri Ástráðsson v. Iceland [GC], 2020, §§ 219-220 and 232).
Thus, for instance, conferring the prosecution and punishment of minor “criminal” offences on administrative authorities is not inconsistent with the Convention provided that the person concerned is enabled to take any decision thus made against him before a tribunal that does offer the guarantees of Article 6 (Öztürk v. Germany, 1984,.56; A. Menarini Diagnostics S.R.L. v. Italy, 2011; Flisar v. Slovenia, 2018,.33). Therefore, decisions taken by administrative authorities which do not themselves satisfy the requirements of Article 6.1 of the Convention must be subject to subsequent review by a “judicial body that has full jurisdiction”. The defining characteristics of such a body include the power to quash in all respects, on questions of fact and law, the decision of the body below (Schmautzer v. Austria, 1995,.36; Gradinger v. Austria, 1995,.44; Grande Stevens and Others v. Italy, 2014,.139): for instance, administrative courts carrying out a judicial review that went beyond a “formal” review of legality and included a detailed analysis of the appropriateness and proportionality of the penalty imposed by the administrative authority (A. Menarini Diagnostics S.R.L. v. Italy, 2011, §§ 63-67, in respect of a fine imposed by an independent regulatory authority in charge of competition). Similarly, a judicial review may satisfy Article 6 requirements even if it is the law itself which determines the sanction in accordance with the seriousness of the offence (Malige v. France, 1998, §§ 46-51, in respect of the deduction of points from a driving licence).
The power to give a binding decision which may not be altered by a non-judicial authority is inherent in the very notion of “tribunal” (Findlay v. the United Kingdom, 1997,.77).
Tribunal established by Law
Under Article 6.1 of the Convention, a tribunal must always be “established by law”. This expression reflects the principle of the rule of law, which is inherent in the system of protection established by the Convention and its Protocols (Jorgic v. Germany, 2007,.64; Richert v. Poland, 2011,.41). Indeed, an organ not established according to the legislation would be deprived of the legitimacy required, in a democratic society, to hear individual complaints (Lavents v. Latvia, 2002,
§ 114; Gorgiladze v. Georgia, 2009,.67; Kontalexis v. Greece, 2011,.38).
“Law”, within the meaning of Article 6.1, comprises in particular the legislation on the establishment and competence of judicial organs (Lavents v. Latvia, 2002,.114; Richert v. Poland, 2011,.41; Jorgic v. Germany, 2007,.64) but also any other provision of domestic law which, if breached, would render the participation of one or more judges in the examination of a case unlawful (Pandjikidze and Others v. Georgia, 2009,.104; Gorgiladze v. Georgia, 2009,.68). The phrase “established by law” covers not only the legal basis for the very existence of a tribunal, but also compliance by the tribunal with the particular rules that govern it (ibid.), and the composition of the bench in each case (Posokhov v. Russia, 2003,.39; Fatullayev v. Azerbaijan, 2010,.144; Kontalexis v. Greece, 2011,.42). Moreover, having regard to its fundamental implications for the proper functioning and the legitimacy of the judiciary in a democratic State governed by the rule of law, the Court has found that the process of appointing judges necessarily constitutes an inherent element of the concept of the “establishment” of a court or tribunal “by law” (Guðmundur Andri Ástráðsson v. Iceland [GC], 2020,.227).
Accordingly, if a tribunal does not have jurisdiction to try a defendant in accordance with the provisions applicable under domestic law, it is not “established by law” within the meaning of Article 6.1 (Richert v. Poland, 2011,.41; Jorgic v. Germany, 2007,.64).
The object of the term “established by law” in Article 6 “is to ensure that the judicial organisation in a democratic society does not depend on the discretion of the executive, but that it is regulated by law emanating from Parliament” (Richert v. Poland, 2011,.42; Coëme and Others v. Belgium, 2000,
§ 98). Nor, in countries where the law is codified, can the organisation of the judicial system be left to the discretion of the judicial authorities, although this does not mean that the courts do not have some latitude to interpret relevant domestic legislation (ibid.; Gorgiladze v. Georgia, 2009,.69).
In principle, a violation of the domestic legal provisions on the establishment and competence of judicial organs by a tribunal gives rise to a violation of Article 6.1 (see Tempel v. the Czech Republic, 2020, where the issues relating to the assignment of the competence of a tribunal were examined from the perspective of the general fairness of the proceedings). The Court is therefore competent to examine whether the national law has been complied with in this respect. However, in general, having regard to the general principle that it is in the first place for the national courts themselves to interpret the provisions of domestic law, the Court will not question their interpretation unless there has been a flagrant violation of domestic law (Coëme and Others v. Belgium, 2000,.98 in fine; Lavents v. Latvia, 2002,.114; Guðmundur Andri Ástráðsson v. Iceland [GC], 2020, §§ 216 and 242). The Court’s task is therefore limited to examining whether reasonable grounds existed for the authorities to establish jurisdiction (Jorgic v. Germany, 2007,.65).
The Court has further explained that the examination under the “tribunal established by law” requirement must not lose sight of the common purpose of the institutional requirements of Article 6 § 1 and must systematically enquire whether the alleged irregularity in a given case was of such gravity as to undermine the aforementioned fundamental principles and to compromise the independence of the court in question. “Independence” refers, in this connection, to the necessary personal and institutional independence that is required for impartial decision making, and it is thus a prerequisite for impartiality. It characterises both (i) a state of mind, which denotes a judge’s imperviousness to external pressure as a matter of moral integrity, and (ii) a set of institutional and operational arrangements – involving both a procedure by which judges can be appointed in a manner that ensures their independence and selection criteria based on merit –, which must provide safeguards against undue influence and/or unfettered discretion of the other State powers, both at the initial stage of the appointment of a judge and during the exercise of his or her duties (Guðmundur Andri Ástráðsson v. Iceland [GC], 2020,.234).
In this context, the Court has also noted that a finding that a court is not a “tribunal established by law” may have considerable ramifications for the principles of legal certainty and irremovability of judges. However, upholding those principles at all costs, and at the expense of the requirements of “a tribunal established by law”, may in certain circumstances inflict even further harm on the rule of law and on public confidence in the judiciary. As in all cases where the fundamental principles of the Convention come into conflict, a balance must therefore be struck in such instances to determine whether there is a pressing need – of a substantial and compelling character – justifying the departure from the principle of legal certainty and the force of res judicata and the principle of irremovability of judges, as relevant, in the particular circumstances of a case (ibid.,.240).
As regards the alleged breaches of the “tribunal established by law” requirement in relation to the process of appointing judges, the Court has devised the following criteria which, taken cumulatively, provide a basis to guide its assessment (ibid., §§ 243-252):
– In the first place, there must, in principle, be a manifest breach of domestic law in the sense that it must be objectively and genuinely identifiable. However, the absence of such a breach does not rule out the possibility of a violation, since a procedure that is seemingly in compliance with the rules may nevertheless produce results that are incompatible with the above object and purpose;
– Secondly, only those breaches that relate to the fundamental rules of the procedure for appointing judges (that is, breaches that affect the essence of the right in question) are likely to result in a violation: for example, the appointment of a person as judge who did not fulfil the relevant eligibility criteria or breaches that may otherwise undermine the purpose and effect of the “established by law” requirement. Accordingly, breaches of a purely technical nature fall below the relevant threshold;
– Thirdly, the review by domestic courts, of the legal consequences of a breach of a domestic rule on judicial appointments, must be carried out on the basis of the relevant Convention standards. In particular, a fair and proportionate balance has to be struck to determine whether there was a pressing need, of a substantial and compelling character, justifying the departure from competing principles of legal certainty and irremovability of judges, as relevant, in the particular circumstances of a case. With the passage of time, the preservation of legal certainty would carry increasing weight in the balancing exercise.
In Guðmundur Andri Ástráðsson v. Iceland [GC], 2020, applying the above test, the Court found that the very essence of the applicant’s right to a “tribunal established by law” had been impaired on account of the participation in his trial of a judge whose appointment procedure had been vitiated by a manifest and grave breach of a fundamental domestic rule intended to limit the influence of the executive and strengthen the independence of the judiciary. The first and second criteria were thereby satisfied. As to the third criteria, the Supreme Court had failed to carry out a Convention compliant assessment and to strike the right balance between the relevant competing principles, although the impugned irregularities had been established even before the judges at issue had taken office. Nor had it responded to any of the applicant’s highly pertinent arguments. The restraint displayed by the Supreme Court in examining the applicant’s case had undermined the significant role played by the judiciary in maintaining the checks and balances inherent in the separation of powers.
Independence and impartiality
The right to a fair trial in Article 6.1 requires that a case be heard by an “independent and impartial tribunal” established by law. There is a close link between the concepts of independence and objective impartiality. For this reason the Court commonly considers the two requirements together (Findlay v. the United Kingdom, 1997,.73).
The principles applicable when determining whether a tribunal can be considered “independent and impartial” apply equally to professional judges, lay judges and jurors (Holm v. Sweden, 1993,.30).
However, the guarantees of independence and impartiality under Article 6.1 concern only the body called upon to decide on the criminal charge against an applicant and do not apply to the representatives of the prosecution who are only parties to the proceedings (Kontalexis v. Greece, 2011,.57; Haarde v. Iceland, 2017,.94; Thiam v. France, 2018,.71).
Article 6.1 of the Convention requires independence from the other branches of power – that is, the executive and the legislature – and also from the parties (Ninn-Hansen v. Denmark (dec.), 1999).
Although the notion of the separation of powers between the political organs of government and the judiciary has assumed growing importance in the Court’s case-law, neither Article 6 nor any other provision of the Convention requires States to comply with any theoretical constitutional concepts regarding the permissible limits of the powers’ interaction. The question is always whether, in a given case, the requirements of the Convention are met (Henryk Urban and Ryszard Urban v. Poland, 2010,.
Compliance with the requirement of independence is assessed, in particular, on the basis of statutory criteria (Mustafa Tunç and Fecire Tunç v. Turkey [GC], 2015,.221). In determining whether a body can be considered to be “independent” the Court has had regard to the following criteria (Findlay v. the United Kingdom, 1997,.73):
i. the manner of appointment of its members and
ii. the duration of their term of office;
iii. the existence of guarantees against outside pressures;
iv. whether the body presents an appearance of independence.
Manner of appointment of a body’s members
The mere appointment of judges by Parliament cannot be seen to cast doubt on their independence (Filippini v. San Marino (dec.), 2003; Ninn-Hansen v. Denmark (dec.), 1999)
Similarly, appointment of judges by the executive is permissible, provided that appointees are free from influence or pressure when carrying out their adjudicatory role (Henryk Urban and Ryszard Urban v. Poland, 2010,.49; Campbell and Fell v. the United Kingdom, 1984,.79; Maktouf and Damjanović v. Bosnia and Herzegovina [GC], 2013,.49).
Although the assignment of a case to a particular judge or court falls within the margin of appreciation enjoyed by the domestic authorities in such matters, the Court must be satisfied that this was compatible with Article 6.1, and, in particular, with its requirements of independence and impartiality (Moiseyev v. Russia, 2008,.176).
Duration of appointment of a body’s members
No particular term of office has been specified as a necessary minimum. Irremovability of judges during their term of office must in general be considered a corollary of their independence. However, the absence of formal recognition of this irremovability in the law does not in itself imply lack of independence provided that it is recognised in fact and that other necessary guarantees are present (Campbell and Fell v. the United Kingdom, 1984,.80).
The presence of seconded international judges for a renewable two year term of office on the bench of a court ruling on war crimes was considered understandable given the provisional nature of the international presence in the country and the mechanics of international secondments (Maktouf and Damjanović v. Bosnia and Herzegovina [GC], 2013,.51).
Guarantees against outside pressure
Judicial independence demands that individual judges be free from undue influences outside the judiciary, and from within. Internal judicial independence requires that they be free from directives or pressures from fellow judges or those who have administrative responsibilities in the court, such as the president of the court or the president of a division in the court. The absence of sufficient safeguards securing the independence of judges within the judiciary, in particular vis-à-vis their judicial superiors, may lead the Court to conclude that an applicant’s doubts as to the independence and impartiality of a court may be said to have been objectively justified (Parlov-Tkalčić v. Croatia, 2009,
§ 86; Daktaras v. Lithuania, 2000,.36; Moiseyev v. Russia, 2008,.184).
Appearance of independence
In order to determine whether a tribunal can be considered to be “independent” as required by Article 6.1, appearances may also be of importance. What is at stake is the confidence which the courts in a democratic society must inspire in the public and above all, as far as criminal proceedings are concerned, in the accused (Şahiner v. Turkey, 2001,.44).
In deciding whether there is a legitimate reason to fear that a particular court lacks independence or impartiality, the standpoint of the accused is important but not decisive. What is decisive is whether his doubts can be held to be objectively justified (Incal v. Turkey, 1998,.71). No problem arises as regards independence when the Court is of the view that an “objective observer” would have no cause for concern about this matter in the circumstances of the case at hand (Clarke
v. the United Kingdom (dec.), 2005).
Where a tribunal’s members include persons who are in a subordinate position, in terms of their duties and the organisation of their service, vis-à-vis one of the parties, the accused may entertain a legitimate doubt about those persons’ independence (Şahiner v. Turkey, 2001,.45).
In Thiam v. France, 2018,.75-85, the Court did not consider that the applicant’s fear of a lack of independence and impartiality of a tribunal called upon to examine a criminal charge against him for an offence committed to the detriment of the President of the Republic, who joined the proceedings as a civil party, was justified due to the very fact that the President was involved in the appointment and promotion of judges. The Court noted that the independence of the judges’ tenure was constitutionally guaranteed and it protected them from possible attacks on their independence. Moreover, judges were not subordinate to the Ministry of Justice and were not subject to any pressure or instructions in the exercise of their judicial functions, including instructions by the President. Further, the Court had regard to the fact that decisions affecting the appointment of members of the judiciary and their career progress, transfer and promotions were taken following the intervention of the National Legal Service Commission (Conseil supérieur de la magistrature) and after adversarial proceedings.
Article 6.1 of the Convention requires a tribunal falling within its scope to be “impartial”. Impartiality normally denotes the absence of prejudice or bias and its existence or otherwise can be tested in various ways (Kyprianou v. Cyprus [GC], 2005,.118; Micallef v. Malta [GC], 2009,.93).
a. Criteria for assessing impartiality
The Court has distinguished between:
i. a subjective approach, that is, endeavouring to ascertain the personal conviction or interest of a given judge in a particular case;
ii. an objective approach, that is, determining whether he or she offered sufficient guarantees to exclude any legitimate doubt in this respect (Kyprianou v. Cyprus [GC], 2005,.118; Piersack v. Belgium, 1982,.30; Grieves v. the United Kingdom [GC], 2003,.69; Morice
v. France [GC], 2015,.73).
However, there is no watertight division between the two notions since the conduct of a judge may not only prompt objectively held misgivings as to impartiality from the point of view of the external observer (objective test) but may also go to the issue of his or her personal conviction (subjective test). Therefore, whether a case falls to be dealt with under one test or the other, or both, will depend on the particular facts of the contested conduct (Kyprianou v. Cyprus [GC], 2005, §§ 119 and 121).
i. Subjective approach
In applying the subjective test, the Court has consistently held that the personal impartiality of a judge must be presumed until there is proof to the contrary (Kyprianou v. Cyprus [GC], 2005,.119; Hauschildt v. Denmark, 1989,.47).
As regards the type of proof required, the Court has, for example, sought to ascertain whether a judge has displayed hostility or ill will or has arranged to have a case assigned to himself for personal reasons (De Cubber v. Belgium, 1984,.25). However, the mere fact that the judge might have adopted procedural decisions unfavourable to the defence is not indicative of a lack of impartiality (Khodorkovskiy and Lebedev v. Russia (no.2), 2020,.430).
Although in some cases it may be difficult to procure evidence with which to rebut the presumption of the judge’s subjective impartiality, the requirement of objective impartiality provides a further important guarantee. The Court has indeed recognised the difficulty of establishing a breach of Article 6 on account of subjective partiality and has therefore in the vast majority of cases focused on the objective test (Kyprianou v. Cyprus [GC], 2005,.119; Morice v. France [GC], 2015,.75).
Under the objective test, when applied to a body sitting as a bench, it must be determined whether, quite apart from the personal conduct of any of the members of that body, there are ascertainable facts which may raise doubts as to its impartiality (Castillo Algar v. Spain, 1998,.45).
In deciding whether in a given case there is a legitimate reason to fear that a particular body lacks impartiality, the standpoint of those claiming that it is not impartial is important but not decisive. What is decisive is whether the fear can be held to be objectively justified (Ferrantelli and Santangelo v. Italy, 1996,.58; Padovani v. Italy, 1993,.27).
The objective test mostly concerns hierarchical or other links between the judge and other persons involved in the proceedings which objectively justify misgivings as to the impartiality of the tribunal, and thus fail to meet the Convention standard under the objective test (Micallef v. Malta [GC], 2009,.97). It must therefore be decided in each individual case whether the relationship in question is of such a nature and degree as to indicate a lack of impartiality on the part of the tribunal (Pullar v. the United Kingdom, 1996,.38).
In this respect even appearances may be of a certain importance. What is at stake is the confidence which the courts in a democratic society must inspire in the public, including the accused. Thus, any judge in respect of whom there is a legitimate reason to fear a lack of impartiality must withdraw (Castillo Algar v. Spain, 1998,.45; Morice v. France [GC], 2015,.78; Škrlj v. Croatia, 2019,§ 43). Specifically, it is the responsibility of the individual judge to identify any impediments to his or her participation and either to withdraw or, when faced with a situation in which it is arguable that he or she should be disqualified, although not unequivocally excluded by law, to bring the matter to the attention of the parties in order to allow them to challenge the participation of the judge (Sigríður Elín Sigfúsdóttir v. Iceland, 2020,.35).
Account must also be taken of questions of internal organisation (Piersack v. Belgium, 1982,
§ 30 (d)). The existence of national procedures for ensuring impartiality, namely rules regulating the withdrawal of judges, is a relevant factor. Such rules manifest the national legislature’s concern to remove all reasonable doubts as to the impartiality of the judge or court concerned and constitute an attempt to ensure impartiality by eliminating the causes of such concerns. In addition to ensuring the absence of actual bias, they are directed at removing any appearance of partiality and so serve to promote the confidence which the courts in a democratic society must inspire in the public (see Micallef v. Malta [GC], 2009,.99; Mežnarić v. Croatia, 2005,.27; Harabin v. Slovakia, 2012,.132).
The Court will take such rules ensuring impartiality into account when making its own assessment as to whether a “tribunal” was impartial and, in particular, whether the applicant’s fears can be held to be objectively justified (Pfeifer and Plankl v. Austria, 1992,.6; Oberschlick v. Austria (no. 1), 1991,.50; Pescador Valero v. Spain, 2003, §§ 24-29). Thus, applicants are expected to avail themselves of those rules existing in the relevant domestic law (Zahirović v. Croatia, 2013, §§ 31-37).
As regards the procedure to decide upon challenges for bias, the Court examines the nature of the grounds on which the challenge for bias was based. If an applicant based his challenge for bias on general and abstract grounds, without making reference to specific and/or material facts which could have raised reasonable doubts as to the judge’s impartiality, his challenge could be classified as abusive. In such circumstances, the fact that the judge who had been challenged on such grounds decided on that applicant’s challenge does not raise legitimate doubts as to his impartiality. Moreover, other elements should be taken into account, in particular, whether the grounds for dismissing the applicant’s challenge for bias were adequate and whether the procedural defect was remedied by a higher court (Pastörs v. Germany, 2019, §§ 57 and 62-63; Mikhail Mironov v. Russia, 2020,.36).
The Court has found, in particular, that the participation of judges in a decision concerning challenges against one of their colleagues can affect the impartiality of each of the challenged members if identical challenges have been directed against them. However, the Court has considered that such a procedure did not affect the impartiality of the judges concerned in the specific circumstances of a case in which the applicant had based his motions for bias on general and abstract, almost identical grounds, without making any reference to specific, material facts that could have revealed personal animosity or hostility towards him. It noted in that context that the exclusion of all challenged judges from the decisions concerning those challenges would have paralysed the whole judicial system at issue (A.K. v. Liechtenstein, 2015,.68; see Kolesnikova v. Russia, 2021,.55, where there was no risk that the system might be paralysed).
On the other hand, a failure of the national courts to examine a complaint of a lack of impartiality, which does not immediately appear to be manifestly devoid of merit, may lead to a breach of Article 6.1 of the Convention, regard being had to the confidence which the courts must inspire in those subject to their jurisdiction (Remli v. France, 1996,.48). Thus, for instance, in Danilovv. Russia, 2020, §§ 97-102, the Court found a violation of Article 6 on the grounds that the domestic courts failed to take sufficient steps to check that the trial court had been established as an impartial tribunal in relation to the applicant’s complaint of a lack of impartiality of jurors with security clearances, which were accorded and controlled by the relevant security service that had instituted the criminal proceedings against the applicant.
Moreover, it is possible that a higher or the highest court might, in some circumstances, make reparation for defects in the first-instance proceedings. However, when the higher court declines to quash the decision of a lower court lacking impartiality and upholds the conviction and sentence, it cannot be said that it cured the failing in question (Kyprianou v. Cyprus [GC], 2005,.134; De Cubber v. Belgium, 1984,.33; Findlay v. the United Kingdom, 1997, §§ 78-79).
Lastly, the Court takes the view that when an issue of impartiality of a tribunal arises with regard to a judge’s participation in the proceedings, the fact that he or she was part of an enlarged bench is not in itself decisive for the objective impartiality issue under Article 6.1 of the Convention. Considering the secrecy of the deliberations, it may be impossible to ascertain a judge’s actual influence in the decision-making and the impartiality of the court could be open to genuine doubt (Morice v. France [GC], 2015,.89; Otegi Mondragon and Others v. Spain, 2018,.67; Škrlj v. Croatia, 2019,.46; Sigríður Elín Sigfúsdóttir v. Iceland, 2020,.57; Karrar v. Belgium, 2021,.36, concerning the presiding judge of an assize court).
Situations in which the question of a lack of judicial impartiality may arise
There are two possible situations in which the question of a lack of judicial impartiality arises (Kyprianou v. Cyprus [GC], 2005,.121):
i. the first is functional in nature and concerns, for instance, the exercise of different functions within the judicial process by the same person, or hierarchical or other links with another person involved in the proceedings;
ii. the second is of a personal character and derives from the conduct of the judges in a given case.
Moreover, there may be instances of a structural lack of impartiality of a particular court as a whole. This was the case in Boyan Gospodinov v. Bulgaria, 2018 (§§ 54-60) where the criminal court trying the applicant in criminal proceedings was at the same time defendant in a separate set of civil proceedings for damages instituted by the applicant.
Situations of a functional nature
The exercise of different judicial functions
The mere fact that a judge in a criminal court has also made pre-trial decisions in the case, including decisions concerning detention on remand, cannot be taken in itself as justifying fears as to his lack of impartiality; what matters is the extent and nature of these decisions (Fey v. Austria, 1993,
§ 30; Sainte-Marie v. France, 1992,.32; Nortier v. the Netherlands, 1993,.33). When decisions extending detention on remand required “a very high degree of clarity” as to the question of guilt, the Court found that the impartiality of the tribunals concerned was capable of appearing open to doubt and that the applicant’s fears in this regard could be considered objectively justified (Hauschildt v. Denmark, 1989, §§ 49-52). In each case, the relevant question is the extent to which the judge assessed the circumstances of the case and the applicant’s responsibility when ordering his or her detention on remand (Jasiński v. Poland, 2005, §§ 54-58, where the Court found no violation of Article 6.1 of the Convention, and Romenskiy v. Russia, 2013, §§ 28-30, where the Court found a violation of Article 6.1 of the Convention).
When an issue of bias arises with regard to a judge’s previous participation in the proceedings, a time-lapse of nearly two years since the earlier involvement in the same proceedings is not in itself a sufficient safeguard against partiality (Dāvidsons and Savins v. Latvia, 2016,.57).
The fact that a judge was once a member of the public prosecutor’s department is not a reason for fearing that he lacks impartiality (Paunović v. Serbia, 2019, §§ 38-43). Nevertheless, if an individual, after holding in that department an office whose nature is such that he may have to deal with a given matter in the course of his duties, subsequently sits in the same case as a judge, the public are entitled to fear that he does not offer sufficient guarantees of impartiality (Piersack v. Belgium, 1982,.30 (b) and (d)).
The successive exercise of the functions of investigating judge and trial judge by one and the same person in the same case has also led the Court to find that the impartiality of the trial court was capable of appearing to the applicant to be open to doubt (De Cubber v. Belgium, 1984, §§ 27-30).
However, where the trial judge’s participation in the investigation had been limited in time and consisted in questioning two witnesses and had not entailed any assessment of the evidence or required him to reach a conclusion, the Court found that the applicant’s fear that the competent national court lacked impartiality could not be regarded as objectively justified (Bulut v. Austria, 1996,
§§ 33-34). Thus, assessment of the individual circumstances of each case is always needed in order to ascertain the extent to which an investigating judge dealt with the case (Borg v. Malta, 2016,.89).
The absence of a prosecutor during the criminal trial, which may put the judge in the position of the prosecuting authority while conducting the questioning and adducing evidence against an applicant, raises another issue concerning impartiality. In this regard, the Court has explained that the judge is the ultimate guardian of the proceedings and that it is normally the task of a public authority in case of public prosecution to present and substantiate the criminal charge with a view to adversarial argument with the other parties. Therefore, confusing the two roles in the proceedings is a potential breach of the requirement of impartiality under Article 6.1 of the Convention (Karelin v. Russia, 2016,
§§ 51-85; see, by contrast, Makarashvili and Others v. Georgia, 2022,.59, where, under domestic law, even in the absence of a prosecutor at trial, the author of the administrative-offence report on the basis of which the proceedings are instituted (the police officer) acts as a party to those proceedings).
Similarly, the Court has examined the question of compliance with the principle of impartiality in a number of cases concerning alleged contempt by the applicant in court, where the same judge then took the decision to prosecute, tried the issues arising from the applicant’s conduct, determined his guilt and imposed the sanction. The Court has emphasised that, in such a situation, the confusion of roles between complainant, witness, prosecutor and judge could self-evidently prompt objectively justified fears as to the conformity of the proceedings with the time-honoured principle that no one should be a judge in his or her own cause and, consequently, as to the impartiality of the bench (Kyprianou v. Cyprus [GC], 2005,.126-128; Słomka v. Poland, 2018, §§ 44-51; Deli v. the Republic of Moldova, 2019,.43).
No question of a lack of judicial impartiality arises when a judge has already delivered formal and procedural decisions in other stages of the proceedings (George-Laviniu Ghiurău v. Romania, 2020, § 67). However, problems with impartiality may emerge if, in other phases of the proceedings, a judge has already expressed an opinion on the guilt of the accused (Gómez de Liaño y Botella v. Spain, 2008,
The mere fact that a judge has already ruled on similar but unrelated criminal charges or that he or she has already tried a co-accused in separate criminal proceedings is not in itself sufficient to cast doubt on that judge’s impartiality in a subsequent case (Kriegisch v. Germany (dec.), 2010; Khodorkovskiy and Lebedev v. Russia, 2013,.544). It is, however, a different matter if the earlier judgments contain findings that actually prejudge the question of the guilt of an accused in such subsequent proceedings (Poppe v. the Netherlands, 2009,.26; Schwarzenberger v. Germany, 2006,
§ 42; Ferrantelli and Santangelo v. Italy, 1996,.59). From this perspective, the issue of the impartiality of a tribunal within the meaning of Article 6.1 of the Convention can be seen in light of the right to the presumption of innocence under Article 6.2 (Mucha v. Slovakia, 2021, §§ 48 and 66).
For instance, in Meng v. Germany, 2021, §§ 53-65, the Court found a violation of Article 6.1 in relation to the objectively justified doubts as to the impartiality of the court convicting the applicant of murder, presided by a judge previously sitting in separate proceedings concerning only her co- accused, which made extensive findings of established fact and legal qualifications prejudging the applicant’s guilt.
Moreover, an issue may arise from the perspective of general fairness where the trial court has reached certain findings by relying on evidence that was examined in different proceedings in which the applicant did not participate (Khodorkovskiy and Lebedev v. Russia (no.2), 2020,.522).
When the presiding judge of a tribunal had been previously declared biased against the applicant in a previous set of criminal proceedings concerning similar charges against him, an objective and justified fear of a lack of impartiality may arise both with regard to the applicant and his co-accused (Otegi Mondragon and Others v. Spain, 2018, §§ 58-69; contrast, Alexandru Marian Iancu v. Romania, 2020,.72).
The obligation to be impartial cannot be construed so as to impose an obligation on a superior court which sets aside an administrative or judicial decision to send the case back to a different jurisdictional authority or to a differently composed branch of that authority (Marguš v. Croatia [GC], 2014, §§ 85-89); Thomann v. Switzerland, 1996,.33; Stow and Gai v. Portugal (dec.), 2005). In other words, the mere fact that the same judge twice exercised the same function in the same set of criminal proceedings is insufficient to show objective lack of impartiality (Teslya v. Ukraine, 2020). However, if an obligation on a superior court which sets aside a judicial decision to send the case back to different judges is provided for under the relevant domestic law, the question of whether a tribunal has been established by law arises (Lavents v. Latvia, 2002,.115).
The fact that an applicant was tried by a judge who herself raised doubts about her impartiality in the case may raise an issue from the perspective of the appearance of a fair trial (Rudnichenko
v. Ukraine, 2013,.118; Paixão Moreira Sá Fernandes v. Portugal, 2020, §§ 90-94; George-Laviniu Ghiurău v. Romania, 2020,.65). This, however, will not be sufficient to find a violation of Article 6.1 of the Convention. In each case, the applicant’s misgivings about the impartiality of the judge must be objectively justified (Dragojević v. Croatia, 2015, §§ 116-123; Alexandru Marian Iancu v. Romania, 2020,.69).
The determination by military service tribunals of criminal charges against military service personnel is not in principle incompatible with the provisions of Article 6 (Cooper v. the United Kingdom [GC], 2003,.110). However, where all the members of the court martial were subordinate in rank to the convening officer and fell within his chain of command, the applicant’s doubts about the tribunal’s independence and impartiality could be objectively justified (Findlay v. the United Kingdom, 1997,.76; Miller and Others v. the United Kingdom, 2004, §§ 30-31). Similarly, when a military court has in its composition a military officer in the service of the army and subject to military discipline and who is appointed by his or her hierarchical superior and does not enjoy the same constitutional safeguards provided to judges, it cannot be considered that such a court is independent and impartial within the meaning of Article 6 of the Convention (Gürkan v. Turkey, 2012, §§ 13-20).
The trial of civilians by a court composed in part of members of the armed forces can give rise to a legitimate fear that the court might allow itself to be unduly influenced by partial considerations (Incal v. Turkey, 1998,.72; Iprahim Ülger v. Turkey, 2004,.26). Even when a military judge has participated only in an interlocutory decision in proceedings against a civilian that continues to remain in effect, the whole proceedings are deprived of the appearance of having been conducted by an independent and impartial court (Öcalan v. Turkey [GC], 2005,.115).
Situations in which a military court has jurisdiction to try a civilian for acts against the armed forces may give rise to reasonable doubts about such a court’s objective impartiality. A judicial system in which a military court is empowered to try a person who is not a member of the armed forces may easily be perceived as reducing to nothing the distance which should exist between the court and the parties to criminal proceedings, even if there are sufficient safeguards to guarantee that court’s independence (Ergin v. Turkey (no. 6), 2006,.49).
The determination of criminal charges against civilians in military courts could be held to be compatible with Article 6 only in very exceptional circumstances (Martin v. the United Kingdom, 2006,
§ 44; see also Mustafa v. Bulgaria, 2019, §§ 28-37).
Objectively justified doubts as to the impartiality of the trial court presiding judge were found to exist when her husband was the head of the team of investigators dealing with the applicants’ case (Dorozhko and Pozharskiy v. Estonia, 2008, §§ 56-58). Similarly, an issue of objective impartiality arose where the trial judge’s son was a member of the investigative team dealing with the applicant’s case (Jhangiryan v. Armenia, 2020, §§ 97-103).
Family affiliation between judges deciding on a case at different levels of jurisdiction may give rise to doubts as to the lack of impartiality. However, in Pastörs v. Germany, 2019, §§ 58-70, where two judges who dealt with the applicant’s case at the first and third level of jurisdiction were married, the Court found no violation of Article 6.1 of the Convention on the grounds that the applicant’s complaint of bias had been submitted to a subsequent control of a judicial body with sufficient jurisdiction and offering the guarantees of Article 6 of the Convention. The Court also noted that the applicant had not given any concrete arguments why a professional judge – being married to another professional judge – should be biased when deciding on the same case at a different level of jurisdiction which did not, moreover, entail direct review of the spouse’s decision.
Further, family affiliation with one of the parties could give rise to misgivings about the judge’s impartiality. The Court has held that such misgivings must nonetheless be objectively justified. Whether they are objectively justified would very much depend on the circumstances of the specific case, and a number of factors are taken into account in this regard. These include, inter alia, whether the judge’s relative has been involved in the case in question, the position of the judge’s relative in the firm, the size of the firm, its internal organisational structure, the financial importance of the case for the law firm, and any possible financial interest or potential benefit (and the extent thereof) to be conferred on the relative (Nicholas v. Cyprus, 2018,.62, concerning the civil limb). In small jurisdictions, where an issue of family affiliation may often arise, that situation should be disclosed at the outset of the proceedings and an assessment should be made, taking into account the various factors involved in order to determine whether disqualification is actually necessitated in the case (ibid.,.64).
The fact that a member of a tribunal has some personal knowledge of one of the witnesses in a case does not necessarily mean that he will be prejudiced in favour of that person’s testimony. In each individual case it must be decided whether the familiarity in question is of such a nature and degree as to indicate a lack of impartiality on the part of the tribunal (Pullar v. the United Kingdom, 1996,
§ 38, concerning the presence in the jury of an employee of one of the two key prosecution witnesses; Hanif and Khan v. the United Kingdom, 2011,.141, concerning the presence of a police officer in the jury, and contrast, Peter Armstrong v. the United Kingdom, 2014, §§ 39-45).
A criminal trial against an applicant in a court where the victim’s mother worked as a judge was found to be in breach of the requirement of impartiality under Article 6.1 (Mitrov v. the former Yugoslav Republic of Macedonia, 2016, §§ 49-56).
Situations of a personal nature
The judicial authorities are required to exercise maximum discretion with regard to the cases with which they deal in order to preserve their image as impartial judges. That discretion should dissuade them from making use of the press, even when provoked. It is the higher demands of justice and the elevated nature of judicial office which impose that duty (Lavents v. Latvia, 2002,.118; Buscemi v. Italy, 1999,.67).
Thus, where a court president publicly used expressions implying that he had already formed an unfavourable view of the applicant’s case before presiding over the court that had to decide it, his statements objectively justified the accused’s fears as to his impartiality (ibid.,.68; see also Lavents
v. Latvia, 2002,.119, where a judge engaged in public criticism of the defence and publicly expressed surprise that the accused had pleaded not guilty).
101. No violation of Article 6 was found in relation to statements made to the press by a number of members of the national legal service and a paper published by the National Association of judges and prosecutors criticising the political climate in which the trial had taken place, the legislative reforms proposed by the Government and the defence strategy, but not making any pronouncement as to the applicant’s guilt. Moreover, the court hearing the applicant’s case had been made up entirely of professional judges whose experience and training enabled them to rise above external influence (Previti v. Italy (dec.), 2009,.253).
The Court also did not find lack of impartiality in a case in which a juror had made comments about the case in a newspaper interview after sentencing (Bodet v. Belgium (dec.), 2017, §§ 24-38; Haarde v. Iceland, 2017,.105). Conversely, in Kristiansen v. Norway, 2015 (§§ 56-61) the presence on the jury of a juror who knew the victim and commented on her character in circumstances which could be perceived as a comment or reaction to her oral evidence led to a breach of the principle of impartiality under Article 6.1. The Court has also found a violation of Article 6.1 in Tikhonov and Khasis v. Russia, 2021, §§ 44-53, which concerned a refusal by the domestic courts to properly assess the situation and discharge the jury members who had read online articles concerning the trial and who had discussed the trial with a person not involved in examining the case.
Publicly expressed support of a judge who brought the criminal case against the applicant by a judge sitting in a cassation court’s panel in the case amounted to a violation of Article 6.1 of the Convention (Morice v. France [GC], 2015, §§ 79-92).
The fact of having previously belonged to a political party is not enough to cast doubt on the impartiality of a judge, particularly when there is no indication that the judge’s membership of the political party had any connection or link with the substance of the case (Otegi Mondragon and Others
v. Spain (dec.), 2015, §§ 25-29).