Impartiality Under the
European Convention on Human Rights
President of the European Court of Human Rights
Impartiality lies at the very heart of the notion of justice and fair trial. It is therefore not surprising that it occupies a prominent place in the due process guarantees enshrined in the European Convention on Human Rights and in the case-law of the European Court of Human Rights. Public perception that justice is impartial is the foundation for the confidence which citizens must have in their judicial system. The requirement of an independent and impartial judiciary embraces both subjective and objective elements. It is the latter aspect which has been the focus of the Strasbourg case-law in this area and which is most obviously linked to public perception. This is expressed in the doctrine of appearances reflecting the old adage, justice must not only be done, it must also be seen to be done; in the context of the present paper, this translates as courts must not only be impartial, they must also be seen to be impartial. This implies a high, objective standard having practical consequences that have on occasion given rise to concern and criticism both outside the Court and within it. Yet the Court has maintained a largely consistent approach and indeed applies the same strict rules in regard to its own internal functioning.
2. The Convention guarantee
Article 6 § 1 of the European Convention requires a ”fair ... hearing ... by an independent and impartial tribunal” in the determination of civil rights and obligations or of criminal charges. In the case of Piersack v. Belgium, the Court described its approach to impartiality. Impartiality normally denoted absence of prejudice or bias. However, its existence could be tested in several ways. Thus a distinction was to be drawn between the subjective approach and the objective approach. The subjective test consists of endeavouring to ascertain the personal conviction of a given judge in a given case. It is of course notoriously difficult to substantiate allegations of actual bias and the Court has made it clear that personal impartiality is to be presumed until proof to the contrary .
The difficulty in establishing a lack of personal impartiality has led the Court to concentrate on an objective approach, that is determining whether a judge offers sufficient guarantees to exclude any legitimate doubt as to a lack of impartiality. In other words, in view of the difficulty of establishing to the required standard of proof whether or not a court is actually impartial, the case-law has looked at whether courts can be seen to be impartial. It is here that the Court has introduced the notion of appearances; what is at stake, as the Court has held, is the confidence which the courts must inspire in the public in a democratic society. Whether misgivings as to impartiality are to be regarded as objectively justified depends on the circumstances of each case. The Court has held that in criminal proceedings ”while the standpoint of the accused is important”, it is not decisive. What is decisive is whether, in criminal proceedings, the accused’s fear that a judge lacks impartiality can be held to be objectively justified. Thus it is not only that the person directly concerned by the proceedings must have apprehensions, but those fears must appear reasonable to the external observer.
There are a variety of different situations in which the question of impartiality has been examined by the Court. The majority of cases have dealt with structural impartiality, usually entailing the exercise of different functions within the judicial process by the same person or persons; but structural questions also arise where a judge has non-judicial functions which may impinge on his judicial role and where the judge is subject to hierarchical links with persons involved at other stages of the same judicial process or with the executive as one of the parties to proceedings. Impartiality may also be called into question where the judge has links of a different nature to one of the parties (usually in civil proceedings) or has an interest in the outcome of the proceedings. Finally the composition of juries or their attitude may in certain circumstances cast doubt on a court’s impartiality.
The guiding principle is that where there are ascertainable facts which suggest to the external and objective observer that the judge or the jury cannot approach the case with an entirely open mind, then his objective impartiality may be questioned, even if his subjective state of mind is beyond reproach. Thus for example in criminal proceedings where a judge has been involved in the preparation of the prosecution case, it is hard for the external observer to conceive that he will not have formed an opinion as to the accused’s guilt. Where the judge has been involved in the investigation procedure or pre-trial decisions on detention, the nature of the involvement and the requirements of the relevant legislation will determine whether there are legitimate grounds for fearing that he has had to form such an opinion.
3. The Strasbourg case-law
The majority of cases have concerned the exercise by the same person or persons of different judicial functions in criminal proceedings, and notably prior involvement of a trial judge in the work of the prosecuting authority, in the investigation process and in pre-trial detention decisions.
In Piersack v. Belgium, a presiding trial Judge had previously been head of a section in the public prosecutor’s department which had been responsible for the prosecution of the accused. The Court held that ” if an individual, after holding in the public prosecutor’s 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”. On the other hand, it would, the Court found, ”be going too far to the opposite extreme to maintain that former judicial officers in the public prosecutor’s department were unable to sit on the bench in every case that had been examined initially by that department even though they had never had to deal with the case themselves”. Such an inflexible and formalistic conception would lead to an upheaval in the judicial system of several Contracting States where transfers from the prosecutor’s department to the bench were common. The Belgian Court of Cassation had found it conclusive that the judge in question had not adopted a personal standpoint or taken any specific step in the prosecution process, but the European Court was satisfied that he had played a certain part in the proceedings and the impartiality of the court over which he had presided was consequently ”capable of appearing open to doubt”.
On the basis of Piersack, it can thus be said that, as suggested above, a strict standard is applied where the prior judicial function exercised is that of a member of the prosecution service. It is sufficient to have played ”a certain part in the proceedings”. It does indeed appear that the nature of the role of the prosecution service in criminal proceedings should attract such a standard.
Where the prior function has related to the investigation process, the position is somewhat different. In the case of Bulut v. Austria, 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.
The successive exercise of the functions of investigating judge and trial judge can, however, give rise to problems. As the Court has stated, it is understandable that ”an accused might feel some unease should he see on the bench of the court called upon to determine the charge against him the judge who had ordered him to be placed in detention on remand and who had interrogated him on numerous occasions during the preparatory investigation”. Such a judge will have acquired a particularly detailed knowledge of the file and may appear to be in a position to play a crucial role in the trial court and even
to have a pre-formed opinion. Thus where the same person had acted as investigating judge and one of the trial judges in a Belgian first-instance criminal court, and his involvement in the preparatory investigation, which was a non-adversarial procedure, ”must have been quite extensive”, the impartiality of the court was capable of appearing to the applicant open to doubt. Nor was the Court persuaded by the Government’s arguments concerning the practical consequences of imposing a rigid separation with limited staff available. Contracting States are under an obligation to organise their legal systems so as to ensure compliance with the requirements of Article 6 § 1 and ”impartiality is unquestionably one of the foremost of those requirements”.
In the case of Fey v. Austria, a District Court Judge had taken only limited measures of a preparatory nature, including collecting simple information and examining a witness at the request of the investigating judge. It did not appear to the Court that the various pre-trial measures that she had taken were such as could have led her to reach a pre-conceived view on the merits. The measures could be distinguished by their nature and extent from those in the De Cubber case and the fears that the applicant may have had concerning the judge’s lack of impartiality could not be held to be objectively justified. In a strong concurring opinion, Judge Martens argued that determining whether fears as to impartiality are objectively justified was not merely a matter of functional impartiality, but implied also a weighing of interests, since what is at stake is not only the confidence which the courts must inspire, but also the public interest in having a rational and smoothly operating judicial system. He referred to the practical advantages of having a close network of small courts where both civil and criminal cases of lesser importance could be dealt with locally and cheaply.
Where the pre-trial measures have involved decisions on detention, the Court has stated that the mere fact a trial Judge has also made pre-trial decisions, including those concerning detention on remand, cannot be held as in itself justifying fears as to his impartiality. Thus under the Danish system, when taking a decision on detention on remand, the judge summarily assesses the available data in order to ascertain whether prima facie the police have grounds for their suspicion. Suspicion and a formal finding of guilt were not to be treated as the same. However, in the particular circumstances of the case, the legislation on which the judge relied in taking detention decisions had required him to be satisfied that there was a ”particularly confirmed suspicion”. This was explained as meaning that there had to be ”very high degree of clarity” as to guilt. In other words the difference between the issue which the judge had to determine at the pre-trial stage and that which he had to decide at the trial was tenuous and the impartiality of the court was capable of appearing open to doubt in view of the special circumstances. No such special circumstances were found to obtain in the case of Sainte-Marie v. France. Here judges who had sat in a Indictments Division to confirm an order dismissing an application for release had subsequently sat on the Court of Appeal which sentenced the applicant. The Court noted that the Indictments Division had confined itself to making a brief assessment of the available facts in order to establish whether prima facie the police suspicions had some substance and gave grounds for fearing that there was a risk of the applicant’s absconding. The judges’ participation in the subsequent decision of the Court of Appeal had not undermined that court’s impartiality”.
Questions as to structural impartiality also arise where a court of the same composition tries the same case twice, for example where a case that has been heard on appeal is remitted to the same lower court that gave the initial judgment with the same composition or where a court which has tried an accused in absentia subsequently tries him in the same composition in his presence. The Court has held that it cannot be stated as a general rule resulting from the obligation to be impartial that a superior court which sets aside an administrative or judicial decision is bound to send the case back to a different jurisdictional authority or to a differently composed branch of that authority. No ground for legitimate suspicion can be discerned in the fact that judges who had taken part in the first decision also participate
in the second. Moreover, if a court had to alter its composition each time it accepted an application for retrial from a person who had been convicted in his absence, such persons would be placed at an advantage in relation to defendants who appeared at the opening of their trial, because they would be able to obtain a second hearing at the same level of jurisdiction. Such a practice would only slow down the operation of the justice system.
On the other hand, where the composition of the appeal body is the same as the body which rendered the decision appealed, its impartiality may be called into question. Thus where a judge presided over a tribunal called upon to decide on an objection against a decision for which he was himself responsible, the applicant’s fears were objectively justfied .
A variation is illustrated by a case where a judge sat in a trial concerning different defendants but in relation to the same set of facts as a later trial and where in the first trial he had referred to the defendants in the second trial as co-perpetrators. In these circumstances it was apparent that the judge had formed a view as to the issue of the second trial before it started and the applicants’ fears as to his lack of impartiality could be held to be objectively justified.
Structural impartiality may also be in issue when a judge has previously been involved in the matters before the court in a non-judicial capacity. Thus where members of the Luxembourg Conseil O’Etat were asked to rule on the lawfulness of a regulation which they had previously scrutinised in their advisory capacity, the applicant association had legitimate grounds for fearing that they felt bound by their earlier decision and therefore doubt was cast on the institution’s structural impartiality. The Court has, however, affirmed that neither Article 6 nor any other provision of the Convention requires States to comply with any theoretical constitutional concepts as such. In a case where the same person presided over the legislative body which adopted a development plan and then over the judicial body determining the applicant’s planning appeal, the Court noted that any direct involvement in the passage of legislation or of executive rules is likely to be sufficient to cast doubt on the judicial impartiality of a person subsequently called on to determine a dispute over whether reasons exist to permit a variation from the wording of the legislation or rules at issue .
The question whether a judge’s impartiality may undermined by reason of his relationship with one of the parties has often been examined by the Court under the dual head of independence and impartiality. The relationship may be a structural or hierarchical one. Thus in a number of Turkish cases, the presence of a military judge on the State Security Court was found to be a breach of Article 6 §1 of the Convention. While the status of such judges did provide some guarantees of independence and impartiality, they were servicemen, who still belonged to the army, which took its orders from the executive, and they were still subject to military discipline. Where civilians were facing prosecution for disseminating propaganda aimed at undermining state security, it was understandable that they should have been apprehensive about being tried by a military judge. They could reasonably fear that the court in question might allow itself to be unduly influenced by considerations which had nothing to do with the case.
The Court has found that where a tribunal’s members include a person who is in a subordinate position, in terms of his duties and the organisation of his service, vis-a-vis one of the parties, litigants may entertain a legitimate doubt about that person’s independence. In a series of cases concerning court martia] proceedings in the United Kingdom, the Court observed that the convening officer played a central role in the prosecution, as well as convening the court martial, appointing its members and the prosecuting and defending officers. All the members of the court martial were subordinate to the convening officer and fell within his chain of command. In those circumstances the applicant’s doubts about the tribunal’s independence and impartiality could be objectively justified. In the case of Daktaras v. Lithuania, the President of the Criminal Division of the Supreme Court had lodged a cassation petition proposing the quashing of an appellate decision and the reinstatement of the first- instance decision. He also constituted the court and appointed the rapporteur. The Court found that where the president of a court not only takes up the prosecution case, but also, in addition to his organisational and managerial functions, constitutes the court, it cannot be said that, from an objective standpoint, there are sufficient guarantees to exclude any legitimate doubt as to the absence of inappropriate pressure.
The objective test will also be infringed where the judge has a personal interest in the case. In Demicoli v. Malta the Maltese House of Representatives which tried the applicant for breach of parliamentary privilege was not impartial because two its members who participated in the proceedings had been criticised in the article that was the subject of the alleged offence. Where, in disciplinary proceedings before the French ordre de médecins examining whether an organisation was entitled to provide emergency medical services, the members of the two boards before which the proceedings were conducted had links with organisations which were in direct competition with the applicants, neither of the boards could be regarded as ”impartial” tribunals within the meaning of Article 6.
The composition of a jury can pose problems in this area. Thus in Holm v. Sweden where five out nine members of the jury were active members of a political party which had close links with and indeed had owned the defendant publishing house, the plaintiff’s fears about the independence and impartiality of the court were objectively justified. In Pullar v. the United Kingdom, the applicant complained that the presence in the jury of an employee of one of the two key prosecution witnesses meant that his case was not heard by an independent and impartial tribunal. In the Court’s view, it did not necessarily follow from the fact that a member of a tribunal has some personal knowledge of one of the witnesses in a case that he will be prejudiced in favour of that person’s testimony. In each individual case it had to be decided whether the familiarity in question is of such a nature and degree as to indicate a lack of impartiality. On the facts, the Court took the view that it was by no means clear that an objective observer would conclude that the juror in question would have been more inclined to believe his employer than the defence witnesses. Moreover there had been 14 other jurors and they had been given clear directions that they should assess the credibility of all the witnesses dispassionately.
In three cases allegations of racism on the part of members of the jury have raised the question of impartiality. In Remli v. France a third person had certified in writing that she had heard one of the jurors state that he was a racist. The applicant was of North-African origin. The Rhone Assize Court found that it could not take formal note of events alleged to have occurred out of its presence and did not take any measures to verify the allegation. The European Court held that the Convention ”imposes an obligation on every national court to check whether, as constituted, it is an ’impartial tribunal’ within the meaning of [Article 6 § 1] where ... this is disputed on a ground that does not immediately appear to be manifestly devoid of merit.” Here there had been no check, and the applicant had thereby been deprived of any possibility of remedying a situation contrary to the requirements of the Convention. In a dissenting opinion, Judge Thór Vilhjálmssson remarked: ”if the alleged violation is tested against the everyday experience of those who work as judges or advocates, it seems obvious to me that it is far-fetched and could not have influenced the verdict, even if the facts as set out by the applicant are assumed to be correct”.
On the other hand, the Court found no violation where a judge had been passed a note from the jury alleging that the jury were showing ”racial overtones”. The judge chose to deal with the allegation by means of a firmly worded redirection having had the benefit of submissions from both counsel. His statement was ”clear, detailed and forceful”. The Court’s assessment of the facts led it to conclude that no more had been required under Article 6 to dispel any objectively held fears or misgivings. The Court reached a different conclusion where a member of the jury had submitted a note alleging that two fellow jurors had ”been making openly racist remarks and jokes”. In the circumstances of the case, that is more serious and well-founded allegations than in Gregory (where the complaint had been vague and imprecise), the Court considered that the direction given by the judge to the jury could not dispel the reasonable impression and fear of a lack of impartiality, which were based on the original note. Faced with a serious allegation that the applicant risked being convicted because of his ethnic origin, the judge should, so the Court held, have reacted in a more robust manner than merely seeking vague assurances that the jurors could set aside their prejudices and try the case solely on the evidence. By failing to do so, the judge did not provide sufficient guarantees to exclude any objectively justified or legitimate doubts as to the impartiality of the Court.
These three cases would suggest that where an allegation of actual bias on the part of the jury is made, if the court is to satisfy the requirement of objective impartiality, it must take some action to verify the allegation and to counter the effects of any such bias. The extent of the action required will depend in particular on the seriousness of the allegation, but Remli indicates that a court cannot safely disregard even rather tenuous allegations. This is in line with the objective approach. Once an allegation has been made the objective observer’s perception will be affected and therefore the court must act to dispel the doubts engendered thereby.
Finally, where a court was presided over by a person with whom the applicant had engaged in an argument in the press, the European Court stated that judicial authorities are required to exercise maximum discretion with regard to 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.
It can been seen that in this area the Court continues to attach considerable importance to the doctrine of appearances, which the Court has justified by referring to ”the increased sensitivity of the public to the fair administration of justice”. The Court has not generally been sympathetic to arguments relying on practical or organisational aspects, even where it appears that a considerable burden may be imposed on the system of justice in question. The late and much respected Judge Martens’s dicta urging the Court to bear in mind the demands of a smoothly operating judicial system capable of rendering justice within a reasonable time have tended not to find a clear echo in the Court’s case-law. But if the Court has applied exacting standards when called to consider the position of national courts, it has – as a fully judicial body itself – been equally stringent in its own internal organisation. Thus following the entry into force of Protocol No. 11 to the Convention which replaced the two original institutions, the Court and Commission of Human Rights, by a single Court, the new Court included ten former members of the Commission. The Court had no hesitation in deciding that where Commission members had been involved in consideration of cases which were now before the Court, they should withdraw. As in the cases mentioned above, they would not be seen to be approaching the cases in question with an entirely open mind. Similarly when any of it members have been involved, even only nominally, in proceedings relating to a case before the Court before they were elected they are required to withdraw. A link with persons dealing with such cases at national level has also provided grounds for withdrawal.
There remains the question of appointment, with which this paper has not dealt in general. Given the nature of the European Court of Human Rights, it is particularly important that its Judges are not perceived as acting on instructions from the Governments of the Contracting States in respect of which they are elected. Here again appearances may be relevant and the process by which Governments select their candidates should be transparent. The greatest vigilance is called for in this connection on the part of the Contracting States, but also the Committee of Ministers of the Council of Europe and the Parliamentary Assembly which elects the members of the Court.