Chapter iii  Right to a Hearing by a Competent, Independent and Impartial Tribunal Established by Law 65 case was treated as capable of casting doubt on the tribunal’s impartiality. The European Court of Human Right therefore found a breach of Article 6(1) of the ECHR.244 In Mežnarić v Croatia, a Constitutional judge who had previously represented the opposing party in the case, sat on the panel deciding on the applicant’s constitutional complaint. The Court found that the dual role of the individual judge in a single set of proceedings created a situation that was capable of raising legitimate doubts as to the judge’s impartiality. Although there was no indication of actual personal bias on the part of the judge (subjective test), the appearance of impartiality was brought into question, particularly given applicable State rules that contemplated recusal in such a situation.245 The mere fact that the judge deciding on the merit of a case had previously ruled on detention on remand does not necessary rule out the judge’s impartiality. The issues that a judge has to answer when taking decisions on pre-trial detention are not the same as those that are decisive for final judgment. In the first case, the judge summarily assesses whether there are prima facie grounds for suspicion that the accused has committed an offence, whereas to render the judgment he/she must assess whether the evidence suffices for finding the accused guilty. Suspicion and formal findings of guilt are not to be treated as being the same.246 Although such situations may give rise to misgivings by the accused, the European Court will refer to the circumstances of each particular case to assess whether such misgivings should be treated as objectively justified.247 In Hauschildt v Denmark, a lack of impartiality was feared because the City Court judge who presided over the trial and the High Court judges who eventually took part in deciding the case on appeal had already dealt with the case at an earlier stage of the proceedings and had given various decisions with regard to the applicant at the pre-trial stage. Because of the “very high degree of clarity” as to the question of guilt that was required in the particular case to justify detention on remand, the Court held that the impartiality of both tribunals was capable of appearing to be open to doubt and the applicant’s fears in this respect could therefore be considered objectively justified.248 The participation of a judge at different stages of the proceedings may also be seen as indication of possible bias. In Castillo Algar v Spain, the fear that the trial court was not impartial stemmed from the fact that two of the judges sitting in it had previously sat in the chamber that had upheld the auto de procesamiento on appeal. That kind of situation, the European Court upheld, may give rise to misgivings on the part of the accused as to the impartiality of the judges and should be considered based on the circumstances of each particular case.249 244 Mežnarić v Croatia [2005] ECHR 497, para 33; Piersack v Belgium [1982] ECHR 6, paras 30–31. 245 Mežnarić v Croatia [2005] ECHR 497, paras 33, 36, 37. 246 Hauschildt v Denmark [1989] ECHR 7, paras 49–50; Jasinski v Poland [2005] ECHR 883, para 55. 247 Castillo Algar v Spain [1998] ECHR 99, para 46; Jasinski v Poland [2005] ECHR 883, para 55. 248 Hauschildt v Denmark [1989] ECHR 7, paras 49–52. 249 Castillo Algar v Spain [1998] ECHR 99, para 46.