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.
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