CYIL vol. 13 (2022)

MONIKA FOREJTOVÁ CYIL 13 ȍ2022Ȏ decisions or otherwise reserve this to their competence. This would, inter alia, fundamentally undermine the principle of the separation of powers, which is an inherent rule of the European legal community. 1.2 Impartiality The ECtHR reiterates at the outset that it is of fundamental importance in a democratic society that the courts inspire confidence in the public and above all, as far as criminal proceedings are concerned, in the accused. To that end Article 6 requires a tribunal falling within its scope to be impartial. 23 In recent years, Council of Europe bodies have increasingly stressed the importance of strengthening the independence and impartiality, in accordance with Article 6 of the ECHR, of the judiciaries in Europe, which is essential to ensure public confidence in the rule of law. Impartiality denotes the absence of prejudice or bias. The existence of impartiality for the purposes of Article 6 (§ 1) of the ECHR must be determined according to a subjective test, that is on the basis of the personal conviction and behaviour of a particular judge in a given case, and also according to an objective test, that is ascertaining whether the judge offered guarantees which were sufficient to rule out any legitimate doubt in this respect. 24 In applying the subjective test the ECtHR has consistently held that the personal impartiality of a judge must be presumed until there is proof to the contrary. 25 As to the second test, when applied to a body sitting as a bench, it means determining 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. In this respect even appearances may be of some importance. 26 When it is being decided 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. 27 The judge’s impartiality 28 reflects not only the judge’s internal psychological relationship to the case at hand, but also their moral and value framework in a broader sense. 29 A judge is impartial if they are not biased in any way towards the parties or the subject matter of the proceedings. The judge will not be impartial, of course, if they are to decide their own case or the case of the parties to which the judge is related, or if they have any identifiable interest in the outcome of the proceedings. 30 If a reasonable doubt arises as to whether a judge is impartial in a particular case or not, the judge is disqualified from deciding that particular case. It follows from the ECtHR decision-making practice, which has been adopted by the Constitutional Court of the Czech Republic and at the same time by the courts of the general 23 Judgement of the ECtHR in Kyprianou v. Cyprus of 15 December 2005, application no. 73797/01, § 118. 24 Judgement of the ECtHR in Schwarzenberger v. Germany of 10 August 2006, application no. 75737/01, § 38; and Judgement of the ECtHR in Poppe v. the Netherlands of 24 March 2009, application no. 32271/04, § 22. 25 Judgement of the ECtHR in Miminoshvili v. Russia of 28 June 2011, application no. 20197/03, § 113. 26 Judgement of the ECtHR in Kyprianou v. Cyprus of 15 December 2005, application no. 73797/01, § 119, and Judgement of the ECtHR in Kriegisch v. Germany of 23 November 2010, application no. 21698/06. 27 Judgement of the ECtHR in Wettstein v. Switzerland , of 21 December 2000 application no. 33958/96, § 44. 28 McBRIDE, Jeremy. Human Rights and Criminal Procedure. The case law of the European Court of Human Rights. Strasbourg: Council of Europe, 2018, pp. 203–208. 29 FILIP, J. et al. Ústava České republiky – Komentář. The Constitution of the Czech Republic – A Commentary. Prague: Linde, 2010, p. 982. 30 Finding of the Constitutional Court of the Czech Republic of 27 October 2009, Case No. III ÚS 2336/08.

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