CYIL vol. 13 (2022)

CYIL 13 ȍ2022Ȏ THE IMPARTIALITY OF JUDGE AND THE PRINCIPLE OF PRESUMPTION OF INNOCENCE … system (Article 91 et seq. of the Constitution of the Czech Republic), that the subjective objective test of impartiality is applied, according to which the right to an impartial judge will be preserved if the judge in question is impartial both subjectively from the point of view of the parties to the proceedings and objectively for an external observer. The subjective test of impartiality is based on the rebuttable presumption of impartiality of a judge, according to which a judge is presumed to be impartial as long as there are no subjective, i.e. personality related, grounds of bias. According to the ECtHR’s case law, 31 a more stringent degree of individualisation and direct connection of the judge’s personal bias against one of the parties is required to prove the judge’s lack of impartiality, and therefore it is also necessary to provide concrete and tangible evidence of the judge’s bias. The mere perception of the judge as biased by the party to the proceedings concerned cannot then stand up. 32 The objective test of impartiality requires a less stringent degree of individualisation and an immediate connection between the judge’s personal bias against any party in the trial. Hence the less stringent requirement that the complainant should bear the burden of proof 33 on the allegation that the judge is not impartial, since the judge’s bias or doubts about their impartiality must be sufficiently apparent to an ordinary and reasonable observer. Thus, within the framework of an objective test of impartiality, one can ask whether such an ordinary, informed and reasonable person would perceive the judge in question to be impartial. According to the ECtHR’s case law, a reasoned objection of objective impartiality creates a rebuttable presumption of the judge’s impartiality, which the state must then rebut and prove. This means that the State must at the same time ensure that procedural safeguards are in place to exclude any legitimate doubt as to the judge’s impartiality. 34 Thus, the opposite principle to the subjective test applies with regard to the presumption of impartiality. It is also clear from the ECtHR’s case law that the lack of impartiality of only one of the members of the Chamber may, in certain circumstances, constitute a violation of Article 6(1) of the ECHR. The bias of a judge (or other persons) is one of the procedural defects which cannot be remedied even at the subsequent stages of the proceedings, even with reference to the fact that an impartial court with full jurisdiction will already rule in the subsequent proceedings. 35 A procedural defect in the form of a breach of the principle of the impartiality of the court or in the form of an obvious bias on the part of the judge towards the parties is thus a gross, irremediable defect which also erodes the rules of fair trial.

31 REPÍK, B. Evropská úmluva o lidských právech a trestní právo. (European Convention on Human Rights and criminal law). Prague: Orac, 2002, pp. 124–129. 32 MOLEK, P. Právo na spravedlivý proces. ( The right to a fair trial ) Prague: Wolters Kluwer, 2011, pp. 172–173. 33 VITKAUSKAS, D., DIKOV, G. Protecting the right to a fair trial under European Convention of Human Rights. A handbook for legal practitioners . 2nd edition. Strasbourg: Council of Europe, 2017, pp. 52–57. 34 Ibidem, p. 54; Judgment of the ECtHR in Salov v. Ukraine of 6 September 2005, application no. 65518/01; Judgment of the ECtHR in Fahri v. France of 23 May 2007, application no. 17070/05. 35 VITKAUSKAS, D., DIKOV, G. Protecting the right to a fair trial under European Convention of Human Rights. A handbook for legal practitioners . 2nd edition. Strasbourg: Council of Europe, 2017, pp. 54–56.

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