CYIL vol. 13 (2022)

MONIKA FOREJTOVÁ

CYIL 13 ȍ2022Ȏ

1.3 Typical situations of impartiality of the judge In general, several typical situations regarding the impartiality of a judge can be identified. 36 We can also discuss the question of preserving secrecy, 37 statements to media, 38 or criticism of officials. 39 First of all, this may be a situation where the judge has a relationship with one of the parties to the proceedings (e.g., a relationship between a judge and a lawyer, where one of them was the judge and the other was the opposing lawyer; 40 a judge of a higher court who previously acted as a lawyer for the complainant’s opponent in the same proceedings at a lower court; 41 a judge who ruled on a lawsuit against a university where he was a professor; 42 a judge of the Constitutional Court – a former professor – whose opinion was requested by the opposing party in the lower court and the competent court ruled in accordance with that opinion, although no explicit reference was made to it 43 ). Another category of cases consists of situations where the judge has already ruled on the merits of the case or a related case. It can be seen from the ECtHR’s case law 44 that it is not a breach of objective impartiality for the same judge who gave the original judgment that was set aside to rule on the case after the judgment of the Court of Appeal has been set aside and the case has been remitted to the court of first instance. 45 Similarly, a judge cannot be found to be biased if they have ruled on another case involving the same person. However, if there are two formally different proceedings which are linked in substance and have the same factual basis and are decided by the same single judge, then the subjective test of impartiality may be inferred not to have been met. 46 An earlier civil action brought against a judge (e.g., an action for the protection of personality), if accompanied by other facts, may give rise to a breach of impartiality, both subjectively and objectively. 47 It is also possible to mention the question of when a judge has been involved in the proceedings in a different capacity from the judge deciding the case. A judge who was previously in charge of the public prosecutor’s office which was responsible for the prosecution of the accused person whose guilt was later to be decided in the main trial will not be impartial. 48 From the point of view of the Czech criminal procedure legislation, it may seem somewhat surprising that it is not a violation of 36 See more KMEC, J., KOSAŘ, D., KRATOCHVÍL, J., BOBEK, M. Evropská úmluva o lidských právech. Komentář. ( European Convention on Human Rights. Commentary .) Prague: C. H. Beck, 2012, pp. 676–685. 37 Judgment of the ECtHR in Craxi v. Italy of 5 December 2002, 34896/97; judgment of the ECtHR in Apostu v. Romania of 3 February 2015, application no. 22765/12; judgment of the ECtHR in Bédat v. Switzerland [GC] of 29 March 2016, application no. 56925/08. 38 Judgment of the ECtHR in Karakaş and Yeşilımak v. Turkey of 28 June 2005, application no. 43925/98; judgment of the ECtHR in Y.B. and Others v. Turkey of 28 October 2004, application no. 48173/99; judgment of the ECtHR in Khuzhin and Others v. Russia of 23 October 2008, application no. 13470/02; judgment of the ECtHR in Turyev v. Russia of 11 October 2016, application no. 20758/04. 39 Judgment of the ECtHR in Lešník v. Slovakia of 11 March 2003, application no. 35640/97; judgment of the ECtHR in July and Sarl Liberation v. France of 14 February 2008, application no. 20893/03. 40 Judgment of the ECtHR in Micallef v. Malta of 15 October 2009, application no. 17056/06. 41 Judgment of the ECtHR in Mežnaric v. Croatia of 15 July 2005, application no. 71615/01. 42 Judgment of the ECtHR in Pescador Valero v. Spain of 17 June 2003, application no. 62435/00. 43 Judgment of the ECtHR in Švarc and Kavnik v. Slovenia of 8 February 2007, application no. 75617/01. 44 REPÍK, Bohumil. Evropská úmluva o lidských právech a trestní právo . (European Convention on Human Rights and criminal law). Prague: Orac, 2002, p. 125–127. 45 Judgment of the ECtHR in Stow and Gai v Portugal of 4 October 2005, application no. 18306/04. 46 Judgment of the ECtHR in Indrová and Indra v. Slovakia of 11 May 2004, application no. 46845/99. 47 Judgment of the ECtHR in Chmelíř v. Czech Republic of 7 June 2005. application no. 64935/01 48 Judgment of the ECtHR in Piersack v. Belgium of 1 October 1982, application no. 8692/79.

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