CYIL vol. 13 (2022)

CYIL 13 ȍ2022Ȏ THE IMPARTIALITY OF JUDGE AND THE PRINCIPLE OF PRESUMPTION OF INNOCENCE … impartiality under the ECtHR 49 if a judge who previously decided on the detention of the accused person decides in the proceedings before the court. 50 A judge’s manifested hostility towards a party or their lawyer may also be grounds for disqualification for bias. According to the ECtHR, subjective impartiality 51 is not fulfilled if the judge has publicly commented on the quality of the defence and the possible outcome of the criminal proceedings. 52 Similarly, if the judge has publicly commented negatively about the complainant, the condition of subjective impartiality is not fulfilled. 53 It is necessary to state that participation in the adoption of legislation may, in a subsequent judicial review, be a ground for bias on the part of a judge, 54 provided that the judge in question participated in the adoption of legislation which is reasonably related to the proceedings in which the judge is now to decide. 55 2.1 General principles The presumption of innocence is an important and modern principle of criminal procedure. 56 As such, it is expressed in many documents of international, EU and national law. From the Czech point of view, the following four legal norms are particularly important: Article 6(2) of the European Convention, 57 Article 48(1) of the EU Charter of Fundamental Rights, 58 Article 40(2) of the Charter of Fundamental Rights and Freedoms 59 and Section 2(2) of the Code of Criminal Procedure. 60 From the point of view of the issue under examination, Directive (EU) 2016/343 of the European Parliament and of the Council of 9 March 2016, on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings, is important, as it contains a definition of the presumption of innocence (Article 3: “Member States shall ensure that suspects and accused persons are presumed innocent until proved guilty according to law”), and in particular Art. 4 (“Public references to guilt”), which provides that “ Member States shall take the necessary measures to ensure that, for as long as a suspect or an accused person has not been proved guilty according to law, public statements made by public authorities, and judicial decisions, other than those on guilt, do not refer to that person as being guilty. This shall be without prejudice to acts of the 49 McBRIDE, J. Human Rights and Criminal Procedure. The case law of the European Court of Human Rights . Strasbourg: Council of Europe, 2018, p. 205. 50 Judgment of the ECtHR in Hauschildt v. Denmark of 24 May 1989, application no. 10486/83. 51 McBRIDE, J. Human Rights and Criminal Procedure. The case law of the European Court of Human Rights . Strasbourg: Council of Europe, 2018, pp. 203-208. 52 Judgment of the ECtHR in Lavents v. Latvia of 28 November 2002, application no. 58442/00. 53 Judgment of the ECtHR in Olujić v. Croatia of 5 February 2009, application no. 22330/05. 54 Judgment of the ECtHR in Procola v. Luxembourg of 28 September 1995, application no. 14570/89. 55 Judgment of the ECtHR in Kleyn and Others v. The Netherlands of 6 May 2003, application no. 39343/98. 56 MULÁK, J. The principle of the presumption of innocence in the European and international context. Czech Yearbook of Public and Private International Law , 2018, Volume 9, p. 199–202. 57 “ Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law .” 58 “ Everyone who has been charged shall be presumed innocent until proved guilty according to law .” 59 “ Anybody who is accused of a crime in penal proceedings shall be considered innocent until proven guilty in a final verdict issued by a court .” 60 “ Until guilt has been pronounced by a final judgment of conviction, the person against whom criminal proceedings are brought cannot be regarded as guilty .” 2. Principle of the presumption of innocence

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