CYIL vol. 13 (2022)

CYIL 13 ȍ2022Ȏ THE IMPARTIALITY OF JUDGE AND THE PRINCIPLE OF PRESUMPTION OF INNOCENCE … 3.2 Legal assessment The ECtHR first clarified that the complainant does not challenge the “ overall fairness” of the criminal proceedings. 77 His objection is that he was tried and convicted by the same tribunal which had previously convicted other persons for offences committed jointly with the complainant, and that it defined those offences in such a way that it was clear that the complainant had participated in them. The ECtHR therefore considered this application primarily through the lens of the requirement of an impartial trial, 78 but also took into account the complainant’s right to the presumption of innocence. 79 The ECtHR began its legal assessment by recalling the general principles relating to the requirement of an impartial trial. 80 In such cases, the ECtHR specifically examines whether – quite independently of the personal conduct of any member of that body – there are ascertainable facts which may cast doubt on the impartiality of the court. It is not enough to have a mere concern; the decisive factor is whether such a concern is objectively justified. The fact that a judge or a Chamber with the same composition has in the past decided cases involving the same or similar criminal activity is not sufficient to call into question the impartiality of the court in subsequent cases. However, it is problematic if the previous decision contains a detailed assessment of the involvement of a person who has not yet been tried himself in the complicity of the crime. Such aspects may, in the circumstances of the case, give rise to objectively reasonable doubts that the national court has, already at the outset of the trial of that person, a preconceived view of his guilt and is therefore not impartial. In relation to the present case, the ECtHR observed that, although the court of first instance had ruled on the case of the complainant and his accomplices with the same composition, that Chamber was composed of professional, qualified and experienced judges who should have been able to distinguish the conclusions reached in the different proceedings. Moreover, the convictions which approved the plea agreements and sentences of the accomplices were not binding on the Chamber in the complainant’s case. Thus, in the criminal proceedings against the complainant, other evidence was taken which led the Trial Chamber to its own findings of fact and conclusions of law. Those aspects – although relevant to the assessment of whether the court of first instance had satisfied the requirement of impartiality in the complainant’s case – do not, however, relieve the ECtHR of its obligation to examine whether the previous judgments (the plea and sentence agreements which had been approved in the cases of the complainant’s accomplices) contained findings which in fact anticipated the question of the complainant’s guilt. The fact that the previous convictions were approved by a plea bargain is not decisive according to the ECtHR. 81 Those convictions contained a detailed description of the facts 77 Judgment of the ECtHR in Ibrahim and Others v. the United Kingdom of 13 September 2016, applications no. 50541/08, 50571/08, 50573/08 and 40351/09 – PROVAZNÍK, J. Věc Ibrahim a další proti Spojenému království – Právo na právní pomoc v rámci výslechu při vyšetřování ( Case Ibrahim and Others v. the United Kingdom (Right to Legal Aid at Interrogation During Investigation ). Přehled rozsudků Evropského soudu pro lidská práva ( Overview of judgments of the European Court of Human Rights ). 2017, No. 3, pp. 173–189; a contrario Judgment of the ECtHR in Adamčo v. Slovakia , of 12 November 2019, application no. 45084/14. 78 See more Judgment of the ECtHR in Bauras v. Lithuania of 31 October 2017, application no. 56795/13 and Judgment of the ECtHR in Meng v. Germany of 16 February 2021, application no. 1128/17. 79 Judgment of the ECtHR in Mucha v. Slovakia of 25 November 2021, application no. 63703/19, §§ 48–53, 63. 80 Judgment of the ECtHR in Mucha v. Slovakia of 25 November 2021, application no. 63703/19, §§ 48–49. 81 Judgment of the ECtHR in Mucha v. Slovakia of 25 November 2021, application no. 63703/19, § 53.

155