NGOs under European Convention on Human Rights / Tymofeyeva

one. First, the tribunal must be subjectively impartial, that is, no member of the tribunal should hold any personal prejudice or bias. Personal impartiality is presumed, unless there is evidence to the contrary. 581 Secondly, the tribunal must also be impartial from an objective viewpoint – that is, it must offer sufficient guarantees to exclude any legitimate doubt in this respect. 582 More specifically, it must be determined, under the objective test, whether, quite apart from the judges’ personal conduct, there are ascertainable facts which may raise doubts as to their impartiality. 583 The Court observed that the concepts of independence and impartiality are closely linked and are particularly difficult to dissociate . Therefore, very often it examines both of these issues together. 584 The tribunal must be independent of both the executive and the parties. The independence of judicial bodies is challenged in situations where they are being asked to consider the decisions of non-judicial bodies. Moreover, the tribunal must have the power to give a binding decision, which cannot be altered by a non-judicial authority. 585 The executive may issue guidelines to members of judiciary about the general performance of their functions, as long as any such guidelines are not, in reality, instructions. In the case of Sacilor-Lormines v. France , 586 the Court examined the position of the Conseil d’Etat. The case concerned the unfairness of proceedings before the Conseil d’Etat relating to cessation of the applicant company’s activity. The company lodged a number of complaints seeking an annulment of the refusal by the minister responsible for mining to accept its surrender. As to the independence and impartiality of the Conseil d’Etat, the Court observed the fact that one of its members had been appointed as secretary general of the ministry responsible for mining policy. This member could not therefore appear neutral vis-à-vis the applicant company and, accordingly, the complaint was well-founded in having objective doubts, ex post facto , as to the independence and impartiality of the Conseil d’Etat bench. The Court reiterated that the participation, whether ‘active’ or ‘passive’, of the government’s representative at the deliberations of the bench of the Conseil d’Etat entailed a breach of Article 6 of the Convention. In the case of Procola v. Luxembourg, 587 the applicant, an association under Luxembourg law, the Agricultural Association for the Promotion of Milk Marketing (‘Procola’), also complained that the Judicial Committee of the Conseil d’Etat was not independent and impartial. The Court here observed that four members of the Conseil d’Etat carried out both advisory and judicial functions in the same proceedings. In its opinion, the mere fact that certain persons successively performed these two types of functions in the same litigation was capable of casting doubt on the institution’s 582 Kiiskinen v. Finland (dec.), no. 26323/95, ECHR 1999-V (extracts). 583 Kleyn and Others v. the Netherlands [GC], nos. 39343/98, 39651/98, 43147/98 and 46664/99, § 191, ECHR 2003-VI. 584 Gürkan v. Turkey , no. 10987/10, § 18, 3 July 2012. 585 Findlay v. the United Kingdom , 25 February 1997, § 77, Reports of Judgments and Decisions 1997-I. 586 Sacilor-Lormines, cited above. 587 Procola , cited above. 581 Ibid , § 126.

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