Court of Turin (Italy)
Deputy Secretary General
International Association of Judges
JUDICIAL INDEPENDENCE AND JUDICIAL IMPARTIALITY:
INTERNATIONAL BASIC PRINCIPLES
AND THE CASE-LAW OF THE
EUROPEAN COURT OF HUMAN RIGHTS*
Summary: (I) THE INDEPENDENCE OF THE JUDICIARY AS ONE OF THE PILLARS OF THE STATE GOVERNED BY RULE OF LAW. THE BASIC PRINCIPLES IN THEIR INTERNATIONAL CONTEXT – 1. The Independence of the Judiciary: Basic Principles. – 2. The Independence of the Judiciary: its Various Forms. – 3. The Independence of the Public Prosecutor’s Department. – 4. The Internationalisation and Trans-Nationalisation of the Principles Concerning the Independence of the Judiciary: Instruments. – 5. The Internationalisation and Trans-Nationalisation of the Principles Concerning the Independence of the Judiciary: Principles and Rules set forth by the Council of Europe. – 6. Internationalisation and Trans-Nationalisation of Principles Governing the Independence of the Judiciary: General Rules. – (II) JUDICIAL INDEPENDENCE IN THE EUROPEAN COURT OF HUMAN RIGHTS CASE-LAW – 7. Judicial Independence vis-à-vis the Executive Branch. – 8. Judicial Independence vis-à-vis the Legislative Branch. – (III) JUDICIAL IMPARTIALITY IN INTERNATIONAL DOCUMENTS AND DECLARATIONS – 9. Defining Judicial Impartiality and its Relations to Judicial Independence. – 10. Judicial Impartiality in International Documents and Declarations. – 11. Concrete Ways to Ensure Judicial Impartiality: Structural Mechanisms and Ethical Duties. – (IV) JUDICIAL IMPARTIALITY IN THE EUROPEAN COURT OF HUMAN RIGHTS CASE-LAW – 12. Drawing the Line Between a Subjective and an Objective Approach. – 13. Subjective Impartiality: Keeping a Distance from the Case. – 14. Subjective Impartiality: a Procedural Approach. – 15. Subjective Impartiality: Conflict of Interests. – 16. Objective Impartiality: a Structural Approach. – 17. Objective Impartiality: a Functional Approach (Cases Decided by Judges Having Previously Been Members of the Prosecution Service or Investigating Judges). – 18. Objective Impartiality: a Functional Approach (the Conseil d’Etat Performing Advisory and Judiciary Functions in the Same Matter; the Bailiff of Guernsey). – 19. Objective Impartiality: a Functional Approach (Previous Decisions by the Same Judge in the Same Case). – 20. Objective Impartiality: a Functional Approach (Previous Decisions by the Same Judge in Other Cases). – 21. Withdrawal from a Case and Motion for Recusal. Failure to Do So. – 22. Towards New Leading Principles in the Field of Judicial Impartiality? Morel v. France (6 June 2000).
Turin - 2005
THE INDEPENDENCE OF THE JUDICIARY AS ONE OF THE PILLARS
OF THE STATE GOVERNED BY RULE OF LAW.
THE BASIC PRINCIPLES IN THEIR INTERNATIONAL CONTEXT
1. The Independence of the Judiciary: Basic Principles.
The independence of the judiciary is certainly an essential principle which underpins what today is termed the “state governed by rule of law” in accordance with the proposition of the separation of powers, as defined by Montesquieu in the XVIII century. As that great philosopher stated in his work “The Spirit of the Law” (Book XI, §6), “There is no (…) freedom if the power to judge is not separate from the legislative and executive powers.” “All would be lost,” he added, “if the same man, or the same body of rulers, nobles, or people exercised all three powers: that of making the laws, that of executing public resolutions and that of judging the crimes and disputes of individuals.”
The French Declaration of the Rights of Man and of the Citizen of 26 August 1789 (Article 16) proclaimed that: “Any society in which there is no guarantee of rights or clear separation of powers is without a constitution.”
It is for this reason that independence is bestowed on judges purely for the protection of the rights of individuals seeking justice. It is not a judicial privilege. Dependence on political power or hierarchical superiors means peace and the guarantee of a quiet life for judges who adapt themselves to such a role: independence means responsibility, the confrontation of differing points of view, the acceptance of being the subject of public discussion, the challenge of being able to convince not by force of the principle of authority but through rational argument, together with firmness and professional skill.
On the other hand, it is evident that independence requires a separate status for judges that sets them clearly apart from public servants. That most distinguished Italian exponent of comparative law, Gino Gorla, observed as much in the course of the preliminary drafting of the Italian Constitution, which entered into force in 1948: “The judge cannot be placed on the same level as other public servants (…). Judges should be regarded as being set apart from the ordinary run of public servants because they are not, in reality, dependants of the state but are themselves the state in one of its constitutional organs; they are the living symbol, not of the “dependent” public servant, but of autonomy, of the exercise of personal rights, and their very life should be autonomy in every sense of the word.”
The principle of the separation of powers, to which judicial independence is closely linked, is not accepted and understood in the same way in the various legal and court systems that exist in Europe today. Nobody could seriously deny, for example, that the judiciary in the United Kingdom enjoys a situation of total and perfect independence; and yet it is the same system in which the person considered as being Head of the Judiciary, the Lord Chancellor, has been for centuries exercising at the same time the functions of Minister of Justice, Speaker of the House of Lords and the country’s leading judge.
While every legal system recognises, at least in its legislation, the independence of the judiciary in relation to the legislative and executive powers, in practice such independence cannot yet be considered as having been attained satisfactorily and lastingly in every part of our continent. The need to implement measures for guaranteeing the independence of the judiciary raises a very complex range of serious issues relating to widely varying aspects of the status of judges, ranging from their appointment to training, assessment, career, transfer, disciplinary measures, etc. It is therefore against this background that we have to measure the efficiency and relevance of national and international standards in the light of the attempts that have made (more or less openly here and there in Europe) by other state authorities to restrict this fundamental requirement of any society that regards itself as civilised.
2. The Independence of the Judiciary: its Various Forms.
First of all it should be observed that it is not merely the judiciary as a whole that has a problem of autonomy and independence, but each individual judge. It is for this reason that we may talk in terms either of the autonomy and independence of the judiciary, or of the autonomy and independence of judges. Indeed, the systems of the different countries should seek to guarantee not only the independence of the judiciary in relation to other public authorities, but also the independence of the judge in relation to other aspects of economic and social life and even within the judiciary.
There is in fact more and more discussion of the “internal” independence of the judiciary. Clearly, the application to the judiciary of the hierarchical rules that govern, for example, the organisation of the executive, or certain branches of it (army, local government, police, etc.) would compromise judicial impartiality. One possible solution to this problem might be to transfer the powers that would normally be exercised by the chief executive to another body, such as, for example, a Higher Judicial Council, which expedient would kill two birds with one stone: it would safeguard the “external” independence of the judiciary (particularly in relation to other public authorities) and it would protect the “internal” independence of the judiciary (particularly in relation to their “superiors”).
The never-ending problem of the independence of the judiciary in relation to the economic and financial authorities may also be mentioned here. La Fontaine (in The animals sick with the plague) lamented the fact that “You may be great Sir John or simply wretched Jack, and accordingly the court will pronounce you white or black.” Here it will suffice to observe that everywhere, or virtually everywhere, in the world the rules governing the judiciary prohibit judges from exercising activities such as that of entrepreneur, businessman, member of the board of directors of a company, etc. But it is for precisely this reason that judges should be guaranteed adequate remuneration as well as a personal, special (I would go as far as to use the word privileged) status, which would shield them from any outside influence.
Another form of judicial independence is independence in relation to political parties. Europe finds itself divided on that question; on the one hand, the countries of Central and Eastern Europe, reacting against a tradition that obliged judges to be members of the party in power, totally prohibit judges from belonging to any political party whatsoever; on the other hand, the other systems, and particularly the Common Law and Northern European countries, by contrast prefer to regard the judge as an ordinary citizen who as such should not be deprived of the right to join a political organisation.
A “compromise” solution is being considered in other countries. In Italy, for example, Article 98 of the Constitution (in force since 1948) envisages the possibility for the ordinary law to set limits on judges’ membership of political parties. Such a law has only recently (July 2005) been passed. On the other side, the “Judicial Code of Ethics” approved by the National Association of Italian Judges in 1994 requires judges belonging to that association (more than 90% of Italian judges) to “avoid any connection with the executive bodies of authorities, parties or companies that might influence them in the exercise of (their) functions or affect (their) image.” In any case, it is clear that merely limiting membership of political parties, or even imposing a total prohibition, is not enough. The thing to avoid–and here there seems to be a general consensus in Europe–is for the judge to be closely and actively involved in political activity.
In conclusion to this first introductory overview, I should like to mention two completely new forms of independence.
First, the independence of judges in relation to the media. The tendency for the judge’s activities, particularly in criminal matters, to be given media coverage, has recently assumed worrying proportions more or less throughout the world, but particularly in Western countries: examples are to be seen in a number of prosecutions brought against major political figures in Italy and also France and Spain, or the enormous uproar caused by the publicity given to certain issues (for example those surrounding the cases of the actor O.J. Simpson or the boxer M. Tyson in the United States). The risk remains that the judge may be influenced in his functions by the press, particularly in the case of judges aspiring to a career in politics or even election to the Higher Judicial Council.
The last form of independence that I would like to mention here is freedom from ignorance. “If the judge is ignorant,” said La Fontaine (The donkey carrying relics), “it’s the robes that carry respect.” If we want those robes to be worn by a judge who is respected by the people in court, and entirely free in reaching his decision, the judge must have a thorough knowledge of the subject matter with which he is dealing. A well trained judge is a more independent judge.
On the other hand, we must not forget that training now constitutes a veritable right for a European judge, according to Recommendation No. R (94) 12 of the Committee of Ministers of the Council of Europe on the independence, efficiency and role of judges. Principle III-1.a of that recommendation calls for the “recruiting (of) a sufficient number of judges and providing for appropriate training such as practical training in the courts and, where possible, with other authorities and bodies, before appointment and during their career. Such training should be free of charge to the judge and should in particular concern recent legislation and case-law. Where appropriate, the training should include study visits to European and foreign authorities as well as courts.”
3. The Independence of the Public Prosecutor’s Department.
An independent judge will not suffice to achieve judicial independence if the public prosecutor’s department, which is the authority empowered to turn the wheels of justice, at least in criminal matters, lacks independence.
It is precisely because public prosecutors safeguard the equality of citizens before the law that they must be able to exercise their functions independently of political power. Accordingly, the principle that judges are subject only to the law must equally apply to public prosecutors.
Experience in a number of countries has shown that inquiries into corruption often involve investigation of offences committed by centres of economic, financial and political power. It is imperative, therefore, that the court should be able to carry out its inquiries (and direct the judicial police) in a way that is completely independent of the government. It is of little use guaranteeing the independence of the judiciary if the possibility remains that the executive power can exercise control over prosecutors so as to prevent them from carrying out their inquiries.
The principles of democracy and the equality of citizens before the law require that any abuse of political power be exposed and punished. It is for this reason that even in countries where there is still a connection between the executive authority and the courts, increasing efforts are being made to cut the umbilical cord. It is interesting in this connection to point out that Article 18.2 of the Corpus Juris imposing penal provisions for the protection of the financial interests of the European Union provides that the Public European Ministry “is independent both from the national authorities and the community organs.”
4. The Internationalisation and Trans-Nationalisation of the Principles Concerning the Independence of the Judiciary: Instruments.
The second half of the century that has just ended saw an international awakening to the importance of the independence of the judiciary. This movement began with the Universal Declaration of Human Rights, adopted by the Assembly of the United Nations in 1948, which provides in Article 10 that “in the determination of his civil rights and obligations or of any criminal charge against him” everyone has the right to be judged by “an independent and impartial tribunal”. This same principle was included in the European Convention on Human Rights and Fundamental Freedoms signed in Rome in 1950 (Article 6).
Numerous conferences and congresses organised by international associations and bodies (including, in particular, the International Association of Judges) have devoted efforts to studying the systems guaranteeing the independence of the judiciary. Several binding declarations on this topic are to be found in the documents of international congresses, conferences and seminaries. The models and the law-making principles have begun to circulate throughout Europe and the entire world, with the result that today one can speak of not only international law for the protection of the independence of the judiciary, but also trans-national law on the subject. I would go as far as to say that it is not important that all the relevant instruments do not have binding force (or binding to the same degree): the practical experience of international associations shows, for example, that “private” documents, such as the Universal Charter of the Judge drawn up by the International Association of Judges, have served to persuade the political authorities of certain countries not to implement measures that might have limited the independence of the judiciary.
The most interesting results of this process of internationalisation and trans-nationalisation based on the principles of human rights protection are to be found in the following instruments:
· The European Convention on Human Rights, 1950, already mentioned;
· The Basic Principles on the independence of the Judiciary drawn up in 1985 by the UNO and the Procedures for their effective implementation (1989);
· The Statute of the Judge in Europe, drawn up and approved in 1993 by the European Association of Judges - Regional Group of the International Association of Judges;
· Recommendation No. R (94) 12 of the Committee of Ministers of the Council of Europe to Member States on the independence, efficiency and role of judges;
· The European Charter on the status of judges, approved by the Council of Europe in Strasbourg, 8-10 July 1998;
· The Universal Charter of the Judge, unanimously approved by the Central Committee of the International Association of Judges at its meeting in Taipei (Taiwan) on 17 November 1999;
· The European Parliament resolution on the annual report on respect for human rights in the European Union (1998 and 1999) (11350/1999 - C5-0265/1999 - 1999/2001(INI), adopted on 16 March 2000 (which “recommends that Member States guarantee the independence of judges and courts from the executive and ensure that appointments to the judiciary are not made on political grounds”);
· The “Charter of Fundamental Rights of the European Union” adopted in Nice on 7 December 2000 (which in article 47 - Right to an effective remedy and to a fair trial”, subparagraph 2, stipulates, in accordance with Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, that “Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law.”).
· Opinion No 1 (2001) of the Consultative Council of European Judges (CCJE) for the attention of the Committee of Ministers of the Council of Europe on Standards Concerning the Independence of the Judiciary and the Irremovability of Judges.
Among the Basic Principles on the Independence of the Judiciary drawn up by the UNO in 1985, the following are of particular interest:
“1. The independence of the judiciary shall be guaranteed by the State and enshrined in the Constitution or the law of the country. It is the duty of all governmental and other institutions to respect and observe the independence of the judiciary.
2. The judiciary shall decide matters before them impartially, on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason.
3. The judiciary shall have jurisdiction over all issues of a judicial nature and shall have exclusive authority to decide whether an issue submitted for its decision is within its competence as defined by law.
4. There shall not be any inappropriate or unwarranted interference with the judicial process (…).
6. The principle of the independence of the judiciary entitles and requires the judiciary to ensure that judicial proceedings are conducted fairly and that the rights of the parties are respected.
7. It is the duty of each Member State to provide adequate resources to enable the judiciary to properly perform its functions.”
5. The Internationalisation and Trans-Nationalisation of the Principles Concerning the Independence of the Judiciary: Principles and Rules set forth by the Council of Europe.
The documents drafted by the Council of Europe in the field of Judicial Independence contain general principles, on one side, but dwell as well, on the other side, on some specific measures aiming at safeguarding in practice compliance with those rules. As far as general principles are concerned let me quote the following rules (see Principle I, 2. of Recommendation No. R (94) 12):
“a. The independence of judges should be guaranteed pursuant to the provisions of the Convention and constitutional principles, for example by inserting specific provisions in the constitutions or other legislation or incorporating the provisions of this recommendation in internal law. Subject to the legal traditions of each state, such rules may provide, for instance, the following:
i. decisions of judges should not be the subject of any revision outside any appeals procedures as provided for by law;
ii. the terms of office of judges and their remuneration should be guaranteed by law;
iii. no organ other than the courts themselves should decide on its own competence, as defined by law;
iv. with the exception of decisions on amnesty, pardon or similar, the government or the administration should not be able to take any decision which invalidates judicial decisions retroactively.
b. The executive and legislative powers should ensure that judges are independent and that steps are not taken which could endanger the independence of judges.
c. All decisions concerning the professional career of judges should be based on objective criteria, and the selection and career of judges should be based on merit, having regard to qualifications, integrity, ability and efficiency. The authority taking the decision on the selection and career of judges should be independent of the government and the administration. In order to safeguard its independence, rules should ensure that, for instance, its members are selected by the judiciary and that the authority decides itself on its procedural rules.
However, where the constitutional or legal provisions and traditions allow judges to be appointed by the government, there should be guarantees to ensure that the procedures to appoint judges are transparent and independent in practice and that the decisions will not be influenced by any reasons other than those related to the objective criteria mentioned above. These guarantees could be, for example, one or more of the following:
i. a special independent and competent body to give the government advice which it follows in practice; or
ii. the right for an individual to appeal against a decision to an independent authority; or
iii. the authority which makes the decision safeguards against undue or improper influences.
d. In the decision-making process, judges should be independent and be able to act without any restriction, improper influence, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason. The law should provide for sanctions against persons seeking to influence judges in any such manner. Judges should have unfettered freedom to decide cases impartially, in accordance with their conscience and their interpretation of the facts, and in pursuance of the prevailing rules of the law. Judges should not be obliged to report on the merits of their cases to anyone outside the judiciary.
e. The distribution of cases should not be influenced by the wishes of any party to a case or any person concerned with the results of the case. Such distribution may, for instance, be made by drawing of lots or a system for automatic distribution according to alphabetic order or some similar system.
f. A case should not be withdrawn from a particular judge without valid reasons, such as cases of serious illness or conflict of interest. Any such reasons and the procedures for such withdrawal should be provided for by law and may not be influenced by any interest of the government or administration. A decision to withdraw a case from a judge should be taken by an authority which enjoys the same judicial independence as judges” (see Principle I, 2. of Recommendation No. R (94) 12).
Furthermore, “Judges, whether appointed or elected, shall have guaranteed tenure until a mandatory retirement age or the expiry of their term of office, where such exists” (see Principle I, 2. of Recommendation No. R (94) 12).
As far as proper working conditions are concerned, the above-mentioned Recommendation provides for as follows (see Principle III of the Recommendation No. (94) 12):
“1. Proper conditions should be provided to enable judges to work efficiently and, in particular, by:
a. recruiting a sufficient number of judges and providing for appropriate training such as practical training in the courts and, where possible, with other
authorities and bodies, before appointment and during their career. Such training should be free of charge to the judge and should in particular concern recent legislation and case-law. Where appropriate, the training should include study visits to European and foreign authorities as well as courts;
b. ensuring that the status and remuneration of judges is commensurate with the dignity of their profession and burden of responsibilities;
c. providing a clear career structure in order to recruit and retain able judges;
d. providing adequate support staff and equipment, in particular office automation and data processing facilities, to ensure that judges can act efficiently and without undue delay;
e. taking appropriate measures to assign non-judicial tasks to other persons, in conformity with Recommendation No. R (86) 12 concerning measures to prevent and reduce the excessive workload in the courts”.
It is sure that, as far as judicial status is concerned, the best protection for judicial independence, both “internal” and “external”, can only be assured by a Higher Judicial Council.
According to western European standards, a Higher Judicial Council should be the autonomous self-administration body in charge of safeguarding the independence of the judiciary. It should be composed exclusively of a majority representation of judges and public prosecutors. The Higher Council for the Judiciary should be entrusted with the appointment, assignment, transfer, promotion, and disciplinary measures concerning judges and public prosecutors. It should have the power to take decisions in all these matters and not to merely submit proposals to the administrative or legislative powers of the State.
A reference to this body is to be found already in the Recommendation No. R (94) 12 of the Council of Europe, whose Principle I 2.c. provides for that “The authority taking the decision on the selection and career of judges should be independent of the government and the administration. In order to safeguard its independence, rules should ensure that, for instance, its members are selected by the judiciary and that the authority decides itself on its procedural rules.” Principle VI 3. of the same document states that “Where measures under paragraphs 1 and 2 of this article need to be taken, states should consider setting up, by law, a special competent body which has as its task to apply any disciplinary sanctions and measures, where they are not dealt with by a court, and whose decisions shall be controlled by a superior judicial organ, or which is a superior judicial organ itself. ”
Much more than a mere hint to the self-governing body of the judiciary can be found in the European Charter on the status of judges, approved by the Council of Europe in 1998. A first direct reference to it is contained in Articles 1.3 and 1.4, respectively stating that “In respect of every decision affecting the selection, recruitment, appointment, career progress or termination of office of a judge, the statute envisages the intervention of an authority independent of the executive and legislative powers within which at least one half of those who sit are judges elected by their peers following methods guaranteeing the widest representation of the judiciary” and that “The statute gives to every judge who considers that his or her rights under the statute, or more generally his or her independence, or that of the legal process, are threatened or ignored in any way whatsoever, the possibility of making a reference to such an independent authority, with effective means available to it of remedying or proposing a remedy.”
In the field of judicial selection, recruitment and initial training the Charter says that (paragraph 2.1) “The rules of the statute relating to the selection and recruitment of judges by an independent body or panel, base the choice of candidates on their ability to assess freely and impartially the legal matters which will be referred to them, and to apply the law to them with respect for individual dignity” and that (paragraph 2.3) “The authority referred to at paragraph 1.3 hereof, ensures the appropriateness of training programmes and of the organization which implements them, in the light of the requirements of open‑mindedness, competence and impartiality which are bound up with the exercise of judicial duties.”
As far as appointment and irremovability are concerned the same document provides for that (paragraph 3.1) “The decision to appoint a selected candidate as a judge, and to assign him or her to a tribunal, are taken by the independent authority referred to at paragraph 1.3 hereof or on its proposal, or its recommendation or with its agreement or following its opinion” and that (paragraph 3.3) “Where the recruitment procedure provides for a trial period, necessarily short, after nomination to the position of judge but before confirmation on a permanent basis, or where recruitment is made for a limited period capable of renewal, the decision not to make a permanent appointment or not to renew, may only be taken by the independent authority referred to at paragraph 1.3 hereof, or on its proposal, or its recommendation or with its agreement or following its opinion.”
As well in the field of career development the Charter states that “Decisions as to promotion are then pronounced by the authority referred to at paragraph 1.3 hereof or on its proposal, or with its agreement,” whereas, in the field of judicial liability, paragraphs 5.1, 5.2 and 5.3 provide for as follows: “The dereliction by a judge of one of the duties expressly defined by the statute, may only give rise to a sanction upon the decision, following the proposal, the recommendation, or with the agreement of a tribunal or authority composed at least as to one half of elected judges, within the framework of proceedings of a character involving the full hearing of the parties, in which the judge proceeded against must be entitled to representation. The scale of sanctions which may be imposed is set out in the statute, and their imposition is subject to the principle of proportionality. The decision of an executive authority, of a tribunal, or of an authority pronouncing a sanction, as envisaged herein, is open to an appeal to a higher judicial authority.” (paragraph 5.1).
“Compensation for harm wrongfully suffered as a result of the decision or the behaviour of a judge in the exercise of his or her duties is guaranteed by the State. The statute may provide that the State has the possibility of applying, within a fixed limit, for reimbursement from the judge by way of legal proceedings in the case of a gross and inexcusable breach of the rules governing the performance of judicial duties. The submission of the claim to the competent court must form the subject of prior agreement with the authority referred to at paragraph 1.3 hereof.” (paragraph 5.2).
“Each individual must have the possibility of submitting without specific formality a complaint relating to the miscarriage of justice in a given case to an independent body. This body has the power, if a careful and close examination makes a dereliction on the part of a judge indisputably appear, such as envisaged at paragraph 5.1 hereof, to refer the matter to the disciplinary authority, or at the very least to recommend such referral to an authority normally competent in accordance with the statute, to make such a reference.” (paragraph 5.3).
Finally, paragraph 7, dealing with the issue of termination of office, provides for that “A judge permanently ceases to exercise office through resignation, medical certification of physical unfitness, reaching the age limit, the expiry of a fixed legal term, or dismissal pronounced within the framework of a procedure such as envisaged at paragraph 5.1 hereof,” (paragraph 7.1) and that “The occurrence of one of the causes envisaged at paragraph 7.1 hereof, other than reaching the age limit or the expiry of a fixed term of office, must be verified by the authority referred to at paragraph 1.3 hereof” (paragraph 7.2).
Taking now in account Opinion No 1 (2001) of the Consultative Council of European Judges (CCJE) we can remark that this body has taken a firm stand on many of the topics dealt with by Recommendation No. (94) 12. Among others we can mention the following ones.
Point 25: “The CCJE recommended that the authorities responsible in member States for making and advising on appointments and promotions should now introduce, publish and give effect to objective criteria, with the aim of ensuring that the selection and career of judges are “based on merit, having regard to qualifications, integrity, ability and efficiency.”
Point 37: “the CCJE considered that every decision relating to a judge’s appointment or career should be based on objective criteria and be either taken by an independent authority or subject to guarantees to ensure that it is not taken other than on the basis of such criteria.”
Point 45: “Even in legal systems where good standards have been observed by force of tradition and informal self-discipline, customarily under the scrutiny of a free media, there has been increasing recognition in recent years of a need for mo re objective and formal safeguards. In other states, particularly those of former communist countries, the need is pressing. The CCJE considered that the European Charter - in so far as it advocated the intervention (in a sense wide enough to include an opinion, recommendation or proposal as well as an actual decision) of an independent authority with substantial judicial representation chosen democratically by other judges - pointed in a general direction which the CCJE wished to commend. This is particularly important for countries which do not have other long entrenched and democratically proved systems.”
Point 53: “The CCJE considered that when tenure is provisional or limited, the body responsible for the objectivity and the transparency of the method of appointment or re-appointment as a full-time judge are of especial importance (see also paragraph 3.3 of the European Charter).”
Point 56: “The CCJE agreed that the importance for national legal systems and judges of the obligations resulting from international treaties such as the European Convention and also the European Union treaties makes it vital that the appointment and re -appointment of judges to the courts interpreting such treaties should command the same confidence and respect the same principles as national legal systems. The CCJE further considered that involvement by the independent authority referred in the paragraphs 37 and 45 should be encouraged in relation to appointment and re-appointment to international courts.”
Point 60: “The CCJE considered (a) that the irremovability of judges should be an express element of the independence enshrined at the highest internal level (see paragraph 16 above); (b) that the intervention of an independent authority13, with procedures guaranteeing full rights of defence, is of particular importance in matters of discipline; and (c) that it would be useful to prepare standards defining not just the conduct which may lead to removal from office, but also all conduct which may lead to any disciplinary steps or change of status, including for example a move to a different court or area.”
6. Internationalisation and Trans-Nationalisation of Principles Governing the Independence of the Judiciary: General Rules.
I shall now try to summarise the basic principles and the crucial requirements for the exercise of a truly independent justice system:
1. The judiciary is an autonomous body. It is not subject to either of the other state authorities. Public prosecutors should enjoy the same statutory guarantees as judges.
2. Judges and public prosecutors are subject only to the law.
3. Judges and public prosecutors should be appointed for life or for such period as is consistent with guaranteeing their independence. No change introduced in regard to the compulsory retirement age should have a retroactive effect.
4. Judges and public prosecutors should be selected by public competition. The selection and appointment of judges and public prosecutors should be carried out according to objective and transparent criteria and on the basis of the professional qualifications of the persons concerned.
5. There should be no interference by the legislative or executive authorities in the selection of judges and public prosecutors.
6. A Higher Judicial Council should be established with responsibility for appointments, assignments, transfers, promotions and disciplinary procedures in relation to judges and public prosecutors. This body should be composed of judges and public prosecutors, or at the very least should include a majority of judges and public prosecutors.
7. Judges and public prosecutors should only be transferred, suspended or removed from office in circumstances prescribed by law and then only as the result of a disciplinary finding reached by the competent body through the appropriate procedure.
8. Disciplinary proceedings should be brought before an independent council which includes a substantial representation of judges. Disciplinary proceedings against judges should only be brought under the provisions of a pre-existing law and in accordance with pre-established rules of procedure.
9. Judges and public prosecutors are entitled to an effective system of initial and in-service training. The training of judges should be carried out by an independent establishment (such as a school established specifically for the initial and/or in-service training of judges), or by an independent body (such as the Higher Judicial Council), which would include a substantial representation of judges.
10. Judges should have appropriate working conditions.
11. The salaries of judges and of public prosecutors should be established by law (and not by administrative decision) and be linked to the salaries of members of parliament or ministers. They should on no account be reduced.
12. Judges and public prosecutors should have full freedom of association. Service within such an association should be officially recognised as having the same status as the ordinary work of judges.
I must admit that none of the instruments or declarations cited above includes all of the rules that I have just proposed, but it is nevertheless clear that those international documents must be read and interpreted today as forming part of a patchwork structure, constituting a veritable “international and trans-national corpus juris on the status of judges.” This system has already been applied to some extent at national level in Europe. One example I might quote is that of the Italian constitution: this text–although it was drawn up over half a century ago, at the end of a period of dictatorship, conflict and civil war–has nevertheless managed to protect the independence of the judiciary over the past 50 years.
IN THE EUROPEAN COURT OF HUMAN RIGHTS CASE-LAW
7. Judicial Independence vis-à-vis the Executive Branch.
Having laid down the basic rules concerning the independence of the Judiciary, we shall now focus on the case-law of the European Court of Human Rights, in order to see how this concept has been interpreted and applied in different situations. Generally speaking we can say that the principle of judicial independence has been asserted vis-à-vis possible interference by the other two powers of the State (so called “external” independence), while so far no case appears to refer to the question of “internal” independence. We shall therefore firstly deal with cases concerning relations to the executive and secondly to the legislative powers.
In this case a French citizen complained against a law (subsequently repealed by France) which allowed the Conseil d’Etat to rely on the official interpretation of international treaties given by the Minister for Foreign Affairs. In other words the Conseil d’Etat, when confronted with provisions of international treaties that it considered insufficiently clear, could defer its decision and ask the Minister for Foreign Affairs to issue an advice on how to interpret provisions of the concerned treaties.
Actually, in the relevant case, on 3 October 1986 the Conseil d’Etat deferred its decision on the application until the authority empowered to interpret the Protocol had given its opinion. It gave the following reasons: “The outcome of this dispute depends on whether, under this Article [1 of the Franco-Moroccan Protocol], natural persons are entitled to claim compensation solely as members of partnerships or companies that were the direct owners of assets conferring a right to compensation under the above-mentioned Protocol or whether they are also entitled to do so as shareholders of companies themselves members of the partnerships or companies which owned such assets. The outcome of the dispute is accordingly contingent on the interpretation of the Protocol. The Protocol is an international agreement and its meaning is unclear. Consequently, only the Minister for Foreign Affairs is competent to interpret it.” In a note of 2 July 1987 the Minister replied that the Protocol in question “was not ... intended to cover natural persons holding shares in companies which themselves were members of the partnerships or companies that owned the assets conferring a right to compensation,” with the result that the applicants were not entitled to compensation under the Protocol.
The Court observed that the Conseil d’Etat had referred to a representative of the executive for a solution to the legal problem before it. It had dismissed the application filed by Mr Beaumartin and his sisters because the minister had confirmed the interpretation adopted by the compensation committee. The minister’s involvement, which had been decisive for the outcome of the legal proceedings, was not open to challenge by the applicants, who had moreover not been afforded any possibility of giving their opinion on the use of the referral procedure and the wording of the question. Pointing out that only an institution that has full jurisdiction and satisfies a number of requirements, such as independence of the executive and also of the parties, merits the designation “tribunal” within the meaning of Article 6 para. 1 (art. 6-1), the Court held that the Conseil d’Etat did not meet these requirements in this case.
This case is similar to the Beaumartin case. The application was addressed against the Conseil d’Etat’s practice of referring preliminary questions for interpretation of an international treaty to the Minister for foreign affairs. This meant, in the relevant case, that, when the administrative court was called upon to give a ruling on the conditions governing the application of the reciprocity clause in Article 55 of the French Constitution, it was obliged to ask the Minister for Foreign Affairs to clarify whether the treaty in issue had been applied on a reciprocal basis and to draw the necessary consequences. The administrative judge had then to abide by his interpretation in all circumstances.
Also in this case the Court noted that the Conseil d’Etat, in accordance with its own case-law, relied entirely on a representative of the executive for a solution to the problem before it, concerning the applicability of treaties. In addition, the minister’s involvement, which was decisive for the outcome of the legal proceedings, was not open to challenge by the applicant, who was, moreover, not afforded any opportunity to give her opinion on the use of the referral procedure or the wording of the question, or to have the basis of her own reply to the question examined, or to submit a reply to the minister, which might have been helpful or even decisive in the eyes of the court. The Court therefore concluded that Article 6 had been violated.
Here the Court held understandable that a civilian prosecuted in a National Security Court for offences regarded ipso facto as directed against Turkey’s territorial national integrity, the democratic order or national security should be apprehensive about being tried by a bench of three judges which included a regular army officer, who was a member of the Military Legal Service. Status of military judges provided certain guarantees of independence and impartiality making them comparable to their civilian counterparts – on the other hand, during their term of office (which lasted four years and could be renewed) they continued to belong to the army, remained subject to military discipline and had assessment reports made on them by the army, which, together with the administrative authorities, took decisions pertaining to their appointment.
In the Court’s view, the applicant could have legitimately feared that because one of the judges of the National Security Court was a military judge, it might allow itself to be unduly influenced by considerations which had nothing to do with the case. The Court reiterated that in order to establish whether a tribunal can be considered “independent” for the purposes of Article 6 § 1, regard must be had, inter alia, to the manner of appointment of its members and their term of office, the existence of safeguards against outside pressures and the question whether it presents an appearance of independence. The Court concluded therefore that Article 6 had been violated.
In this case the Court noted that the Ukrainian authorities acting at the highest level intervened in a proceedings before an Ukrainian court on a number of occasions. Whatever the reasons advanced by the Government to justify such interventions, the Court considered that, in view of their content and the manner in which they were made, they were ipso facto incompatible with the notion of an “independent and impartial tribunal” within the meaning of Article 6 § 1 of the Convention. The Court saw no reason to speculate on what effect such interventions may have had on the course of the proceedings in issue, but found that in the circumstances of the case the applicant company’s concerns as to the independence and impartiality of the tribunals were not unreasonable. Coming from the executive branch of the State, such interventions revealed a lack of respect for judicial office itself.
In a case concerning a Romanian trying to recover property of a house seized during the communist regime, the plaintiff held that there had been a violation of Article 6, because two of the judges members of the panel of the Romanian Supreme Court had in a previous and similar case, decided by the Joint Chambers of that Court, had voted for an interpretation of law which was against the interests of the plaintiff. The Court of Human Rights decided that the authority of the decisions rendered by the joint chambers of a court is not an authority which can limit the right and the duty of the other sections of that court or of lower courts to examine and decide cases in a fully independent way. The Court therefore rejected the application, saying that no violation of the principle of judicial independence had occurred in the relevant case.
8. Judicial Independence vis-à-vis the Legislative Branch.
In 1988, staff members of the local social-security offices of Alsace-Moselle challenged before several industrial tribunals the method whereby the offices had, for nearly fifteen years, calculated the amount of a special allowance introduced by an agreement of 1953. In April 1992 the Court of Cassation quashed judgments of the Metz Court of Appeal relating to some of these cases, held that the 1953 agreement could no longer apply in its original terms and ordered that the cases should be reheard by a tribunal of fact in order that it might be determined whether a practice had been established (on account of the application of a given method of calculation by the social-security offices over many years) or, in the absence of such a practice, in order that the method of calculating the allowance should be determined. In September 1993, however, the Colmar Court of Appeal held that a practice had been established for paying the allowance by the method adopted by the social-security offices, while in October the Besançon Court of Appeal held, on the contrary, that no practice had been established and laid down a new method of calculation – in other words, two unappealable but contradictory assessments of one and the same question of fact, namely whether a practice existed. Therefore, an unjustifiable inequality of position arose between staff members of the local social-security offices of Alsace-Moselle in respect of the calculation of the allowance in question, according as they came, as litigants, within the jurisdiction of the Colmar Court of Appeal or within that of the Metz Court of Appeal.
During the passage through Parliament of a bill on public health and social welfare, which began on 26 October 1993, the government took the initiative of tabling an amendment. The debates on that amendment, which became section 85 of the eventual Act, took place mainly on 30 November 1993 in the National Assembly and 13 December 1993 in the Senate. Clause 85 of the bill (94-43 of 18 January 1994) was adopted.
Section 85 of the Act provided that, subject to any court judgment to the contrary that had become final on the merits, the amount of the special allowance introduced by the agreement of 28 March 1953 for staff of the social-security bodies administering the general social-security scheme and their dependent institutions in the départements of Bas-Rhin, Haut-Rhin and Moselle would, with effect from 1 December 1983, be set at 3.95 times the value of the point as determined under the pay agreements and paid twelve times a year, notwithstanding any provisions to the contrary in collective or individual agreements that were in force on the date of commencement of section 85.
An application was made to the Constitutional Council by a number of members of parliament who considered, in particular, that section 85 of the Act contravened the principle of the separation of powers in that it represented an interference by the legislature with pending court proceedings and that, further, the section in issue, which related to employment law, was unconnected with the purpose of the Act. In a decision of 13 January 1994 the Constitutional Council held that the legislative provisions complained of were not unconstitutional, on the following grounds: “In setting the amount of the ‘special difficulties’ allowance at 3.95 times the value of the point as determined by applying pay agreements of 8 February 1957, with retrospective effect from 1 December 1983, the legislature intended to stop further conflicting decisions being given by the courts and thereby prevent fresh disputes arising whose outcome might adversely affect the financial stability of the social-security schemes in issue.
The legislature expressly preserved the position of persons who had obtained a court decision that had become final on the merits. There is nothing in the Act to warrant the inference that the legislature departed from the principle that criminal provisions must not have retrospective effect. The legislature was entitled, subject to compliance with the aforementioned principles, to make use, as it alone could do in the circumstances, of its power to make retrospective provisions in order to resolve, in the general interest, situations that had arisen from the conflicting court decisions mentioned above. That being so, the impugned provisions are not contrary to any rule, nor do they offend any constitutional principle.”
The Court of Human Rights held, on the contrary, that there had been a violation of the Convention, reaffirming the principle, based on Article 6 § 1 of the Convention, that the legislature must not intervene with the aim of retrospectively establishing or altering a given legal situation so as to influence the judicial determination of a dispute. The only allowed exception dealt with cases in which such an intervention would be justified on compelling grounds of the general interest. The Court therefore confirmed all its decisions in earlier cases, in which initially the principle was laid down that the legislature must not interfere with the administration of justice (Stran Greek Refineries and Stratis Andreadis v. Greece judgment of 9 December 1994, Series A no. 301-B, and Papageorgiou v. Greece judgment of 22 October 1997, Reports of Judgments and Decisions 1997-VI), and then the idea introduced that such interference could, however, be justified on compelling grounds of the general interest (judgment of 23 October 1997 in the National & Provincial Building Society, Leeds Permanent Building Society and Yorkshire Building Society v. the United Kingdom case, Reports 1997-VII), grounds which have been assessed by the Court against the background and in the circumstances of each case and which may, exceptionally, be held by it to be more legitimate than the rights relied on by certain individuals or, at any rate, held to prevail over them.
In this case the reason for the legislature’s intervention (section 85 of the Act of 18 January 1994) was primarily, if not exclusively, the fact that there was a conflict of case-law, on a question of fact, between two trial courts, the Colmar and Besançon courts of appeal, the latter of which had ruled on a case referred to it after a judgment of the Metz Court of Appeal had been quashed.
Did that situation, however, constitute in autumn 1993 a compelling ground of the general interest which justified the intervention of the legislature? That would have been so if the legislature alone had been in a position to remedy the contradictions between the judgments. But in fact the interested parties could still have applied to the Court of Cassation, relying precisely on the conflict of judgments. A judicial resolution of the difficulty, which would have remedied the denial of justice, was therefore possible. It was ultimately for that reason that the conflict between decisions given in autumn 1993 by the Colmar and Metz courts of appeal did not amount to a compelling ground of the general interest justifying the legislature’s intervention, it being remembered that, regardless of the resulting confusion, that conflict did not in itself cause any financial difficulties for the social-security bodies.
The European Court remarked therefore that, where it is impossible, or no longer possible, for the Court of Cassation to remedy them, conflicting decisions rendered by trial and appeal courts are undoubtedly likely to surprise, perturb or shock the public, but they are the price to be paid for operating a decentralised system of courts, whose supreme overseer, the Court of Cassation, respects the wholly independent assessment of the facts by the tribunals of fact and rules only on issues of law. The European Court therefore did not accept that such conflicts constitute a compelling ground of the general interest which justifies the intervention of the legislature. The same Court admitted that there can be very cogent reasons for accepting such an intervention where, in certain temporal and geographical circumstances, the conflicting decisions in practice lead to a denial of justice, for example where the execution of irreconcilable decisions is physically impossible or, if not impossible, would immediately create an intolerable inequality of position between the parties concerned.
However, this was not the case in the relevant situation. Therefore the European Court concluded that there had been a violation of Article 6.
IN INTERNATIONAL DOCUMENTS AND DECLARATIONS
9. Defining Judicial Impartiality and its Relations to Judicial Independence.
Having treated of judicial independence we shall now focus on judicial impartiality. Judicial impartiality made its first official historical appearance in the framework of the Virginia Declaration of Rights (Final Draft,12 June 1776) “made by the Representatives of the good people of Virginia, assembled in full and free Convention; which rights do pertain to them and their posterity, as the basis and foundation of Government.” Article 8 of this declaration provided for that “In all capital or criminal prosecutions a man hath a right to demand the cause and nature of his accusation to be confronted with the accusers and witnesses, to call for evidence in his favour, and to a speedy trial by an impartial jury of his vicinage…”
Impartiality is a duty of the State as a whole. Even the Executive Power has to behave in an impartial way, as it is proved by the fact that some constitutions prompt ordinary laws to ensure impartiality of the public administration. So e.g. the Italian Constitution (Article 97, Para. 1) provides for that “The organization of public offices is determined by law ensuring the proper operation and the impartiality of public administration.” According to Article 103, Para. 3, of the Spanish Constitution “The law shall regulate the statute of the public officials, the access to civil service in accordance with the principles of merit and ability, the system under which they exercise their right to form unions, the system of incompatibilities, and the safeguards for political impartiality in the exercise of their functions.”
But impartiality is consubstantial to the Judicial Power. As the French Chancelier Michel de l’Hôpital said in a famous speech before the Parlement (Court of Appeals) of Rouen on 17 August 1563, addressing himself to French judges: “If you do not feel strong and fair enough to govern your passions, give up your judicial functions” (“Si vous ne vous sentez assez forts et justes pour commander vos passions, abstenez-vous de l’office du juge”).
While judicial independence is easy to be defined, if we only bear in mind that this concept is the antithesis of the idea of dependence and that dependence is something rather easily understandable, the concept of impartiality is somewhat more difficult to grasp. Actually, if partiality means taking a side, we must remark that at the end of the proceeding the judge is obliged, in any case, to decide, and so to take a side. If we had to make a distinction between independence and impartiality, we could try to say that while independence marks a relation which should exist between the judge and the environment in which he/she works, judicial impartiality should portray the relation between the judge and a specific case (any specific case the judge has to adjudicate). Therefore, while independence marks the absence of external pressure on the judges, impartiality normally denotes absence of prejudice or bias from the part of the judge. If we could use a slogan, we could say that for the judge independence is a right, whereas impartiality is a duty.
10. Judicial Impartiality in International Documents and Declarations.
Many of the already mentioned international documents on human rights, justice and the status of judges refer to judicial impartiality as to one of the fundamental conditions for a fair judicial system, very often approaching it to the concept of independence. Once again we can mention:
· The “Charter of Fundamental Rights of the European Union”, 2000.
As far as the Council of Europe is concerned we can point out that the already mentioned Recommendation No. R (94) 12 of the Committee of Ministers of the Council of Europe to Member States on the independence, efficiency and role of judges refers three times to the concept of impartiality.
· According to Principle I. 2. d., “Judges should have unfettered freedom to decide cases impartially, in accordance with their conscience and their interpretation of the facts, and in pursuance of the prevailing rules of the law”.
· Principle V. 3. b., on the other hand, provides for that “Judges should in particular have the following responsibilities: (…) to conduct cases in an impartial manner in accordance with their assessment of the facts and their understanding of the law, to ensure that a fair hearing is given to all parties and that the procedural rights of the parties are respected pursuant to the provisions of the Convention.
· Finally, according to Principle V. 3. d., “where necessary [judges should] explain in an impartial manner procedural matters to parties”.
Coming to The European Charter on the status of judges, approved by the Council of Europe in Strasbourg, 8-10 July 1998, we may notice that from the very beginning
· Article 1.1. provides for that “The statute for judges aims at ensuring the competence, independence and impartiality which every individual legitimately expects from the courts of law and from every judge to whom is entrusted the protection of his or her rights. It excludes every provision and every procedure liable to impair confidence in such competence, such independence and such impartiality.”
· Article 2.1. of the same Charter provides for that “The rules of the statute relating to the selection and recruitment of judges by an independent body or panel, base the choice of candidates on their ability to assess freely and impartially the legal matters which will be referred to them, and to apply the law to them with respect for individual dignity. The statute excludes any candidate being ruled out by reason only of their sex, or ethnic or social origin, or by reason of their philosophical and political opinions or religious convictions.”
· In the same delicate field of judicial appointment the requisite of impartiality is evoked as well by Article 3.2., while Article 2.3., dealing with judicial training, provides for that “The statute ensures by means of appropriate training at the expense of the State, the preparation of the chosen candidates for the effective exercise of judicial duties. The authority referred to at paragraph 1.3 hereof, ensures the appropriateness of training programmes and of the organization which implements them, in the light of the requirements of open-mindedness, competence and impartiality which are bound up with the exercise of judicial duties.”
· Finally we find again clear hints to the need for impartiality in some provisions of the Charter relating to judicial career (Articles 4.2. and 4.3.) and to judicial remuneration (Article 6.1.).
11. Concrete Ways to Ensure Judicial Impartiality: Structural Mechanisms and Ethical Duties.
Judicial impartiality can be concretely ensured in a number of ways. Different procedural mechanisms strive in each legal system to achieve this goal. Let us mention some examples, such as withdrawing from hearing a case (abstention) and recusation. Even the possibility of an appeal to a superior court can be seen as a way through which impartiality can be implemented in single cases. We can cite as well the fact that in many legal systems cases must be decided by a panel of judges and not by a single judge. Also the obligation for the judge to hand down the written reasoning of his/her decision–of course, where such duty exists–remarkably contributes to ensure the respect of the principle of impartiality and so does the publication of this judgement in law reviews as well through other means like e.g. Internet.
Impartiality is a duty of the judge, whose violation can be relevant on the disciplinary as well as on the ethical level. For example, according to the disciplinary case-law of the Italian Higher Judicial Council, judges can be held responsible for violating this essential rules in the following cases:
· showing favouritism towards certain court experts, addressing him/herself only to them in order to obtain technical advice and fixing exaggerated fees;
· choosing in a case his own family members as court experts;
· receiving money from a defendant in order to endorse, as public prosecutor, the defendant’s plea to be released on bail by the investigating judge;
· not disqualifying himself from hearing a case, when there is conflict of interest.
Always in relation to the duty of impartiality private or public, full or part-time, employment are (generally) strictly forbidden to judges. Art. 16 of the Italian Act (regio decreto) Nr. 12, 30 January 1941–which is still in force today in Italy–prevents judges from having any kind of public or private, full or part-time employment, independent professions, business ventures and enterprise activities. The Disciplinary Division of the Italian Higher Judicial Council applied this rule, for instance, to judges who had been working as legal consultants for solicitors or engineers, or who had been acting as managers of private corporations.
On the contrary, writing articles for newspapers is considered legal. Apart from the above mentioned prohibitions, any other kind of non-judicial appointment (e.g. yearly professorship as a university lecturer) has to be authorised by the High Judiciary Council.
An issue which has been very intensively debated in the last years concerns the membership in a freemasonry lodge. The problem broke out at the beginning of the 1980s, when it was discovered that a particular lodge, called P2, had been carrying out illegal activities for many years. The judges who were discovered as being member of this lodge were submitted to disciplinary sanctions, because the C.S.M. Disciplinary Division remarked that that lodge was a secret association, in blatant violation of article 18 of our Constitution.
The question remained for the “normal” membership of the freemasonry. On 22 March 1990 the plenary session of the High Judiciary Council issued a declaration stating that judges should not only avoid belonging to associations forbidden by the law, but that they should also abstain from taking part:
· in brotherhoods in which the loyalty to the organisation could be felt stronger than the loyalty to the Constitution or the duties of impartial and independent exercise of the jurisdiction and
· in brotherhoods whose membership could endanger the citizens’ confidence in the credibility of the judge.
On 11 November 1994 the Disciplinary Division inflicted a disciplinary sanction on a judge for his membership to a masonic lodge, stating that the ties of masonic solidarity, emphasised by the solemn oath of allegiance, was incompatible with the loyalty a judge owes exclusively to the law.
As for political activity a judge can of course publicly express his/her political views or take part in an electoral meeting, but he/she cannot take active part in a political campaign, unless he/she does not stand as candidate. The ethical code adopted by the Italian association of judges (Article 8) forbids judges–though indirectly and through rather involved expressions–to join political parties, but, as we shall se later, these provisions do not have the same force as a law and can only indirectly influence disciplinary case law. Judges can be elected to the Parliament, but then they are automatically suspended from their judicial functions for the whole period in which they serve as parliamentarians. They can not be elected in the same district in which they have exercised their functions until six months before they have accepted to be candidates. After having completed their term of office, they can return to exercise their functions. Judges who stood as candidates but were not elected cannot exercise their functions for at least five years in the same district in which they campaigned.
On all of these matters a law recently adopted by the Italian Parliament is going to exert a remarkable influence. This act (Law of 25 July 2005, No. 150) provides for a strict prohibition for judges and prosecutors to be members of political parties and inflicts disciplinary sanctions to a series of behaviours considered as against the principle of judicial impartiality. As this act belongs to the category of so-called “delegation laws,” we are still waiting for the Government to issue the decrees which will enact and implement the principles set forth by the new act, which will only then practically and effectively enter into force.
As far as ethical duties are concerned, let me add that I belong to a system in which an ethical code for judges exists since more than a decade. In 1993, upon delegation from the Parliament, the Italian Government issued a decree, according to which all the branches of the civil service should adopt ethical codes “in order to ensure a high standard of services to the citizens”. The central directive board of the Italian Association of Judges approved on 7 May 1994 an “Ethical Code for Judges”, which is not part of any statute issued by the Parliament and therefore cannot be considered as law. Moreover, this governmental decree of 1993 must be considered unconstitutional, because all matters concerning a judge’s status can be regulated only by the law according to article 102 of our Constitution. Yet, it is undeniable that this code will somewhat influence the application of the disciplinary rules provided for by the law.
This “Ethical Code” is divided into three parts: (i) General principles, (ii) Independence, impartiality, correctness, (iii) Judge’s conduct while exercising his/her functions. Here we find again a definition of the duties of a “good judge”, together with terms like: dignity, correctness, sensitivity to the public interest, independence, impartiality, rejection of any external interference, diligence, activity.
In particular, as far as impartiality is concerned, Article 9 provides for as follows:
“Art. 9 - The impartiality of judges and public prosecutors.
Judges and public prosecutors shall respect the dignity of any person, avoiding any kind of discrimination or prejudice referring to sex, culture, ideology, race or religion.
In the exercise of their duties, they shall ensure the effectiveness of the principle of impartiality, by overcoming cultural prejudices that can affect the understanding and the evaluation of facts, as well as the interpretation and the application of law.
They shall ensure that, in the exercise of their duties, their image of impartiality stay always untarnished. For this purpose they shall consider as strictly as possible all cases in which they could disqualify themselves from hearing a case for serious reasons of opportunity.”
IN THE EUROPEAN COURT OF HUMAN RIGHTS CASE-LAW
12. Drawing the Line Between a Subjective and an Objective Approach.
Having laid down the basic rules concerning the impartiality of the Judiciary, we shall now focus on the case-law of the European Court of Human Rights, in order to see how this concept has been interpreted and applied in different situations. Generally speaking, we can say that the principle of judicial impartiality has been addressed to by distinguishing between a subjective and an objective approach. This idea has been clearly expressed in a number of cases. After having explained the differences between the two approaches, we shall focus first on the different aspects of the subjective approach and subsequently on those of the objective viewpoint.
In the case Piersack v. Belgium (1 October 1982) the Court had to address the following issue. Mr. Van de Walle, the judge who presided over the Brabant Assize Court in the criminal proceedings against Mr. Piersack, had previously served as a senior deputy to the Brussels procureur du Roi; until his appointment to the Court of
Appeal, he was the head of section B of the Brussels public prosecutor’s department, this being the section dealing with indictable and non-indictable offences against the person and, therefore, the very section to which Mr. Piersack’s case was referred. On the strength of this fact the applicant argued that his case had not been heard by an “impartial tribunal”: in his view, “if one has dealt with a matter as public prosecutor for a year and a half, one cannot but be prejudiced.”
The Court held that, whilst impartiality normally denotes absence of prejudice or bias, its existence or otherwise can, notably under Article 6 § 1 (art. 6-1) of the Convention, be tested in various ways. A distinction can be drawn in this context between a subjective approach, that is endeavouring to ascertain the personal conviction of a given judge in a given case, and an objective approach, that is determining whether he offered guarantees sufficient to exclude any legitimate doubt in this respect.
As regards the first approach, the Court noted in this case that the applicant was pleased to pay tribute to Mr. Van de Walle’s personal impartiality; it did not itself have any cause for doubt on this score and indeed personal impartiality was to be presumed until there was proof to the contrary.
However, the Court remarked that it was not possible to confine oneself to a purely subjective test. In this area, even appearances may be of a certain importance. What was at stake was the confidence which the courts must inspire in the public in a democratic society.
The Court noticed that it would have been going too far to the opposite extreme to maintain that former judicial officers in the public prosecutor’s department were unable to sit on the bench in every case that had been examined initially by that department, even though they had never had to deal with the case themselves. So radical a solution, based on an inflexible and formalistic conception of the unity and indivisibility of the public prosecutor’s department, would erect a virtually impenetrable barrier between that department and the bench. It would lead to an upheaval in the judicial system of several Contracting States where transfers from one of those offices to the other are a frequent occurrence. Above all, the mere fact that a judge was once a member of the public prosecutor’s department is not a reason for fearing that he lacks impartiality. However, remarked the Court, if an individual, after holding in the public prosecutor’s department an office whose nature is such that he may have to deal with a given matter in the course of his duties, subsequently sits in the same case as a judge, the public are entitled to fear that he does not offer sufficient guarantees of impartiality.
This being the case in that particular proceeding, the Court concluded that there had been a violation of Article 6 § 1 (art. 6-1).
Also in the case Pullar v. U.K. (10 June 1996) we can read that “It is well established in the case-law of the Court that there are two aspects to the requirement of impartiality in Article 6 para. 1 (art. 6-1). First, the tribunal must be subjectively impartial, that is, no member of the tribunal should hold any personal prejudice or bias. Personal impartiality is to be presumed unless there is evidence to the contrary. 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 (see, for instance, the Fey v. Austria judgment of 24 February 1993, Series A no. 255-A, p. 12, para. 28).”
Having said this, we may now try to see how the Court has actually drawn a distinction between subjective and objective impartiality. We shall first of all dwell on the subjective approach.
13. Subjective Impartiality: Keeping a Distance from the Case.
In the case Buscemi v. Italy (16 September 1999) the applicant complained of bias on the part of the President of the Turin Youth Court, C.L., and submitted that his case should not have been heard by a court presided over by a person with whom he had had an argument in the press. He alleged that this had given rise to a violation of Article 6 § 1 of the Convention. The Government considered that there could be no doubt as to the President of the court’s impartiality. The decisions adopted by the court presided over by C.L. had not subsequently been varied and the proceedings on the complaints which the applicant had filed against the President had been discontinued. Furthermore, it was the applicant who had started the controversy with his letter in La Stampa portraying the court’s work in an unfavourable light and he had been supported in that action by the journalist responsible for the column. The President of the court had therefore simply considered it his duty to clarify matters, having regard in particular to the risk of misinformation on account of the relative importance given by the daily in question to the applicant’s story.
The European Court stressed, above all, that the judicial authorities are required to exercise maximum discretion with regard to the cases with which they deal in order to preserve their image as impartial judges. That discretion should dissuade them from making use of the press, even when provoked. It is the higher demands of justice and the elevated nature of judicial office which impose that duty.
The Court considered, as the Commission did, that the fact that the President of the court publicly used expressions which implied that he had already formed an unfavourable view of the applicant’s case before presiding over the court that had to decide it clearly appears incompatible with the impartiality required of any court, as laid down in Article 6 § 1 of the Convention. The statements made by the President of the court were such as to objectively justify the applicant’s fears as to his impartiality (see, mutatis mutandis, the Ferrantelli and Santangelo v. Italy judgment of 7 August 1996, Reports 1996-III, p. 952, §§ 59 and 60). 69. There has accordingly been a breach of Article 6 § 1 of the Convention.
It should be added, as a personal remark on my side, that the rationale of this decision has often been misunderstood. Actually, I heard many times people quoting it in order to endorse the unacceptable view according to which judges should be kept muzzled and should be unable to defend themselves against accusations and allegations of the media. Arguing so would mean to deprive the judge of a constitutional and unalienable right pertaining to each and any human being. Quite on the contrary, this judgment has to be read in the framework of the contest in which it was placed. The Court was not (and could have not been) issuing a disciplinary decision on the behaviour of the judge. The point was not whether or not the judge could make those statements in the press, but whether, after having made those statements, he could further go on with presiding over the proceedings. In my view, the solution is therefore that a judge who exerts his constitutional and unalienable right to defend him/herself against allegations made in the press by a party to a proceeding, has the duty to withdrew him/herself from hearing that case.
A similar decision was rendered in the case Lavents v. Latvia (28 November 2002). In this decision (whose reasoning is available only in French) we can read that “Quant à la démarche subjective, la Cour rappelle que la discrétion qui s’impose aux autorités judiciaires lorsqu’elles sont appelées à juger, doit les amener à ne pas utiliser la presse, même pour répondre à des provocations ; ainsi le veulent les impératifs supérieurs de la justice et la grandeur de la fonction judiciaire. En particulier, le fait, pour le président ou le membre d’un tribunal appelé à trancher une affaire, d’employer publiquement des expressions sous-entendant une appréciation négative de la cause de l’une des parties, est incompatible avec les exigences d’impartialité de tout tribunal, consacrées à l’article 6 § 1 de la Convention (voir Buscemi c. Italie, no 29569/95, §§ 67-68, CEDH 1999-VI).”
In this very case the Court remarked that, in her declarations to the press, the judge had criticised the behaviour of the defendant’s attorney before the tribunal, saying that she (the judge) did not know yet “whether the defendant would be sentenced or partially acquitted.” By doing so, the judge had implicitly but clearly excluded the possibility of a full acquittal. Moreover, the judge said to the press that she was astonished by the fact that the defendant kept on pleading innocent and she prompted him to give evidence of his innocence. The Court held therefore that such statements clearly marked a negative appreciation of the case, incompatible with the concept of impartiality of Article 6 § 1 of the Convention.
In both the above-mentioned cases (Buscemi and Lavents) the need for “keeping a distance from the case” was stated by the Court having regard to declarations made by the judge to the press. In the case Sofri and others v. Italy (10 June 2003) the alleged violation of Article 6 § 1 of the Convention was based on the assumption that a judge had not “kept a distance” from his personal view of the case while writing the reasoning of it.
Actually, the case had been brought by Mr Sofri against a decision of an Assize Court of Appeal which had acquitted him of the accusation of having killed a Police officer in Milan. This acquittal had subsequently been quashed by the Supreme Court of Cassation. Mr Sofri argued that the judge who wrote the reasoning of the case (one of the eight composing the panel, which in Italy is made of 6 lay judges and 2 career judges) had drafted a “suicidal judgment” with 382 pages devoted to evidence pointing to the applicants’ guilt and barely 5 pages to the areas of doubt that had persuaded the Assize Court of Appeal to acquit.
The Government submitted that the applicants’ assertion that Mr Pincioni was a “dissenting judge” who had written a “suicidal judgment” had not been properly proved. In that connection, they observed that at the end of the deliberations of the Milan Assize Court, composed, inter alia, of Mr Pincioni, the court president had lodged a signed and sealed envelope with the registry in accordance with the procedure set out in Article 125 § 5 of the Code of Criminal Procedure. The very existence of that envelope showed that at least one of the members of the Milan Assize Court had dissented from the acquittal verdict. The names of the dissenting judges could, however, only be ascertained by opening the sealed envelope. However, the Government were of the view that the envelope could not be produced to the Court as the procedure was intended to protect a dissenting judge in the event of court proceedings for professional negligence. Section 16(5) of the Civil Liability of Judges Act (Law no. 117 of 1988) provided for the envelope to be sent to the court in which the Prime Minister had issued proceedings seeking reimbursement of compensation paid to an injured party from the judge who delivered the decision. In the Government’s submission, the provisions of domestic law allowing an exception to be made to the principle that deliberations in private were confidential applied only in exceptional circumstances and could not be interpreted widely by analogy.
The Court noted that the fear of a lack of impartiality in that case stemmed from the fact that, according to the version initially put forward by the applicants, the task of drafting the judgment had been assigned to a judge in the minority.
However, in the Court’s view, whether Judge Pincioni agreed or disagreed with the decision to acquit could not, by itself, give rise to a problem under Article 6 of the Convention. Furthermore, there was no evidence to show that he was in fact in the minority. As to the applicants’ argument that the envelope referred to in Article 125 § 5 of the Code of Criminal Procedure should have been opened and produced to Strasbourg, the Court notes that the rule that the deliberations in private of a jury or a domestic court should remain confidential has not been held to be contrary to the Convention (see, mutatis mutandis, Pullar v. the United Kingdom, judgment of 10 June 1996, Reports 1996-III, pp. 792-793, §§ 31-32; and Simsek v. the United Kingdom (dec.), no. 43471/98, 9 July 2002). In the light of the foregoing, the Court was of the opinion that the situation complained of by the applicants could not be regarded as justifying doubts about Judge Pincioni’s impartiality.
14. Subjective Impartiality: a Procedural Approach.
In some cases the Court addressed the issue of subjective impartiality through a procedural approach. All of these cases dealt with jurors having made racist remarks in criminal proceedings against people belonging to other ethnic groups.
In the case Remli v. France (23 April 1996) the Court said that national courts have to check themselves whether, as constituted, they are “an impartial tribunal” within the meaning of Article 6 § 1, where this is disputed on a ground that does not immediately appear to be manifestly devoid of merit. Failing to do so will automatically bring about a violation of the principle of impartiality.
Therefore, after having restated that the principles of independence and impartiality of tribunals apply to jurors as they do to professional and lay judges (see the Holm v. Sweden judgment of 25 November 1993, Series A no. 279-A, p. 14, para. 30), the Court declared that “When it is being decided whether in a given case there is a legitimate reason to fear that a particular judge lacks impartiality, the standpoint of the accused is important but not decisive. What is decisive is whether this fear can be held to be objectively justified (see, among other authorities, the Saraiva de Carvalho v. Portugal judgment of 22 April 1994, Series A no. 286-B, p. 38, para. 35, and the Padovani v. Italy judgment of 26 February 1993, Series A no. 257-B, p. 20, para. 27)”. The Court noted that in the case of Mr Remli the Rhône Assize Court had to try Mr Remli and his co-defendant, both of them of North African origin, and that a third person, Mrs M., certified in writing that she had heard one of the jurors say: “What’s more, I’m a racist.”
The Court remarked that it was not for the Court to rule on the evidential value of Mrs M.’s written statement or on whether the racist remark attributed to the juror in question was actually made. It notes merely that Mrs M.’s statement–which contained a serious allegation in the context of the case–was filed with the Assize Court by the applicant’s lawyers, who asked the court to take formal note of it. The court dismissed their application without even examining the evidence submitted to it, on the purely formal ground that it was “not able to take formal note of events alleged to have occurred out of its presence”. Nor did it order that evidence should be taken to verify what had been reported–and, if it was established, take formal note of it as requested by the defence–although it could have done so. Consequently, the applicant was unable either to have the juror in question replaced by one of the additional jurors or to rely on the fact in issue in support of his appeal on points of law. Nor could he challenge the juror, since the jury had been finally empanelled (see paragraph 17 above) and no appeal lay against the Assize Court’s judgment other than on points of law.
Like the Commission, the Court considered that Article 6 para. 1 of the Convention imposes an obligation on every national court to check whether, as constituted, it is “an impartial tribunal” within the meaning of that provision (art. 6-1) where, as in the instant case, this is disputed on a ground that does not immediately appear to be manifestly devoid of merit. In the case of Mr Remli, however, the Rhône Assize Court did not make any such check, thereby depriving Mr Remli of the possibility of remedying, if it proved necessary, a situation contrary to the requirements of the Convention. This finding, regard being had to the confidence which the courts must inspire in those subject to their jurisdiction, sufficed for the Court to hold that there had been a breach of Article 6 para. 1.
Another case dealing with racist remarks by jurors is Sander v. U.K. (9 May 2000). Here a member of the jury had submitted a note alleging that two fellow jurors “[had] been making openly racist remarks and jokes” and stating that he feared that “they [were] going to convict the defendants not on the evidence but because they were Asian”. Another juror, being confronted with these allegations, accepted that “he might have done so” and stated that “he was sorry if he had given any offence”. The Court, therefore, considered that it was established that at least one juror had made comments that could be understood as jokes about Asians. In the Court’s view, this did not on its own amount to evidence that the juror in question was actually biased against the applicant. Moreover, the Court noted that it was not possible for the trial judge to question the jurors about the true nature of these comments and the exact context in which they had been made. It followed that it had not been established that the court that tried the applicant was lacking in impartiality from a subjective point of view.
However, the Court said that it should also examine whether the judge was impartial from an objective point of view, that is, whether in the circumstances there were sufficient guarantees to exclude any objectively justified or legitimate doubts as to the impartiality of the trial court.
Under this respect, the Court noticed that the judge had been faced with a serious allegation that the applicant risked being condemned because of his ethnic origin. Moreover, one of the jurors indirectly admitted to making racist comments. Given the importance attached by all Contracting States to the need to combat racism, the Court considered that the judge should have reacted in a more robust manner than merely seeking vague assurances that the jurors could set aside their prejudices and try the case solely on the evidence. By failing to do so, the judge did not provide sufficient guarantees to exclude any objectively justified or legitimate doubts as to the impartiality of the court. The Court of Human Rights held therefore that the court that condemned the applicant had not been impartial from an objective point of view.
A different solution was given to the case Gregory v. U.K. (25 February 1997). In this case, on the final day of the trial against Mr Gregory, at 10.46 a.m., the jury retired to consider their verdict. An hour and three quarters later a note was passed by the jury to the judge. It read: “Jury showing racial overtones. 1 member to be excused”. In the absence of the jury, the trial judge showed the note to counsel for the prosecution and defence and consulted them on the appropriate response to it. The Court observed that it was not disputed that there was no evidence of actual or subjective bias on the part of one or more jurors. It was also accepted by both the applicant and the Government that it was not possible under English law for the trial judge to question the jurors about the circumstances which gave rise to the note. The Court acknowledges that the rule governing the secrecy of jury deliberations is a crucial and legitimate feature of English trial law which serves to reinforce the jury’s role as the ultimate arbiter of fact and to guarantee open and frank deliberations among jurors on the evidence which they have heard.
As regards the situation which arose at the trial, the Court remarked that in applying the objective test to the facts in issue, it should have particular regard to the steps taken by the trial judge on receipt of the note from the jury. His immediate reaction was to seek the views of both prosecution and defence counsel and not to dismiss the allegation outright. The trial judge chose to deal with the allegation by means of a firmly worded redirection to the jury having had the benefit of submissions from both counsel.
His statement was clear, detailed and forceful. He was anxious to ensure that his words were understood, and he deliberately broke off on occasions to satisfy himself that such was the case. He sought to impress on the jury that their sworn duty was to try the case on the evidence alone and that they must not allow any other factor to influence their decision. The Court’s assessment of the facts lead it to conclude therefore that, in that case, no more was required under Article 6 to dispel any objectively held fears or misgivings about the impartiality of the jury than was done by the judge. The Court added that, while the guarantee of a fair trial may in certain circumstances require a judge to discharge a jury it must also be acknowledged that this may not always be the only means to achieve this aim. In circumstances such as those in issue, other safeguards, including a carefully worded redirection to the jury, may be sufficient.
The Court finally observed that the facts in issue were to be distinguished from those which led it to find a violation in the above-mentioned Remli case. In that case, the trial judges failed to react to an allegation that an identifiable juror had been overheard to say that he was a racist. In the present case, the judge was faced with an allegation of jury racism which, although vague and imprecise, could not be said to be devoid of substance. In the circumstances, he took sufficient steps to check that the court was established as an impartial tribunal within the meaning of Article 6 para. 1 of the Convention (art. 6-1) and he offered sufficient guarantees to dispel any doubts in this regard. The Court concluded therefore that there had been no violation of Article 6 para. 1 (art. 6-1) in the circumstances of the case.
15. Subjective Impartiality: Conflict of Interests.
A third aspect of subjective impartiality deals with possible conflicts of interest. It must be noticed that in such situations, although the Court tends to refer to the objective profile, we face a situation of subjective impartiality. Actually, conflict of interest refers less to the institutional role played by the component of a certain judicial office, than to the personal interest of the judge who has or might have a direct or indirect benefit from deciding a given case in a certain way. Therefore it seems to me more appropriate to see this profile under the viewpoint of subjective impartiality. Moreover, as matter of fact, this is the way through which the Court practically overturns the presumption (see above, § 12) of absence of bias.
In the case Wettstein v. Switzerland (21 December 2000) the applicant submitted that in some areas of administration in Switzerland there were particularly close links between practising lawyers and the judiciary. The applicant referred to everyday legal practice where a conflict of interests experienced by an individual lawyer in a partnership consisting of several lawyers implied that not only this lawyer but all other staff were equally excluded from taking on the same work. The applicant contended that the lawyers should not have been allowed to act as judges. There was always a danger of at least a potential conflict of interests for administrative court judges: either they considered the possibility of obtaining future work from the public authorities concerned and did not want to annoy them by voting against them; or they did not want to lose their goodwill when taking future decisions on granting planning permission, on which they were dependent for their private clients who wanted to carry out construction projects. The interrelated interests of a total of two out of five judges in the instant case amounted to an appearance of lack of impartiality.
The Court noted that in that precise case judge R. had acted against the applicant in separate building proceedings as the legal representative of the Küsnacht municipality. Judges R. and L. both shared office premises with lawyer W. who had previously acted as legal representative in other building proceedings in the Kloten municipality. This situation arose in the Canton of Zürich where, as with the courts of many other cantons, the Administrative Court is composed of both full-time and part-time judges. The latter may practise as legal representatives. The Court remarked that the Administrative Judiciary Procedure Act in force at the relevant time contained no provisions as to the incompatibility of such legal representation with judicial activities. Section 34(2) of the Act currently in force provides, on the contrary, that part-time judges may not act as legal representatives before the Administrative Court.
The Court noted that, when on 15 February 1995 the applicant instituted the present proceedings before the Administrative Court with R. as a judge on the bench, the parallel proceedings in which R. acted as legal representative for the Küsnacht municipality against the applicant were pending before the Federal Court, which gave its decision eight months later on 24 October 1995. Less than two months after these proceedings had been terminated the Administrative Court gave its judgment on 15 December 1995. There was, therefore, an overlapping in time of the two proceedings with R. in the two functions of judge, on the one hand, and of legal representative of the opposing party, on the other. As a result, in the proceedings before the Administrative Court, the applicant could have had reason for concern that judge R. would continue to see in him the opposing party. In the Court’s opinion this situation could have raised legitimate fears in the applicant that judge R. was not approaching his case with the requisite impartiality. Furthermore, the fact that W., an office colleague of judges R. and L., had in other proceedings represented the party opposing the applicant, while only of minor relevance, could be seen as further confirming the applicant’s fear that judge R. was opposed to his case.
In the Court’s view, these circumstances served objectively to justify the applicant’s apprehension that judge R. of the Administrative Court of the Canton of Zürich lacked the necessary impartiality. Consequently, the Court held that there had been a violation of Article 6 § 1 of the Convention as regards the requirement of an impartial tribunal.
In the case Pescador Valero v. Spain (17 June 2003) the applicant alleged that the participation of Judge J.B.L. in the proceedings he had brought against the University of Castilla-La Mancha while the judge was also associate professor at that university at the time had affected the fairness of the hearing and in particular had infringed his right to an independent and impartial tribunal.
The Court noted that the applicant had applied for the removal of the judge in question. The applicant could properly have construed the situation as one requiring withdrawal within the meaning of section 219 of the LOPJ, that is, that the judge had a direct or indirect interest in the dispute. In this connection, there is a general provision in Spanish law, section 221 of the LOPJ, which obliges a judge falling within the scope of one of the grounds for withdrawal or challenge set out in that section to withdraw from the case without waiting to be challenged.
Admittedly, the applicant sought the judge’s removal approximately two years after the start of the proceedings, at a time when the judge in question had already taken part in the proceedings between the applicant and the university. The domestic courts rejected the application on the ground that it should have been lodged earlier because, by reason of his position as manager of the campus, the applicant ought to have been aware of the professional relations between the judge and the university.
The Court held that it could not accept this line of argument, remarking that it was not apparent from the file that the applicant knew the judge prior to the dispute, or even that he ought to have known him. The reasons advanced by the domestic courts and the Government were based on a presumption of knowledge which did not rest on any concrete evidence to the effect that the applicant was in fact aware of the professional activities of Judge J.B.L. at the university. Moreover, it was difficult to see how the applicant could have proved that he did not know the judge before the start of the proceedings. As submitted by the applicant, such a requirement would have subjected him to an excessive burden of proof.
On the merit of the complaint, the Court remarked that the judge was associate professor at the university and had had regular and close professional relations with the university for a number of years. Moreover, he had been receiving regular income from the university in respect of his teaching activities, and that income was not negligible (7,200 euros per annum according to the Government). J.B.L. had therefore concurrently performed the duties of a judge of the Higher Court of Justice of Castilla-La Mancha and those of an associate professor in receipt of income from the opposing party. In the Court’s opinion, this situation could have raised legitimate fears in the applicant that Judge J.B.L. was not approaching his case with the requisite impartiality.
In the Court’s view, these circumstances served objectively to justify the applicant’s apprehension that Judge J.B.L. of the Administrative Division of the Higher Court of Justice of Castilla-La Mancha lacked the requisite impartiality.
In the case Sigurdsson v. Iceland (10 April 2003) the applicant instituted proceedings against the National Bank of Iceland, claiming compensation under the law of torts, on the grounds that one of the Bank’s legally trained employees had made an incorrect declaration in 1992 which was instrumental in the Supreme Court’s finding that a certain claim was no longer enforceable. As the District Court found for the defendant bank, the applicant, by a summons of 31 May 1996, instituted appeal proceedings before the Supreme Court. By a judgment of 25 April 1997, the Supreme Court, by three votes to two, rejected the applicant’s claim. The minority found that the applicant’s claim should be upheld and that the National Bank was liable to pay him ISK 8,746,319 Icelandic krónur (ISK) in compensation, plus default interest from 30 August 1993. One of the three judges forming the majority was Mrs Justice Guðrún Erlendsdóttir. The applicant submitted that after the delivery of the Supreme Court’s judgment, it came to light that Mrs Justice Guðrún Erlendsdóttir and her husband, a Supreme Court lawyer, had a financial relationship with the National Bank of such a nature as to disqualify her from sitting in the applicant’s case.
The Court observed that, apart from the existence under Iceland’s law of appropriate safeguards to ensure the impartiality of judges, there was nothing to suggest that the judge’s personal interests were at stake in the proceedings between the applicant and the National Bank. However, shortly before and while the applicant’s case was pending before the Supreme Court, the judge’s husband had serious financial problems, being unable to honour as a guarantor his obligations amounting to approximately ISK 50,000,000 under a debt agreement concluded by a third party with the bank and twenty other creditors. In the view of the Court, it transpired from the evidence submitted to it that there had been three sets of circumstances which could give rise to an issue with regard to the requirements of impartiality under Article 6 § 1 of the Convention, namely the husband’s debts to the National Bank when the case was being considered by the Supreme Court in April 1997, the four mortgage certificates which he contracted with Landsbréf on 30 May 1996 and his debt cancellation agreement with the National Bank of 6 June 1996.
As regards the first point, the Court noted that on 25 April 1997, when the Supreme Court adjudicated the applicant’s case, the Supreme Court judge’s husband had certain debts vis-à-vis the National Bank, the opposing party in the applicant’s case. The size of those debts was disputed between the Government and the applicant. However, the Court saw no reason to doubt the information provided by the Government to the effect that, as at 25 April 1997, the husband owed approximately ISK 2,500,000 to the bank. In the view of the Court, this could reasonably be considered a moderate amount and there was nothing to suggest that this fact, on its own, could have constituted financial pressure capable of affecting the judge’s impartiality.
Secondly, the Court observed that ten months earlier, on 30 May 1996, the husband issued four debt certificates, for amounts totalling ISK 13,600,000 to Landsbréf. The certificates were sold a few days later, on 4 June 1996, to an independent financial institution, the EFA, which became the creditor with respect to those amounts. The Court accepted the Government’s submission that it was the EFA, not Landsbréf, which was the creditor with respect to these amounts after 4 June 1996. After that date it did not appear that the debt certificates as such established any direct financial link between the husband and the National Bank that could shed negative light on the judge’s impartiality.
However, the Court considered that neither of the two sets of circumstances mentioned can be dissociated from the third factor, namely the wider context of the debt settlement agreement reached between Mr Örn Clausen and the bank on 6 June 1996.
In this connection the Court noted in particular the role played by Mrs Justice Guðrún Erlendsdóttir in facilitating the debt settlement achieved by her husband. It would appear that the security in her properties, which she offered to her husband, enabled him to raise the ISK 13,600,000 (currently corresponding to approximately 160,000 euros (EUR)) under the mortgage certificates of 30 May 1996. These funds, so it seems, were destined to cover his part of the debt settlement agreements reached with the National Bank and other creditors. The amounts involved were by no means negligible and the objects offered in security were nothing less than the couple’s main residence. Presumably, without the security provided by Mrs Justice Guðrún Erlendsdóttir, the debt settlements in question would not have materialised. Furthermore, the cancellation of the debt was a condition for the judge to provide the security.
Against this background, there was at least the appearance of a link between the steps taken by Mrs Justice Guðrún Erlendsdóttir in favour of her husband and the advantages he obtained from the National Bank. The Court did not speculate as to whether she derived any personal benefit from the operation and found no reason to believe that either she or her husband had any direct interest in the outcome in the case between the applicant and the National Bank. However, the judge’s involvement in the debt settlement, the favours received by her husband and his links to the National Bank were of such a nature and amplitude and were so close in time to the Supreme Court’s examination of the case that the applicant could entertain reasonable fears that it lacked the requisite impartiality.
16. Objective Impartiality: a Structural Approach.
Coming to the objective conception of impartiality we can say that the Court has so far shown two different kinds of approach: a structural and a functional one.
The first basically deals with how a court is composed, while the latter concerns the functions performed (either previously or at that time) by the judges who have decided the case. We shall deal first with cases regarding the issue how an adjudicating panel is composed, having in mind that the principles laid down in the Court’s case-law concerning the independence and impartiality of tribunals apply to jurors as they do to professional and lay judges (see the Holm v. Sweden judgment of 25 November 1993, Series A no. 279-A, p. 14, para. 30; see as well Remli v. France judgment of 23 April 1996).
In the case Pullar v. U.K. (10 June 1996) the Court stressed that the tribunal must be impartial not only from a subjective viewpoint, but also from an objective one, that is, it must offer sufficient guarantees to exclude any legitimate doubt in this respect. Mr Pullar’s misgivings as to the impartiality of the tribunal were based on the fact that one member of the jury, Mr Forsyth, was employed by the firm in which the prosecution witness, Mr McLaren, was a partner.
The Court conceded that understandably, this type of connection might give rise to some anxiety on the part of an accused. However, the view taken by the accused with regard to the impartiality of the tribunal could not be regarded as conclusive. What is decisive–so the Court–is whether his doubts can be held to be objectively justified. The Court pointed out that “The principle of impartiality is an important element in support of the confidence which the courts must inspire in a democratic society (…). However, it does not necessarily follow from the fact that a member of a tribunal has some personal knowledge of one of the witnesses in a case that he will be prejudiced in favour of that person’s testimony. In each individual case it must be decided whether the familiarity in question is of such a nature and degree as to indicate a lack of impartiality on the part of the tribunal. In the present case, Mr Forsyth, a junior employee within Mr McLaren’s firm, had not worked on the project which formed the background to the accusations against Mr Pullar and had been given notice of redundancy three days before the start of the trial (…). On these facts, it is by no means clear that an objective observer would conclude that Mr Forsyth would have been more inclined to believe Mr McLaren rather than the witnesses for the defence”.
The Court underlined as well that the tribunal offered a number of important safeguards. “It is significant that Mr Forsyth was only one of fifteen jurors, all of whom were selected at random from amongst the local population. It must also be recalled that the sheriff gave the jury directions to the effect that they should dispassionately assess the credibility of all the witnesses before them (…), and that all of the jurors took an oath to a similar effect”. On such basis the Court concluded that there had been no violation of Article 6 para. 1 of the Convention (art. 6-1).
Simsek v. U.K. (9 July 2002) is a very similar case. Here the applicant’s misgivings as to the impartiality of the tribunal were based on the fact that a juror was a sister-in-law of Officer S, the latter being a prison officer in the prison where the applicant had been detained as a Category A prisoner prior to and during his trial. The Court remarked that “While some prejudicial connections could in principle arise from events prior to a trial, the present applicant’s misgivings about that period are based on a number of weak suppositions – that, prior to the trial and importantly prior to the relevant juror’s appointment to the jury, Officer S had any specific and prejudicial knowledge of the applicant who was one of 180 prisoners on that House Block; and that he would have had a reason to mention that particular prisoner to his sister-in-law; and that she would have had a reason to retain any such information. Such suppositions are not, in the Court’s view, strong enough to constitute an objective risk to the impartiality of the jury.”
Furthermore, the Court noticed that “as soon as Officer S discovered that his sister-in-law was a juror, he filed a relatively detailed Security Information Report with his line manager in the prison. Although he had been on a House Block when the applicant was detained as a remand prisoner, he stated that he had not worked with the applicant since the trial started or spoken to his sister. His senior officer then raised the matter with the relevant court clerk and the Security Information Report noted the clerk’s opinion that there should be no problem so long as Officer S did not escort or work in the prison with applicant. The clerk’s letter of 13 January 1997 clarified that it had been agreed between the clerk and the senior prison officer that Officer S would be moved to a wing of the prison different to that where the applicant was detained.”
In the case A.B. Kurt Kellermann v. Sweden (1 July 2003) the applicant challenged the composition of Swedish labour courts in which lay assessors are sitting. More precisely, the Labour Court which heard the case and delivered judgment was composed of seven members. In accordance with the 1974 Act, the Labour Court was composed of two legally trained and qualified judges and five lay assessors. One assessor had been appointed because of her special knowledge of the labour market. However, she did not represent any employers’ or employees’ interests. Of the other four assessors, two had been nominated by employers’ associations (a director of the Swedish Employer’s Confederation (Svenska Arbetsgivareföreningen; hereinafter “the SAF”) and an employee of the Ministry of Finance representing the State employers) and two by employees’ associations (ombudsmen in the LO and the joint Central Organisation of Salaried Employees and Central Organisation of Swedish Academics (Tjänstemännens Centralorganisation and Svenska Akademikers Centralorganisation; hereinafter “the TCO/SACO”), respectively).
The Court first observed that the lay assessors sitting on the Labour Court, who take the judicial oath, have special knowledge and experience of the labour market. They therefore contributed to the court’s understanding of issues relating to the labour market and appeared in principle to be highly qualified to participate in the adjudication of labour disputes. However, their independence and impartiality might still be open to doubt in a particular case.
The Court reiterated that the applicant company had not called into question the independence of the Labour Court nor the impartiality of its professional judges. The examination aimed at ascertaining whether the lay assessors offered guarantees sufficient to exclude any legitimate doubt as to their objective impartiality.
With respect to the objective impartiality of the lay assessors in that case, the Court considered that the decisive issue was whether the balance of interests in the composition of the Labour Court was upset and, if so, whether any such lack of balance would result in the court failing to satisfy the requirement of impartiality in the determination of the particular dispute before it.
The applicant company’s main contention in the domestic proceedings was that its right to remain outside the labour market organisations had been infringed by the allegedly unlawful industrial action taken against it by the Industrial Union. The measures taken by that union – the cessation of all work at the applicant company and the imposition of a “blockade” – lasted for a total of three days.
The Court considers that the nature of the dispute between the applicant company and the Industrial Union was such that the lay assessors who sat in the Labour Court and the organisations that had nominated them could not objectively have had any other interest than to ensure that the above terms of employment were correctly examined and interpreted and that the principles of Article 11 of the Convention, which form part of Swedish law, were correctly interpreted and applied. These interests could not be contrary to those of the applicant company. It would be wrong to assume that their views on these objective issues would be affected by their belonging to one or other of the nominating bodies.
Therefore, the Court considered that the applicant company could not legitimately fear that the lay assessors who sat in the Labour Court had interests contrary to those of the applicant company or that the balance of interests was upset to such an extent that the Labour Court failed to meet the requirement of impartiality in the determination of the dispute before it.
17. Objective Impartiality: a Functional Approach (Cases Decided by Judges Having Previously Been Members of the Prosecution Service or Investigating Judges).
Coming now to the “functional approach” we should recall that this kind of approach basically deals with the functions performed (either previously or at that time) by the judges who have issued a certain judgment. The question arose many times in criminal cases, where a judge had been somehow involved either as prosecutor or as investigating judge in the same case. We’ll bring a couple of examples in this field.
In the case Piersack v. Belgium (1 October 1982, already mentioned: see above, Para. 12) the Court noticed that it would have been going too far to the opposite extreme to maintain that former judicial officers in the public prosecutor’s department were unable to sit on the bench in every case that had been examined initially by that department, even though they had never had to deal with the case themselves. So radical a solution, based on an inflexible and formalistic conception of the unity and indivisibility of the public prosecutor’s department, would erect a virtually impenetrable barrier between that department and the bench. It would lead to an upheaval in the judicial system of several Contracting States where transfers from one of those offices to the other are a frequent occurrence. Above all, the mere fact that a judge was once a member of the public prosecutor’s department is not a reason for fearing that he lacks impartiality. However, remarked the Court, if an individual, after holding in the public prosecutor’s department an office whose nature is such that he may have to deal with a given matter in the course of his duties, subsequently sits in the same case as a judge, the public are entitled to fear that he does not offer sufficient guarantees of impartiality. This being the case in that particular proceeding, the Court concluded that there had been a violation of Article 6 § 1 (art. 6-1).
In the case De Cubber v. Belgium (26 October 1984) one of the three judges of the Oudenaarde criminal court who, on 29 June 1979, had given judgment on the charges against the applicant, had previously acted as investigating judge in the two cases in question: in one case he had done so from the outset and in the other he had replaced a colleague, at first on a temporary and then on a permanent basis. On the strength of this, Mr. De Cubber contended that he had not received a hearing by an impartial tribunal.
The Court held that, in conclusion, the impartiality of the Oudenaarde court was capable of appearing to the applicant to be open to doubt. Although the Court itself had no reason to doubt the impartiality of the member of the judiciary who had conducted the preliminary investigation, it recognised that his presence on the bench provided grounds for some legitimate misgivings on the applicant’s part. Without adopting a subjective approach, the Court recalled that a restrictive interpretation of Article 6 para. 1 (art. 6-1) – notably in regard to observance of the fundamental principle of the impartiality of the courts – would not be consonant with the object and purpose of the provision, bearing in mind the prominent place which the right to a fair trial holds in a democratic society within the meaning of the Convention.
In the case Hauschildt v. Danemark (24 May 1989) the applicant, while not objecting in principle to a system such as that existing in Denmark whereby a judge was entrusted with a supervisory role in the investigation process, criticised it in so far as the very same judge is then expected to conduct the trial with a mind entirely free from prejudice. He argued that the kind of decisions the judge would be called upon to make at the pre-trial stage would require him, under the law, to assess the strength of the evidence and the character of the accused, thereby inevitably colouring his appreciation of the evidence and issues at the subsequent trial. As to the facts of his own case, Mr Hauschildt pointed out above all that the presiding judge of the City Court, Judge Larsen, had taken numerous decisions on detention on remand and other procedural matters, especially at the pre-trial stage.
The Court reiterated that under the objective test, it must be determined whether, quite apart from the judge’s personal conduct, there are ascertainable facts which may raise doubts as to his impartiality. In this respect even appearances may be of a certain importance. What is at stake is the confidence which the courts in a democratic society must inspire in the public and above all, as far as criminal proceedings are concerned, in the accused. Accordingly, any judge in respect of whom there is a legitimate reason to fear a lack of impartiality must withdraw (see, mutatis mutandis, the De Cubber judgment previously cited, Series A no. 86, p. 14, para. 26).
In that case the fear of lack of impartiality was based on the fact that the City Court judge who presided over the trial and the High Court judges who eventually took part in deciding the case on appeal had already had to deal with the case at an earlier stage of the proceedings and had given various decisions with regard to the applicant at the pre-trial stage (see paragraphs 20-22 and 26 above). The Court held that this kind of situation might occasion misgivings on the part of the accused as to the impartiality of the judge, misgivings which are understandable, but which nevertheless could not necessarily be treated as objectively justified. Whether they should be so treated depends on the circumstances of each particular case.
The Court remarked that, as appears from sections 742 and 743 of the Act (see paragraph 31 above), in Denmark investigation and prosecution are exclusively the domain of the police and the prosecution. The judge’s functions on the exercise of which the applicant’s fear of lack of impartiality is based, and which relate to the pre-trial stage, are those of an independent judge who is not responsible for preparing the case for trial or deciding whether the accused should be brought to trial (sections 746, 760, 762 and 770). This is in fact true of the decisions referred to by the applicant, including those concerning the continuation of his detention on remand and his solitary confinement. Those decisions were all given at the request of the police, which request was or could have been contested by the applicant, assisted by counsel. Hearings on these matters are as a rule held in open court. Indeed, as to the nature of the functions which the judges involved in this case exercised before taking part in its determination, this case was distinguishable from the Piersack and the De Cubber cases.
Moreover, the questions which the judge had to answer when taking such pre-trial decisions were not the same as those which were decisive for his final judgment. When taking a decision on detention on remand and other pre-trial decisions of this kind the judge summarily assessed the available data in order to ascertain whether prima facie the police had grounds for their suspicion; when giving judgment at the conclusion of the trial he must assess whether the evidence that has been produced and debated in court suffices for finding the accused guilty. In the Court’s view, therefore, the mere fact that a trial judge or an appeal judge, in a system like the Danish, had also made pre-trial decisions in the case, including those concerning detention on remand, could not be held as in itself justifying fears as to his impartiality.
Nevertheless, special circumstances might in a given case be such as to warrant a different conclusion. In the instant case, the Court could not but attach particular importance to the fact that in nine of the decisions continuing Mr Hauschildt’s detention on remand, Judge Larsen relied specifically on section 762(2) of the Act. Similarly, when deciding, before the opening of the trial on appeal, to prolong the applicant’s detention on remand, the judges who eventually took part in deciding the case on appeal relied specifically on the same provision on a number of occasions. The application of section 762(2) of the Act required, inter alia, that the judge be satisfied that there was a “particularly confirmed suspicion” that the accused had committed the crime(s) with which he is charged. This wording had been officially explained as meaning that the judge had to be convinced that there was “a very high degree of clarity”, as to the question of guilt. Thus the difference between the issue the judge had to settle when applying this section and the issue he would have to settle when giving judgment at the trial became tenuous.
The Court was therefore of the view that in the circumstances of the case the impartiality of the said tribunals was capable of appearing to be open to doubt and that the applicant’s fears in this respect could be considered objectively justified.
18. Objective Impartiality: a Functional Approach (the Conseil d’Etat Performing Advisory and Judiciary Functions in the Same Matter; the Bailiff of Guernsey).
Another peculiar field in which this “functional approach” was adopted by the Court deals with decisions rendered by the Council of State in countries where this body performs advisory as well as judiciary functions.
In the case Procola v. Luxemburg (28 September 1995) the Court had to determine whether the Judicial Committee of the Council of State of Luxemburg satisfied the impartiality requirement of Article 6 (art. 6) of the Convention, regard being had to the fact that four of its five members had to rule on the lawfulness of a regulation which they had previously scrutinised in their advisory capacity.
The Court noted that four members of the Conseil d’Etat carried out both advisory and judicial functions in the same case. In the context of an institution such as Luxembourg’s Conseil d’Etat the mere fact that certain persons successively performed these two types of function in respect of the same decisions was capable of casting doubt on the institution’s structural impartiality. Therefore, the applicant had legitimate grounds for fearing that the members of the Judicial Committee had felt bound by the opinion previously given. That doubt in itself, however slight its justification, was sufficient to vitiate the impartiality of the tribunal in question.
In the case McGonnell v. U.K. (8 February 2000) the applicant pointed to the non-judicial functions of the Bailiff in the Island of Guernsey, contending that they gave rise to such close connections between the Bailiff as a judicial officer and the legislative and executive functions of government that the Bailiff no longer had the independence and impartiality required by Article 6. As specific examples, the applicant pointed to three matters which were not referred to before the Commission. They were the facts that the Bailiff was invariably appointed from the office of the Attorney-General, that he acted as Lieutenant-Governor of the island when that office was vacant, and that the Bailiff who sat in the present case had also presided over the States of Deliberation when DDP6, the very act which was at issue in the applicant’s later case, was adopted.
The Court recalls that in the case of Procola v. Luxembourg, four of the five members of the Conseil d’Etat had carried out both advisory and judicial functions in the same case (judgment of 28 September 1995, Series A no. 326, p. 16, § 45). The participation of the Bailiff in that case showed certain similarities with the position of the members of the Conseil d’Etat in the Procola case. First, in neither case was any doubt expressed in the domestic proceedings as to the role of the impugned organ. Secondly, and more particularly, in both cases a member, or members, of the deciding tribunal had been actively and formally involved in the preparatory stages of the regulation at issue. The Bailiff’s non-judicial constitutional functions, according to the Court, could not be accepted as being merely ceremonial. With particular respect to his presiding, as Deputy Bailiff, over the States of Deliberation in 1990, the Court considered that any direct involvement in the passage of legislation, or of executive rules, was likely to be sufficient to cast doubt on the judicial impartiality of a person subsequently called on to determine a dispute over whether reasons exist to permit a variation from the wording of the legislation or rules at issue. In that case, in addition to the chairing role as such, the Deputy Bailiff could exercise a casting vote in the event of even voting and, as the Bailiff stated in the Bordeaux Vineries case, there was no obligation on him to exercise his casting vote against a proposition before the States where that vote impinged on his conscience. Moreover, the States of Deliberation in Guernsey was the body which passed the regulations at issue. It could thus be seen to have had a more direct involvement with them than had the advisory panel of the Conseil d’Etat with the regulations at issue in the Procola case.
The Court thus considered that the mere fact that the Deputy Bailiff presided over the States of Deliberation when DDP6 was adopted in 1990 was capable of casting doubt on his impartiality when he subsequently determined, as the sole judge of the law in the case, the applicant’s planning appeal. The applicant therefore had legitimate grounds for fearing that the Bailiff may have been influenced by his prior participation in the adoption of DDP6. That doubt in itself, however slight its justification, was sufficient to vitiate the impartiality of the Royal Court.
In the case Kleyn and others v. Netherlands (6 May 2003) the Court, having regard to the position of the Council of State of the Netherlands, reiterated that, as illustrated in Procola (cited above), the consecutive exercise of advisory and judicial functions within one body might, in certain circumstances, raise an issue under Article 6 § 1 of the Convention as regards the impartiality of the body seen from the objective viewpoint. The Dutch Government had brought to the Court’s attention the internal measures taken by the Council of State with a view to giving effect to Procola in the Netherlands. According to the description of these measures which is to be found in the Annual Report 2000 of the Council of State, the composition of the bench would only be scrutinised if doubts were expressed by a party; the criterion then applied was that if the appeal went to a matter explicitly addressed in a previous advisory opinion, the composition would be changed so as to exclude any judges who participated in that opinion.
The Court replied that it was not as confident as the government was in its statement during the parliamentary budget discussions in 2000 that these arrangements were such as to ensure that in all appeals coming before it the Administrative Jurisdiction Division constituted an “impartial tribunal” for the purposes of Article 6 § 1 of the Convention. Anyway, in the relevant case, the Plenary Council of State advised on the Transport Infrastructure Planning Bill, which laid down draft procedural rules for the decision-making process for the supra-regional planning of new major transport infrastructure. The applicants’ appeals, however, were directed against the routing decision, which was a decision taken on the basis of the procedure provided for in the Transport Infrastructure Planning Act. Earlier appeals against the outline planning decision were not at issue as they were based on a different legal framework.
The Court expressed the opinion that, unlike the situation examined by it in Procola and McGonnell, the advisory opinions given on the Transport Infrastructure Planning Bill and the subsequent proceedings on the appeals brought against the routing decision could not be regarded as involving “the same case” or “the same decision”.
Although the planning of the Betuweroute railway was referred to in the advice given by the Council of State to the government on the Transport Infrastructure Planning Bill, these references could not reasonably be interpreted as expressing any views on, or amounting to a preliminary determination of, any issues subsequently decided by the responsible ministers in the routing decision at issue. In these circumstances, the Court was of the opinion that the applicants’ fears as to a lack of independence and impartiality of the Administrative Jurisdiction Division, due to the composition of the bench that heard their appeals, could not be regarded as being objectively justified. Consequently, there had been no violation of Article 6 § 1 of the Convention.
19. Objective Impartiality: a Functional Approach (Previous Decisions by the Same Judge in the Same Case).
A different set of cases in which objective impartiality was at stake under a “functional approach” deals with situations in which a judge issued a final decision after having previously rendered one or more partial or provisional or pre-trial decisions in that very case.
In Nortier v. Netherlands (24 August 1993) the applicant stressed that throughout the proceedings, i.e. during the pre-trial phase as well as at the trial, his case had been dealt with by one and the same judge, Juvenile Judge Meulenbroek, who had taken all relevant decisions. He did not doubt the personal impartiality of Juvenile Judge Meulenbroek, but pointed to the fact that the latter had acted as investigating judge and had on four occasions decided on the applicant’s detention on remand. These decisions implied that Judge Meulenbroek had already reached the conclusion at that stage that there were “serious indications” that the applicant had committed the crime of which he stood accused; furthermore, he must also already have formed an idea of the sentence or measure to be imposed, since the law required him to ascertain that it was unlikely that the detention on remand would last longer than any detention imposed under that sentence or measure. Consequently, the applicant had had legitimate grounds for fearing that Judge Meulenbroek, who tried his case as a single judge, lacked the impartiality required of a trial judge, the more so as the applicant was only fifteen years old and therefore less able to defend himself.
The Court said that the mere fact that Juvenile Judge Meulenbroek also made pre-trial decisions, including decisions relating to detention on remand, could not be taken as in itself justifying fears as to his impartiality; what mattered was the scope and nature of these decisions. Apart from his decisions relating to the applicant’s detention on remand, Juvenile Judge Meulenbroek made no other pre-trial decisions than the one allowing the application made by the prosecution for a psychiatric examination of the applicant, which was not contested by the latter. He made no other use of his powers as investigating judge. As for his decisions on the applicant’s detention on remand, they could justify fears as to the judge’s impartiality only under special circumstances such as those which obtained in the Hauschildt case, but the Court remarked that there was nothing of that nature in that case. Contrary to the applicant’s arguments, the questions which Juvenile Judge Meulenbroek had to answer when taking these decisions were not the same as those which were decisive for his final judgment. In finding that there were “serious indications” against the applicant his task was only to ascertain summarily that the prosecution had prima facie grounds for the charge against the applicant. The charge had, moreover, been admitted by the applicant and had already at that stage been supported by further evidence. Under these circumstances the applicant’s fear that Juvenile Judge Meulenbroek lacked impartiality could not be regarded as objectively justified.
The Court concluded therefore that there had not been a violation of Article 6 para. 1.
In the case Saraiva de Carvalho v. Portugal (22 April 1994) the applicant challenged the impartiality of the Fourth Division of the Lisbon Criminal Court, which on 20 May 1987 had sentenced him to fifteen years’ military imprisonment, alleging that its presiding judge, Mr Salvado, had earlier, as the judge in charge of the case, issued the despacho de pronúncia. Such a decision meant that at the outset of the proceedings the judge had already become convinced of the applicant’s guilt, a fact that could not fail to affect the conduct of the trial, which was the presiding judge’s responsibility.
The Court pointed out that, under the objective test, it must be determined whether, quite apart from the judge’s personal conduct, there are ascertainable facts which may raise doubts as to his impartiality. In this connection, the Court held that the mere fact that a judge had already taken decisions before the trial cannot in itself be regarded as justifying anxieties about his impartiality. What matters is the scope and nature of the measures taken by the judge before the trial (see the Hauschildt v. Denmark judgment of 24 May 1989, Series A no. 154, p. 21, para. 49, and the Nortier v. the Netherlands judgment of 24 August 1993, Series A no. 267, p. 15, para. 33).
In the despacho de pronúncia in question Mr Salvado found, firstly, that there had been no irregularities during the judicial investigation or any other impediment to a trial of the merits. He went on to hold that the evidence was not sufficient to enable a reliable assessment to be made of the probability that four of the co-defendants were guilty, and he consequently rejected the prosecution’s charges against them. He admitted the charges in respect of the other defendants, however, including Mr Saraiva de Carvalho, and decided that all but three of the accused should be kept in pre-trial detention.
Like the Government, the Court accepted that this intermediate decision is not equivalent to a committal for trial. Under the Portuguese law applicable at the time, the judge in charge of the case, when issuing the despacho, was determining whether the file, including the prosecution’s charges, amounted to a prima facie case such as to justify making an individual go through the ordeal of a trial. The issues which the judge had to settle when taking this decision were consequently not the same as those which were decisive for his final judgment. This might be illustrated by the fact that on 20 May 1987 the Criminal Court division which Mr Salvado presided over acquitted sixteen of the co-accused included in the despacho.
Besides, the Court held that Mr Salvado’s preliminary assessment of the available evidence could not be regarded as a formal finding of guilt. That was made only in the judgment of 20 May 1987, on the basis of the evidence adduced and tested orally at 263 sittings and which led the division presided over by Mr Salvado to convict the applicant. In conclusion, Mr Salvado’s participation in the adoption of the judgment of 20 May 1987 did not undermine the impartiality of the Criminal Court’s Fourth Division, since the applicant’s fears could not be regarded as having been objectively justified.
There had therefore been no breach of Article 6 para. 1 (art. 6-1).
In the case Bulut v. Austria (22 February 1996) the fear that the trial court might not be impartial was based on the fact that one of its members had questioned witnesses during the preliminary investigation. The Court conceded that this kind of situation may give rise to misgivings on the part of the accused as to the impartiality of the judge. However, whether these misgivings should be treated as objectively justified depends on the circumstances of each particular case; the mere fact that a trial judge has also dealt with the case at the pre-trial stage cannot be held as in itself justifying fears as to his impartiality (see, mutatis mutandis, the Hauschildt v. Denmark judgment of 24 May 1989, Series A no. 154, pp. 21-22, paras. 49-50, and the Nortier v. the Netherlands judgment of 24 August 1993, Series A no. 267, p. 15, para. 33).
In contrast to the facts of the Hauschildt case (cited above), it has not been suggested that Judge Schaumburger was responsible for preparing the case for trial or for deciding whether the accused should be brought to trial. In fact, it has not been established that he had to take any procedural decisions at all. His role was limited in time and consisted of questioning two witnesses. It did not entail any assessment of the evidence by him nor did it require him to reach any kind of conclusion as to the applicant’s involvement. In this limited context, the Court held that the applicant’s fear that the Innsbruck Regional Court lacked impartiality could not be regarded as objectively justified (see, mutatis mutandis, the Nortier judgment cited above, p. 16, para. 37).
The Court concluded therefore that there had been no violation of Article 6 para. 1 (art. 6-1) of the Convention.
In Sainte-Marie v. France (16 December 1992) the Criminal Appeals Division of the Pau Court of Appeal, which sentenced Mr Sainte-Marie, on 29 October 1985, was composed of three judges. Two of them, Mr Bataille and Mr Biecher, had sat on the previous 8 August in the Indictment Division of the same Court of Appeal. The applicant complained that, in confirming an order dismissing an application for release, they must necessarily have considered whether there were plausible grounds for suspecting the applicant of having committed the offence and must, accordingly, have carried out a preliminary examination of the merits. They had thus formed an opinion on the weight of the evidence and the clues contained in the prosecution case. The Court remarked that the main thrust of the applicant’s argument, namely that the fact of having ruled on the question of detention on remand necessarily entailed a lack of objective impartiality, runs counter to the Court’s case-law. According to the Hauschildt judgment of 24 May 1989, which moreover is concerned, as appears from its express wording, solely with the decisions of a judge who is not responsible for preparing the case for trial, the mere fact that such a judge has already taken pre-trial decisions in the case, including decisions relating to detention on remand, cannot in itself justify fears as to his impartiality. Only special circumstances, added the Court, may warrant a different conclusion, as they did in the Hauschildt case. The Court shared the Commission’s view that there was nothing of that nature in that peculiar case. Furthermore, the Indictment Division had based its decision of 8 August 1985 on the applicant’s own statements. He did not retract these statements and never claimed that they had been obtained under duress. They were moreover corroborated by uncontested physical evidence. The Indictment Division confined itself to making a brief assessment of the available facts in order to establish whether prima facie the police suspicions had some substance and gave grounds for fearing that there was a risk of the accused’s absconding.
In conclusion, the Court held that the participation of Judges Bataille and Biecher in the adoption of the judgment of 29 October 1985 did not undermine the impartiality of the Criminal Appeals Division since the applicant’s misgivings could not be regarded as objectively justified. There had therefore been no violation of Article 6 para. 1 (art. 6-1).
20. Objective Impartiality: a Functional Approach (Previous Decisions by the Same Judge in Other Cases).
In another series of cases the Court dealt with allegations of impartiality related to the fact that the judge had issued previous decisions not in that very case, but in cases somehow connected to the case of the defendant.
In Rojas Morales v. Italy (16 November 2000: reasoning available only in French) the applicant complained that two of the three members of the panel which had sentenced him had already expressed their views on the guilt of the defendant while deciding another case against Mr M.A. The Government conceded that the Italian Constitutional Court had held as against the Constitution the provisions of the Italian code of penal procedure allowing such a situation; however, as far as that particular case was concerned, the defendant had been sentenced before that judgement of the Constitutional Court. The applicant remarked that in that previous decision he had been qualified as the head of the band of criminals, one of them had been sentenced by the previous decision.
The European Court remarked that in that previous decision Mr Rojas Morales had been described as the person who had organised a drug traffic between Italy and Latin America. Such elements were held sufficient by the Court to consider as justified the claims regarding the non compliance with the principle of impartiality of the Milan Tribunal.
21. Withdrawal from a Case and Motion for Recusal. Failure to Do So.
In the case Pfeifer and Plankl v. Austria (25 February 1992) the Court dealt with a situation in which, according to national law, the judge should have withdrawn from the case, but had not been recused by the defendants. Actually Mr Pfeifer claimed that the two professional judges who sat as members of the Klagenfurt Regional Court in his case should have withdrawn under Article 68 (2) of the Code of Criminal Procedure, as they had acted as investigating judges in the case.
The Court remarked that Article 68 (2), under which a judge is disqualified from hearing a case if he has already had to deal with it as investigating judge, manifests the legislature’s concern to remove all reasonable doubt as to the impartiality of trial courts. Its non-observance meant that Mr Pfeifer was tried by a court whose impartiality was recognised by national law itself to be open to doubt (see, mutatis mutandis, the Oberschlick v. Austria judgment of 23 May 1991, Series A no. 204, p. 23, para. 50).
The Court noticed as well that, in this respect, it was unnecessary to define the precise role played by the judges in question during the investigative stage (see, mutatis mutandis, the Piersack v. Belgium judgment of 1 October 1982, Series A no. 53, p. 16, para. 31). 37. The Government argued that the applicant had waived his right under Article 6 para. 1 (art. 6-1), not only implicitly in failing to challenge the composition of the Regional Court at the appropriate time, but also expressly before the opening of the hearing.
However, the Court objected that, according to the Court’s case-law, the waiver of a right guaranteed by the Convention – insofar as it is permissible – must be established in an unequivocal manner (see the Oberschlick judgment cited above, Series A no. 204, p. 23, para. 51). Moreover, the Court agreed with the Commission that in the case of procedural rights a waiver, in order to be effective for Convention purposes, required minimum guarantees commensurate to its importance.
Under Articles 70 (1) and 71 (1) of the Code of Criminal Procedure Judges Kaiser and Arnold were obliged firstly to inform the President of the Regional Court of the circumstances entailing their disqualification; they were also obliged, on pain of nullity, to refrain from carrying out any judicial act, even before the applicant was summoned by Judge Kaiser on 31 August and 1 September 1983 in order to be informed of the situation. In addition, the right to be tried by a court whose composition is in accordance with the law is of essential importance and its exercise cannot depend on the parties alone. Furthermore, even supposing that the rights in question can be waived by a defendant, the circumstances surrounding the applicant’s decision to give up his right to recuse the judges deprived it of any validity from the point of view of the Convention. In conclusion, the Court considered that there had been a violation of Article 6 para. 1 (art. 6-1).
22. Towards New Leading Principles in the Field of Judicial Impartiality? Morel v. France (6 June 2000).
In the case Morel v. France (6 June 2000) the applicant questioned the subjective impartiality of the insolvency judge of a Commercial Court. He pointed out that Article 26 of the decree of 27 December 1985 laid down that, on pain of the judgment being declared null and void, the insolvency judge could not sit when the court was acting on its own initiative or was hearing an appeal against one of its own orders. The applicant maintained that it was inconsistent for the insolvency judge to be allowed to sit in certain cases but not in others, since the case file in insolvency proceedings was indivisible. Under the Law of 25 January 1985, the insolvency judge had very wide powers during the period when the companies were under observation. Thus, during that stage of the proceedings, he played an active role in the companies’ management and had powers of information and investigation enabling him to run the companies.
In that case, the insolvency judge had made thirty orders in spheres ranging from dismissal to the attachment of accounts and the sale of movable and immovable property. On a number of points the applicant had disagreed with the insolvency judge and may therefore have formed the impression that he was appearing before an opponent. Further, a number of the insolvency judge’s decisions indicated the position he would take in the trial court. That suggested to the applicant that an insolvency judge subsequently exerted a decisive influence over a commercial court’s decision on a company’s future. That influence was increased by his reports to his colleagues, on which no adversarial argument from the parties was heard. Nor did his colleagues take any active part in the commercial court’s decision. It was for that reason that certain French commercial courts refused to allow the insolvency judge to take part in the deliberations of the trial court.
The Government objected that individual judges were presumed to be impartial unless there was evidence to the contrary. Unlike the applicant, they considered that the judgment was couched in neutral terms and did not suggest any bias against the applicant. They therefore submitted that the applicant’s concerns were not objectively justified.
The Court of Human Rights said that, despite the applicant’s submissions, it was not satisfied that there was evidence establishing that the insolvency judge acted with any personal prejudice. As to the objective impartiality test, when applied to a body sitting as a bench, it meant determining whether, quite apart from the personal conduct of any of the members of that body, there are ascertainable facts which may raise doubts as to its impartiality. In this respect even appearances may be of some importance. It follows that when it is being decided whether in a given case there is a legitimate reason to fear that a particular body lacks impartiality, the standpoint of those claiming that it is not impartial is important but not decisive. What is decisive is whether the fear can be held to be objectively justified.
In this case, the concerns regarding the insolvency judge’s impartiality stemmed from the fact that he had taken various measures concerning the companies during the observation period and subsequently presided over the court that had decided the companies’ fate. The Court accepted that that situation could raise doubts in the applicant’s mind about the impartiality of the Commercial Court. However, it noted that “the mere fact that a judge has already taken pre-trial decisions cannot by itself be regarded as justifying concerns about his impartiality. What matters is the scope and nature of the measures taken by the judge before the trial. Likewise, the fact that the judge has detailed knowledge of the case file does not entail any prejudice on his part that would prevent his being regarded as impartial when the decision on the merits is taken. Nor does a preliminary analysis of the available information mean that the final analysis has been prejudged. What is important is for that analysis to be carried out when judgment is delivered and to be based on the evidence produced and argument heard at the hearing.”
In the light of those principles, the Court considered that the applicant’s concerns could not be justified in themselves by the fact that the insolvency judge took certain decisions during the observation period (orders concerning the management of the companies, dismissals and interim measures). His knowledge of the case file was not in itself decisive either. As regards the influence which the applicant alleged the insolvency judge had on the bench, the Court did not find any objective grounds for believing that the nature and extent of the insolvency judge’s duties during the observation period (which were intended to ensure the day to day management of the companies) gave rise to any prejudice on the – separate – issue which the Commercial Court had to decide regarding the viability of the applicant’s plan for the companies continued trading at the end of the observation period and of the financial guarantees produced at the hearing. In the light of the special circumstances of the case, the Court found that the applicant’s concerns were not objectively justified.
This decision seems to take in serious account the criticism with which the legal doctrine had previously met some “hard line” judgments concerning the topic of judicial impartiality (let us think, in particular, to some of the above-mentioned cases such as Piersack, De Cubber, Hauschildt or Procola), censuring sentences like the one according to which any single doubt “however slight its justification” on the institution’s structural impartiality is sufficient “to vitiate the impartiality of the tribunal in question, and this makes it unnecessary for the Court to look into the other aspects of the complaint” (see the Procola case). Actually some scholars had spoken in this regard of a “tyranny of appearances,” arguing that–at least in civil matters–it does not exist a “right to the intellectual virginity of the judge;” they underlied as well that too rigid an approach to the concept of judicial impartiality could be “incompatible with the dialectic structure of judicial procedures;” it had also been remarked that nothing in our contemporary legal systems is against a “step-by-step formation of the judgement.”
Particularly appreciated was that part of the reasoning in which the Court stressed that “the mere fact that a judge has already taken pre-trial decisions cannot by itself be regarded as justifying concerns about his impartiality. What matters is the scope and nature of the measures taken by the judge before the trial.” This practical and “case by case” approach has been considered as an expression of common sense, while other scholars have pointed out that the principle of impartiality does not prevent judges from having an opinion (and expressing it).
Maybe another teaching we can draw from this decision is that principles applying to penal cases cannot be transferred as such to civil cases. In civil matters we must avoid that the judge develops an opinion on the case outside the so-called “contradictory principle.” According to this rule, each party has the right to be timely informed of the arguments of the other party and to object to them. However, the very “contradictory principle” allows that the judge, who has expressed his/her view over one or more points of a case in the framework of a provisional decision, issue the final judgement on that lawsuit, after having asked the parties to exchange their opinions on that provisional assessment of the case.
* Paper for the Workshop on “The Impact of EC Law at National Level and the Protection of Fundamental Rights”, organised in the framework of the External Actions of the European Community – Cards Regional Project 2003. The Workshop was held in Split (Croatia) on 14-16 September 2005.
 “There is no…freedom if the power to judge is not separate from the legal and executive powers. If it were joined to legislative power, power over the life and liberty of citizens would be arbitrary, for the judge would be the legislator. If it were joined to the executive power, the judge would have the power of a tyrant. All would be lost if the same man, or the same body of rulers, nobles, or people exercised all three powers: that of making the laws, that of executing public resolutions and that of judging the crimes or disputes of individuals.” (Montesquieu, De l’esprit des lois, Genève, 1748, Book XI, Chapter VI). On the independence of the judiciary and the separation of powers, see Mortara, Istituzioni di ordinamento giudiziario, Florence, 1890, p. 11-21; Ammatuna, Calamandrei, Candian et al., Per l’ordine giudiziario, Milan, 1946; Kelsen, General Theory of Law and State, Harvard 1945, translated into Italian under the title Teoria generale del diritto e dello stato, Milano, 1952, p. 274-288; Barak, Judicial Discretion, translated into Italian under the title La discrezionalità del giudice, Milan, 1995, p. 189-215; Oberto, Les garanties de l’impartialité des juges et de l’indépendance de la justice, in Le rôle du juge dans une société démocratique, Strasbourg, 1996, p. 15-230; Rodriguez-Arribas, Sgroi, Abravanel, et al., L’independenza della giustizia, oggi. Judicial Independence, Today, Liber amicorum in onore di Giovanni E. Longo, Milan, 1999 (see in particular Abravanel’s essay, Essai sur le “pouvoir du juge”, p. 1-22); Oberto, Die Sicherung der richterlichen Unabhängigkeit in Italien unter besonderer Berücksichtigung des Consiglio Superiore della Magistratura und einer einheitlichen Besoldung aller Richter (the article has been available since 23 October 2002 on the following web page: http://www.giacomooberto.com/wien/vortrag.htm).
 Oberto, Les garanties de l’impartialité des juges et de l’indépendance de la justice, op, cit.
 Gorla, Della posizione costituzionale dell’ordinamento giudiziario. Per l’autonomia della magistratura, in Ammatuna, Calamandrei, Candian, et. al., Per l’ordine giudiziario, op. cit., p. 47: “The judge cannot be placed on the same level as other public servants. Nor, in a misguided spirit of egalitarianism and of levelling down of the best and the most responsible, may other public servants aspire to be compared with the judge. The judge is, or should be, by virtue of his very functions, placed above the entire scale of political values, at least in a society that seeks to apply its legal system correctly, and not on the basis of the results of individual cases, which constitutes abuse. Such a levelling down would destroy the very basis of the legal system, inasmuch as it would fail to recognise the dignity of one who personifies the highest requirements of the law, as long as, in the constitutions of the civil population, he directly personifies one of the constitutional organs (which is not the case with ordinary public servants). Judges should be regarded as being set apart from the ordinary run of public servants because they are not in reality dependants of the state but are themselves the state in one of its constitutional organs; they are the living symbol, not of the ‘dependent’ public servant, but of autonomy, of the exercise of personal rights, and their very life should be autonomy in every sense of the word.”.
 See on this point Bonomo, l’indipendenza “interna” della magistratura, in Rodriguez-Arribas, Sgroi, Abravanel, et al., L’indipendenza della giustizia, oggi, Judicial Independence, Today, Liber amicorum in onore di Giovanni E. Longo, op. cit., p. 55-59. See also Kelsen’s opinion, according to which it is impossible to apply to judges the hierarchical order which is typical of administrative bodies (Kelsen, Teoria generale del diritto e dello stato, cit., p. 280).
 I am indebted for these observations to Bruti Liberati, Le rôle du Conseil Supérieur de la Magistrature comme garant de l’indépendance de la magistrature et dans l’organisation des juridictions (text sent in digital version by its author).
 “L’impartialité est un devoir d’état et d’Etat. Mais elle est consubstantielle au pouvoir juridictionnel” (Commaret, Une juste distance ou réflexions sur l’impartialité du magistrat, in D, 1998, Chron., 262).
 And we have always to bear in mind the two aspects of judicial independence, which should be both “external” (i.e. vis-à-vis the other powers of the State) and “internal” (i.e. vis-à-vis the judicial body itself).
 See above, Paragraphs 4-6.
 The sources for the cases referred to in the following paragraph are: Consiglio Superiore della Magistratura, La responsabilità disciplinare dei magistrati, IV, Roma, 1986; Consiglio Superiore Della Magistratura, Manuale dell’udienza disciplinare, Legislazione e massime della sezione disciplinare aggiornate al dicembre 1990, Roma, 1992; Consiglio Superiore Della Magistratura, Manuale dell’udienza disciplinare, Massime della sezione disciplinare dal 1 gennaio al 31 dicembre 1991, Roma, 1992; Mele, La responsabilità disciplinare dei magistrati, Milano, 1987, pp. 35-68; Ricciotti and Mariucci, Deontologia giudiziaria, I, Padova, 1995; Racheli, La deontologia professionale dei magistrati: a) responsabilità disciplinare; b) conseguenze di carattere paradisciplinare, report to the Incontro di studio previsto dall’art. 22, d.pr. n. 116/88, per gli uditori giudiziari nominati con d.m. 29.9.1992, organised by the Higher Judicial Council (C.S.M. - Commissione speciale per gli uditori giudiziari) and held in Rome, on the days 6-9 June 1994.
 Decision 14 March 1964 of the Disciplinary Division of the Higher Judicial Council.
 Decisions 22 November 1985 and 23 November 1990 of the Disciplinary Division of the Higher Judicial Council.
 Decision 19 October 1990 of the Disciplinary Division of the Higher Judicial Council.
 Decision 12 April 1991 of the Disciplinary Division of the Higher Judicial Council.
 Decisions 25 November 1961 and 12 May 1962 of the Disciplinary Division of the Higher Judicial Council.
 Decision 4 July 1964 of the Disciplinary Division of the Higher Judicial Council.
 Decision 14 July 1989 of the Disciplinary Division of the Higher Judicial Council.
 See Zanotti, Le attività extragiudiziarie dei magistrati ordinari, Padova, 1981.
 Decision 11 November 1983 of the Disciplinary Division of the Higher Judicial Council, in Cassazione penale, 1983, pp. 750 et seq.; see also Mele, op. cit., p. 59; Carcano, Il Consiglio superiore della magistratura e la massoneria, in Cassazione penale, 1992, pp. 2885 et seq.
 The minutes of the discussion inside the C.S.M. that led to the declaration issued on 22 March 1990 can be seen in Consiglio Superiore della Magistratura, Notiziario, Nr. 11, 1990, pp. 89 et seq.
 Decision 18 July 1964 of the Disciplinary Division of the Higher Judicial Council.
 Decision 30 September 1977 of the Disciplinary Division of the Higher Judicial Council.
 Decision 6 February 1965 of the Disciplinary Division of the Higher Judicial Council.
 See article 8, Act (decreto del Presidente della repubblica) Nr. 361, 30 March 1957.
 See Documenti giustizia, 7-8/1994, pp. 1485 et seq.
 Martens, La tyrannie de l’apparence, in Revue trimestrielle des droits de l’homme, 1996, p. 640-656, 649: [in civil matters] “il n’existe pas un droit fondamental à la virginité intellectuelle du juge, que celui‑ci devrait garder intacte jusqu’au jour du procès.” [This conception seems to be] “inconciliable avec la dialectique du procès et la nature du droit contemporain. Notre droit ne s’oppose nullement à ce que l’acte de jujer s’effectue par étapes successives (…). Ce qui rend insupportable le préjujé c’est quand le juge l’a conçu en dehors du débat judiciaire, sur la base d’éléments qui n’ont pas subi l’épreuve de la contradiction. Mais dès lors que le juge exprime judiciairement une opinion qui ne peut être que provisoire, même sur le fond du litige, que les parties auront le loisir de combattre et que le juge pourra abandonner ou amender, on n’aperçoit pas quel principe fondamental lui interdirait de poursuivre ait fond un examen qu’il a entamé au provisoire.”
 De Gouttes, L’impartialité du juge, Connaître, Traité et juger : quelle compatibilité, in Revue de Science Criminelle, 2003, p. 77.
 Frison Roche, L’impartialité du juge, in D, 1999, Chron, p. 54: “Ce que l’impartialité interdit, ce n’est pas d’avoir une opinion, c’est de ne pas vouloir en changer, d’être de le départ hors de portée du débat.”
 Martens, La tyrannie de l’apparence, cit., p. 655: “Dans le procès civil, le préjugé condamnable est celui qui s’acquiert en dehors du débat contradictoire, mais l’exigence même de la contradiction implique, selons nous, que le juge puisse, sans être accusé de parti pris, inviter les parties à éprouver la solidité juridique de son raisonnement provisoire.”