Viktor Bérces: Evidence in Criminal Proceedings
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Chapter IV. Principles of evidence
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4.3. Objective and subjective criteria of impartiality
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4.3.3. Ad hoc decisions

4.3.3. Ad hoc decisions

Jegyzet elhelyezéséhez, kérjük, lépj be.!

As regards the examination of judicial impartiality, I would like to draw attention to the following Hungarian decisions:

Jegyzet elhelyezéséhez, kérjük, lépj be.!

  • first of all, the internal convictions of the judges must be examined, followed by all the guarantees which exclude any legitimate doubt as to impartiality;1
  • it is not only the personal convictions and conduct of the judges as subjects that must be taken into account, but also whether the court in question objectively provides the guarantees that are capable of eliminating all legitimate doubt as to this requirement;2
  • the accused’s point of view is also important, but not decisive, in assessing the appearance of bias; the decisive criterion is whether this fear of incrimination can be considered objectively justified;3
  • the requirement of impartiality is not in itself violated if the same judge is sitting in different cases of the accused at the same time;4
  • it is also possible that the investigating judge may become aware of data of which the sentencing judge is not aware, because the data cannot, for whatever reason, be used as evidence in the trial at a later stage; however, there is no concern about this, as prior knowledge of this additional data would potentially put the impartiality of the sentencing judge at risk, and the judgement of the criminal case free from bias. 5
 

Jegyzet elhelyezéséhez, kérjük, lépj be.!

The Court’s practice also distinguishes between the objective and subjective requirements of impartial and independent judgment, but in a different context. According to the Court, the objective measure of these circumstances is the existence of procedural guarantees capable of avoiding the appearance of partiality, while the subjective factor is the personal conviction of the judge hearing the case. This forum also states that it will examine whether these criteria are satisfied only where the national courts have already ruled on the substance of the matter. Failure to do so, however, for which the national courts are responsible, constitutes a breach of the Convention. Moreover, no objection of bias may be raised by a person who has been acquitted or by a person who, although aware of a manifest breach of the principle of impartiality, does not avail himself of the possibility provided by the national legal system to have those breaches investigated.6

Jegyzet elhelyezéséhez, kérjük, lépj be.!

According to the case law of the Court of Justice, if the independence and impartiality of the court of first instance can be established, these circumstances cannot be remedied ex post facto as procedural irregularities,7 and the question of judicial impartiality must be assessed primarily from the point of view of the accused8 (the existence of this circumstance must, however, be presumed until the contrary is proved9). It is also a fundamental rule that an application in which the applicant cannot provide concrete evidence to support the possible bias of the national court cannot be successful.10

Jegyzet elhelyezéséhez, kérjük, lépj be.!

The Court found a breach of the Convention when

Jegyzet elhelyezéséhez, kérjük, lépj be.!

  • a member of the jury was not disqualified on the basis of the accused’s application for disqualification, despite the fact that the accused had brought a personal lawsuit against him in parallel with the criminal proceedings; the duration of the latter proceedings, which lasted almost 7 months, had given rise to the accused’s fear that the judge would regard him as his “personal opponent” in the criminal proceedings; 11
  • members of a Cypriot court confronted the defender by making statements questioning his impartiality and later judged him for alleged contempt of court;12
  • the judges in the case against the accused’s accomplice had made statements in the judgment indicating the accused’s guilt in an earlier case, and subsequently the same judges had also ruled in a separate case against the accused and had again given a judgment of conviction for the reasons already explained;13
  • at the jury trial, the court did not attach any significance to – did not investigate – the racist statements made by one of the jurors at the trial;14
  • judges who had previously ruled on the same case had to decide whether their own earlier decision was legally correct;15
  • all three members of the Board of Appeal were involved in the first instance proceedings;16 it should be noted that even in the case of one member of the Board, a conflict of interest could be established,17 and in the case of two, this was obvious to the Court;18
  • in both places, the same judge, who was also the “rapporteur” in one of the cases, was the judge who heard the related cases in different courts;19
  • the presiding judge was a former head of the prosecution service who, in principle, could have dealt with the applicant’s case in that capacity;20
  • the judge presiding over the merits of the case has previously acted as an examining magistrate, drafting the charge or participating extensively in the investigation of the case;21
  • a significant proportion of the members of the jury belonged to the party involved in the criminal case.22
 

Jegyzet elhelyezéséhez, kérjük, lépj be.!

The Court held that there was no breach of the Convention when

Jegyzet elhelyezéséhez, kérjük, lépj be.!

  • during the trial, the judge made statements that could be used to infer his or her preconceptions about the outcome of the case or the defendant’s chances at trial;23
  • in a jury trial of a black defendant, following racist remarks, the presiding judge did not acquit the jury, but merely gave them new instructions;24
  • the court had previously dealt with the accused’s case on other grounds,25 or the same judges of the same court had heard two different cases of the same accused;26
  • the accused was tried in absentia for the first time and, after his appearance, sentenced a second time by the same Chamber, as the case was retried in its entirety;27
  • the Supreme Court also dealt with the case first in the ordinary procedure and then in the annulment procedure (see the latter procedure, which was limited to the determination of points of law);28
  • the same judge heard the case at first and second instance, but made only minor decisions in the first instance proceedings (i.e. postponing the trial), but did not hold a hearing on the merits;29
  • the same judge had previously rejected other applications for release of the accused on the basis of a presumption of his guilt; it was noted, however, that the imposition of these coercive measures was based on the accused’s status as a recidivist, and therefore did not constitute a decision on the question of criminal responsibility;30
  • one of the members of the jury was the head of the public administration body that had previously tried the case (there was no evidence that he had actually dealt with it personally);31
  • the judge hearing the case had previously acted as an examining magistrate, but the case was of minor importance or his role was not significant in terms of the individual decisions;32
  • the judge who heard the case of the juvenile defendant had previously decided – as investigating judge – to remand the defendant in custody or to investigate the case (there were no circumstances that would have called into question the judge’s impartiality);33
  • the trial judge had previously decided whether the case was admissible for trial (in this case, he did not consider the merits of the suspicion, but the amount of evidence);34
  • a member of the jury was an employee of a prosecution witness.35
1 BH 2000/10 No 798.
2 BH 1993/8 No 639.
3 BH 1997/12 No 157.
4 RO 1993/8, p. 637. In Czine–Szabó–Villányi–Baka (2008) ibid. 223–225.
5 Decision No. 34/2013. (XI. 22.) AB.
6 Higgins and Others v. France judgment of 19 February 1998, Reports 1998-1. 44. In Grád–Weller (2011) ibid. 297–298.
7 “Smith and Ford v. United Kingdom”, 29 September 1999. In Czine–Szabó–Villányi–Baka (2008) ibid. 224.
8 “Remli vs. France” case, 23 April 1996. In: Czine–Szabó–Villányi–Baka ibid. 225.
9 “Piersack v. Belgium” case, 1 October 1982. In Czine–Szabó–Villányi–Baka ibid. 226.
10 Debled v. Belgium judgment of 22 September 1994, Series A no. 292-B. In: Grád –Weller ibid. 299.
11 “Chmelir v. Czech Republic” case, 7 June 2005. In Czine–Szabó–Villányi–Baka ibid. 228.
12 Kyprianou v. Cyprus judgment of 27 January 2004. no. 72797/01. In: Grád–Weller ibid. 298.
13 Rojas Morales v. Italy judgment of 16 November 2000, no. 39676/98. In: Grád–Weller ibid. 298.
14 Remli v. France judgment of 23 April 1996, Reports 1996-II, p. 559. In: Grád–Weller ibid. 298.
15 San Leonard Band Club v. Malta judgment of 29 July 2004, no. 77562/01. In: Grád–Weller ibid. 300.
16 Oberschilk v. Austria (NO. 1) judgment of 23 May 1991, Series A no. 204. In: Grád–Weller ibid. 301.
17 Pfeifer and Plankl v. Austria judgment of 25 February 1992, Series A no. 227. In: Grád–Weller ibid. 301.
18 Castillo Algar v. Spain judgment of 28 October 1998, Reports 1998-VII, p. 3103. In: Grád–Weller ibid. 301.
19 Ferrantelli and Sanangelo v. Italy judgment of 7 August 1996 In: Grád–Weller ibid. 301.
20 Piersack v. Belgium judgment of 1 October 1982, Series A no. 53.) In: Grád–Weller ibid. 302.
21 De Cubber v. Belgium judgment of 26 October 1984, Series A no. 154. and Hauschild v. Denmark judgment of 24 May 1989, Series A no. 154.
22 Holm v. Sweden judgment of 25 November 1993, Series A no. 279-A. In: Grád–Weller ibid. 305.
23 Buscemi v. Italy judgment of 16 September 1999, no. 29569/95. In: Grád–Weller ibid. 298.
24 “Gregory v. United Kingdom”, ECHR 1998/3 In Czine–Szabó–Villányi–Baka: ibid. p. 230.
25 Ettl and Others v. Austria judgment of 23 April 1987, Series A no. 117. In: Grád–Weller ibid. 299.
26 Sainte-Marie v. France judgment of 16 December 1992, Series A no. 253-A. In: Grád–Weller ibid. 299.
27 Thomann v. Switzerland judgment of 10 June 1996, Reports 1996-III, p. 806. In: Grád–Weller ibid. 300.
28 In: Grád–Weller ibid. 300.
29 Gillow v. the United Kingdom judgment of 24 November 1986, Series A no. 109. In: Grád–Weller ibid. 300.
30 Jasinski v. Poland judgment of 20 December 2005, no. 30865/96. In: Grád–Weller ibid. 301.
31 Gillow v. the United Kingdom judgment of 24 November 1986, Series A no. 109. In: Grád–Weller ibid. 303.
32 Fey v. Austria judgment of 24 February 1993, Series A no. 255-A, and Padovani v. Italy judgment of 26 February 1993, Series A no. 257-B. In: Grád–Weller ibid. 303.
33 Nortier v. the Netherlands judgment of 24 August 1993, Series A no. 267. In: Grád–Weller ibid. 304.
34 Saraiva de Carvalho v. Portugal judgment of 22 April 19994, Series A no. 286-B. In: Grád–Weller (2011) ibid. 304.
35 Pullar v. the United Kingdom judgment of 10 June 1996, Reports 1996-III, p. 783. In: Grád–Weller ibid. 305.
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