The impartiality of a judge
The existence of impartiality (of a judge) for the purposes of Article 6 § 1 must be determined according to a subjective test, that is on the basis of the personal conviction of a particular judge in a given case, and also according to an objective test, that is ascertaining whether the judge has offered guarantees sufficient to exclude any legitimate doubt in this respect (see Fey v. Austria, judgment of 24 February 1993, Series A no. 255-A, p. 12, § 28; Saraiva de Carvalho v. Portugal, judgment of 22 April 1994, Series A no. 286-B, p. 38, § 33; and Morel v. France, no. 34130/96, § 40, ECHR 2000-VI). ELEZI v. GERMANY 26771/03 [2008] ECHR 513.Malta had a law under which it was not possible to challenge judges on the basis of a relationship with a party's advocate unless it was a first degree relationship of consanguinity or affinity. Consequently, in the instant case, Mrs M. was faced with a panel of three judges, one of whom was the brother and at a later stage the uncle of the opposing parties' advocate. Despite the fact that the relationship at issue did not involve any professional or financial dependence the court was of the view that the close family ties between the opposing parties' advocate and the judge were sufficient to justify objectively the applicant's fears that the presiding judge lacked impartiality. MICALLEF v. MALTA - 17056/06 [2008] ECHR 41.
Categories: Chapter 9, Updates