Hauschildt v Denmark (Series A, No 154; Application No 10486/83) EUROPEAN COURT OF HUMAN RIGHTS (1990) 12 EHRR 266, 24 MAY 1989
Impartiality of Tribunal
The applicant filed a petition alleging that he did not receive a fair trial by an impartial tribunal under Article 6 of the Convention. He asserted some of the sitting judges who had convicted him had circulated numerous pre-trial decisions concerning his case. The Court held that a violation of Article (6) had occurred.
1. Impartial tribunal: subjective and objective tests. (Art 6(1))
Article 6(1) provides for two tests to determine whether a tribunal is impartial. The first is a subjective test which is based on the personal conviction of a particular judge in a given case. Second, is an objective test which ascertains whether the judge offered guarantees sufficient to rule out any legitimate doubt as to his impartiality?
In the subjective test, the impartiality of a judge has to be presumed until there proven otherwise.
The objective test, on the other hand, examines ascertainable facts which may raise doubts about a certain judge. Appearance of impartiality should lead a judge to recuse himself. Pre-trial opinion cannot in itself indicate impartiality.
As to the objective test, the Court stated in Fey v. Austria 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 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. This implies that in deciding 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 determinant is whether this fear can be held to be objectively justified.