protects the right to be tried by an impartial and independent court. 39 It has also
affirmed that the personal impartiality of a judge must be presumed, unless there is
proof to the contrary.40 Based on a subjective analysis, the proof requires endeavoring
to ascertain the personal conviction or interest of a given judge in a particular case, 41
so that it may be addressed at establishing, for example, whether a judge has
displayed any hostility, prejudice or personal bias or whether he has arranged to have
the case assigned to himself for personal reasons. 42 Furthermore, the European Court
has indicated that the personal impartiality of a judge can be ascertained, according to
the specific circumstances of the case, from the conduct of the judge during the
proceedings, the content, arguments and language used or the reasons to conduct the
investigation, which indicate a lack of professional distance from the decision.43
31.
Thus, the sphere or aspect of impartiality that may be called into question
(personal or functional) and the type of analysis to be made (subjective or objective)
will depend in each situation on the circumstances of the case and the causes of the
misgivings of the interested party.
32.
In the instant case, the analysis of impartiality is related to [the aspect of]
personal impartiality, because it concerns the conduct of the judges in the specific
cases in which it is alleged that they explicitly based conclusions of the judgments on
prejudices. This makes it essential to assess whether the courts exteriorized negative
prejudices in the adverse judgments, which had a significant or decisive influence on
the reasoning of the conclusions of the ruling. For the purpose of this analysis, when
we refer to a “prejudice,” we are referring to its negative connotation in the sense of a
generalized unfavorable notion, perception or attitude towards individuals who belong
to a group, owing to their membership in this group, which is characterized negatively.
Thus, it is not related to the more general meaning relating to the ideas, notions and
perceptions that a judge, like any other person, has acquired through experience and
that do not exclude him from assessing, analyzing and reaching a rational conclusion
in the specific case that he is deciding in the course of his jurisdictional functions.
39
Cf. Case of J. v. Peru. Preliminary objection, merits, reparations and costs. Judgment of November
27, 2013. Series C No. 275, paras. 182 and 186.
40
Case of Atala Riffo and daughters v. Chile. Merits, reparations and costs. Judgment of February 24,
2012. Series C No. 239, para. 234. Similarly, in European case law, see: ECHR, Case of Kyprianou v. Cyprus,
Judgment (Merits and Just Satisfaction), Court (Grand Chamber), Application No. 73797/01, Judgment of 15
December 2005, para. 119. (“In applying the subjective test, the Court has consistently held that the
personal impartiality of a judge must be presumed until there is proof to the contrary”), citing ECHR, Case of
Hauschildt v. Denmark , Judgment (Merits and Just Satisfaction), Court (Plenary) Application No. 10486/83,
Judgment of 24 May 1989, para. 47.
41
Case of Atala Riffo and daughters v. Chile. Merits, reparations and costs. Judgment of February 24,
2012. Series C No. 239, para. 234. Cf. ECHR, Case of Kyprianou v. Cyprus, Judgment (Merits and Just
Satisfaction), Court (Grand Chamber), Application No. 73797/01, Judgment of 15 December 2005, para. 118
(“a subjective approach, that is endeavoring to ascertain the personal conviction or interest of a given judge
in a particular case”).
42
Case of Atala Riffo and daughters v. Chile. Merits, reparations and costs. Judgment of February 24,
2012. Series C No. 239, para. 234. Cf. ECHR, Case of Kyprianou v. Cyprus, Judgment (Merits and Just
Satisfaction), Court (Grand Chamber), Application No. 73797/01, Judgment of 15 December 2005, para. 119
(“As regards the type of proof required, the Court has, for example, sought to ascertain whether a judge has
displayed hostility or ill-will or has arranged to have a case assigned to himself for personal reasons”). See
also, ECHR, Case of Bellizzi v. Malta, Judgment (Merits and Just Satisfaction), Court (Third Section),
Application No. 46575/09, Judgment of 21 June 2011, para. 52, and Case of De Cubber v. Belgium,
Judgment (Merits), Court (Chamber), Application No.9186/80, Judgment of 26 October 1984, para. 25.
43
Cf. ECHR, Case of Kyprianou v. Cyprus, Judgment (Merits and Just Satisfaction), Court (Grand
Chamber), Application No. 73797/01, Judgment of 15 December 2005, paras. 130 to 133.
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