assessment of the claims of one of the parties. 27 The notion of an impartial court,
interpreted in the sense of the absence of prejudice or of preconceptions, includes, in
the first place, a subjective analysis in order to delimit the personal conviction and
conduct of a judge in a specific case and, then, an objective analysis to ensure that
there are sufficient guarantees to allow the accused to eliminate any legitimate
doubt.28 Personal impartiality is presumed unless there is proof to the contrary;
however, owing to the significant difficulty of obtaining this type of evidence 29 – a
circumstance that, in our opinion, is not present in this case – the contrary cannot
always be proved.
24.
Meanwhile, with regard to the functional nature of impartiality, it is necessary
to verify whether, regardless of the personal attitude of the judge, there are verifiable
objective circumstances that could cast suspicions on his impartiality. The point of
view of the interested person, without constituting an essential factor, should be taken
into account; but the decisive factor consists in assessing whether the accused’s
misgivings about the judge can be considered objectively justified. 30 With regard to
impartiality, even appearances can have some importance and, consequently, “any
judge regarding whom there is a legitimate reason to doubt his lack of impartiality
should be disqualified.”31
25.
In European case law, the limits of both notions are open-ended, in view of the
fact that a specific conduct of a judge — from the viewpoint of an external observer —
may raise objectively justified doubts concerning his impartiality, but may also raise
such doubts with regard to his personal conviction. Thus, in order to distinguish them,
it should be understood that the first situation (the objective one) is of a functional
nature and includes the hypothesis in which the personal conduct of the judge, without
being called into question, shows signs that could raise justified doubts about the
impartiality of the court that must try the case.32 In this regard, appearances can be
important, owing to the confidence that the courts of justice should inspire in the
accused.33
26.
Appearances are important in order to assess whether or not a court is
“impartial.” Thus, the ECHR has reiterated the famous aphorism “justice must not only
be done; it must also be seen to be done.”34
27
Cf. ECHR. Case of Lavents v. Latvia, Judgment (Merits and Just Satisfaction) Court (First Section),
Application No. 58442/00, Judgment of 28 November 2002, para. 118.
28
Cf. ECHR. Case of Piersack v. Belgium, Judgment (Merits), Court (Chamber), Application No.
8692/79, Judgment of 1 October 1982, para. 30.
29
García Roca, Javier and Vidal Zapatero, José Miguel, op. cit. p. 381.
30
Casadevall, Josep, op. cit., p. 282.
31
ECHR. Case of Piersack v. Belgium, Judgment (Merits), Court (Chamber), Application No. 8692/79
8692/79, Judgment of 1 October 1982, para. 30; and Case of Castillo Algar v. Spain, Judgment (Merits and
Just Satisfaction), Court (Chamber) Application No. 28194/95 28194/95, Judgment of 28 October 1998,
para. 45.
32
Casadevall, Josep, op. cit. p. 286.
33
ECHR, Case of Castillo Algar v. Spain, Judgment (Merits and Just Satisfaction), Court (Chamber)
Application No. 28194/95 28194/95, Judgment of 28 October 1998, para. 45.
34
ECHR, Case of Morice v. France, Judgment (Merits and Just Satisfaction), Court (Fifth Section),
Application No. 29369/10, Judgment of 11 July 2013, para. 71; and Case of De Cubber v. Belgium,
Judgment (Merits), Court (Chamber), Application No. 9186/80, Judgment of 26 October 1984, para. 26. The
existence of impartiality, for the purposes of Article 6.1, must be ascertained based on a subjective test; that
is, on the basis of a personal conviction of a specific judge in a particular case, and also based on an
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