composition of a jurisdictional organ is not challenged on the grounds that, anyway, “the
result would have been a conviction.”
21. When examining objective impartiality, the European Court has indicated that, when
doubt exists as to the lack of impartiality of one of the judges who composes a court, in view
of the secrecy of the deliberations, it is impossible to ascertain a judge’s actual influence in
that context. 27 Therefore, “the impartiality of that court could be open to genuine doubt,” 28
and this led that court to conclude that there had been a violation of Article 6(1) of the
European Convention on Human Rights. 29 Consequently, in such contextual circumstances,
similar to those of the instant case, any reasonable observer would consider that a judge who
had decided aspects related to pre-trial detention and had, subsequently, ruled on the merits
of the same case, would inevitably inspire legitimate misgivings in the defendant regarding
the guarantee of the court’s impartiality. Moreover, it goes without saying that, during the
deliberations, each member of the court sets out reasons aimed at persuading the other
members in one way or the other so that the final decision is the best and most appropriate
for the case in question. Judges do not act as separate entities in sealed compartments. The
decision taken as a result of the deliberations is an act that is the outcome of dialogic
reasoning and, due to its nature, this is collective. Consequently, it is not enough to eliminate
the judge implicated to automatically deduce that the opinion of that judge had no impact on
the decision of the majority. It is precisely because the final ruling is the result of a decision
of the court as a whole, adopted in the context of secret deliberations, that it is not possible
to identify and isolate the influence of the opinion of one of the judges. Asserting the contrary
would mean ignoring the value, importance and impact of this collegiate procedure.
22. Lastly, regarding the third argument, the Court indicated that “even though the
possibility of filing a challenge was available at the time of the facts, this was not filed against
Judge LGBG during the criminal proceedings that culminated in the guilty verdict […] rather,
it was submitted for the first time during the third review procedure, [in which it was] found
that there was no suspicion of partiality because there was no evidence that the judge had
assessed the body of evidence when deciding the appeal against pre-trial detention.” 30
23. Here, we consider it necessary to recall the Inter-American Court’s considerations in
relation to the mechanism of challenge:
[T]he Court considers that the mechanism granting the right to challenge judges has a twofold purpose;
on one hand, it works as a guarantee for the parties to the proceedings, and on the other hand, it aims
at providing credibility to the role performed by the jurisdiction. Indeed, challenging gives the parties the
right to move for the exclusion of a judge when, regardless of the personal conduct of the questioned
judge, there are proven facts or convincing elements that lead to grounds for misgivings or legitimate
suspicions regarding his partiality, thus impeding his decision from being seen as made based on reasons
in conformity with the law; therefore, the functioning of the judicial system is distorted. Challenging
should not necessarily be seen as a judgment on the moral rectitude of the challenged official, but rather
as a tool to build trust in those resorting to the State for the intervention of bodies that are and appear
to be impartial. 31
24.
Despite the foregoing, we should not forget that, in addition to the possibility of
27
Cf. ECHR, Case of Otegi Mondragon and Others v. Spain, nos. 4184/15, Judgment of November 6, 2018, para.
67.
28
ECHR, Case of Otegi Mondragon and Others v. Spain, supra, para. 67.
29
Cf. ECHR, Case of Otegi Mondragon and Others v. Spain, supra, para. 69.
30
Paragraph 124.
Case of Apitz Barbera et al. (“First Court of Administrative Disputes”) v. Venezuela, supra, para. 63; Case of
López Lone et al. v. Honduras. Preliminary objection, merits, reparations and costs. Judgment of October 5, 2015.
Series C No. 302, para. 224.
31
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