6.
On the one hand, the subjective aspect signifies that the Court must be free of personal
prejudices when undertaking the hearing and deciding of a case. 5 In this context, the
existence of impartiality must be determined on the basis of the personal conviction of a
particular judge in a given case. 6
7.
On the other hand, the objective aspect refers to the duty to provide sufficient
guarantees to ensure that no legitimate doubt can exist in relation to the right in question. 7
Thus, the objective is to eliminate any doubt that the defendant or the community may
entertain regarding the absence of impartiality. 8 From this perspective, it must be determined
whether, quite apart from the judge’s personal conduct, there are ascertainable facts that
may raise doubts as to his impartiality. 9 Thus, the judge must appear to act without being
subject to any influence, inducement, pressure, threat or interference, direct or indirect, and
only and exclusively in accordance with – and on the basis of – the law. 10
8.
Bearing in mind the foregoing, the purpose of this dissent focuses on the presumed
responsibility of the Costa Rican State for the violation of the guarantee of an impartial judge
from its objective perspective. We will refer to this aspect in the following section.
II.
Analysis of this specific case
9.
Regarding the deliberations conducted in this case concerning the right to judicial
guarantees, in particular to an impartial judge in relation to the obligations to respect and to
ensure rights, it will be useful to briefly describe the crucial point of these deliberations.
10. As indicated in paragraph 119 of the judgment, the dispute is rooted in determining
whether or not the fact that Judge LGBG ruled on the appeal against one of the decisions
extending Scot Cochran’s pre-trial detention and, subsequently, became a member of the
collegiate court that convicted him resulted in a situation of lack of impartiality in this specific
case because, according to the representatives, the judge “had already advanced his opinion
on the same case just one year previously.” 11
11. In the course of the aforementioned deliberations, most members of the Court chose to
reject the State’s responsibility for the alleged violation of the right to judicial protection
established in Article 8(1) of the American Convention in relation to its Article 1(1), to the
detriment of Scot Cochran. 12
12.
To reach this conclusión, the Court indicated the following:
The Court finds that there are three elements that are crucial for its assessment of the impartiality of the
judge in this case: (i) the object and scope of the decision issued by Judge LGBG on the appeal against
the measure of deprivation of liberty, which merely verified the existence of the legal requirements for
5
Cf. Case of Herrera Ulloa v. Costa Rica, supra, para. 170.
6
Cf. ECHR Hauschildt v. Denmark, no. 10486/83, Judgment of May 24, 1989, para. 46.
7
Cf. Case of Herrera Ulloa v. Costa Rica, supra, para. 170.
Cf. Case of Apitz Barbera et al. (“First Court of Administrative Disputes”) v. Venezuela. Preliminary objection,
Merits, reparations and costs. Judgment of August 5, 2008. Series C No. 182, para. 56.
8
9
Cf. ECHR Hauschildt v. Denmark, supra, para. 48.
Case of Apitz Barbera et al. (“First Court of Administrative Disputes”) v. Venezuela, supra, para. 56; Case of
Duque v. Colombia. Preliminary objections, merits, reparations and costs. Judgment of February 26, 2016. Series C
No. 310, para. 162.
10
11
Paragraph 115.
12
Cf. Paragraph 126.
2