Course 17

Question 1

What is the impartiality of judges?

Answer 1

• Absense of prejudice or bias in favor for or against one of the parties.
• 2 approaches in the way tha Strasbourg handles this:
  
  1. Subjective approach: closest to our colloquial understanding of impartiality: judges personal tendencies in favor or against one of the parties will not be allowed. If you question a judges subjective impartiality = very serious failure: so judges are supposed to be impartial in a subjective way unless there is proof to the contrary. Really serious conflict if you accuse a judge of this.
  2. Objective approach

Question 2

What is the objective approach of impartiality?

Answer 2

• More objective way to look at impartiality, a more structural way. This has been designed or created in order to avoid or circumvent the big difficulties and also on a more personal account of that subjective approach, you can circumvent them sometimes by going to the objective approach
• No so much focus on the personal conduct of the judge but more a question if there are facts which may lead to doubts as to the impartiality of the court of the structural one, some of the members of the bench, so you could say that the objective approach to impartiality is related to the theory of the appearances. Not only justice must be done, it must also been seen to be done. Well that “ seen” to been done that is the objective approach.
• The point is not so much whether one of the parties sees a problem in terms of impartiality, the point is rather that the fear and lack of impartiality can be believed to be objectively be justified.
• This discussion shies away from painful discussions on the behavior of individual judges themselves = structural impartiality.

Question 3

What is structural impartiality?

Answer 3

• Case Prirzak: the judge that had to examine themerits of the charges against the applicant was before a member of the prosecution’s office.
• Two years later: the case Dekuber: there is an investigative judge that becomes a judge: questions may rise and the court found of course that here there was some reason, serious grounds, the applicant could fear for a lack of impartiality.
  
  • These cases important because they avoid the real person issues: because it seems difficult to be impartial then.
• Strasbourg looks more at the guarantees that were available. Never a case of black and white. There is a risk of pushing the structural impartiality too far:
  
  • Personal conscience is important: often discussions on cases where tribunals or committees may have official functions and they could be doubts on the structural impartiality.

Question 4

What was the discussion about the administrative court and the double function?

Answer 4

• Conseil d’état has a double function: advisory function:
  
  • One body be an advisor to the governement and then same body also the judge.
• There have been discussion to split the two up: the advisory body and the administrative court in the other body.
• Strasbourg court: not a problem if you have sufficient internal guarantees: people can go from one section to another but then cannot function in the same case.

Question 5

What is the publicity of cases?

Answer 5

• Public hearing is an important guarantee for the administration of justice (against secret justice), there are some exceptions. Specifically important in criminal affairs, also the oral presentation of arguments.
• Sometimes written procedures or oral presentations behind closed doors, usually done for the privacy of people.
• Strasbourg Court accepts those exceptions rather easily and pays attention to the guarantees that surround the written procedures. Technical cases are often dealt with by written procedures and that is fine. Here again, when it comes to the public character of the hearing, camera hearings are not ruled out. You can use them in certain specific situations.
• What is really important: publicity of the hearing historically and also the public pronouncement of the judgement: the public should have an idea to how the court generally approached cases, how they work and apply the law.

Question 6

What is the fair hearing?

Answer 6

• Broad concept: every party has in principle the the opportunity to present its case in an adequate way, it’s the right of defense of course; and that also the court properly examine the arguments that each party puts forward and comes to a reasoned decision.
• Generally: parties have the right to atake part in the proceedings, the right to be properly informed, sufficient time to prepare their hearing and defense.
  
  • Some questions with regard to the trials in absence.
• Focus on the adversary: in principle the party should be given the right to have knowledge of the arguments that are put forward either by the prosecutor either by the other party and that they should be given the possibility to comment on.
  
  • Always restrictions possible: eg. restriction to the right to access the criminal file = only in exceptional circumstance.
  • Restrictions have to be sufficiently counterbalanced by the procedures that were followed: this is clear in criminal cases, but this also applies to civil and even administrative cases.

Question 7

What is the idea of the adverse nature of the proceedings?

Answer 7

• Each party should be given a reasonable opportunity to present the case and there should not be a substantive disadvantage of one party upon another.
• Equality of arms principle.

Question 8

How does the Strasbourg court handle rules of evidence?

Answer 8

• National court has a lot of leeway.
• Specific problem: what if evidence is obtained in an illegal way? Are all methods of gathering evidence acceptable? And what about anonymous claims?
• Here again: look if there are sufficient safeguards.
• The court is very wary when it comes to the police exerting their influence on target: so that they would commit a crime that they would otherwise not have committed.
• Evidence obtained in violation of national legislation: case by case basis to judge in the light of the eed of a fair violation: nuanced answer.
  
  • Principle: it is not necessarily the case that if evidence was obtained illegally that the whole trial is by default unfair: it depends on the evidence and the reliability.
    
    • Eg. wiretapping = violation of art. 8 but not necessarily art. 6.

Question 9

What is the connection between art. 3 and art. 6?

Answer 9

• If your evidence has been obtained through a violation of art. 3 = torture, inhuman or degrading treatment –> this would render the procedures as automatically unfair.

Question 10

Do judgements need to be reasoned for it to pass art. 6?

Answer 10

• Yes: decisions have to be reasoned: the party, they have to understand why the judge, the court, a tribunal comes to a decision, and that is once again a guarantee against arbitrariness that is always the leading point, it should be – there has to be a guarantee against the arbitrariness.
• Also has to do with the publicity and outside judges/lawyers to check what has happened.
• The requirements may depend on those procedures but principle remains: the judge has to develop an objective reason that is rational by the sound. That does not mean that the judge has to answer to all the arguments that the parties have advanced in the pleading.

Question 11

What is the Stakse case?

Answer 11

• Famous case brought to the Grand Chamber about the way that traditionally the jury functions. The jury now has to give his or her reaons but there are still cases where there is no legal obligation to motivate.
• Under art. 6 it is possible to have a lay judge that is not explicitly giving the reason of its file if and giving the condition all the surrounding guarantees of the case enables the person to understand why he or she was convicted – so sufficient questions and discussions of the case at the end.
• The Belgian government was not being or not accepting the principle of criminal justice, that is to say the duty to give reasons explicitly in the decision; the point rather being that the Belgian Government wanted to be free to decide it by itself without the Strasbourg court without imposing it on them.

Question 12

Specific guarantees in criminal cases?

Answer 12

• One of the important points: Miranda rules = the right to remain silent, privilege against sel-incrimination.
• Presumption of innocence: Difficult to what extend the authorities can inform the public:
  
  • Contradictory tendencies because the public is informed about pending criminal cases: there is a whole case law on communication and press conferences: they can inform you about objective facts but they cannot confirm already beforehand.
• Idea that you are informed about the accusations, that you can have the right and that you are given the right to prepare and sufficient time to prepare your case, and that there is a possibility, the right to have legal assistance to be properly represented, defended and assisted during the trial.

Question 13

What is the legal assistance?

Answer 13

• Whole discussion on pre-trial stages.
• Grand Chamber: it is not saying that there must always be someone for who has been accused – an assistant attorney, there can be exceptions; but then the court is going to come up with the whole load of conditions and arguments and say that we have to take a look whether there is the general fairness of the procedure – and then you realise, as I’ve told you, that the room left for scenarios where someone who is being accused for the fact of criminal act and does not have access to a lawyer – that case is extremely reduced:
  
  • Eg. in Belgium = decisive factor is whether you are being accused of and the fact that it leads to deprivation of liberty – in that case you absolutely have the right to have a lawyer in other case it is often (but not necessarily) framed in terms of a right; I am not excluding that one day even there the court may find that this is not sufficiently protective.

Question 14

What is the discussion on anonymous/absent witnesses?

Answer 14

• It is possible for the court to rely on anonymous victims or witnesses or witnesses that do not present themselves to the audience but then again there have to be good reasons why do the witnesses do not engage in the proceedings - well, when the witness is dead of course that is obvious, but fear can also be a good reason. An objective fear can be a reason to accept that no references made to the victim.
  
  • What matter is: sufficient guarantees surrounding the whole system.

Question 15

What is the argument of reasonable time?

Answer 15

• Justice must be done within a reasonable delay:
  
  • Sometimes a civil case is proceeded by administrative applications/procedures = startpoint is the administrative phase start.
  • Start: whenever the person is charged with something or sufficiently affected by the actions of the authorities.
• End: until the final decision, including appeal proceedings:
  
  • If there is discussion on execution: also needs to be taken into consideration.

Question 16

What is it that that makes the procedure too lengthy?

Answer 16

• Depends on the circumstances, very casuïstic: if there is a national rule that states that there should be a decision within a certain amount of time – this gives you a certain idea: if it says the court should come up with the decision within a year and it takes them three years – there will be a problem. But the case law is nevertheless very casuistical.
• Sometimes the court can point to a structural problem: eg. in Italy.

Question 17

What are the arguments for the duration of the trial that the court looks to?

Answer 17

1. Complexity of the case
2. Behaviour of the applicant: applicants can contribute to the length of the procedure, if you insist on using every means of defense you have to accept the consequences.
3. Position of the auhorities: maybe it is the way that the court functions that is the reason for the delay or the whole procedural system.
4. What is at stake for the applicant? Court are overwhelmed by cases: priority to important cases: childcare, employment disputes, aid cases.

Question 18

What is the consequences of the due delay?

Answer 18

• Civil cases: due delay will not change the outcome of the case.
• Criminal cases: in Belgian law you can have a mere declaration of guilt without any further sentence so there are some possibilities for states to adopt their behaviour to the problem they are facing.
• Article 13: remedies against undue delay: there should be national procedures to do away with the negative consequences or at least to get, so that means to accelerate procedures, or at least to get compensation for the time slot. And then of course whenever such remedies exist on a national level they need to be exhausted before going to the Strasbourg court.