6: Impartiality and Fairness

Question 1

impartiality before the CC

Answer 1

in cases of self-referral when an administrative agency has the power to issue sanctions

issue of separation between the power to initiate proceedings and the power to impose penalties

principle of independence and impartiality
- traditional issue of having the person who decides that proceedings take place and person who decides the sanctions being separate

Question 2

recusal and impartiality in the US

Answer 2

due process clause incorporated common law rule when a judge has direct, personal, substantial and pecuniary interest in a case

also instances where recusal required when the probability of actual bias on the judge is too high t one constitutionally tolerable

if a normal person placed in that situation would be biased then there is enough to consider that there is an issue when it comes to due process

Question 3

impartiality in the ECHR

Answer 3

Article 6 requires a tribunal to be impartial
- absence of prejudice/bias, etc.

assume presumption of impartiality of the judge

• not about actual bias but whether you have facts to raise doubt
• principle that justice can’t only be done but also has to be seen to be done

Question 4

fairness in the ECHR

Answer 4

prominent place held in a democratic society by the right to a fair trial

example of application of fairness requirement
- notification at the correct address of the existence of proceedings