Chapter 4 • Independence and Impartiality of Judges, Prosecutors and Lawyers The notion of impartiality of the judiciary is an essential aspect of the right to a fair trial. It means that all the judges involved must act objectively and base their decisions on the relevant facts and applicable law, without personal bias or preconceived ideas on the matter and persons involved and without promoting the interests of any one of the parties. 4.7 Military and other special courts and tribunals The creation in special situations of military courts or other courts of special jurisdiction such as State Security Courts is commonplace and often gives rise to violations of the right to due process of law. While the international treaties examined in this Manual do not draw any express distinction between ordinary and special, including military, tribunals, the Human Rights Committee made it clear in its General Comment No. 13 that the provisions of article 14 of the Covenant “apply to all courts and tribunals within the scope of that article whether ordinary or specialized”.94 This means, for instance, that likewise, military or other special tribunals which try civilians must comply with the condition of independence and impartiality. The Committee admitted that this could cause a problem, since “quite often the reason for the establishment of such courts is to enable exceptional procedures to be applied which do not comply with normal standards of justice”.95 Yet, “while the Covenant does not prohibit such categories of courts, nevertheless the conditions which it lays down clearly indicate that the trying of civilians by such courts should be very exceptional and take place under conditions which genuinely afford the full guarantees stipulated in article 14”.96 In the case of R. Espinoza de Polay, the Human Rights Committee further expressed the view that special tribunals composed of anonymous, so called “faceless”, judges are not compatible with article 14, because they “fail to guarantee a cardinal aspect of a fair trial within the meaning of article 14”, namely, “that the tribunal must be, and be seen to be, independent and impartial”.97 It added that, “in a system of trial by ‘faceless judges’, neither the independence nor the impartiality of the judges is guaranteed, since the tribunal, being established ad hoc, may comprise serving members of the armed forces”.98 The Committee has also severely criticized the system of trial of civilians by “faceless judges” in a military court during the consideration of Peru’s periodic reports, since it was the same military force that detained, charged and tried the persons accused of terrorism, without there being any possibility of review by a higher independent and impartial court.99 The Committee emphasized “that trials of 94 United Nations Compilation of General Comments, p. 123, para. 4. 95 Ibid., loc. cit. 96 Ibid. 97 Communication No. 577/1994, R. Espinoza de Polay v. Peru (Views adopted on 6 November 1997), in UN doc GAOR, A/53/40 (vol. II), p. 43, para. 8.8. 98 Ibid., loc. cit. In the view of the Committee this system also “fails to safeguard the presumption of innocence as guaranteed by” article 14(2), ibid. See also Communication No. 688/1996, C. T. Arredondo v. Peru, (Views adopted on 27 July 2000), in UN doc. GAOR, A/55/40 (vol. II) p. 60, para. 10.5. 99 UN doc. GAOR, A/51/40, p. 62, para. 350; see also p. 64, para. 363. Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and Lawyers 139