Chapter 4 • Independence and Impartiality of Judges, Prosecutors and Lawyers As to the requirement of impartiality in article 6(1) of the European Convention on Human Rights, the European Court of Human Rights has consistently ruled that it has two requirements, namely, one subjective and one objective requirement. In the first place, “the tribunal must be subjectively impartial”, in that “no member of the tribunal should hold any personal prejudice or bias”, and this personal “impartiality is presumed unless there is evidence to the contrary”.77 Secondly, “the tribunal must also be impartial from an objective viewpoint”, in that “it must offer guarantees to exclude any legitimate doubt in this respect”.78 With regard to the objective test, the Court added that it must be determined whether there are ascertainable facts, which may raise doubts as to the impartiality of the judges, and that, in this respect, “even appearances may be of a certain importance”, because “what is at stake is the confidence which the courts in a democratic society must inspire in the public and above all in the parties to the proceedings”.79 Thus, in the case of Oberschlick, the European Court concluded that article 6(1) had been violated for lack of impartiality since a judge who had taken part in a decision quashing an order dismissing criminal proceedings subsequently sat in the hearing of an appeal against the applicant’s conviction.80 The possibility exists, nevertheless, “that a higher or the highest tribunal may, in some circumstances, make reparation for an initial violation of one of the Convention’s provisions”.81 However, this is only possible where the subsequent control is exercised by a judicial body having “full jurisdiction” and providing the guarantees foreseen by article 6(1).82 Issues that may be of relevance to assess the adequacy of the review, on a point of law for instance, may be “the subject matter of the decision appealed against, the manner in which that decision was arrived at, and the contents of the dispute, including the desired and actual grounds of appeal”.83 Where the higher court does not have full jurisdiction to make such review, the Court has found a violation of article 6(1).84 In the case of Daktaras, the Court concluded that article 6(1) had been violated because the applicant’s doubts as to the impartiality of the Lithuanian Supreme Court “may be said to have been objectively justified”.85 In this case, the President of the Criminal Division of the Supreme Court had lodged a petition for cassation with the judges of that Division, at the request of the judge at first instance, who was dissatisfied with the judgement of the Court of Appeal. The President proposed that the appellate decision be quashed but the same President also appointed the Judge Rapporteur and constituted the chamber that was to examine the case. The President’s cassation petition was endorsed at the hearing by the prosecution and finally accepted by the 77 Eur. Court HR, Case of Daktaras v. Lithuania, judgment of 10 October 2000, para. 30; emphasis added. 78 Ibid., loc. cit. 79 Ibid., para. 32. 80 Eur. Court HR, Case of Oberschlick v. Austria (1), judgment of 23 may 1991, Series A, No. 204, p. 13, para. 16 and p. 15 para. 22. For similar cases, see also Eur. Court HR, Case of Castillo Algar v. Spain, judgment of 28 October 1998, Reports 1998-VIII, p. 3124 ff. and Eur. Court HR, the Case of de Haan v. the Netherlands, judgment of 26 August 1997, Reports 1997-IV, p. 1379 ff. 81 Eur. Court HR, Case of de Haan v. the Netherlands, judgment of 26 August 1997, Reports 1997-IV, p. 1393, para. 54. 82 Eur. Court HR, Case of Kingsley v. the United Kingdom, judgment of 7 November 2000, para. 51; for the text of the judgment, see http://www.echr.coe.int/. 83 Eur. Court HR, Case of Bryan v. the United Kingdom, judgment of 22 November 1995, Series A, No. 335-A, p. 17, para. 45. 84 Eur. Court HR, Kingsley v. the United Kingdom, judgment of 7 November 2000, para. 59. 85 Eur. Court HR, Case of Daktaras v. Lithuania, judgment of 10 October 2000, para. 38; emphasis added. Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and Lawyers 137