Open AccessCASE LAW OF THE EUROPEAN COURT REGARDING COMPLIANCE WITH THE PRINCIPLE OF IMPARTIALITY IN JUDICIAL PROCEEDINGS
Author(s) -
А. В. Левенець,
Ольга Миколаївна Садовська
Publication year - 2021
Publication title -
pravova deržava
Language(s) - English
Resource type - Journals
ISSN - 2411-2054
DOI - 10.18524/2411-2054.2021.41.225573
Subject(s) - impartiality , law , political science , judicial independence , element (criminal law) , context (archaeology) , independence (probability theory) , trial court , compliance (psychology) , right to a fair trial , human rights , psychology , social psychology , appeal , supreme court , mathematics , paleontology , statistics , biology
The article is devoted to the essence of the principle of impartiality of a judge in court proceedings as a separate element of the right to a fair trial, defined by a number of national and international law provisions. It is substantiated that in the context of the significant impact of the European Court of Human Rights on the implementation of judicial proceedings in Ukraine, consideration of certain areas of its practice is particularly relevant not only for its understanding but also for effective application in a court. The study focuses on the subjective and objective factors of a judge's impartiality, their relationship and interaction. It was revealed that the subjective component of the judge's impartiality is the lack of internal convictions and views of the judge, indicating his interest in the outcome of the case. The objective component has an external character and is manifested in the presence of external factors that can influence the judge when considering the case. The most significant objective factors are: the judge's relationship or other close relationship with the participants in the trial, the judge's participation in the same trial in a different capacity, the possibility of pressure on the judge by other judges, especially the court administration, and by other authorities; officials on whom a judge's career or even his or her tenure may depend. This approach to the objective impartiality of a judge allows us to speak of its close connection with independence, which is much broader in content, but its essence is precisely the ability of a judge to freely and objectively make a decision on the case. A comparative analysis of the principle of impartiality of judges in the judicial process, which is applied in the practice of the ECHR and national courts, revealed certain differences. Thus, the position of the ECHR is that even in the slightest doubt about the bias of a judge that may arise by the part of the process, the burden of proving its absence lies on the judge by providing sufficient objective data. In national judicial practice often the approach is applied when a judge may not grant a request for recusal if he considers it unfounded, so the participant must prove the validity of his doubts about the judge's impartiality by himself.