1.2 – Personal independence and impartiality of judges

1.2.1 Performance standards

Judges are subject only to the Constitution and the laws. It is of fundamental importance in a democratic society that the courts inspire confidence in the public and, above all, the parties in the process. To this purpose, Article 42 of the Constitution requires that a court, which is involved in its sphere of action, be impartial. The principle of impartiality implies a lack of prejudice by judges on the issue before them and that they do not act in such a way as to assist the interests of any of the parties. A court must be impartial, not only formally, but also explicitly. The right to be tried before a competent, independent and impartial tribunal established by law requires that justice should not only be done, but it must also be seen that it is done.

Adherence to the principle of impartiality must be verified by applying the objective test to examine whether the judge has provided sufficient procedural guarantees to exclude any legitimate doubts of bias, as well as the subjective test relating to the verification of conviction or personal interest of a judge in a particular case. From the point of view of the objective test of impartiality, when considering whether there is a legitimate reason in a given case to suspect that a judge is not impartial, the point of view of those who make this claim is important, but the deciding factor is determining whether this doubt is objectively justifiable[1].

The ECtHR has identified the distinction between the subjective criterion, which essentially seeks to prove that a judge’s personal conviction or interest has influenced the court’s decision, and the objective criterion, which requires proof whether he or she provided sufficient guarantees “to exclude any reasonable doubt” as well as “the simple fact that the judge has made a decision is in itself not sufficient to substantiate doubts about his impartiality. What matters is the intent and nature of the actions he performs during the trial”[2].  

The independence of the judge has its own aspects: – internal, related to the independence of the judge to decide on the matter without being influenced by the structure of the judiciary itself, i.e. the relationship of the judge related to the colleagues, the president of the court or the HJC, and – external, which is the independence of the judge in the exercise of office, without being influenced by politics, the legislative, the executive, political parties, economic circles, etc[3].

 

1.2.2 Indicators of achievement  

The independence of a judge, like that of the judiciary, can be objective and subjective and to measure the independence standard there are various indicators and sub-indicators[4]. As an indicator of the achievement of this standard, the most important one is the internal and corrective control within the judicial system according to legal procedures. For the independence and impartiality of the judge, the CPC and the PPC, as well as the constitutional review of the due legal process, namely the element of objective and subjective impartiality, are indicative of the achievement of this standard.

Other indicators are: – the selection, appointment and dismissal of judges; – compliance with the European Network of Judges guidelines on the appointment of judges; – the evaluation, promotion, and dismissal of judges.

Disciplinary measures with these indicators: – compliance with ENCJ standards with regard to disciplinary measures against judges; – Competent body for making decisions related to disciplinary measures; – non-transfer of judges with these sub-indicators: – formal guarantees for non-transfer; provisions on transfers without their consent.

Internal independence, under these sub-indicators: – influence by higher judges; the effective possibility of using the guidelines; – influence by court administrators. [5]

Subjective independence is related to the perception that judges, groups of interest and users of justice services have regarding the independence of the judiciary.

 

1.2.3 Measurement method

The methods for measuring compliance with this standard, namely the personal independence and the objective and subjective impartiality of judges, are:

  • Analysis of court decisions by the highest court for the lowest one, according to the procedural claims of the parties on the objective and subjective impartiality of the judge
  • Judicial statistics of a specific entry: “the annulment of court decisions due to serious procedural violations related to the impartiality of a judge at trial”
  • ECtHR analysis of decisions against Albania under Article 6 of the ECHR and the standard of impartiality
  • HJC decisions on dismissal of judges and decisions of the Constitutional Court upon the appeals of judges.
  • Surveys according to CEPEJ standards related to judges’ self-assessment of their independence[6].

 

 

[1] Decisions: no.7, of 11.03.2008; no.11, of 02.04.2008; no.23, of 04.11.2008 of the Constitutional Court

[2] ECtHR Decision, Gjonboçari vs. Albania, of 31 March 2005

[3] CCJE, 2001, Opinion no. 1

https://wcd.coe.int/ViewDoc.jsp?Ref=CCJE(2001)OP1&Sector=secDGHL&Language=lanEnglish&Ver=origin

al&BackColorInternet=FEF2E0&BackColorIntranet=FEF2E0&BackColorLogged=c3c3c3; the Council of Europe Committee of Ministers Recommendation CM/Rec (2010)12 at

https://wcd.coe.int/ViewDoc.jsp?id=1707137&Site=CM; the Venice Commission report at www.venice.coe.int/docs/2010/CDL-AD(2010)004-e.pdf

[4] ENCJ Report ” Independence, Accountability and Quality of the Judiciary – performance indicators”, 2017, pp.15 -17

[5] ENCJ Report ” Independence, Accountability and Quality of the Judiciary – performance indicators”, 2017,  pp.16

[6]Ibid:  Periodicity of measuring indicators and conducting surveys on independence and accountability is recommended every two years. This is suggested because, if less frequent than that, it could encourage the apathy of judges to participate in them, and, if more frequent, it could risk the necessity of the questionnaire, (p.7)