In case of doubt about the absence of bias of the judge, his impartiality should be assessed by subjective and objective criteria.
This is stated in the decision of the ECHR in the case of “Paunovic v. Serbia” (No. 544574/07), reports “Law and Business” with reference to the information resource “ECHR. Ukrainian Aspect. ”
The crux of the matter is that the deputy prosecutor of the city prosecutor’s office decided to change his legal specialization and began working as a judge, where he had to reconsider the sentence imposed on the indictment prepared by his former department. The convict saw it as a conflict of interest and, after exhausting national remedies, turned to Strasbourg.
The judges of the ECHR noted that the subjective criteria should take into account the personal beliefs and behavior of a particular judge, that is, whether the judge had a personal bias in a particular case.
An objective criterion determines whether a judge adhered to sufficient guarantees to eliminate any doubt about his impartiality. According to this criterion, it is necessary to establish whether, in addition to the conduct of the judge himself, there are facts in the evidence that may cast doubt on the impartiality of the judge.
This means that when deciding whether there is a legitimate reason to fear in a particular case that a particular judge or court has shown insufficient impartiality, the opinion of the person concerned is important, but not decisive. Decisive is whether this fear can be objectively justified. In this regard, it should be borne in mind that even external manifestations can have a certain significance or, in other words, “justice should not only be performed, but it should also be obvious how it is done.”
In addition to these subjective and objective criteria, it should be also considered the issues of internal organization and the existence of national procedures to ensure an absence of bias, namely the rules governing the challenge of judges.
Such rules express the interest of the national legislator in eliminating all reasonable doubts about an absence of bias of the judge or court concerned, and is an attempt to ensure impartiality by addressing the causes of such problems. In addition to ensuring that there is no de facto bias, they are aimed at eliminating any manifestation of personal respect, and thus contribute to increasing the confidence that the courts must instill in the public in a democratic society.
Thus, the ECHR noted that any judge with respect to whom there are legitimate grounds for fear of lack of impartiality should recuse himself.