Impartiality and Independence of Judges The Development in European Case Law

Abstract

Both the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) and the Charter of Fundamental Rights of the European Union (CFR) include the right to a fair trial by an independent and impartial tribunal established by law. The exact meaning of the phrase ‘an independent and impartial tribunal established by law’ has developed in case law. In this article, I analyse how the European Court of Human Rights and the Court of Justice of the European Union have developed these brief statements into more detailed criteria. The approach is historical, that is, I analyse how law has developed, and I also base my analysis on older sources where independence and impartiality have developed. As a tool for assessing independence and impartiality, I introduce five different aspects: 1) Impartiality as a state of mind, 2) Procedural impartiality, 3) Independence as a state of mind, 4) Institutional independence, and 5) The importance of appearances.