Reflection of Decisions of the European Court of Human Rights on Impartiality and Independence of National Courts in Context of the Right to a Fair Trial

• Author: Alla Demyda
• Position: Comenius University in Bratislava
• Pages: 67-89

BRATISLAVA

LAW

REVIEW

PUBLISHED BY

THE FACULTY OF LAW,

COMENIUS UNIVERSITY

IN BRATISLAVA

ISSN (print): 2585-7088

ISSN (electronic): 2644-6359

REFLECTION OF DECISIONS OF THE EUROPEAN COURT

OF HUMAN RIGHTS ON IMPARTIALITY

AND INDEPENDENCE OF NATIONAL COURTS

IN CONTEXT OF THE RIGHT TO A FAIR TRIAL / Alla Demyda

Alla Demyda

PhD. student

Department of International Law

on the Faculty of Law

Comenius University in Bratislava

Šafárikovo nám. č. 6

810 00 Bratislava; Slovakia

demidaalla@mail.ru

ORCID: 0000-0002-7941-2838

Abstract:

The article focuses on the principle of impartiality and

independence of judiciary as a part of the right to a fair trial

according to Article 6 of the Convention for the Protection of Human

Rights and Fundamental Freedoms. In particular, an account will be

taken of the case law of the European Court of Human Rights in

matters of applications from national judges. The article considers

the reflection of the decision of the European Court of Human Rights

on the amendment of national legislations and the amendment of

the provisions of the national constitutions regarding the principles

of justice.

Submitted :

15 March 2021

Accepted :

15 May 2021

Published :

30 June 2021

Key words: Council of Europe; European Court of Human Rights;

case law; fair trial; impartiality; independence; legislative change;

constitutional change; principles of justice; reform; disciplinary

proceedings.

Suggested citation:

Demyda, A. (2021). Reflection of Decisions of the European Court

of Human Rights on Impartiality and Independence of National

Courts in Context of the Right to a Fair Trial. Bratislava Law Review,

5(1), 67-90. https://doi.org/10.46282/blr.2021.5.1.228

1. INTRODUCTION

Article 6, paragraph 1 of the European Convention on Human Rights

1

(hereinafter

referred to as “Convention”) claims that everyone is entitled to a fair and public hearing

within a reasonable time by an independent and impartial tribunal established by law

when deciding on civil rights or obligations or on any criminal offence the person is

accused. Key aspects of Article 6 of the Convention are the rule of law and the proper

administration of justice. As well, these principles are essential elements of the right to a

fair trial.

The European Court of Human Rights (hereinafter referred to as “ECHR”) has

always been prominent and ensured the right to a fair trial. This guarantee is one of the

fundamental principles of any democratic state under the Convention.

1

Convention for the Protection of Human Rights and Fundamental Freedoms is available at the Council of

Europe portal. See mor e in the Council of Europe. Details of T reaty No.005: Convention for the Protection of

Human Rights and Fundamental Freedoms. Available at: https://www.coe.int/en/web/conventions/full-list/-

/conventions/treaty/005 (accessed on 15.05.2021).

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A. DEMYDA

BRATISLAVA LAW REVIEW

Vol. 5 No 1 (2021)

According to the interpretation of Article 6, paragraph 1 of the Convention we can

assume that it enshrines the following elements of the right to judicial protection: a right

to be heard; a fair trial; a p ublic hearing and a statement of decision; hearing the case

within a reasonable time; hearing the case by a court established by law; independence

and impartiality of the judiciary.

Entin distinguishes among fundamental (the right of access to a court and the

right to enforcement), institutional (indepen dence and impartiality of the judicial p ower),

procedural (adversarial process, equality of arms, reasonable time for legal proceedings)

and special (criminal procedural safeguards provided for in Article 6, paragraph 2 and 3

of the Convention) elements of the right to a fair trial (2003, p. 86).

In this article, the study is being carried out in the context of the independence

and impartiality of the court as an institutional aspect of the right to a fair trial, which is

demonstrated by the existence of legally created judicial authorities entrusted by law to

tasks of the administration of justice in the frame of its jurisdiction. At the same time,

there is no correct “formula” for organizing a fair trial, this system can by completely

different kind in different states and legal systems, which does not otherwise have a

negative impact on the conducting of justice. The institutional aspect also regulates the

relationship of courts with other public authorities, its independence, the status of judges,

etc.

Berezhanskyi claims that the institutional aspect is closely linked to the

legitimacy of the ju diciary branch as part of the organization of state authorities. The

legitimacy of judicial power is demonstrated by the recognition of the jurisdiction of the

court by public opinion, recognition by the international community and the readiness of

society to recognize and implement decisions (2017, pp. 191-196).

The independence and impartiality of the court in its decision-making is therefore,

on the one hand, a structural element of the right to a fair trial in the administration of

justice for each individual and, on the other, it guarantees the further recognition an d

enforcement of judicial decisions, what is a guarantee of the functioning of the

mechanism of the judicial system.

The purpose of the article is to determine the reflection of the case-law of the

ECHR on the impartiality and independence of the courts. In other words, the purpose of

the study is to answer the following questions. What view of the impartiality and

independence of the courts has the Council of Europe an d the ECHR? Are the decisions

of the ECHR an effective way of protecting the rights of judges of national courts? Do the

decisions of the ECHR have an impact on increasing the level of fairness in the decision-

making of national court judges? Does the case-law of the ECHR reflect the reform of the

judicial power at the national level? Therefore, the article will aim at confirming or refuting

the hypothesis that the decisions made by the ECHR gu arantee the right to a fair trial, in

particular, to proceedings by an impartial and independent court.

The research is carried out by a method of qualitative research, in particular

through a text analysis tool. To determine the substance of research issues, research is

carried out in this article on the basis of an analysis of the doctrinal literature, the Council

of Europe legislation and selected ECHR decisions on complaints from national court

judges. Special attention is paid to the decisions of the ECHR in the cases of Volkov v.

Ukraine and Harabin v. Slovakia, due to the fact that these decisions brought significant

legislative changes at the national level until the amendment of the Constitution of the

defendant states, thus significantly emphasizing for a fair trial at the national level.