Hauschildt v Denmark (Series A, No 154; Application No 10486/83) EUROPEAN COURT OF HUMAN RIGHTS (1990) 12 EHRR 266, 24 MAY 1989

Impartiality of Tribunal

The applicant filed a petition alleging that he did not receive a fair trial by an impartial tribunal under Article 6 of the Convention. He asserted some of the sitting judges who had convicted him had circulated numerous pre-trial decisions concerning his case. The Court held that a violation of Article (6) had occurred.

1. Impartial tribunal: subjective and objective tests. (Art 6(1))

Article 6(1) provides for two tests to determine whether a tribunal is impartial. The first is a subjective test which is based on the personal conviction of a particular judge in a given case. Second, is an objective test which ascertains whether the judge offered guarantees sufficient to rule out any legitimate doubt as to his impartiality. In the subjective test, the impartiality of a judge has to be presumed until there proven otherwise. The objective test, on the other hand, examines ascertainable facts which may raise doubts about a certain judge. Appearance of impartiality should lead a judge to recuse himself. Pretrial opinion cannot in itself indicate impartiality.

The following cases are cited:

1. BEN YAACOUB, judgment of 27 November 1987, Series A, No 127-A.
3. DE CUBBER v BELGIUM (1985) 7 EHRR 236.
4. DE CUBBER v BELGIUM, judgment of 17 September 1987, Series A, No 124-B.
5. GILLOW v UNITED KINGDOM (Art 50), judgment of 14 September 1987, Series A, No 124-C.
6. LUTZ v GERMANY (1988) 10 EHRR 182.
7. PIERSACK v BELGIUM (1983) 5 EHRR 169.

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