Fokke Fernhout

Safeguarding the Right to an Impartial Tribunal by Means of Challenging the Judge

The requirement of an impartial tribunal, as foreseen in Art. 6 ECHR, is the same for each Member State and the absence of a margin of appreciation makes it impossible to deviate from that requirement. However, the way to accomplish this objective is left to the contracting states. This implementation discretion has resulted in different challenge procedures within the EU Member States. It turns out that the differences cover all aspects of these procedures, including the ground on which a challenge may be based, the time limit within which the challenge has to be submitted and the judicial authority that has to decide on it. In this contribution, a method of assessing the predicted (a priori) effectiveness of such challenge procedures will be described. The method is based on a comparative research of characteristics of challenge procedures and a survey among lawyers and law students to establish the relative importance of each of these characteristics. The method is applied to the challenge procedures in the codes of civil procedure of 25 EU Member States.

Elements of procedural law

In law, there are always at least two sides to every issue: parties to a contract often disagree about its interpretation; heirs have different views on the meaning of a will; the public prosecutor holds the evidence to be sufficient, whereas the suspect denies the charges. Even in cases in which only less specific interests like public order are at stake (when it comes to appointing a guardian for a minor, for instance), the persons concerned will probably disagree about the way those interests tend to overrule their private objectives.