iv. Impartial tribunal

The existence of partiality must be determined according to subjective and objective criteria. On the one hand, it is necessary to ascertain whether a tribunal, that is a particular judge, is subjectively impartial, given his personal conviction in a given case. If there are no elements to raise doubts as to the impartiality, the personal impartiality of a judge is to be presumed. The parties to the proceedings may experience various circumstances so as to lead to a conclusion that a particular judge in a given case is subjectively partial. Nevertheless, much more than an arbitrary claim based on a subjective feeling of a party to the proceedings is needed to cast doubts on the impartiality of a judge.¹¹⁴⁴ On the other hand, it is necessary to consider objectively how the public and not necessarily the accused perceive the im/partiality of the judge in criminal proceedings.¹¹⁴⁵ Furthermore, besides the judge’s conduct, other circumstances are essential, including whether the appearances of the judge offer sufficient guarantees to assure impartiality. Actually, the goal of this conclusion is the confidence which the courts in a democratic society must inspire in the public. Therefore, this implies that in deciding whether in a given case there is a legitimate reason to fear that a particular judge lacks impartiality, or the impartiality of the judge is capable of appearing open to doubt as a consequence of his participation at an earlier stage in the proceedings or because he already took part in the decision-making process, the judge in respect of whom there is a legitimate reason to fear a lack of impartiality should not adjudicate the relevant case.¹¹⁴⁶ The finding of objective partiality is often alleviated based on the fact that the law itself specifies and sanctions such circumstances.¹¹⁴⁷ This means that there is a legitimate reason to fear that a particular judge lacks impartiality if an injured party in criminal proceedings is his/her spouse.¹¹⁴⁸

The case-law has set huge obstacles in order for a petition questioning the impartiality of a judge to be accepted. The reasoning and burden of proof rest on the party claiming partiality.¹¹⁴⁹ Arbitrary allegations, e.g., that the court, while deciding, pandered to media pressure or the pressure of protesters of a certain interest group,¹¹⁵⁰ or pressure based on ethnic loyalty¹¹⁵¹ do not satisfy the requirement necessary to prove a judge’s lack of impartiality. Even where the judge adjudicates in appellate proceedings, and was involved in the case as a judge at first instance but did not take part in the first instance proceedings, this mere fact is insufficient to call the judge’s impartiality into question.¹¹⁵² There is no legitimate reason to fear that a particular judge lacks impartiality even if he takes part in two different criminal cases against the same person, first as a judge in the proceedings to determine the detention and, second, as a judge of first instance.¹¹⁵³ In addition, the lack of impartiality of a judge cannot be claimed or it cannot be claimed that a judge makes a decision under pressure only on account of the fact that an injured party participated effectively in criminal proceedings.¹¹⁵⁴ Furthermore, if the court fails to decide the cases in accordance with the order in which the cases are registered, this cannot lead to a conclusion that the court lacks impartiality.¹¹⁵⁵ Moreover, the court’s lack of impartiality and giving in to pressure from the “powerful parties” cannot be claimed solely on the basis of the fact that a “big company” is a party to the proceedings.¹¹⁵⁶ The Prosecutor’s Office is just a party to the proceedings and the court must remain impartial and independent in this regard. However, the fact that the court and the Prosecutor’s Office work in the same building per se does not lead to the conclusion that the court lacks impartiality.¹¹⁵⁷ There is a legitimate reason to suspect the lack of impartiality of a judge if, immediately after the conclusion of the main trial, the judge reads out a previously prepared judgment in writing, by which the accused is sentenced to imprisonment.¹¹⁵⁸

In many appeals the issue of impartiality of a judge is raised based on the fact that a judge participates in the decision-making process of the same criminal case at different stages of the proceedings. Such repeated participation at different stages of the proceedings, in principle, does not mean that a particular judge in a given case lacks impartiality within the meaning of Article 6, paragraph 1 of the ECHR.¹¹⁵⁹ To this end, the Constitutional Court, Human Rights Chamber for BiH and the Human Rights Commission within the BiH Constitutional Court found no problem when: a particular judge adjudicates at the second instance as well as in the appellate panel;¹¹⁶⁰ a particular judge takes part in the pre- trial investigation and then decides on a complaint against the indictment;¹¹⁶¹

a particular judge decides on a procedural decision extending detention as well as at first instance,¹¹⁶² or at second instance;¹¹⁶³ a particular judge decides on separate issues raised in preliminary proceedings as well as upon an appeal at the second instance;¹¹⁶⁴ a particular judge decides on the division of criminal proceedings and takes part in the first instance proceedings;¹¹⁶⁵ a particular judge decides in the renewed first instance proceedings after the first instance judgment was quashed and the case was referred back for retrial and decided by the second instance court; a particular judge takes for the second time the decision in the appellate proceedings, after the referral of the case back to the first instance court for renewed proceedings.¹¹⁶⁶ An indication for the lack of impartiality of a judge could be that he must base his pre-trial decision on a very high degree of clarity as to the question of guilt of the suspect, i.e., the accused.¹¹⁶⁷