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MORICE v. FRANCE JUDGMENT
impartiality for the purposes of Article 6 § 1 must be determined according
to a subjective test where regard must be had to the personal conviction and
behaviour of a particular judge, that is, whether the judge held any personal
prejudice or bias in a given case; and also according to an objective test, that
is to say by ascertaining whether the tribunal itself and, among other
aspects, its composition, offered sufficient guarantees to exclude any
legitimate doubt in respect of its impartiality (see, for example, Kyprianou
v. Cyprus [GC], no. 73797/01, § 118, ECHR 2005-XIII, and Micallef v.
Malta [GC], no. 17056/06, § 93, ECHR 2009).
74. As to the subjective test, the principle that a tribunal must be
presumed to be free of personal prejudice or partiality is long-established in
the case-law of the Court (see Kyprianou, § 119, and Micallef, § 94, both
cited above). The personal impartiality of a judge must be presumed until
there is proof to the contrary (see Hauschildt v. Denmark, 24 May 1989,
§ 47, Series A no. 154). As regards the type of proof required, the Court
has, for example, sought to ascertain whether a judge has displayed hostility
or ill will for personal reasons (see De Cubber v. Belgium, 26 October 1984,
§ 25, Series A no. 86).
75. In the vast majority of cases raising impartiality issues the Court has
focused on the objective test (see Micallef, cited above, § 95). However,
there is no watertight division between subjective and objective impartiality
since the conduct of a judge may not only prompt objectively held
misgivings as to impartiality from the point of view of the external observer
(objective test) but may also go to the issue of his or her personal conviction
(subjective test) (see Kyprianou, cited above, § 119). Thus, in some cases
where it may be difficult to procure evidence with which to rebut the
presumption of the judge’s subjective impartiality, the requirement of
objective impartiality provides a further important guarantee (see Pullar v.
the United Kingdom, 10 June 1996, § 32, Reports of Judgments and
Decisions 1996-III).
76. As to the objective test, it must be determined whether, quite apart
from the judge’s conduct, there are ascertainable facts which may raise
doubts as to his or her impartiality. This implies that, in deciding whether in
a given case there is a legitimate reason to fear that a particular judge or a
body sitting as a bench lacks impartiality, the standpoint of the person
concerned is important but not decisive. What is decisive is whether this
fear can be held to be objectively justified (see Micallef, cited above, § 96).
77. The objective test mostly concerns hierarchical or other links
between the judge and other protagonists in the proceedings (ibid., § 97). It
must therefore be decided in each individual case whether the relationship
in question is of such a nature and degree as to indicate a lack of
impartiality on the part of the tribunal (see Pullar, cited above, § 38).
78. In this connection even appearances may be of a certain importance
or, in other words, “justice must not only be done, it must also be seen to be