A competent tribunal is a court or other tribunal established by law. A military or special court is a competent tribunal but should only try civilians in exceptional circumstances. To safeguard the independence of tribunals, judges must be protected against political interference and the status of judges, including their term of office, their independence, security, adequate remuneration, conditions of service, pensions and the age of retirement shall be adequately secured by law. The subjective aspect of impartiality requires that judges must not allow their judgement to be influenced by personal bias or prejudice. Judges must not only be subjectively impartial, they must also appear to be impartial to a reasonable observer.
Comprehensive:
Article 14(1) of the ICCPR provides: [1] In the determination of any criminal charge against him, or of his rights and obligations in a suit of law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.
A competent tribunal is a court or other tribunal established by law. In Bandajevsky v Belarus, the HRC held that a court which was to not constituted in accordancewith national legislation was not ‘established by law’ in violation of article 14(1) of the ICCPR.[2] A tribunal that is established by law could assume the form of an ‘ordinary or specialized, civilian or military’ court.[3] The HRC has held that ‘the Covenant does not prohibit the trial of civilians in military or special courts’. However, such trials should be exceptional and in full conformity with all fair trial guarantees including the independence and impartiality of the tribunal.[4] By way of contrast, the jurisprudence of the
IACtHR has outlined that military courts should be restricted to military personnel and not extend to civilians.
Independent tribunal relates to the procedure and qualifications for the appointment of judges, and guarantees relating to their security of tenure until a mandatory retirement age or the expiry of their term of office, where such exist, the conditions governing promotion, transfer, suspension and cessation of their functions, and the actual independence of the judiciary from political interference by the executive branch and legislature.[5]
According to the HRC ‘[i]n order to safeguard their independence, the status of judges, including their term of office, their independence, security, adequate remuneration, conditions of service, pensions and the age of retirement shall be adequately secured by law.’[6]
Decisions of tribunals shall not be revised by a functionary other than a superior judicial tribunal.[7] Further, the judiciary shall have jurisdiction even to deal with political issues, and should have mastery of jurisdiction to decide whether or not it has competence to deal with any matter brought before it.[8]
In Bahamonde v Equatorial Guinea, the complainant who had his property expropriated without recourse argued that the judiciary was controlled by the President of the country. The HRC held that where ‘functions and competences of the judiciary and the executive are not clearly distinguishable or where the latter is able to control or direct the former is incompatible with the notion of an independent tribunal’.[9] In Media Rights Agenda and Others v Nigeria, the AComHPR found that Nigerian courts lacked independence due to persistent non-compliance by the executive with court decisions.[10] (See *non-implementation of court decisions/orders*.
Impartialitymay be subjective or objective.[11] The subjective aspect requires that ‘judges must not allow their judgement to be influenced by personal bias or prejudice, nor harbour preconceptions about the particular case before them, nor act in ways that improperly promote the interests of one of the parties to the detriment of the other’.[12] When testing for subjective bias, one inquires into the personality of the judge in the manner in which he or she conducts the proceedings. Manifestations of hostility, ill-will or soliciting for the case to be allocated to that judge for personal reasons, or where a judge publicly uses expressions which implied that he or she has already formed an unfavourable view of the litigant’s case before presiding over the court that decides it, are indicators of bias or prejudice.[13] (See *presumption of innocence*).
The objective test involves an inquiry into whether or not the tribunal has provided sufficient guarantees against bias or prejudice so that ‘the tribunal must also appear to a reasonable observer to be impartial’.[14] A case where a judge who ought to be disqualified, but participates in the determination of a matter is a clear example of objective partiality.[15] The ECtHR held in Incal v Turkey where a civilian was tried by a special tribunal made up of four judges one of whom was a serving military person, that ‘it follows that the applicant could legitimately fear that because one of the judges of the İzmir National Security Court was a military judge it might allow itself to be unduly influenced by considerations which had nothing to do with the nature of the case.’[16] [1] See also CRC art 40(2)(b)(iii), ACHPR art 26, ECHR art 6(1), IACHR art 8(1).
[2] Communication 1100/2002 (HRC 2006) para 10.10.
[4] HRC General Comment 32 para 22. However, the IACtHR and AComHPR has held that civilians should never be tried by military tribunals. See Durand and Ugarte v Peru (IACtHR 2000); Resolution on the Right to a Fair Trial and Legal Assistance in Africa (ACHPR 2003).
[5] HRC General Comment 32 para 19. See also Incal v Turkey application 41/1997/825/1031 (ECtHR 1998) para 65. In Busyo v Democratic Republic of Congo communication 933/2000 (HRC 2003), the dismissal of judges by virtue of a presidential decree without following procedure required by the ICCPR was held by the HRC to be inconsistent with the requirements of an independent tribunal.
[7]Basic Principles on the Independence of the Judiciary principle 4.
[8] Basic Principles on the Independence of the Judiciary principle 3.
[9] Bahamonde v Equatorial Guinea communication 468/1991 (HRC 1993) para 9.4.
[10] Media Rights Agenda and Others v Nigeria communications 105/93, 128/94, 130/94, 152/96 (ACHPR 1998) paras 61-62.
[11]Kyprianou v Cyprus application 73797/01 (ECtHR 2005) para 118.
[12] Castedo v Spain communication 1122/2002 (HRC 2008) para 95.
[13] De Cubber v Belgium application 9186/80 (ECtHR 1984). In Karttunen v Finland, a judge who was related to a shareholder of a complainant company interrupted the defendant’s witness by uttering the words ‘She is lying!’ and went on to decide the case. The HRC decided that the judge had harboured pre-conceptions about the matter put before them, and clearly acted in a way that promoted the interests of one of the parties to the detriment of another. Communication 387/1989 (HRC 1992).
[15] Castedo v Spain communication 1122/2002 (HRC 2008) para 9.8. In this case a judge who was employed part-time by an academic institution presided over a civil case wherein the institution was a party. The HRC held that ‘the author’s apprehensions as to the impartiality of the judge are objectively justified and it therefore cannot be considered that there was an impartial court in the meaning of article 14, paragraph 1, of the Covenant’.
[16] Incal v Turkey application 22678/93 (ECtHR (GC) 1998) para 72.
A competent tribunal is a court or other tribunal established by law. A military or special court is a competent tribunal but should only try civilians in exceptional circumstances. To safeguard the independence of tribunals, judges must be protected against political interference and the status of judges, including their term of office, their independence, security, adequate remuneration, conditions of service, pensions and the age of retirement shall be adequately secured by law. The subjective aspect of impartiality requires that judges must not allow their judgement to be influenced by personal bias or prejudice. Judges must not only be subjectively impartial, they must also appear to be impartial to a reasonable observer.
Comprehensive:
Article 14(1) of the ICCPR provides: [1]
In the determination of any criminal charge against him, or of his rights and obligations in a suit of law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.
A competent tribunal is a court or other tribunal established by law. In Bandajevsky v Belarus, the HRC held that a court which was to not constituted in accordance with national legislation was not ‘established by law’ in violation of article 14(1) of the ICCPR.[2] A tribunal that is established by law could assume the form of an ‘ordinary or specialized, civilian or military’ court.[3] The HRC has held that ‘the Covenant does not prohibit the trial of civilians in military or special courts’. However, such trials should be exceptional and in full conformity with all fair trial guarantees including the independence and impartiality of the tribunal.[4] By way of contrast, the jurisprudence of the
IACtHR has outlined that military courts should be restricted to military personnel and not extend to civilians.
Independent tribunal relates to the procedure and qualifications for the appointment of judges, and guarantees relating to their security of tenure until a mandatory retirement age or the expiry of their term of office, where such exist, the conditions governing promotion, transfer, suspension and cessation of their functions, and the actual independence of the judiciary from political interference by the executive branch and legislature.[5]
According to the HRC ‘[i]n order to safeguard their independence, the status of judges, including their term of office, their independence, security, adequate remuneration, conditions of service, pensions and the age of retirement shall be adequately secured by law.’[6]
Decisions of tribunals shall not be revised by a functionary other than a superior judicial tribunal.[7] Further, the judiciary shall have jurisdiction even to deal with political issues, and should have mastery of jurisdiction to decide whether or not it has competence to deal with any matter brought before it.[8]
In Bahamonde v Equatorial Guinea, the complainant who had his property expropriated without recourse argued that the judiciary was controlled by the President of the country. The HRC held that where ‘functions and competences of the judiciary and the executive are not clearly distinguishable or where the latter is able to control or direct the former is incompatible with the notion of an independent tribunal’.[9] In Media Rights Agenda and Others v Nigeria, the AComHPR found that Nigerian courts lacked independence due to persistent non-compliance by the executive with court decisions.[10] (See *non-implementation of court decisions/orders*.
Impartialitymay be subjective or objective.[11] The subjective aspect requires that ‘judges must not allow their judgement to be influenced by personal bias or prejudice, nor harbour preconceptions about the particular case before them, nor act in ways that improperly promote the interests of one of the parties to the detriment of the other’.[12] When testing for subjective bias, one inquires into the personality of the judge in the manner in which he or she conducts the proceedings. Manifestations of hostility, ill-will or soliciting for the case to be allocated to that judge for personal reasons, or where a judge publicly uses expressions which implied that he or she has already formed an unfavourable view of the litigant’s case before presiding over the court that decides it, are indicators of bias or prejudice.[13] (See *presumption of innocence*).
The objective test involves an inquiry into whether or not the tribunal has provided sufficient guarantees against bias or prejudice so that ‘the tribunal must also appear to a reasonable observer to be impartial’.[14] A case where a judge who ought to be disqualified, but participates in the determination of a matter is a clear example of objective partiality.[15] The ECtHR held in Incal v Turkey where a civilian was tried by a special tribunal made up of four judges one of whom was a serving military person, that ‘it follows that the applicant could legitimately fear that because one of the judges of the İzmir National Security Court was a military judge it might allow itself to be unduly influenced by considerations which had nothing to do with the nature of the case.’[16]
[1] See also CRC art 40(2)(b)(iii), ACHPR art 26, ECHR art 6(1), IACHR art 8(1).
[2] Communication 1100/2002 (HRC 2006) para 10.10.
[3] HRC General Comment 32 para 22.
[4] HRC General Comment 32 para 22. However, the IACtHR and AComHPR has held that civilians should never be tried by military tribunals. See Durand and Ugarte v Peru (IACtHR 2000); Resolution on the Right to a Fair Trial and Legal Assistance in Africa (ACHPR 2003).
[5] HRC General Comment 32 para 19. See also Incal v Turkey application 41/1997/825/1031 (ECtHR 1998) para 65. In Busyo v Democratic Republic of Congo communication 933/2000 (HRC 2003), the dismissal of judges by virtue of a presidential decree without following procedure required by the ICCPR was held by the HRC to be inconsistent with the requirements of an independent tribunal.
[6] HRC General Comment 32 para 19.
[7]Basic Principles on the Independence of the Judiciary principle 4.
[8] Basic Principles on the Independence of the Judiciary principle 3.
[9] Bahamonde v Equatorial Guinea communication 468/1991 (HRC 1993) para 9.4.
[10] Media Rights Agenda and Others v Nigeria communications 105/93, 128/94, 130/94, 152/96 (ACHPR 1998) paras 61-62.
[11]Kyprianou v Cyprus application 73797/01 (ECtHR 2005) para 118.
[12] Castedo v Spain communication 1122/2002 (HRC 2008) para 95.
[13] De Cubber v Belgium application 9186/80 (ECtHR 1984). In Karttunen v Finland, a judge who was related to a shareholder of a complainant company interrupted the defendant’s witness by uttering the words ‘She is lying!’ and went on to decide the case. The HRC decided that the judge had harboured pre-conceptions about the matter put before them, and clearly acted in a way that promoted the interests of one of the parties to the detriment of another. Communication 387/1989 (HRC 1992).
[14]HRC General Comment 32 para 21.
[15] Castedo v Spain communication 1122/2002 (HRC 2008) para 9.8. In this case a judge who was employed part-time by an academic institution presided over a civil case wherein the institution was a party. The HRC held that ‘the author’s apprehensions as to the impartiality of the judge are objectively justified and it therefore cannot be considered that there was an impartial court in the meaning of article 14, paragraph 1, of the Covenant’.
[16] Incal v Turkey application 22678/93 (ECtHR (GC) 1998) para 72.