‘Appearance of impartiality’: how should the courts reason in the presence of external pressure?

Donatas Murauskas, Assistant Professor at Vilnius University Law Faculty

Judges face a dilemma that is a core issue for the judiciary in a democracy: to react or not to react when confronted by media and politicians on pending cases? One option is to be explicit, take visible steps that support your unbiased approach. Another option is to maintain silence and focus on the case, with disregard to any external disturbances.

But it seems that the Strasbourg courts’ doctrine on the requirement to reply to party’s arguments that are decisive for the outcome of the case leaves no choice here. The ECtHR established this requirement under Art. 6 of the Convention in Ruiz Torija v. Spain and it has been confirmed in other cases. Technically, if a party raises its doubts about a court’s impartiality, this, being part of Art. 6 framework, implies the necessity to react – to explicitly reply to such arguments. But does it really?

In a recent case Čivinskaitė v. Lithuania the European Court of Human Rights (ECtHR) had front-row seats to this issue. National courts deliberated this case in the presence of external pressure that was pointed out by the applicant in her complaint. The courts decided not to explicitly react to this pressure, to stay focused on the main issue of the case and not to give any hint that they were affected by external opinions. The Court agreed with the national courts’ approach finding no violation. It appears that this finding could adjust the Court’s case-law on the requirement to reason decisions under Article 6 § 1 of the Convention.

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