European Court of Human Rights - case of Sara Lind Eggertsdóttir v. Iceland (2007) (excerpts)

European Court of Human Rights - case of Sara Lind Eggertsdóttir v. Iceland (2007) (excerpts)

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41.  In their pleadings, the Government emphasised the need to take into account the particular demographic situation in Iceland, with its relatively small population, and the difficulty of finding suitable experts who did not have any ties to the NUH. Inasmuch as it implies that variable standards should apply to the competent “tribunal” depending on practical considerations, the Court does not accept the Government's reasoning (see Walston v. Norway, no. 37372/97 (dec.), 11 December 2001). The question whether a tribunal is impartial for the purposes of Article 6 § 1 must be determined solely according to the principles laid down in the Court's case-law, namely according to a subjective test, that is on the basis of the personal conviction of a particular judge in a given case, and also according to an objective test, that is ascertaining whether the judge offered guarantees sufficient to exclude any legitimate doubt in this respect (see Pétur Thór Sigurðsson v. Iceland, no. 39731/98, § 37, ECHR 2003‑IV; and Wettstein v. Switzerland, no. 33958/96, § 42, ECHR 2000-XII).

42.  As to the subjective test, the personal impartiality of a judge must be presumed until there is proof to the contrary.

Under the objective test, it must be determined whether, quite apart from the judge's personal conduct, there are ascertainable facts which may raise doubts as to his impartiality. In this respect even appearances may be of a certain importance. What is at stake is the confidence which the courts in a democratic society must inspire in the public. Accordingly, any judge in respect of whom there is a legitimate reason to fear a lack of impartiality must withdraw. This implies that in deciding whether in a given case there is a legitimate reason to fear that a particular judge lacks impartiality, the standpoint of the party concerned is important but not decisive. What is decisive is whether this fear can be held to be objectively justified (ibid.).

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47.  The second group of arguments is more problematic, in that it does not concern the composition of the Supreme Court but that of the SMLB and its procedural position and role in the proceedings before the Supreme Court. It should be noted that Article 6 § 1 of the Convention guarantees a right to a fair hearing by an independent and impartial “tribunal” and does not expressly require that an expert heard by that tribunal fulfils the same requirements (see, mutatis mutandis, Mantovanelli v. France, judgment of 18 March 1997, Reports of Judgments and Decisions 1997‑II, p. 436, § 33). However, the opinion of an expert who has been appointed by the competent court to address issues arising in the case is likely to carry significant weight in that court's assessment of those issues. In its case-law the Court has recognised that the lack of neutrality on the part of a court appointed expert may in certain circumstances give rise to a breach of the principle of equality of arms inherent in the concept of a fair trial (see Bönisch v. Austria, judgment of 6 May 1985 (Merits), Series A no. 92, §§ 30-35; and Brandstetter v. Austria, judgment of 28 August 1991, Series A no. 211, p. 21, § 33). In particular, regard must be had to such factors as the expert's procedural position and role in the relevant proceedings (see Bönisch, cited above, §§ 31-35).