publications_unodc_commentary-e

Value 2IMPARTIALITYPrinciple:Impartiality is essential to the proper discharge of the judicialoffice. It applies not only to the decision itself but also to theprocess by which the decision is made.CommentaryIndependence is a necessary precondition for impartiality51. Independence and impartiality are separate and distinct values. They arenevertheless linked as mutually reinforcing attributes of the judicial office.Independence is the necessary precondition to impartiality and is a prerequisite forattaining impartiality. A judge could be independent but not impartial (on a specificcase by case basis), but a judge who is not independent cannot, by definition, beimpartial (on an institutional basis). 31Perception of impartiality52. Impartiality is the fundamental quality required of a judge and the coreattribute of the judiciary. Impartiality must exist both as a matter of fact and as amatter of reasonable perception. If partiality is reasonably perceived, that perceptionis likely to leave a sense of grievance and of injustice, thereby destroying confidencein the judicial system. The perception of impartiality is measured by the standard ofa reasonable observer. The perception that a judge is not impartial may arise in anumber of ways, for instance through a perceived conflict of interest, the judge’sbehaviour on the bench, or his or her associations and activities outside the court.Requirements of impartiality53. The European Court of Human Rights has explained that there are twoaspects to the requirement of impartiality. First, the tribunal must be subjectivelyimpartial, i.e. no member of the tribunal should hold any personal prejudice or bias.Personal impartiality is to be presumed unless there is evidence to the contrary.31 See Reference re: Territorial Court Act (NWT), Northwest Territories Supreme Court,Canada, (1997) DLR (4 th ) 132 at 146, per Justice Vertes.57