In order to establish partiality or impartiality, subjective and objective tests shall be applied.
• Decision on Admissibility and Merits No. AP 71/02 of 28 April 2004, paragraph 31, published in the Official Gazette of Bosnia and Herzegovina, 34/04; non- contentious proceedings concerning the issuing of an order for cancelling the lease contract on the disputed business premises
The court, which decision was the subject of the appeal, was of improper composition, as a judge, who was to be exempted in order to ensure impartial judgment since her husband was a representative for the damaged party in the respective proceedings, participated in the decision-making. It follows that no fair trial was provided to the appellant before an impartial tribunal within the meaning of Article II(3)(e) of the Constitution of BiH and Article 6, paragraph 1 of the European Convention.
• Decision on Admissibility and Merits No. AP 98/04 of 28 April 2004, paragraph 22, published in the Official Gazette of Bosnia and Herzegovina, 30/04
Bearing in mind the fact that the appellant failed to state the reason why he deemed that the proceedings before the Cantonal Court and the Supreme Court were unfair and why he claimed that they could not be considered impartial courts, in support of which he failed to attach any evidence whatsoever, the allegations are ill-founded and must be dismissed as such.
• Decision on Admissibility and Merits No. AP 45/02 of 30 June 2004, paragraph 61, published in the Official Gazette of Bosnia and Herzegovina, 41/04; transfer of the occupancy right from a grandfather to a grandson; a violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH established
In order to be impartial the court must not be prejudiced with regards to a decision to be made, it must not allow to be influenced by external information, be that position of the public, or any other pressure, but rather it must base its opinion on what has been presented at the trial. Although the judge might have his/her personal emotions, he/she must not be guided by emotions during the hearing in the respective case and forming the respective opinion.
• Decision on Admissibility and Merits No. U 47/03 of 15 June 2004, paragraph 23, published in the Official Gazette of Bosnia and Herzegovina, 40/04; contentious proceedings over the cancellation of a deed of gift
Allegations of a violation of the principle of impartiality of the court are ill-founded on the grounds that a judge, who had taken part in the investigation, deliberated on the well- foundedness of the complaint against the indictment.
• Decision on Admissibility and Merits No. AP 255/03 of 14 October 2004, paragraphs 19 to 28, published in the Official Gazette of Bosnia and Herzegovina, 15/05
The appellants’ allegations that the courts in Republika Srpska were not impartial and independent since they were allegedly under the pressure of the case itself having to decide on the well-foundedness of criminal liability of the persons of Serb ethnicity, who were charged to have killed a person of Bosniac ethnicity, are absolutely arbitrary and without any substantiating evidence whatsoever.
• Decision on Admissibility and Merits No. AP 108/04 of 23 March 2005, paragraph 30, published in the Official Gazette of Bosnia and Herzegovina, 30/05
In order to establish subjective partiality of the judge it is necessary to have solid evidence. The very fact that the president of the criminal panel had ordered detention of the appellant for another criminal act, several days before the session at which the challenged judgment was adopted, is not a sufficient argument to claim that the judge at issue was partial.
• Decision on Admissibility and Merits No. AP 450/04 of 23 March 2005, paragraph 25, published in the Official Gazette of Bosnia and Herzegovina, 32/05; criminal proceedings, a criminal act of murder, suspicion as to the impartiality of the judge; no violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH
There is no violation of the right to a fair trial in the case where a judge, who during the pre-trial investigation had participated as a member of the criminal panel in adopting a decision on extending detention for the appellant, took part in adopting a first instance convicting judgment.
• Decision on Admissibility and Merits No. AP 543/04 of 23 March 2005, paragraph 29, published in the Official Gazette of Bosnia and Herzegovina, 27/06; criminal proceedings, suspicion as to the impartiality of the judge; no violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH
The fact that the same judge took part in the work of the panel adopting decisions prescribed by law at some earlier stage of the proceedings before the first instance court, which preceded the adoption of a decision on merits, does not constitute a hindrance for the mentioned judge to take part in the work of the panel of the second instance court adopting a decision on appeal against the first instance judgment, nor can it, in itself, constitute a violation of the principle of “impartial tribunal”.
• Decision on Admissibility and Merits No. AP 524/04 of 12 April 2005, paragraph 20, published in the Official Gazette of Bosnia and Herzegovina, 42/05; criminal proceedings, composition of the panel deciding on the appeal; no violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH;
• Decision on Admissibility and Merits No. AP 525/04 of 18 January 2005, paragraph 23, published in the Official Gazette of Bosnia and Herzegovina, 42/05; criminal proceedings, composition of the panel deciding on the appeal; no violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH
As to the appellant’s allegations stated in the appeal that judges who took part in adoption of a second instance judgment of the Cantonal Court deciding on unlawfulness of the ruling by which the appellant was placed at disposal, also took part in adoption of a second instance judgment, the Constitutional Court does not find that such situation is inconsistent with the requirements of a fair trial under Article 6, paragraph 1 of the European Convention, as it concerns another proceedings while the appellant, beyond arbitrary allegations, failed to offer any evidence that would make the existence of any doubt as to the impartiality of the court for the above referenced reasons plausible.
• Decision on the Merits No. AP 1112/04 of 13 October 2005, paragraph 33, published in the Official Gazette of Bosnia and Herzegovina, 25/06
The appellants do not offer any concrete evidence whatsoever about the partiality of the court, rather they base their complaint on the fact that the media reports and the strikes of the employees of the company, which the appellants had privatized, were such that “the court worked under pressure”. However, these allegations are not sufficient, as it is not possible to conclude on the basis of anything that decisions were arbitrary or adopted “under pressure”. Thus there is no violation of the right to a fair trial.
• Decision on the Merits No. AP 215/05 of 12 April 2006, paragraph 72, published in the Official Gazette of Bosnia and Herzegovina, 68/06
The fact that certain judges took part in adoption of a procedural ruling on separating criminal proceedings and consequently in the panel deciding in the first instance on the appellant’s criminal responsibility, does not constitute a violation of the principle of impartiality of the court in itself.
• Decision on Admissibility and Merits No. AP 23/06 of 15 February 2007, paragraph 31, published in the Official Gazette of Bosnia and Herzegovina, 55/07; criminal proceedings, participation of a judge from the preliminary proceedings in the panel deciding in the first instance on the appellant’s criminal responsibility; no violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH
There is no violation of the principle of “independence” and “impartiality” when the judges adjudicating in war crime panels were appointed by the High Representative for Bosnia and Herzegovina and when the Court of BiH and the Prosecutor’s Office are placed in the same building.
• Decision on Admissibility and Merits No. AP 1785/06 of 30 March 2007, paragraph 49 and 50 published in the Official Gazette of Bosnia and Herzegovina, 57/07
There is no violation of the right to impartial tribunal as an element of the right to a fair trial when a judge who in the earlier proceedings against the appellant had had a capacity of a republic prosecutor not competent for criminal prosecution in the present case, and who, at the time of the renewed proceedings, was no longer discharging that office nor did he play an active role in the criminal proceedings against the appellant that could have been detrimental to the appellant or affected the outcome of the proceedings against him, participated in the decision-making of the appellate panel of the second-instance court.
• Decision on Admissibility and Merits No. AP 1187/06 of 13 September 2007, paragraph 28, published in the Official Gazette of Bosnia and Herzegovina, 86/07; criminal proceedings, no violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH
The appellant’s allegations as to the partiality of a judge of the Cantonal Court fall within the scope of subjective test, as it was stated that, by avoiding to resolve the status of a temporary user, the judge acted in the interest of that party and to the detriment of the appellant, which indicates the subjective attitude of a competent judge toward the parties to the proceedings, that is a preferential treatment of one party to the detriment of the other. The Constitutional Court holds undisputable that the competent judge concluded in the challenged judgment that it was unnecessary to consider the appellant’s allegations about the status of the present user of the apartment, which was not in itself an arbitrary decision, bearing in mind that the appellant did not meet legal requirements for his claim for repossession of the apartment at issue to be granted. The very fact that the judge did not go into examining the appellant’s allegations on the merits, is not sufficient to challenge the presumption on her impartiality in this case. Accordingly, the Constitutional Court holds that the appellant’s allegations about the violation of the principle of impartiality as a principle of a fair trial under Article II(3)(e) of the Constitution of Bosnia and Herzegovina and Article 6 paragraph 1 of the European Convention are manifestly (prima facie) ill-founded.
• Decision on Admissibility No. AP 2364/06 of 3 April 2008, paragraph 8; appeal manifestly (prima facie) ill-founded
There is a violation of the right to impartiality by a court panel in the event where a judge, filing a lawsuit against some of the appellants on the same legal grounds and at the time she deliberated on the appeal, was member of the panel deliberating on the appellant’s appeal.
• Decision on Admissibility and Merits No. AP 1513/06 of 12 June 2008, paragraph 36, published in the Official Gazette of Bosnia and Herzegovina, 91/08; compensation of damage for defamation, impartiality; a violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH established
Impartiality implies that the court must be free of prejudice with regards to the decision to be taken by it. It must not be influenced by external information or any other pressure but it has to base its opinion only on what was presented at the trial. When deciding whether a court is partial, a difference must be made between subjective and objective approach to the partiality. The subjective test relates to the personal impartiality of the members of the panel and must be presumed until there is proof to the contrary (see, ECtHR, Hauschildt v. Denmark, paragraph 47). Whether a judge was biased may be concluded only when it becomes quite clear based on his conduct during the proceedings or the content of the judgement. 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 and, above all, as far as criminal proceedings are concerned, in the accused. 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 accused is important but not decisive. What is determinant is whether this fear can be held to be objectively justified (ECtHR, Fey v. Austria, judgment of 24 February 1993, paragraph 30).
• Decision on Admissibility and Merits No. AP 2473/06 of 17 March 2009, paragraph 44, published in the Official Gazette of Bosnia and Herzegovina, 50/09; objective and subjective impartiality; there is no violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH;
• Decision on Admissibility and Merits No. AP 772/06 of 17 September 2009, paragraph 12;
• Decision on Admissibility No. AP 1428/07 of 17 September 2009, paragraph 21
The composition of the panel that decided on the revision-appeal, the member of which was a judge who participated in the adoption of the second-instance decision on the appellant’s appeal against the first-instance judgment, amounted to the violation of the appellant’s right to an “impartial tribunal” within the meaning of Article II(3)(e) of the Constitution of Article 6(1) of the European Convention.
• Decision on Admissibility and Merits No. AP 2247/06 of 17 December 2009, paragraph 31, published in the Official Gazette of Bosnia and Herzegovina, 23/10; objective impartiality; a violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH established
The Constitutional Court concludes that there has been no violation of the right to a fair trial under Article II(3)(e) of the Constitution of BiH and Article 6(1) of the European Convention when the appellant was tried by the first-instance panel which, at an earlier point, had decided on the appellant’s appeal against a decision on detention, which had been taken by the judge in charge of the preliminary procedure, and none of the members of the panel was the judge in charge of the preliminary procedure.
• Decision on Admissibility and Merits No. AP 1533/07 of 11 February 2010, paragraph 36, published in the Official Gazette of Bosnia and Herzegovina, 43/10; a violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH established
The Constitutional Court concludes that there has been no violation of Article II(3)(e) of the Constitution of BiH and Article 6(1) of the European Convention with regards to partiality of the court when the same judge participated in the proceedings against the appellant and took a decision based on a number of presented pieces of evidence, and did not request his disqualification for having participated in a proceeding against another person – co-defendant – which had been conducted at an earlier point and wherein he had taken a decision on the plea agreement, where the appellant did not request disqualification of that judge for any of the reasons provided in the Criminal Procedure Code.
• Decision on Admissibility and Merits No. AP 900/08 of 11 February 2011, paragraph 33, published in the Official Gazette of Bosnia and Herzegovina, 41/11; there has been no violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH
The Constitutional Court concludes that the appellant’s right to a fair trial before an impartial tribunal under Article II(3)(e) of the Constitution of Bosnia and Herzegovina and Article 6(1) of the European Convention has been violated as the same judge participated in the court panel which took a decision on appeal, wherein the first instance judgment was quashed and the case was referred back to the first instance court for a new decision, and in the court panel which decided on the revision-appeal in the renewed proceedings.
• Decision on Admissibility and Merits No. AP 504/08 of 12 October 2011, paragraph 48, published in the Official Gazette of Bosnia and Herzegovina, 99/11; civil procedure, a violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH established
The Constitutional Court concludes that there has been no violation of the right to a fair trial before an impartial tribunal under Article II(3)(e) of the Constitution of Bosnia and Herzegovina and Article 6(1) of the European Convention as the fact that two members of the revision-appeal panel of the court participated in taking a procedural decision at an earlier point, whereby the appellant’s appeal against a decision on the non-competence of the court to take a decision was granted and the case was referred to the first-instance panel for new proceedings, does not constitute in itself a violation of the principle of impartiality of the court.
• Decision on Admissibility and Merits No. AP 1498/09 of 19 July 2012, paragraph 29, published in the Official Gazette of Bosnia and Herzegovina, 79/12; contentious proceedings against Bosnia and Herzegovina for payment of claims; there has been no violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH
The Constitutional Court notes that the judge had participated in taking a decision on dismissal of the motion of the appellant’s defence counsel to terminate detention after the confirmation of the indictment, whereupon she was the presiding judge of the panel which took a decision whereby the appellant’s detention was extended. According to the Constitutional Court, that fact in itself is not a sufficient argument to conclude that the mentioned judge was biased while conducting the criminal proceedings against the appellant. In particular, a decision to extend detention is of procedural nature, wherein the prosecution’s motion and the defence counsel’s proposal were considered, whereupon it was decided to extend the appellant’s detention for the next two months. As to the appellant’s complaint of the impartiality on the part of the court, the Constitutional Court notes that the provisions of the RS Criminal Procedure Code does not prevent the participation of a judge as a member of the panel or presiding judge of the panel in taking a decision on the defence counsel’s proposal for termination of detention and procedure for the extension of detention. The fact that the judge participated as a presiding judge of the out-of-court panel in taking a decision to extend detention and that three days before the mentioned decision had been taken she participated as a member of the trial panel in taking a decision on dismissal of the defence counsel’s proposal for termination of detention of the accused does not mean in any way that the challenged decision was taken by the panel which should have been disqualified in accordance with the law, nor does that fact raise a reasonable doubt of impartiality of the panel, which was alleged by the appellant’s counsel. Therefore, the Constitutional Court holds that the appellant, apart from arbitrary allegations, did not present any evidence, nor did he present any arguments in favour of his claim that the fact that the judge was the member of the panel which took a procedural decisions as prescribed by the law constituted a violation of the principle of impartiality of court. Therefore, this part of the appeal is ill-founded.
• Decision on Admissibility and Merits No. AP 2152/13 of 6 November 2014, paragraph 31; there is no violation of Article 6 and Article II(3)(e) of the Constitution of BiH
The Constitutional Court concludes that the appellant’s right to a fair trial before an impartial tribunal under Article II(3)(e) of the Constitution of Bosnia and Herzegovina and Article 6(1) of the European Convention has been violated as the same judge was the member of the panel which took a decision on appeal, whereby the first-instance judgment was quashed and the case was referred back for new proceedings, and the presiding judge of the court panel which took a decision on the revision-appeal in the renewed proceedings.
• Decision on Admissibility and Merits No. AP 2107/12 of 24 April 2015, paragraph 38, published in the Official Gazette of Bosnia and Herzegovina, 44/15; contentious proceedings related to compensation for damages; a violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH established
In the present case, the Constitutional Court recalls that the appellant claimed that her right to a fair trial was violated for Judge S.S. was a member of the second instance court and of the judicial panel in the first instance proceedings. The Constitutional Court notes that it follows that the Judge did not participate in the lower court decision-making process (after a transfer of jurisdiction, the first instance decision was passed by the Municipal Court), but she was a member of the panel of the Cantonal Court, which acted at an earlier stage of the proceedings, i.e. it is not evident that she participated in any decision, and this is not a situation prescribed by Article 357 (1)(4) of the CPC. However, the aforementioned Judge, as a member of the judicial panel of the Cantonal Court deciding in the appellate proceedings wherein the appellant’s appeal was dismissed, participated in making the decision on the merits. The Constitutional Court concludes that the present case is not about a situation where “one and the same judge dealt directly with the issues relevant for decision-making, i.e. the merits of the case.” In view of the above, the Constitutional Court concludes that in the present case there is no violation the appellant’s right to an impartial tribunal.
• Decision on Admissibility and Merits No. AP 5099/13 of 26 October 2016, paragraph 46; payment of debt, reduction of fees and compensation for damages; no violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH
The Constitutional Court concludes that there is a violation of the appellant’s right to a fair trial before an impartial tribunal under Article II(3)(e) of the Constitution of Bosnia and Herzegovina and Article 6(1) of the European Convention, since in the same case the same judge was a member of the judicial panel which made the decision on the appeal, which quashed the first instance judgment (whereby the appellant was acquitted of the criminal offences), and which decided to hold the trial before the second instance court, and decided on the composition of the third instance court deciding on the appeal against the second instance judgment.
• Decision on Admissibility and Merits No. AP 1985/14 of 23 November 2016, paragraph 36, published in the Official Gazette of Bosnia and Herzegovina, 96/16; criminal proceedings, a violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH established
The Constitutional Court concludes that there is a violation of the appellant’s right to a fair trial before an impartial tribunal under Article II(3)(e) of the Constitution of Bosnia and Herzegovina and Article 6(1) of the European Convention, since a judge, whose daughter was employed at the time as a lawyer’s intern at the Law Office of the defendant’s authorized representative in the relevant proceedings, was a member of the judicial panel that passed the second instance judgment in the relevant case.
• Decision on Admissibility and Merits No. AP 217/17 of 10 January 2019, paragraph 31, published in the Official Gazette of Bosnia and Herzegovina, 6/19; a violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH established
Having regard to the fact that the “particular” judges acted at the same stage of proceedings – in revision proceedings, and that the earlier judgment of 4 October passed by the Supreme Court was quashed by Decision of the Constitutional Court AP-4659/12 of 22 December 2015 solely because of a violation of the principle of judicial impartiality, for Judge (S.P.) had been a member of the second instance panel, and taking into account the aforementioned in connection with the content of the provisions of Article 357 of the CPC, and given that there is no fact in the case-file indicating a reasonable doubt as to the impartiality of those judges, the Constitutional Court finds no arbitrariness in the application of the provisions governing the disqualification of a judge and the violation of the principle of judicial impartiality with regard to the conduct of the mentioned judges in the present case.
• Decision on Admissibility and Merits No. AP 256/17 of 13 February 2019, paragraph 45; there is no violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH
