Judicial Impartiality Research Articles

Derecho y neurociencia. La toma de decisión de los jueces

The text explores the relationship between neuroscience and law, focusing on how brain processes affect judicial decisions. Brain systems 1 and 2 are distinguished, as they operate intuitively and deliberately re-spectively, and their implications in perception, memory, cognitive biases, heuristics and decision making in the judicial field are examined. In ad-dition, the role of emotions, stress and empathy in judicial impartiality is analyzed, as well as the importance of non-verbal communication in the assessment of testimonial evidence. It is highlighted how personal biases and attitudes also influence decisions and it is suggested that awareness and training can mitigate these biases. In summary, knowledge of brain processes can improve the quality of judi-cial decisions by reducing the influence of cognitive biases and improving impartiality.

Margin of Appreciation in Interpreting Freedom of Religion: A Critical Appraisal on Role of European Court of Human Rights

This intricate analysis delves into the discernible inconsistencies characterizing the European Court of Human Rights’ (ECtHR) application of the margin of appreciation (MoA) doctrine concerning Article 9 of the European Convention on Human Rights. The evident absence of explicit guidelines delineating the parameters of the margin, exemplified by the Kokkinakis case, results in a perplexing and contradictory implementation of this legal tool. The Court’s vacillation in standards of review, notably illustrated in Sahin’s and Lautsi’s cases, underscores a jurisprudential ambivalence in matters of religious expression. Moreover, the Court’s oscillation in calibrating the margin, as observed in S.A.S v. France and Eweida and Others v. UK, raises valid concerns about judicial impartiality and potential predilections. The reliance on the absence of European consensus, as seen in cases like Dahlab v. Switzerland and Lautsi v. Italy, introduces an element of interpretive subjectivity that may undermine the robustness of human rights imperatives. In light of these complexities, this analysis calls for a more lucid, principled and judicious application of the MoA doctrine by the ECtHR to ensure the consistent protection of fundamental human rights within the European legal framework.

Research on Judge's Decision-making Factors and Judicial Justice Evaluation from the Perspective of Legal Psychology

From the unique and often overlooked lens of legal psychology, this paper delves deep into the intricate web of factors that shape and influence judges' decision-making processes. It meticulously examines how, while legal knowledge and professional experience form the bedrock of judicial rulings, they are not the sole or even the primary determinants of judicial outcomes.Instead, the paper argues that a judge's decisions are often subtly, yet profoundly, influenced by psychological factors and their deeply ingrained personal social backgrounds. These factors, ranging from unconscious biases to societal pressures, can have a significant impact on how a judge interprets the law and applies it to specific cases.This nuanced understanding of the judges' decision-making processes underscores the inherent complexity of evaluating judicial impartiality. The study posits that a truly comprehensive assessment of judicial fairness demands a multifaceted approach that goes beyond surface-level critiques and encompasses a wide range of standards, methodologies, and perspectives.

Raison d'être for the judicial process

Several Spanish authors have conceptualised the judicial process as a forced and inevitable temporal evolution that must precede the resolution of the controversy and that depends on slowness —as the antithesis of immediacy—. According to this doctrine, this process aims to avoid an immediate judicial response. In this paper, I will examine why the judicial process has been defined in this way; the reasons why speed is not desirable in the judicial function. To this end, I draw on the findings of cognitive psychology and, more specifically, on a set of theories that support the existence of two ways of processing information —two ways of knowing, believing, thinking, reasoning, and acting—: one fast and one slow; these are the dual processing theories. As a result of this confrontation, I propose a rationale, a purpose, and a definition for the judicial process, which are based on the idea that the presence of a time interval is necessary for the right to judicial impartiality and the right of defence to —materially— exist.

They Saw a Hearing: Democrats' and Republicans' Perceptions of and Responses to the Ford-Kavanaugh Hearings.

In several highly publicized hearings, Dr. Christine Blasey Ford and Judge Brett Kavanaugh presented two opposing accounts of an alleged sexual assault. In the wake of these proceedings, partisans appeared similarly divided in how they regarded this political event. Using a U.S. national sample (N = 2,474) and a mixed-methods design, we investigated partisans' perceptions of, and responses to, the Ford-Kavanaugh hearings. Respondents reported their views of the hearings soon after they occurred. We used topic modeling to analyze these open-ended responses and found uniquely partisan topics emerged, including judicial impartiality and due process. Acute stress (AS) responses to the hearings were also related to partisan identities and perceptions; both Republicans (incidence rate ratio [IRR] = 0.81, 95% confidence interval [CI] = [0.78, 0.84]) and individuals who wrote more about Republican topics (IRR = 0.72, 95% CI = [0.56, 0.92]) reported lower AS than their Democratic counterparts. Results demonstrate different partisan perceptions with implications for mental health outcomes.

Judicial Impartiality in Civil Proceedings: Case Law of the European Court of Human Rights and Selected Cases of the Supreme Court

The article addresses the issue of judicial impartiality in civil procedure, which is relevant from theoretical and practical perspectives. The purpose of the article is to highlight the main approaches to judicial impartiality as an integral part of the right to a fair trial in terms of the paragraph 1Article 6 of the European Convention of Human Rights, as well as to analyze the Supreme Court's practice for compliance with the approaches to the interpretation of judicial impartiality developed in the case-law of the European Court of Human Rights. In the article the author uses general philosophical, general scientific and special research methods, in particular, dialectical, system-structural, logical and comparative legal methods, method of analysis and synthesis. The judicial impartiality is an integral element of the rule of law and the right to a fair trial. The European Convention on Human Rights and the case-law of the European Court of Human Rights played a key role in the development of international standards of judicial impartiality within the European region. The European Court of Human Rights developed a dual approach to judicial impartiality, distinguishing between subjective and objective impartiality. An additional approach to verifying the impartiality of the court in the case law of the European Court of Human Rights is to distinguish between functional and personal impartiality. The analysis of the Supreme Court practice shows that the latter has not fully accepted the approaches to judicial impartiality developed by the of the European Court of Human Rights. The article analyzes certain cases of the Supreme Court, in which, in the author's opinion, the Supreme Court incorrectly applied the case-law of the European Court of Human Rights in order to motivate its decisions. In addition, special attention is paid to the problem of the possibility of judicial disqualification on the grounds of the performance/non-performance of certain procedural powers by a judge. The article can be interesting for legal scholars and practitioners, PhD students and students of law universities.

JUDICIAL ACTIVISM AT THE COST OF SEPARATION OF POWER IN PAKISTAN: A COMPARISON OF JUSTICE IFTIKHAR CHAUDHRY AND JUSTICE SAQIB NISAR’S ERA

The study deals with the significant role of judicial activism in different eras in Pakistan. It examines the role of judicial institutions in damaging the democratic culture of the country. Since the independence of Pakistan, frequent military interventions were validated by the Superior Judiciary of Pakistan. The study discussed these landmark cases which dented the doctrine of Separation of Power in the county. The concept of judicial review has been originated and developed in Britain, and later reached the US in Marbury v. Madison. The history of Pakistan is marred by several instances of Judicial Activism, in which the jurisdiction of the judiciary encroached upon the domain of legislature and executive. In this study, the activism of populist Judges, Justice Iftikhar Chaurdhty and Justice Saqib Nisar has been compared. Their Judicial actions have been discussed in which the domain of the executive has been compromised. The populist actions of Judges dent the independence of the Judiciary and lead to judicial impartiality, as in several cases, different verdicts are observed in the same nature cases. The study concluded by establishing the link between Judicial activism and Separation of powers, as all organs of the states have constitutional limits to work within, The researchers also proposed some judicial reforms, that will maintain the sanctity of the Doctrine of Separation of Power while exercising Judicial Activism. Keywords: Judicial Activism, Separation of Power, Judicial Review in Pakistan, Judicial Reforms.

Intervention of the judge of knowledge from colombia in the hearings prior to the judgment in front of the guarantee of judicial impartiality and the accusatory principle

In Colombia, in order to adopt an accusatory criminal procedure system, the 1991 Political Constitution was reformed with Legislative Act 03 of 2002. The regulation of this criminal procedural system was given through Law 906 of 2004, “By which the Code of Criminal Procedure is issued.” In development of these regulations, the following hearings were created: i) preliminary; ii) formulation of the accusation; iii) preparatory; and iv) judgment. In the first ones, the judge with the function of control of guarantees intervenes. Later, the judge of knowledge intervenes, who is in charge of directing the judgment and to indicate the sense of failure. Likewise, the Supreme Court of Justice has indicated that, in order to avoid that the formulation of the accusation is inadequate and that the judicial apparatus becomes unjustifiably congested, the judge of knowledge must carry out a material control to the accusation. This research analyzes if the intervention of the judge of knowledge in the hearings prior to the judgment: formulation of the accusation and preparatory, as well as the control that he carries out over the accusation, affects the guarantee of judicial impartiality and the accusatory principle. The investigation problem is: does the intervention of the judge of knowledge in the hearings prior to the judgment: formulation of the accusation and preparatory, as well as the control that he carries out over the accusation, affects the guarantee of judicial impartiality and the accusatory principle? The thesis defended in this research is that the intervention of the judge of knowledge in the hearings prior to the judgment: formulation of the accusation and preparatory, as well as the control that he carries out over the accusation, affects the guarantee of judicial impartiality and the principle accusatory, respectively, the legislation, jurisprudence and existing doctrine on the subject are analyzed.

THE FUNDAMENTAL PRINCIPLES OF RECUSAL OF A JUDGE AT COMMON LAW: RECENT DEVELOPMENTS

The common-law principle that no one should be a judge in his or her own cause is the basis upon which the rule against bias or apprehension of bias was founded. In constitutional parlance, this translates into the requirement that a judge or anyone under a duty to decide anything must be impartial, which is, in turn, the foundation for the recusal of a judge in adjudication. This cardinal principle of adjudication has produced an abundant case law indicating the circumstances in which a judge should, or ought to, recuse him- or herself on the ground of bias or reasonable apprehension of bias in common-law jurisdictions. This article focuses on the fundamental principles guiding the notion of recusal in the common-law courts. There is, first, a presumption of judicial impartiality, which is the preliminary but important hurdle an applicant for recusal of a judge must overcome. The inquiry proceeds no further if this presumption is not successfully rebutted early in the proceeding. The second hurdle is the test for recusal that the facts put forward in support of the allegation of bias or apparent bias must meet. This test is a two-dimensional reasonable standard test of a reasonably informed observer who would reasonably entertain an apprehension that the judge would (not might) be biased towards one party in the case. This test enables a court to determine whether the allegation of lack of judicial impartiality in any given case could lead to the recusal of the judge. The discussion that ensues is based on decided cases selected from specific Commonwealth jurisdictions where such matters have recently been dealt with. Indeed, these cases show that recusal of a judge in adjudication is, in practical terms, the application of the common-law principle of natural justice that a person cannot be a judge in his or her own cause. It is also a clear manifestation of the age-old adage that justice must not only be done, but must manifestly and undoubtedly be seen to be done.

E-Justice Platforms: Challenges for Judicial Governance

This article discusses e-justice platform development and its implications for judicial governance. Procedural decisions and court work processes can now be encoded into the digital court work environment. This may affect fundamental values such as fair procedure and judicial impartiality and independence. The article compares three e-justice platforms (EJP): e-Curia (Court of Justice of the European Union), Civil Trial on Line (TOL) in Italy, and <em>Kwaliteit en Innovatie Rechtspraak</em> (KEI) in the Netherlands. In an innovative approach, it considers EJP’s as enterprise information systems. It combines functional and managerial perspectives with those of procedural law and technology. The paper studies the impact of merging procedural law and technology for developing EJP’s and for reconciling the requirements of both law and technology in the highly regulated context of courts and judiciaries. The paper finds that, in EJP development and implementation, law and technology’s combined effect may affect fair procedure. The article concludes with a discussion of the kind of governance needed to safeguard fair procedure and proper functioning of IT in courts. This need becomes even more pressing with the advent of artificial intelligence (AI). The article finds that resolving these issues is part of the judiciary’s responsibility for fair procedures and cannot be left to IT experts. It offers some standards and principles for judicial governance to fulfill judicial responsibility for fair procedures as laid down in the human rights conventions.

Standardy niezależności sądów i niezawisłości sędziowskiej – wybrane zagadnienia na przykładzie orzecznictwa sądów europejskich

The aim of this article is to decode the European standards of the right to a court, as found in the jurisprudence of the CJEU and the ECHR in the context of the guarantees of judicial independence and judicial impartiality. The above analysis points out that these standards are constantly contextualised and updated due to changes in the normative environment in particular Member States and in the European Union. However, this does not mean that the essence of the values in question cannot be conceptualised and protected in the practice of both European and national courts, as this very study shows. The guarantees of judicial independence and the related impartiality in genere are of universal nature within the set of principles and values that determine the standards of a democratic state of law.

Reflections on Prosecutorial Independence and Impartiality in South Africa: The Recent Jurisprudence of the Courts

Prosecutorial independence and prosecutorial impartiality are important for the effective administration of criminal justice in South Africa. These two concepts are interconnected and yet they are distinct, and distinguishable from judicial independence and judicial impartiality. In the past decade or so, controversy has surrounded and allegations have been made of political interference with prosecutorial independence and impartiality in South Africa. This article reflects on recent developments in the exercise of prosecutorial independence and impartiality in South Africa. The interest was sparked by recent constitutional jurisprudence in developing the law on prosecutorial independence and impartiality. In its analysis of the courts’ jurisprudence on prosecutorial independence, the article further demonstrates that this jurisprudence has had an influence in determining the independence of other institutions responsible for the administration of criminal justice.

What the Fair Minded Observer Really Thinks About Judicial Impartiality

AbstractThis article presents the results of an empirical study designed to assess the degree of convergence and divergence between public opinion and the fictional Fair Minded Observer (FMO) test used to determine whether a judge ought to be disqualified on the grounds of possible bias. As part of the test, judges imagine whether an FMO would see a risk of bias on the part of the judge. To the extent that the FMO is partly meant to reflect public perception, the obvious weakness in the test is that no one has tested public attitudes to the risk of judicial bias specifically. We conducted nationally representative public surveys in the UK and Australia, asking respondents what they think about different situations of possible bias (N = 2064). Our results indicate that a gap exists between the FMO created by the courts and public opinion in both countries across a number of scenarios thought to give rise to possible bias, including financial relationships, the risk of prejudgement and fact patterns based on leading cases.

Briefly Noted

On Tuesday, April 20, the Court of Justice of the European Union (CJEU) ruled in Case C-896/19, Repubblika v. Il-Prim Ministru that Malta's system for appointing judges did not contradict EU law. As reported by JURIST, the ruling went before the national court when Repubblika, an association created to promote the rule of law in Malta, had challenged the procedure, which was provided by the Constitution of Malta. The process in the Maltese Constitution stated that judiciary members are appointed by the president acting under the advisement of the prime minister. However, appointees must satisfy certain conditions and are subject to background checks or other examinations by the Judicial Appointments Committee, whose purpose is to assess candidates and provide feedback to the prime minister. The national court brought this to the CJEU to decide whether this system was constitutional under EU law, specifically under Article 19(1) of the Treaty on European Union, in light of Article 47 of the EU Charter of Fundamental Rights, which states that member states must provide conditions for a fair, independent, and impartial trial to ensure true justice. The court reached the conclusion that this practice was not prohibited by EU law because, in order to guarantee conditions of judicial independence and impartiality, procedures must exist to ensure that appointees are free from influence from the legislature and/or executive with regard to judiciary proceedings. The Court found that power of the prime minister to submit a candidate that was not suggested by the Judicial Appointments Committee was not contrary to EU law because of various safeguarding measures included in the Constitution. The Court held: “Inasmuch as the Prime Minister exercises that power only in quite exceptional circumstances and adheres to strict and effective compliance with that obligation to state reasons, that power is not such as to give rise to legitimate doubts concerning the independence of the candidates selected” (para. 71). Therefore, the Court concluded that the national provisions at issue do not give rise to any legitimate uncertainties, or doubts of independence, regarding the chosen judiciary candidates.

POPULATION CRITERIA AND BUDGETARY DETERRANT: DETERMINING FACTORS IN THE QUALITY OF THE SPANISH CRIMINAL JUSTICE SYSTEM

What is the quality of justice? As Melcarne and Ramello (2019) have recently pointed out, there is no clear interaction between quality and quantity in understanding or measuring judicial performance. However, the lack of human resources is often blamed for delays in the delivery of decisions (quantity) in most judicial systems - and could in fact mean a violation of the principle of due process. However, the study shows how difficult it is to assess quality, since even quantity (in fact calculable) cannot always be a trustful variable to measure it. In Spain, it is possible to assume that penal judges work more or less the same. Yet, not all judgments have the same quality. The problem is in the District Courts (some of insufficient size) with provincial criminal jurisdiction. They constantly run the risk - and do so - of breaching the principle of judicial impartiality. This does not happen in the Spanish Supreme Court or in the large District Courts. It is a problem in the judicial performance of justice and in the Administration of Justice. Yet, there are no budgetary or even regulatory stimuli to resolve this situation. A situation that implies a breach of the principles of due process and therefore of the fundamental rights of the accused.

Biased Impartiality: A Survey of Post-Rds Caselaw on Bias, Race and Indigeneity

Based on an empirical review of post-RDS caselaw, I argue that there is a demonstrable colour blindness within the existing jurisprudence on judicial impartiality. I illustrate this colour blind approach through two arguments. The first argument is based on the evidence needed to pierce the veil of judicial impartiality. A large number of the cases surveyed illustrate the propensity of decision makers to deny recusal arguments based on the cogency of the evidence. In these cases of colour blind decision making, the presented evidence was deemed insufficient to warrant piercing the veil of judicial impartiality. The second argument focuses on judges that adopt an antiracist perspective. When judges have relied on social science evidence to engage in contextual and antiracist judging, they have been policed and their decisions overturned by supervisory and appellate courts.

Challenges to Judicial Impartiality and Their Implications on Human Rights

The article aims to demonstrate the importance of a judge’s impartiality in safeguarding a human right to a fair trial. The challenges existing in front of the judges are discussed with reference to the case law. On the other hand, presumption of impartiality established by the European Court of Human Rights is critically analysed as restricting the ability of the individuals to prove the availability of bias or prejudice on behalf of the judges.

Technology and the Courts: Artificial Intelligence and Judicial Impartiality

In this submission to Australian Law Reform Commission, I argue that any reforms to the laws on judicial impartiality and bias in Australia should take into account the role of technology in judicial decision-making. From digitization of court filing and administrative systems, to automation of decision-making in small claims litigation, to machine learning software in criminal sentencing, the judiciary is increasingly - or may soon be – using various technologies. Some see the technologization of the judicial role as inevitable, and call for a speedy embrace of automation by the courts to better perform their public role. However, to maintain public confidence in the administration of justice; the law reform must consider how the increasing experimentation and proposals to automate judicial decision-making, or elements of it, especially with machine learning tools, can enhance or undermine the legal system and the judiciary as a whole. In my recent work, I examined the compatibility of various automation tools with fundamental principles of justice and how they strengthen and undermine the rule of law. I also analyzed how automated systems in judicial decision-making affect judicial values to understand where the technology might go in the future and the dangers it could bring for the judicial role. In this submission, I share the most relevant insights form that work on the relationship between technology and judicial impartiality, decisional independence and bias.

Unrepresented Litigants in South Australia: A Successful Pre-trial Framework?

This paper looks into the problems posed by unrepresented litigants of South Australia, and proposes a pre-trial framework to deal with cases involving at least one unrepresented party. Unrepresented litigants typically impede the efficiency of courts to operate. This paper will argue that the South Australian courts are able to effectively navigate through these problems by setting up a supervised framework to deal with unrepresented litigants, to: (a) ensure early identification of cases involving unrepresented litigants that may affect the efficiency of court proceedings, and (b) allow the courts to conduct review hearings of these cases in stages. This two-pronged approach will hopefully alleviate the problems of backlogs and inefficiency. As will be argued, this can be achieved without sacrificing the important principle of judicial impartiality. The methodology deployed in this research is mainly comparative analysis of other similar common law adversarial jurisdictions, such as Queensland, Alberta, and Hong Kong, with some case studies involving empirical-analytical data.

Judicial institutions of property rights protection and foreign direct investment inflows

Despite a growing consensus that host country institutions affect the spatial distribution of foreign direct investment, there is a debate about which institutions drive this relationship. This study contributes to this debate by examining the relationship between foreign direct investment net inflows and three judicial institutions of property rights protection: judicial contract enforcement, judicial independence, and judicial impartiality. I evaluate this relationship by applying the system-GMM estimation approach to a sample of 150 countries covering the period 2000–16. I find robust evidence of positive relationships between FDI net inflows and both judicial independence and judicial impartiality. On the other hand, judicial contract enforcement appears to be weakly related to FDI net inflows. The results are robust to alternative specifications and estimation methods, including the instrumental variables approach. While the findings of this study reinforce the notion that host country institutions matter for foreign direct investment, they, more importantly, underscore the merits of unbundling institutions to understand their impact on multinational firm activity.