Legal Judge

The principle of legal judge is considered a fundamental feature of the → rule of law and a constitutive element of the right to a → due process and fair trial as postulated in international and regional human rights instruments. The requirement that a judge adjudicating criminal matters needs to be ‘established by law’ is a condition for, as well as a feature of, the judicial body that is necessary for and able to adjudicate a criminal case fairly. Herewith the → judge can pronounce a verdict on the guilt of the accused (→ Trials; → Judgment and Verdict). From the perspective of fairness, the rationale of the principle of the legal (impartial and independent) judge is the idea that there cannot be a fair trial before a judicial body if its decisions can be overturned by another authority which does not offer fair trial guarantees, and that there cannot be a fair trial when the judicial body is or appears to be biased (Rainey, Wicks and Ovey [2017] 297; Van de Hurk v the Netherlands [1994]). In a state governed by the rule of law, individuals need to be assured that the institution entrusted with a conflict-solving role and adjudicating criminal cases is neutral. This neutrality is double-sworded: neutral or independent in respect to other state powers (executive and legislative branches) and neutral or impartial in respect to the specific case and procedural parties operating in it. The principle of legal judge thus underpins and is inherently connected to the principles of independence and impartiality of the judiciary.

The principles of legal, independent and impartial judge underpin the provisions of all major → human rights conventions. The recent so-called rule-of-law-crisis in several Eastern European states (→ Poland and → Hungary; see respectively Venice Commission [2020] and [2021]) have provided a strong impetus for the protection of judicial independence and impartiality by European supra-national courts. Against the background of these recent challenges, this entry considers the scope and application of the principle under Article 14 of the International Covenant on Civil and Political Rights (ICCPR), Article 6 of the European Convention on Human Rights (ECHR) and Article 47 of the Charter of Fundamental Rights of the European Union (CFREU), below II-IV. In section V some concluding remarks touching on the challenges with regard to the principle of legal judge are added. This entry does not cover the principle of the legal judge insofar as concerns → international criminal tribunals, notably the ad hoc → International Criminal Tribunal for the Former Yugoslavia (ICTY) and → International Criminal Tribunal for Rwanda (ICTR), which are addressed in those specific entries.