Impartiality requires that judges act without bias, and that the tribunal appears unbiased to the reasonable observer.
- A situation where the functions and competencies of the judiciary and executive are not clearly distinguishable or where the latter is able to control or direct the former is incompatible with the notion of an independent tribunal.
- The requirement of impartiality has two aspects. First, judges must not allow their judgment to be influenced by personal bias or prejudice, nor harbour preconceptions about the particular case before them, nor act in ways that improperly promote the interests of one of the parties to the detriment of the other. Second, the tribunal must also appear to a reasonable observer to be impartial. For instance, a trial substantially affected by the participation of a judge who, under domestic statutes, should have been disqualified cannot normally be considered to be impartial.
- In Podkolzina v. Latvia (no. 46726/99, ECHR 2002-II), the Court reiterated that the right to stand as a candidate in an election, which is guaranteed by Article 3 of Protocol No. 1 and is inherent in the concept of a truly democratic regime, would only be illusory if one could be arbitrarily deprived of it at any moment. Consequently, while it is true that States have a wide margin of appreciation when establishing eligibility conditions in the abstract, the principle that rights must be effective requires the finding that this or that candidate has failed to satisfy them to comply with a number of criteria framed to prevent arbitrary decisions. In particular, such a finding must be reached by a body which can provide a minimum of guarantees of its impartiality. Similarly, the discretion enjoyed by the body concerned must not be exorbitantly wide; it must be circumscribed, with sufficient precision, by the provisions of domestic law. Lastly, the procedure for declaring a candidate ineligible must be such as to ensure a fair and objective decision and prevent any abuse of power on the part of the relevant authority (ibid., § 35).
- A judicial body shall base its decision only on objective evidence, arguments and facts presented before it. Judicial officers shall decide matters before them without any restrictions, improper influence, inducements, pressure, threats or interference, direct or indirect, from any quarter or for any reason.
- Without structural and procedural safeguards to ensure independence and impartiality, public perception that election investigations favor a particular side in a dispute could endanger the democratic legitimacy and the credibility of the entire electoral process.
- The recruitment process for investigators should also be independent from political considerations and subject to external oversight, to the extent that this serves to assist in the hiring of competent, independent staff and to protect against irregularities.
- For this purpose, both the Constitution and current legal norms should provide for the functional, administrative, and financial autonomy of the institution responsible for electoral justice.
- Therefore, in order to guarantee the autonomy and impartiality of bodies responsible for electoral dispute resolution, their legal independence should be ensured at the highest possible level. Thus, the separation of powers must be established at the constitutional level, where it should be clearly stated that the electoral judicial body is independent of the Executive and Legislative branches and that it is not subordinate to either of these powers.
- In order to impart justice in a manner that is absolutely faithful to the mandate of the constitution and the law, it is not enough for EDRBs to enjoy structural autonomy and functional independence. It is also necessary that those who judge electoral matters act with absolute independence, impartiality and professionalism in their individual capacity, without recognizing any subordination to any interest or will other than those stated by law.
- The appeal procedure should be of a judicial nature, in the sense that the right of the appellants to proceedings in which both parties are heard should be safeguarded.
- Decisions taken by EDR bodies should always be impartial. Officials dealing with EDR should act objectively and carry out their duties in an impartial manner, irrespective of their personal beliefs and interests.
- The principle of investigations being undertaken by independent and impartial bodies is fundamental to the credibility and legitimacy of the investigation process and outcome.