Boris Ignachkov Legal Principles and Key Points
- In the case of McGonnell v UK [2000] 30 EHRR 289, it was concluded that Article 6 of the European Convention on Human Rights dealt with the existence of an objective appearance of independence and impartiality, rather than with whether the tribunal is biased on a subjective stance.
Facts of the Case
- A Detailed Development Plan was being considered in draft form in 1998 which could impact C’s land in Guernsey by removing it from the category of residential use.
- A few years later C applied for a change in use of his land which was rejected by the authorities. C appealed the decision to the Royal Court comprising the Bailiff, Sir Graham Dorey, and seven Jurats.
- C appealed to the European Court of Human Rights on the basis that there was a breach of C’s right to a hearing by an independent and impartial tribunal had been rejected. C argued that since the Bailiff had judicial, legislative and executive roles, he was not impartial and independent.
Issues
- Was there a breach of Article 6 of the European Convention on Human Rights?
Held by the European Court of Human Rights
- The Court found a violation of Article 6 of the European Convention on Human Rights because of the fact that the bailiff was the Chair of the States of Deliberation during the time that the zoning plan was adopted in 1990. This was deemed relevant for doubting the bailiff’s degree of impartiality.
His Lordships (all judges)
- The Judges clearly elaborate the various roles and the attaching responsibilities. For the bailiff, the judges said the following:
- The Bailiff’s role in communications between the Island authorities and the Government of the United Kingdom and Privy Council arises from his historical function of representing the views of the Islanders to the Crown. The Bailiff represents a States Committee’s views outside the Island when specifically requested to do so, and in accordance with a clear mandate. Representations are generally on behalf of the smaller Committees. Examples of this function are the Bailiff’s involvement in negotiating the level of fees payable in respect of Guernsey students attending higher education institutions in the United Kingdom, and in requesting the Government to ensure that Heathrow airport should have slots for aircraft from regional airports such as Guernsey. [28]
- “In determining whether a body can be considered to be independent, regard must be had, inter alia , to the manner of appointment of its members and their term of office, to the existence of guarantees against outside pressures and to the question whether the body presents an appearance of independence. As to the question of impartiality, a distinction must be drawn between a subjective test, which concerns the conviction of a judge in a given case, and an objective test, aimed at ascertaining whether the judge offered guarantees sufficient to exclude any legitimate doubt in this respect.” [56]
