The newest change relates to Rule 28, on the recusal of judges in procedures at the European Court of Human Rights. The new Rule provides as follows:
Rule 28 – Inability to sit and recusal1. A judge has the duty to sit in all cases assigned to him or her, unless, for the reasons set out in paragraph 2, he or she may not take part in the consideration of the case.2. A judge may not take part in the consideration of any case if(a) he or she has a personal interest in the case, including a spousal, parental or other close family, personal or professional relationship, or a subordinate relationship, with any of the parties;(b) he or she has previously acted in the case, whether as the Agent, advocate or adviser of a party or of a person having an interest in the case, or as a member of another national or international tribunal or commission of inquiry, or in any other capacity;(c) he or she, being an ad hoc judge or a former elected judge continuing to sit by virtue of Rule 26 § 3, engages in any political or administrative activity or any professional activity which is incompatible with his or her independence or impartiality;(d) he or she has expressed opinions publicly, through the communications media, in writing, through his or her public actions or otherwise, that are objectively capable of adversely affecting his or her impartiality;(e) for any other reason, his or her independence or impartiality may legitimately be called into doubt.3. Any judge who considers himself or herself to be unable to sit in a case to which he or she has been assigned, for one of the reasons listed in paragraph 2 shall, as soon as possible, in cases allocated to a Committee or Chamber formation, give notice to the President of the Section, who will decide whether the judge concerned should be exempt from sitting. In the event of any doubt on the part of the judge concerned or the President as to the existence of one of the grounds referred to in paragraph 2 of this Rule, that issue shall be decided by the Chamber. After hearing the views of the judge concerned, the Chamber shall deliberate and vote, without that judge being present. For the purposes of the Chamber’s deliberations and vote on this issue, he or she shall be replaced by the first substitute judge in the Chamber. The same shall apply if the judge sits in respect of any Contracting Party concerned in accordance with Rules 29 and 30.4. Only parties to the proceedings may request recusal of a judge assigned to sit in their case for the reasons listed in paragraph 2 of this Rule. Any such request must be duly reasoned and lodged as soon as possible after the party concerned learns about the existence of such reasons. It shall be decided by the Chamber in accordance with the procedure described in paragraph 3 of the present Rule. The parties shall be informed whether or not their request has been accepted.5. The provisions above shall apply, mutatis mutandis, in cases before the Grand Chamber, and – under the authority of the President of the Court – to judges acting as a single judge under Article 27 of the Convention and as duty judge in accordance with Rule 39 of the Rules of Court.
The background of the change is a further strengthening of judicial impartiality as a foundation for the rule of law, human rights, and the good administration of justice, as the President of the Court explains in an accompanying practice direction. It expressly codifies an already existing practice.
Complementing this change, a full list of the different judicial formations operating within each of the five Sections, including the list of single judges designated by State, have been made public on the website of the Court. This way, parties in proceedings will be able to know more easily which judges will sit on their case. The current changes were made after consultation with the Contracting Parties, organisations with experience in representing applicants, and several bar associations.
For critical observers of the Court, the degree to which the Court itself aligns its practice with the guarantees of the right to a fair trial under Article 6 ECHR, which binds the Contracting Parties but not the Court itself, has always been a sticky point. This especially applies to length of proceedings - something which, by the way, is not mainly in the hands of the Courts, as it very much depends on means provided by the States. But for this other aspect, recusal of judges, safeguards for a fair trial have now been further strengthened.