Certezza del diritto e imparzialità del giudice: riflessioni comparatistiche

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Abstract

[automatically translated] The essay deals with identifying the benefits that full compliance with the rules that ensure an impartial exercise of jurisdiction produces reliable and consistent application of the law. The subject is treated by considering more legal experience simultaneously: one Italian, one English, one resulting from the European Court for the Protection of Human Rights. It outlines a notion of impartiality of the judge not only founded on the exact application of substantive and procedural rules governing the jurisdictional activity, but also on its external perception by the public and users of justice. The maximum common law that summarizes the central character of the appearance of impartiality is that "justice must be seen to be done". Consistent with this conceptual framework is the law of human rights on several occasions ruled in the sense of the violation of the principles of the 1950 Convention by the courts of the Contracting States which have not taken care to ensure the parties to the proceedings, and in particular defendants in criminal cases, concrete and profitable guarantees to be tried by a judge without preconceptions, the pre-established positions of conflicting interests. The conclusion reached is that the aspects related to the perception of judicial functions, in addition to those more immediately related to its content, play a decisive role on the formation of a stable and reliable set of legal rules from reasonably uniform and predictable application.
Original languageItalian
Pages45-58
Number of pages14
Publication statusPublished - 2007

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