Therefore, judges should be carefully selected and schooled. A psychological test
could be part of the procedure, as well as interviews and simulations of court
sessions with actors. In addition, every candidate should be screened, should be
able to present recommendations, and should pass a test.
13.2.2.2 Remuneration
Guaranteeing impartiality costs money. Judges should not be tempted to take
money in exchange for certain decisions because their remuneration is not sufficient
to satisfy needs that must be deemed reasonable in relation to their social position.
Their salaries should therefore be at least as high as what a private lawyer would
gain, and preferably slightly higher. Paying less and counting on their magnanimity
mean asking for trouble.
A fine source for judges’ starting salaries can be found in the bi-annual reports of the
European Commission for the Efficiency of Justice (CEPEJ). In Europe, the common law
countries remunerate their judges far better, with 4–5 times the national average salary (€
110,000 a year). France and Austria really take risks with only factor 1.1 (€40,000). These
figures are food for reflection: what do these differences tell us about the position of the
judicature in the state framework?13.2.2.3 Exemption and Challenge
ExemptionJudges who feel that their impartiality might be questioned in a certain
case should exempt themselves, either by following a formal procedure provided by
national law or by arranging informally that he or she will not decide the case.
Challenge If, nevertheless, parties have good reasons to suppose that a judge
trying their case is prejudiced, even though he has not exempted himself, national
law should provide a procedure to challenge this. Of course, this is a sensitive
matter since who should decide on a challenge? Although it is evident that only
judges should take the decision, it has the drawback that the impartiality of a judge
will be judged by his colleagues. To guarantee their neutrality, challenge chambers
can be recruited from judges of other courts. The case itself should be stayed
awaiting the outcome of the challenge since a potentially partial judge should not
be allowed to take any decision before his impartiality has been established.
After a challenge, impartiality is assessed by applying a double test. The
subjective test should establish whether the judge acts with personal bias, i.e. on
a personal conviction that favors one of the parties. According to the objective test,
“it must be determined whether, quite apart from the judge’s personal conduct,
there are ascertainable facts which may raise doubts as to his impartiality” (ECtHR
24 May 1989,Hauschildt v. Denmark).
Mogens Hauschildt was suspected of a massive tax fraud for which he was taken into
detention on remand. The judge who had to decide on orders of further remand in custody
also presided over the trial itself. Since the orders of remand were based on an assessment
of the evidence against Hauschildt, which should have provided a “particularly confirmed13 Elements of Procedural Law 291