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You are here: BAILII >> Databases >> European Court of Human Rights >> BULUT v. AUSTRIA - 17358/90 [1996] ECHR 10 (22 February 1996) URL: http://www.bailii.org/eu/cases/ECHR/1996/10.html Cite as: 24 EHRR 84, (1997) 24 EHRR 84, [1996] ECHR 10

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In the case of Bulut v. Austria (1),

The European Court of Human Rights, sitting, in

accordance with Article 43 (art. 43) of the Convention for the

Protection of Human Rights and Fundamental Freedoms ("the

Convention") and the relevant provisions of Rules of Court B (2),

as a Chamber composed of the following judges:

Mr R. Ryssdal, President,

Mr F. Matscher,

Mr C. Russo,

Mr J. De Meyer,

Mr I. Foighel,

Mr J.M. Morenilla,

Mr L. Wildhaber,

Mr D. Gotchev,

Mr P. Jambrek,

and also of Mr H. Petzold, Registrar,

Having deliberated in private on 26 October 1995 and

23 January 1996,

Delivers the following judgment, which was adopted on the

last-mentioned date:

_______________

Notes by the Registrar

1. The case is numbered 59/1994/506/588. The first number is

the case's position on the list of cases referred to the Court

in the relevant year (second number). The last two numbers

indicate the case's position on the list of cases referred to the

Court since its creation and on the list of the corresponding

originating applications to the Commission.

2. Rules of Court B, which came into force on 2 October 1994,

apply to all cases concerning the States bound by Protocol No. 9

(P9).

_______________

PROCEDURE

1. The case was referred to the Court on 19 December 1994 by

the Government of the Republic of Austria ("the Government"),

within the three-month period laid down by Article 32 para. 1 and

Article 47 (art. 32-1, art. 47) of the Convention. It originated

in an application (no. 17358/90) against Austria lodged with the

European Commission of Human Rights ("the Commission") under

Article 25 (art. 25) by a Turkish national, Mr Mikdat Bulut, on

5 October 1990.

The Government's application referred to Article 48

(art. 48) and its object was to obtain a decision as to whether

the facts of the case disclosed a breach of its obligations under

Article 6 para. 1 (art. 6-1) of the Convention.

2. In response to the enquiry made in accordance with

Rule 35 para. 3 (d) of Rules of Court B, the applicant designated

the lawyer who would represent him (Rule 31).

The Turkish Government, who had been informed by the

Registrar of their right to intervene (Article 48 (b) of the

Convention and Rule 35 para. 3 (b) of Rules of Court B)

(art. 48-b), did not indicate any intention of so doing.

3. The Chamber to be constituted included ex officio

Mr F. Matscher, the elected judge of Austrian nationality

(Article 43 of the Convention) (art. 43), and Mr R. Ryssdal, the

President of the Court (Rule 21 para. 3 (b)). On

27 January 1995, in the presence of the Registrar, the President

drew by lot the names of the other seven members, namely

Mr C. Russo, Mr J. De Meyer, Mr I. Foighel, Mr J.M. Morenilla,

Mr L. Wildhaber, Mr D. Gotchev and Mr P. Jambrek (Article 43 in

fine of the Convention and Rule 21 para. 4) (art. 43).

4. As President of the Chamber (Rule 21 para. 5),

Mr Ryssdal, acting through the Registrar, consulted the Agent of

the Government, the applicant's lawyer and the Delegate of the

Commission on the organisation of the proceedings (Rules 39

para. 1 and 40). Pursuant to the order made in consequence, the

Registrar received the applicant's memorial on 11 August 1995.

In a letter of 2 August 1995 the Government had informed the

Court that they did not wish to submit a written memorial. The

Secretary to the Commission subsequently informed the Registrar

that the Delegate would submit his observations at the hearing.

5. On 4 October 1995 the Commission produced the file on the

proceedings before it, as requested by the Registrar on the

President's instructions.

6. In accordance with the President's decision, the hearing

took place in public in the Human Rights Building, Strasbourg,

on 23 October 1995. The Court had held a preparatory meeting

beforehand.

There appeared before the Court:

(a) for the Government

Mr W. Okresek, Head of the International

Affairs Division, Constitutional Service,

Federal Chancellery, Agent,

Ms I. Gartner, Federal Ministry of Justice, Counsel,

Ms E. Bertagnoli, Human Rights Division,

International Law Department, Federal Ministry

of Foreign Affairs, Adviser;

(b) for the Commission

Mr M.P. Pellonpää, Delegate;

(c) for the applicant

Mr W.L. Weh, Rechtsanwalt, Counsel.

The Court heard addresses by Mr Pellonpää, Mr Weh,

Mr Okresek and Ms Gartner and also replies to its questions.

AS TO THE FACTS

I. Circumstances of the case

7. Mr Mikdat Bulut, the applicant, is a waiter. He was born

in 1969 and lives in Innsbruck.

8. In 1990 he faced charges of attempting to bribe staff of

the Innsbruck Employment Agency. He had offered money to two

civil servants as an inducement to issue him false certificates.

9. On 6 March 1990, before the trial at the Innsbruck

Regional Court (Landesgericht) had begun, the presiding judge,

Mr Werus, sent a note to Mr Heiss, the applicant's lawyer at the

time, informing him that one of the members of the court,

Judge Schaumburger, had taken part in the questioning of two

witnesses during the preliminary investigation. Mr Heiss was

asked to inform the court by 16 March 1990 whether he wanted to

challenge Judge Schaumburger on that ground. Mr Heiss did not

reply.

10. The trial took place on 23 March 1990. Before the court

began to hear evidence, the presiding judge again mentioned that

Mr Schaumburger had acted as investigating judge for part of the

preliminary proceedings. The record of the trial states that the

parties waived the right to raise this point as a ground of

nullity ("Auf Geltendmachung dieses Umstandes als

Nichtigkeitsgrund wird allseits verzichtet").

11. In a statutory declaration (eidesstättige Erklärung)

submitted during the proceedings before the European Commission

of Human Rights, Mr Heiss stated that he had answered the

question whether he was prepared to waive the right to raise the

point as a ground of nullity by saying that, in his view, it was

not possible to waive the right to raise questions relating to

the disqualification of a judge. He considered that it was only

possible to waive a challenge to a judge if it was for

partiality. In a document which was likewise submitted to the

Commission Mr Werus stated that the waiver had been made as

recorded. He added that he remembered Mr Heiss adding words to

the effect that he did not consider the waiver to be valid.

12. The applicant was found guilty as charged and fined

25,200 Austrian schillings (ATS), suspended for three years.

13. Mr Bulut filed an appeal on grounds of nullity

(Nichtigkeitsbeschwerde) and an appeal (Berufung) against

sentence to the Supreme Court (Oberster Gerichtshof). In his

appeal on grounds of nullity under Article 281 para. 1 (1) of the

Code of Criminal Procedure (Strafprozeßordnung - see paragraph 19

below) the applicant alleged that he had been heard by a judge

who was disqualified from sitting by law (ex lege). He further

alleged breaches of Article 281 para. 1 (4), (5) and (9)(a). In

connection with sub-paragraph (4) (see paragraph 19 below), the

applicant complained that the trial court should have tested the

witnesses' ability to recognise the applicant's voice over the

telephone. Under sub-paragraph (5) (see paragraph 19 below) he

further complained, inter alia, that the trial court had found

two witnesses completely credible and had found that

inconsistencies in their stories were easily explained as

mistakes of memory. He alleged that the contradictions were

fundamental and that there should have been a confrontation

between the two witnesses and the applicant's brother, who had

for a while been suspected of the offence. The prosecution also

appealed against sentence.

14. On 29 June 1990, the Attorney-General (Generalprokurator)

filed the following observations ("croquis") with the Supreme

Court:

"In the view of the Attorney-General's Office, the appeal

lodged by the accused, Mr Mikdat Bulut, meets the

criteria for a decision under Article 285d of the Code of

Criminal Procedure. A copy of the decision is

requested."

These observations were not disclosed to the defence.

15. On 7 August 1990 the Supreme Court rejected the

applicant's appeal under Article 285d para. 1 of the Code of

Criminal Procedure (see paragraph 20 below). After confirming

that a disqualified judge had taken part in the trial, the

Supreme Court referred to the waiver entered in the record of the

trial, and noted that Article 281 para. 1 (1) required a ground

of nullity relating to Articles 67 and 68 of the Code of Criminal

Procedure (see paragraph 18 below) first to have been raised at

the trial itself. In respect of the grounds of nullity under

Article 281 para. 1 (5), the Supreme Court found that the

complaints were an attempt to challenge the assessment of the

evidence made by the trial judges and as such inadmissible and

insufficient to constitute a ground of nullity. Notwithstanding

the applicant's assertion to the contrary, the Supreme Court also

found that there had in fact been a confrontation between the two

witnesses and the applicant's brother. The appeal on grounds of

nullity was rejected. The Supreme Court remitted the applicant's

appeal against sentence to the Innsbruck Court of Appeal

(Oberlandesgericht).

16. On 3 October 1990, after a hearing, the Innsbruck Court

of Appeal increased the applicant's sentence to nine months'

imprisonment, suspended for three years.

II. Relevant domestic law and practice

17. By Article 90 para. 1 of the Federal Constitution,

"Hearings by trial courts in civil and criminal cases

shall be oral and public. Exceptions may be prescribed

by law."

18. Article 68 para. 2 of the Code of Criminal Procedure

provides that a person shall be disqualified (ausgeschlossen)

from participating in a trial if he has acted as investigating

judge in the same case.

19. Article 281 para. 1 of the Code of Criminal Procedure

lays down the specific circumstances in which an appeal on

grounds of nullity may be made, including:

"1. if the court was not properly constituted, ... or

if a judge took part in the decision who was disqualified

(under Articles 67 and 68), unless the ground of nullity

was known to the appellant before or during the trial and

was not raised by him at the beginning of the trial or as

soon as he became aware of it;

...

4. if during the trial no decision was given on an

application by the appellant or in an interlocutory

decision rejecting an application or objection by him the

court disregarded or incorrectly applied laws or rules of

procedure with which compliance is required by the very

nature of a procedure which affords safeguards to the

prosecution and the defence;

5. if the judgment of the trial court in respect of

decisive facts is unclear, incomplete or

self-contradictory; ...

..."

20. Article 285d para. 1 of the Code of Criminal Procedure

provides:

"During the private deliberations, an appeal on grounds

of nullity may be rejected immediately:

1. if it ought to have been rejected by the court at

first instance under Article 285a ...;

2. if it is based on the grounds of nullity enumerated

in Article 281 para. 1 (1-8 and 11) and if the Supreme

Court unanimously finds that the complaint should be

dismissed as manifestly ill-founded without any need for

further deliberation."

21. Following the Brandstetter v. Austria judgment of

28 August 1991 (Series A no. 211) and since 1 September 1993,

Article 35 para. 2 of the Code of Criminal Procedure reads as

follows:

"If the public prosecutor at an appellate court submits

observations on an appeal on grounds of nullity ..., the

appellate court shall communicate those observations to

the accused (person concerned), advising him that he may

submit comments on them within a reasonable period of

time that it shall determine. Such communication may be

dispensed with if the prosecutor confines himself to

opposing the appeal without adducing any argument, if he

merely supports the accused or if the accused's appeal is

upheld."

PROCEEDINGS BEFORE THE COMMISSION

22. Mr Bulut applied to the Commission on 5 October 1990. He

relied on Article 6 para. 1 (art. 6-1) of the Convention,

complaining that the trial court had included a judge

disqualified from sitting by law. He further complained that no

hearing had been held in the Supreme Court, that the

Attorney-General had submitted to the Supreme Court observations

which had not been made available to the defence and that the

Supreme Court had divulged the name of the judge rapporteur to

the Attorney-General contrary to the relevant legal provisions.

23. The Commission declared the application (no. 17358/90)

admissible on 2 April 1993. In its report of 8 September 1994

(Article 31) (art. 31), it expressed the opinion that:

(a) there had been no violation on account of

Judge Schaumburger's participation in the trial

(twenty-five votes to one), or on account of the Supreme

Court's failure to hold a hearing (unanimously), or on

account of the fact that the name of the judge rapporteur

was communicated to the Attorney-General (unanimously);

(b) there had been a violation of Article 6 para. 1

(art. 6-1) of the Convention on account of the

Attorney-General's submission to the Supreme Court of

observations of which the applicant was not aware

(twenty-five votes to one).

The full text of the Commission's opinion and of the

dissenting opinion contained in the report is reproduced as an

annex to this judgment (1).

_______________

Note by the Registrar

1. For practical reasons this annex will appear only with the

printed version of the judgment (in Reports of Judgments and

Decisions - 1996), but a copy of the Commission's report is

obtainable from the registry.

_______________

FINAL SUBMISSIONS TO THE COURT

24. At the hearing the Agent of the Government requested the

Court to hold that there had been no violation of Article 6

(art. 6) of the Convention.

The applicant invited the Court to hold that the

Convention had been breached on three accounts:

Judge Schaumburger's participation in the trial; the Supreme

Court's failure to hold a hearing and the Attorney-General's

passing of undisclosed observations to the Supreme Court.

AS TO THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 (art. 6-1) OF THE

CONVENTION

25. The applicant alleged a breach of Article 6 para. 1

(art. 6-1) of the Convention, which, in so far as relevant,

provides:

"In the determination of ... any criminal charge against

him, everyone is entitled to a fair and public hearing

... by an ... impartial tribunal established by law ..."

The Court will deal with each of the applicant's three

individual complaints. They concern the participation in the

trial of a judge who had previously participated in the

preliminary investigation; the Supreme Court's failure to hold

a hearing and the submission of observations by the

Attorney-General ("croquis") of which the applicant was not aware

and on which he did not have an opportunity to comment.

The applicant's further complaint that the Supreme Court

had divulged the name of the judge rapporteur to the

Attorney-General, contrary to the relevant domestic legal

provisions, which was declared admissible by the Commission (see

paragraph 23 above), was abandoned before the Court, which sees

no reason to entertain it of its own motion.

A. Participation of Judge Schaumburger in the trial

26. The applicant submitted that Article 68 para. 2 of the

Code of Criminal Procedure (see paragraph 18 above) clearly

provided that a judge who had acted in the preliminary

investigation of a case was disqualified from taking part in the

trial. Since this ground of disqualification was mandatory, no

discretion being conferred on the accused, no "waiver" could

lawfully be made. At all events, in the instant case,

notwithstanding the contents of the record of the trial (see

paragraph 10 above), the defence lawyer did not waive the right

to raise the issue of Judge Schaumburger's participation in the

trial as a ground of nullity. On the contrary, he expressly

stated that such a waiver would be legally impossible. In

conclusion, the applicant submitted that he had been tried by a

court that was neither "impartial" nor "established by law"

within the meaning of Article 6 (art. 6) of the Convention and

Article 68 para. 2 of the Code of Criminal Procedure.

27. In the Government's submission, Article 68 para. 2 did

not constitute a ground for automatic disqualification. It

should be read together with Article 281 para. 1 (1) of the Code

of Criminal Procedure (see paragraph 19 above), which provided

that the participation of a disqualified judge in the trial only

rendered the judgment null and void if it was challenged by the

defendant immediately after he learned about it. In the present

case, the presiding judge had informed the defence before the

trial that one of the members of the court had taken part in the

investigation proceedings. He had then invited the applicant's

lawyer to say whether he wished to challenge that judge on that

account. The applicant's lawyer had not replied (see

paragraph 9 above). At the hearing, before the court began to

take evidence, the presiding judge had again enquired whether the

parties had any objection to Judge Schaumburger's participation.

The record of the trial showed that the parties had waived their

right to raise this point as a ground of nullity (see

paragraph 10 above). No request was filed for an amendment or

rectification of the record of the trial.

Contrary to what occurred in the case of Pfeifer and

Plankl v. Austria (judgment of 25 February 1992, Series A

no. 227, pp. 16-17, paras. 35-39), in which the Court took the

view that the waiver was invalid, the offer of waiver in the

present case, as the record of the trial shows, was accepted by

experienced legal counsel in an unequivocal manner.

28. The Commission, while finding the stringency with which

Austrian law precluded an investigating judge from participating

in a trial to be in line with Article 6 (art. 6) of the

Convention, noted that the presence of an investigating judge at

the trial was not so undesirable that an accused should not be

permitted to accept that judge's participation, provided that the

accused was able to consent on the basis of all the relevant

information and without undue pressure. Otherwise, the

Commission agreed with the main thrust of the Government's

arguments and found that the applicant was entitled to, and

validly did, waive his right to challenge Judge Schaumburger.

29. As regards the question whether the trial court was a

tribunal "established by law", the Court notes at the outset that

there appears to be an inconsistency between Article 68 para. 2,

under which an investigating judge is disqualified from

participating in the trial by the automatic operation of law, and

Article 281 para. 1 (1), in which the same situation only gives

rise to a ground of nullity. However, it is primarily for the

national authorities, notably the courts, to resolve problems of

interpretation of domestic legislation (see, mutatis mutandis,

the Casado Coca v. Spain judgment of 24 February 1994, Series A

no. 285-A, p. 18, para. 43). In the instant case the Court

observes that both the Innsbruck Regional Court and the Supreme

Court interpreted the law as meaning that a waiver could lawfully

be made (see paragraph 15 above). The Court sees no reason to

call into question the resolution of this issue by the Austrian

courts.

30. Regardless of whether a waiver was made or not, the Court

has still to decide, from the standpoint of the Convention,

whether the participation of Judge Schaumburger in the trial

after taking part in the questioning of witnesses at the

pre-trial stage could cast doubt on the impartiality of the trial

court.

31. When the impartiality of a tribunal for the purposes of

Article 6 para. 1 (art. 6-1) is being determined, regard must be

had not only to the personal conviction of a particular judge in

a given case - the subjective approach - but also whether he

afforded sufficient guarantees to exclude any legitimate doubt

in this respect - the objective approach (see, among many other

authorities, the Piersack v. Belgium judgment of 1 October 1982,

Series A no. 53, p. 14, para. 30).

32. There has been no suggestion in the present case of any

prejudice or bias on the part of Judge Schaumburger. It follows

that the Court cannot but presume his personal impartiality (see

the Le Compte, Van Leuven and De Meyere v. Belgium judgment of

23 June 1981, Series A no. 43, p. 25, para. 58).

There thus remains the application of the objective test.

33. In the instant case the fear that the trial court might

not be impartial was based on the fact that one of its members

had questioned witnesses during the preliminary investigation.

Undoubtedly, this kind of situation may give rise to misgivings

on the part of the accused as to the impartiality of the judge.

However, whether these misgivings should be treated as

objectively justified depends on the circumstances of each

particular case; the mere fact that a trial judge has also dealt

with the case at the pre-trial stage cannot be held as in itself

justifying fears as to his impartiality (see, mutatis mutandis,

the Hauschildt v. Denmark judgment of 24 May 1989, Series A

no. 154, pp. 21-22, paras. 49-50, and the Nortier v. the

Netherlands judgment of 24 August 1993, Series A no. 267, p. 15,

para. 33).

34. In contrast to the facts of the Hauschildt case (cited

above), it has not been suggested that Judge Schaumburger was

responsible for preparing the case for trial or for deciding

whether the accused should be brought to trial. In fact, it has

not been established that he had to take any procedural decisions

at all. His role was limited in time and consisted of

questioning two witnesses. It did not entail any assessment of

the evidence by him nor did it require him to reach any kind of

conclusion as to the applicant's involvement.

In this limited context, the applicant's fear that the

Innsbruck Regional Court lacked impartiality cannot be regarded

as objectively justified (see, mutatis mutandis, the Nortier

judgment cited above, p. 16, para. 37). In any event, it is not

open to the applicant to complain that he had legitimate reasons

to doubt the impartiality of the court which tried him, when he

had the right to challenge its composition but refrained from

doing so.

There has therefore been no violation of Article 6

para. 1 (art. 6-1) of the Convention as far as the applicant's

first complaint is concerned.

B. No hearing in the Supreme Court

35. The applicant also complained that there had been no

adversarial hearing before the Supreme Court. He submitted that

the grounds of nullity under Article 281 para. 1 (4) and (5) of

the Code of Criminal Procedure (see paragraph 19 above) went

essentially to questions concerning the ascertainment of various

facts and that therefore he was entitled to a hearing by virtue

of Article 6 para. 1 (art. 6-1).

The applicant contended that Austria's reservation in

respect of Article 6 (art. 6) was of a general character and

hence invalid for failure to comply with Article 64 (art. 64) of

the Convention.

36. Austria's reservation in respect of Article 6 (art. 6) of

the Convention reads as follows:

"The provisions of Article 6 (art. 6) of the Convention

shall be so applied that there shall be no prejudice to

the principles governing public court hearings laid down

in Article 90 of the 1929 version of the Federal

Constitutional Law [see paragraph 17 above]."

37. Article 64 para. 2 (art. 64-2) of the Convention provides

that any reservation to the Convention shall contain a brief

statement of the law concerned.

38. The Government submitted that the complaint at issue came

within the purview of Austria's reservation to Article 6

(art. 6). In the alternative, they pleaded that the requirements

of Article 6 para. 1 (art. 6-1) were satisfied inasmuch as the

Supreme Court's task was not to decide on factual matters, nor

in particular to review the evidence assessed by the court of

first instance, but only to examine whether the grounds of

nullity were manifestly ill-founded or not. The question was

thus of a legal nature. Accordingly, no hearing was required.

39. In the Commission's view, the applicant's appeal on

grounds of nullity did not raise any question of fact which would

have called for a hearing.

40. The Court recalls that the manner of application of

Article 6 (art. 6) to proceedings before appellate courts depends

on the special features of the proceedings involved; account must

be taken of the entirety of the proceedings in the domestic legal

order and of the role of the appellate court therein (see, as the

most recent authority, the Kerojärvi v. Finland judgment of

19 July 1995, Series A no. 322, p. 15, para. 40, as well as the

authorities cited therein).

41. The Court has held on a number of occasions that,

provided that there has been a public hearing at first instance,

the absence of "public hearings" at a second or third instance

may be justified by the special features of the proceedings at

issue. Thus proceedings for leave to appeal or proceedings

involving only questions of law, as opposed to questions of fact,

may comply with the requirements of Article 6 (art. 6) even where

the appellant was not given an opportunity of being heard in

person by the appeal or cassation court (see, among other

authorities, the Monnell and Morris v. the United Kingdom

judgment of 2 March 1987, Series A no. 115, p. 22, para. 58, and

the Sutter v. Switzerland judgment of 22 February 1984, Series A

no. 74, p. 13, para. 30).

42. In the instant case, the Court notes that a public

hearing was held at first instance. It further notes that the

Supreme Court rejected Mr Bulut's appeal pursuant to Article 285d

para. 1 of the Code of Criminal Procedure (see paragraph 20

above). Under this provision the Supreme Court, in summary

proceedings, may refuse further consideration of an appeal which

it unanimously regards as manifestly lacking any merit. The

nature of the review can therefore be compared to that of

proceedings for leave to appeal. Moreover, the Court is not

satisfied that the grounds of nullity under Article 281

para. 1 (4) and (5) of the Code of Criminal Procedure, as

formulated by the applicant (see paragraph 13 above), raised

questions of fact bearing on the assessment of the applicant's

guilt or innocence that would have necessitated a hearing. They

essentially challenged the trial court's assessment of the

available evidence, a challenge which the Supreme Court

considered inadmissible.

Accordingly, the Court finds no violation as regards the

Supreme Court's failure to hold a hearing.

43. It follows that the Court is not required to determine

the question of the validity of Austria's reservation in respect

of Article 6 (art. 6) of the Convention.

C. Attorney-General's submission of observations to the

Supreme Court

44. The applicant further complained that, after he had

lodged his appeal with the Supreme Court, the Attorney-General

submitted observations ("croquis") which were not served on the

defence.

45. In the Government's submission, Austrian law provided

that, as a general rule, observations filed by the prosecution

in an appeal on grounds of nullity should be served on the

accused together with a notice giving him the opportunity to

comment within a specified time (see paragraph 21 above).

However, this obligation did not apply in cases like the one at

issue, where the prosecution merely opposed the appeal without

giving any reasons. In that case, it was assumed that there was

no need for the accused to amend his appeal.

The Government further submitted that in the instant case

the Attorney-General merely expressed the opinion that it was

appropriate to deal with the appeal in the manner prescribed in

Article 285d of the Code of Criminal Procedure (see paragraph 14

above). These observations were of a purely procedural nature;

they contained no arguments as to the merits of the appeal. In

those circumstances, there had been no new elements for the

defence to comment on and no infringement of the equality-of-arms

requirements.

46. The Commission, on the other hand, considered that it is

inherently unfair for the prosecution to make submissions to a

court without the knowledge of the defence and on which the

defence has no opportunity to comment.

47. The Court recalls that under the principle of equality of

arms, as one of the features of the wider concept of a fair

trial, each party must be afforded a reasonable opportunity to

present his case under conditions that do not place him at a

disadvantage vis-à-vis his opponent (see the Dombo Beheer B.V.

v. the Netherlands judgment of 27 October 1993, Series A no. 274,

p. 19, para. 33). In this context, importance is attached to

appearances as well as to the increased sensitivity to the fair

administration of justice (see, mutatis mutandis, the Borgers

v. Belgium judgment of 30 October 1991, Series A no. 214-B,

p. 31, para. 24, and the authorities cited therein).

48. As regards the procureur général in the Borgers case

(cited above, p. 32, para. 26) or the Attorney-General in the

case of Lobo Machado v. Portugal (judgment of 20 February 1996,

Reports of Judgments and Decisions 1996-I, pp. 206-07,

paras. 29-31), the Court found that, while their objectivity

could not be questioned, from the moment they recommended that

an appeal be allowed or dismissed their opinion could not be

regarded as neutral. In those circumstances, Article 6 para. 1

(art. 6-1) was seen to require that the rights of the defence and

the principle of the equality of arms be respected. This applies

a fortiori in the present case, where the Attorney-General's

Office was the body charged with the prosecution.

49. As to the Government's plea that the Attorney-General's

observations merely requested that the case be dealt with under

Article 285d of the Code of Criminal Procedure without giving any

reasons (see paragraph 14 above), it is perhaps worth pointing

out that in the Lobo Machado case cited above, the Court, in the

less stringent context of a social dispute, did not consider it

admissible for the Attorney-General's representative to submit

a final statement which briefly requested that the appeal court's

decision should be upheld. In the present criminal appeal, the

submission of the observations allowed the Attorney-General to

take up a clear position as to the applicant's appeal, a position

which was not communicated to the defence and to which the

defence could not reply. In any event, as the Commission rightly

pointed out, the principle of the equality of arms does not

depend on further, quantifiable unfairness flowing from a

procedural inequality. It is a matter for the defence to assess

whether a submission deserves a reaction. It is therefore unfair

for the prosecution to make submissions to a court without the

knowledge of the defence.

50. In view of the above, the Court concludes that the

principle of the equality of arms has not been respected. There

has, therefore, been a violation of Article 6 para. 1 (art. 6-1)

on account of the Attorney-General's submission of observations

to the Supreme Court without the applicant's knowledge.

II. APPLICATION OF ARTICLE 50 (art. 50) OF THE CONVENTION

51. Article 50 (art. 50) of the Convention provides as

follows:

"If the Court finds that a decision or a measure taken by

a legal authority or any other authority of a High

Contracting Party is completely or partially in conflict

with the obligations arising from the ... Convention, and

if the internal law of the said Party allows only partial

reparation to be made for the consequences of this

decision or measure, the decision of the Court shall, if

necessary, afford just satisfaction to the injured

party."

The applicant sought compensation for pecuniary and

non-pecuniary damage as well as reimbursement of legal costs and

expenses incurred in the domestic proceedings and the proceedings

before the Convention institutions.

A. Damage

52. The applicant claimed that as a result of his conviction

he was subjected to different measures by the Immigration

Department, including two periods of detention pending

deportation, and that he and his family had been living in

permanent fear of being deported from Austria ever since. He

submitted that the costs of legal representation he had had to

bear in connection with those proceedings were directly related

to the facts in the instant case. He therefore claimed

ATS 50,000 on account of the damage suffered and a total sum of

ATS 331,710.28 in respect of the costs of legal representation

in the deportation proceedings.

53. In the Government's submission, the deportation

proceedings were the consequence of the conviction and were

wholly unconnected with any possible breach of the Convention.

54. The Court agrees with the Government. No causal link has

been established between the finding of a violation as regards

the Attorney-General's observations submitted to the Supreme

Court and the applicant's conviction, let alone the deportation

proceedings. The claims must therefore be rejected.

B. Costs and expenses

55. The applicant claimed ATS 36,540 as compensation for the

costs and expenses he had incurred in the domestic proceedings

since "his case should have been heard by a court established in

accordance with the law". He added a further ATS 219,627 on

account of costs borne in connection with his representation

before the Convention institutions.

56. The Government found the sum claimed excessive. They

considered that the sum of ATS 138,432 would cover the

applicant's overall costs in the Strasbourg proceedings. This

amount should be adjusted in the light of the number of the

applicant's complaints upheld by the Court, if any.

57. The Court notes that it has found a violation only in

respect of the observations submitted to the Supreme Court by the

Attorney-General. Any compensation should therefore reflect that

fact.

With respect to legal costs in the domestic proceedings,

the Court agrees with the Delegate of the Commission that it is

difficult to see how any of the expenses for which compensation

is claimed were incurred in order to prevent or rectify the

particular violation established by the Court. It therefore

rejects this head of the claim in its entirety.

With regard to the amounts claimed in respect of the

proceedings before the Convention institutions, the Court, in the

light of the criteria laid down in its case-law, awards the

applicant ATS 75,000 for costs and expenses less 7,328 French

francs already paid by way of legal aid. The resulting sum is

to be increased by any value added tax that may be chargeable.

C. Default interest

58. According to the information available to the Court, the

statutory rate of interest applicable in Austria at the date of

adoption of the present judgment is 6% per annum.

FOR THESE REASONS, THE COURT

1. Holds by eight votes to one that there has been no

violation of Article 6 para. 1 (art. 6-1) of the

Convention with regard to Judge Schaumburger's

participation in the trial;

2. Holds by eight votes to one that there has been no

violation of Article 6 para. 1 (art. 6-1) of the

Convention on account of the Supreme Court's failure to

hold a hearing;

3. Holds by eight votes to one that there has been a

violation of Article 6 para. 1 (art. 6-1) of the

Convention on account of the submission of observations

by the Attorney-General's Office to the Supreme Court

without communication to the defence;

4. Holds, unanimously,

(a) that the respondent State is to pay to the applicant,

within three months, 75,000 (seventy-five thousand)

Austrian schillings in respect of legal costs and

expenses, together with any value added tax that may be

chargeable, less 7,328 (seven thousand three hundred and

twenty-eight) French francs already paid by way of legal

aid, to be converted into Austrian schillings at the rate

applicable on the date of delivery of the present

judgment;

(b) that simple interest at an annual rate of 6% shall be

payable from the expiry of the above-mentioned three

months until settlement;

5. Dismisses, unanimously, the remainder of the claim for

just satisfaction.

Done in English and in French, and delivered at a public

hearing in the Human Rights Building, Strasbourg, on

22 February 1996.

Signed: Rolv RYSSDAL

President

Signed: Herbert PETZOLD

Registrar

In accordance with Article 51 para. 2 (art. 51-2) of the

Convention and Rule 55 para. 2 of Rules of Court B, the following

separate opinions are annexed to this judgment:

(a) partly concurring, partly dissenting opinion of

Mr Matscher;

(b) separate opinion of Mr De Meyer;

(c) partly dissenting opinion of Mr Morenilla.

Initialled: R. R.

Initialled: H. P.

PARTLY CONCURRING, PARTLY DISSENTING OPINION OF JUDGE MATSCHER

(Translation)

1. I agree with the Chamber's finding that

Judge Schaumburger's participation in the proceedings in the

Innsbruck Regional Court, even though he had earlier played a

minor role in the investigation of the case, did not mean that

the court which tried the applicant lacked impartiality.

However, if the Chamber is of the opinion that the right

in issue is one which the accused may waive (as, in a comparable

situation, the Court held in substance in the case of Pfeifer and

Plankl v. Austria, judgment of 25 February 1992, Series A

no. 227, pp. 16-17, para. 37) and that in the instant case there

was indeed a waiver of this right, in circumstances attended by

the necessary safeguards, all those parts of the reasoning which

go to prove in the instant case that impartiality was not in

question either subjectively or objectively speaking seem to me

to be unnecessary, even though they are in principle relevant.

Nevertheless, I should like to point out in this

connection that Austrian law (reading Article 68 para. 2 with

Article 281 para. 1 (1) of the Code of Criminal Procedure) is

slightly equivocal, although it is formally correct and

consistent.

2. I also agree with the Chamber's finding that the fact

that the Supreme Court did not hold a public hearing when it

heard the appeal on grounds of nullity did not offend against the

principle that proceedings must be public which is embodied in

Article 6 para. 1 (art. 6-1) of the Convention.

Here too a reference to point 2 of the reservation that

Austria made when ratifying the Convention, whose validity in

this respect has never been called in question by the Court,

would have settled the issue without any need to explain that in

view of the nature of the proceedings before the Supreme Court

it was unnecessary to hold a public hearing in the instant case.

3. I cannot, on the other hand, agree with the finding that

there has been a breach of Article 6 para. 1 (art. 6-1) on

account of the fact that the Attorney-General's little

memorandum, proposing that the appeal should be dismissed without

a hearing as being ill-founded within the meaning of Article 285d

of the Code of Criminal Procedure, was lodged with the Supreme

Court without having been communicated to the applicant.

The history of the Attorney-General's observations,

commonly known as a "croquis", and the doubts as to whether they

comply with the principle of equality of arms are well known;

these observations have long been a subject of scrutiny by the

Convention institutions. In order to comply with the Strasbourg

case-law, a provision (Rule 60 para. 7) was added to the Supreme

Court Rules in 1980 to the effect that where the Attorney-General

submitted "detailed observations" (ausgearbeitete Stellungnahme)

on an appeal, they should automatically be sent to the defence.

This was repeated in an instruction sent to all courts by the

Ministry of Justice in 1992. Later, when the Code of Criminal

Procedure was revised in 1993, a second paragraph was added to

Article 35 making the above rule binding, on condition, however,

that the observations of the Attorney-General's Office contained

substantive matters or arguments. Otherwise, the defence can

always inspect any written observations by the Attorney-General,

either by consulting the court's file or by merely telephoning

the court's registry to ask to be sent a copy of the

observations.

It might be thought - and I for one think - that this

arrangement wholly satisfies the requirements of the Convention.

In accordance with the instructions and provisions that

I have just cited, the Supreme Court in the instant case did not

send the Attorney-General's memorandum to the defence, as it

contained no substantive arguments; it was limited to suggesting

to the Supreme Court that the appeal on grounds of nullity should

be dismissed without a hearing as being manifestly ill-founded,

as the defence must have been aware, seeing that the

Attorney-General's Office had not lodged an appeal against the

Innsbruck Regional Court's judgment and consequently would

propose dismissal of the accused's appeal either at the hearing,

if there was one, or in its written observations. Sending this

memorandum to the defence would therefore not have provided them

with any substantive information not already available to them.

If the memorandum in question had been sent to the defence, they

would not have been able to react otherwise than by stating that

they considered their appeal to be well-founded (without being

able to add anything more), and they had already done that by

lodging their appeal. Furthermore, the defence could have

enquired of the Supreme Court's registry whether the

Attorney-General's Office had submitted any observations and, if

so, asked to be sent them, if they had really been interested in

them.

That being so - the defence having lodged an appeal on

grounds of nullity, giving full reasons, and the Attorney-General

having simply proposed dismissing this appeal, without adducing

any argument - the principle of equality of arms seems to me to

have been sufficiently complied with.

To find nevertheless that there has been a breach of

Article 6 (art. 6) in the instant case on account of the failure

to have the Attorney-General's innocuous observations sent to the

defence amounts, in my view, to a perversion of the very wise

maxim "the Convention is intended to guarantee not rights that

are theoretical or illusory but rights that are practical and

effective" (Artico v. Italy judgment of 13 May 1980, Series A

no. 37, p. 16, para. 33, third sub-paragraph).

SEPARATE OPINION OF JUDGE DE MEYER

(Translation)

I. Judge Schaumburger's participation in the trial

A. Lawfulness of the tribunal

1. Judge Schaumburger was disqualified from taking part in

the applicant's trial at the Innsbruck Regional Court

in March 1990 by virtue of Article 68 para. 2 of the Austrian

Code of Criminal Procedure. However, by Article 281 para. 1 of

the same Code, the applicant could only put forward this ground

of nullity if he had raised it at the beginning of the trial or

as soon as he had become aware of it (1).

_______________

1. Paragraphs 18 and 19 of this judgment.

_______________

There is a dispute as to whether the applicant validly

waived the right to argue that the proceedings were a nullity on

this ground. What happened in this connection at the hearing on

23 March 1990 is not wholly clear (2).

_______________

2. Paragraphs 9-11 of this judgment.

_______________

At all events, the Austrian courts held that the waiver

was valid. I agree with the Court's finding that there is no

reason to call their ruling into question (3).

_______________

3. Paragraphs 15 and 29 of this judgment.

_______________

B. Impartiality of the tribunal

2. The present case has given me cause to ponder at length

the problem which the exercise of different judicial functions

in succession by one and the same judge in the same case poses

as regards a criminal court's impartiality.

It is possible to gain the impression that our case-law

on the matter is neither consistent nor clear and that, as in

some other recent judgments, the one we are delivering today does

little to dispel the confusion and uncertainty.

3. The course to be followed in this area seemed to have

been set out clearly and unambiguously in 1982 in the Piersack

judgment and in 1984 in the De Cubber judgment.

In the Piersack judgment the Court indicated that a judge

could not take part in the trial of a case that he had already

dealt with - even if only wholly superficially - when he was on

the side of the prosecution. The principle of impartiality had

been infringed in that the judge who presided over the Brabant

Assize Court when it tried the case in question had, when he had

been senior deputy procureur du Roi in Brussels, been head of the

section of the public prosecutor's department responsible for the

prosecution of the applicant; in that capacity he had signed or

received certain (fairly innocuous) documents relating to the

case (4).

______________

4. Piersack v. Belgium judgment of 1 October 1982, Series A

no. 53, p. 6, paras. 9-11, p. 7, para. 15, and p. 16, para. 31.

______________

In the De Cubber judgment the Court held that the same

applied if the judge participating in the trial of a case had

already dealt with it as an investigating judge and had, in

particular, issued a warrant for the arrest of the accused. This

had been true of one of the three judges who had sat on the

Oudenaarde Criminal Court when it tried the applicant (5).

_______________

5. De Cubber v. Belgium judgment of 26 October 1984, Series A

no. 86, p. 8, paras. 8-10, and pp. 15 and 16, paras. 29 and 30.

_______________

The Court thus seemed to have accepted that discharging

prosecution functions, judicial-investigation functions or duties

relating to pre-trial detention was incompatible with the

subsequent discharge of the judicial function in the same case.

4. What it held in these two judgments seemed so convincing

that in the Ben Yaacoub case the respondent Government preferred

to conclude a friendly settlement rather than challenge the

Commission's opinion that a judge who, sitting in the chambre du

conseil of the Criminal Court, had ruled on the confirmation of

a warrant for an accused's arrest, on the extension of his

detention on remand and on his committal for trial could not

subsequently deal with the case as a member of the trial

court 6); the Belgian Court of Cassation had already so held in

another case after the De Cubber judgment (7).

_______________

6. Ben Yaacoub v. Belgium judgment of 27 November 1987, Series A

no. 127-A, p. 7, paras. 9 and 10, p. 8, para. 14, and pp. 11-16.

7. Ibid., p. 9, para. 15.

_______________

5. In 1991 we similarly held, in the Oberschlick case, that

the principle of impartiality had been infringed - as had,

moreover, Article 489 para. 3 of the Austrian Code of Criminal

Procedure - in that the three members of the Vienna Court of

Appeal who had quashed the order made by the Review Chamber of

the Regional Court that proceedings should be discontinued and

had referred the case back to the Regional Court had also heard

the applicant's appeal against the Regional Court's judgment

following the reference back (8).

_______________

8. Oberschlick v. Austria judgment of 23 May 1991, Series A

no. 204, p. 13, para. 16, pp. 15 and 16, paras. 22 and 23, and

pp. 23 and 24, paras. 50 and 51.

_______________

A little later, in the Pfeifer and Plankl case, which was

very similar to the instant one in that it likewise concerned the

application of Article 68 para. 2 of the Austrian Code of

Criminal Procedure, the facts were that two judges of the

Klagenfurt Regional Court had sat to try Mr Pfeifer when one of

them had, as investigating judge, issued the warrant for his

arrest and ordered his transfer to Vienna and the other, as duty

judge, had questioned him and remanded him in custody (9). In

that case we found, as in the Oberschlick case, that "Mr Pfeifer

was tried by a court whose impartiality was recognised by

national law itself to be open to doubt" and we added that "in

this respect, it [was] unnecessary to define the precise role

played by the judges in question during the investigative

stage" (10).

_______________

9. Pfeifer and Plankl v. Austria judgment of 25 February 1992,

Series A no. 227, pp. 8 and 9, paras. 7-9.

10. Ibid., p. 16, para. 36. Oberschlick judgment previously

cited, p. 23, para. 50.

_______________

6. There thus emerged a line of authority that was perhaps

rather rigorous but at all events unambiguous and clear.

I initially thought that, following that logic, we should

also find a breach of the principle of impartiality in the

present case.

7. But in 1989 we began to deviate from the path laid down

in the De Cubber judgment by suggesting, in the Hauschildt

judgment, that "the mere fact that a trial judge or an appeal

judge, in a system like the Danish, has also made pre-trial

decisions in the case, including those concerning detention on

remand, [could not] be held as in itself justifying fears as to

his impartiality" and that "special circumstances [might] in a

given case be such as to warrant a different conclusion" (11).

_______________

11. Hauschildt v. Denmark judgment of 24 May 1989, Series A

no. 154, p. 22, paras. 50 and 51.

_______________

What in the De Cubber judgment had appeared to be the

rule thus became the exception.

This method of reasoning may be explained to some extent

by the fact that in Denmark there are no investigating judges as

there are in Belgium or Austria. It did not prevent the Court

from finding a breach of the impartiality principle in the

Hauschildt case in that nine of the many orders whereby a member

of the trial court had extended the applicant's detention on

remand were based on a "particularly confirmed suspicion" - it

was only because of these "circumstances of the case" that "the

impartiality of the ... tribunals was capable of appearing to be

open to doubt" (12).

_______________

12. Ibid., pp. 22 and 23, para. 52.

_______________

In several judgments since then the Court has taken a

similar approach.

8. The Nortier case I am putting aside. In that case a

juvenile judge had sat successively as investigating judge,

review-chamber judge and trial judge in respect of a 15-year-old

prosecuted for attempted rape. In the first capacity the judge

had ordered the applicant to be placed in initial detention on

remand and also directed that a preliminary investigation should

be carried out with a view to having a psychiatric report drawn

up. As judge of the Review Chamber he had made an order for the

applicant's extended detention on remand and had twice renewed

that order.

In that case, adopting a reasoning similar to the one in

the Hauschildt case, we reached the conclusion that the principle

of impartiality had not been breached (13).

_______________

13. Nortier v. the Netherlands judgment of 24 August 1993,

Series A no. 267, pp. 7 and 8, paras. 9-12 and 15, and pp. 15 and

16, paras. 34 and 35.

_______________

It is, however, permissible to think that we could also

have based that finding, as our colleague Morenilla indicated,

on the special nature of proceedings in respect of juvenile

offenders and, in particular, on the "educational and

psychiatrical aspects of the treatment" that should be provided

for them (14).

_______________

14. Ibid., pp. 18 and 19.

_______________

9. The cases of Sainte-Marie, Fey, Padovani and Saraiva de

Carvalho were cases of ordinary criminal law.

In the Sainte-Marie case two of the three members of the

Criminal Division of the Pau Court of Appeal had earlier sat in

the Indictment Division when it had decided to uphold an order

refusing the applicant's release. They had thus, as the Court

found, made "a brief assessment of the available facts in order

to establish whether prima facie the police suspicions had some

substance and gave grounds for fearing that there was a risk of

the accused's absconding" (15).

_______________

15. Sainte-Marie v. France judgment of 16 December 1992,

Series A no. 253-A, pp. 9-11, paras. 15-18, pp. 12 and 13,

paras. 21 and 22, and p. 16, para. 33.

_______________

In the Fey case the judge sitting as a single judge in

the Zell am Ziller District Court had, before the trial,

questioned the complainant, sent a rogatory letter to another

District Court and obtained information from a German court, a

bank and two insurance companies (16).

_______________

16. Fey v. Austria judgment of 24 February 1993, Series A

no. 255-A, pp. 7-9, paras. 9-14.

_______________

In the Padovani case the Bergamo magistrate had, in

immediate proceedings (giudizio direttissimo), tried an accused

whom the police had arrested nine days earlier and brought before

him. Before the trial he had questioned him and two other

accused and twice confirmed his arrest, noting on the second

occasion that there was "sufficient evidence pointing to

Mr Padovani's guilt" (17).

_______________

17. Padovani v. Italy judgment of 26 February 1993, Series A

no. 257-B, pp. 16 and 17, paras. 10-12.

_______________

In the case of Saraiva de Carvalho, the President of the

division of the Lisbon Criminal Court before which the applicant

had appeared had earlier, as the judge responsible for the case,

issued the despacho de pronúncia, which meant that there was, in

his view, sufficient evidence to "enable a reliable assessment

to be made of the probability of guilt". In so doing he also

decided that the applicant should be kept in pre-trial

detention (18).

_______________

18. Saraiva de Carvalho v. Portugal judgment of 22 April 1994,

Series A no. 286-B, p. 32, paras. 11 and 12.

_______________

In each of these four cases the Court held that the

principle of impartiality had not been infringed.

10. The Court held likewise more recently in the Diennet

case. This case, however, was slightly different from the ones

discussed above, firstly in that it was not ordinary criminal law

that was at issue but professional discipline, and secondly in

that it posed the problem, already raised in the Ringeisen case,

of the membership of a judicial body rehearing a case after an

earlier decision has been quashed.

It had already been held in the Ringeisen judgment that

"it cannot be stated as a general rule resulting from the

obligation to be impartial that a superior court which sets aside

an administrative or judicial decision is bound to send the case

back to a different jurisdictional authority or to a differently

composed branch of that authority" (19). The Court similarly

found in the Diennet case that "no ground for legitimate

suspicion [could] be discerned in the fact that three of the

seven members of the disciplinary section" of the National

Council of the Ordre des médecins had "taken part in the first

decision" that had been taken by that section in respect of

misconduct of which he was accused and had subsequently been set

aside by the Conseil d'Etat (20).

_______________

19. Ringeisen v. Austria judgment of 16 July 1971, Series A

no. 13, p. 40, para. 97.

20. Diennet v. France judgment of 26 September 1995, Series A

no. 325-A, p. 8, paras. 7-12, and p. 16, para. 38.

_______________

In actual fact the Ringeisen and Diennet cases did not,

properly speaking, raise the issue of the discharge of different

judicial functions in succession, since in both cases the bodies

in question had to discharge the same function as on the occasion

of their "first decision". And where that function in fact

consists in finding someone's guilt or imposing a penalty on him,

the situation is even more problematic from the point of view of

impartiality than the one which arises where judges sitting in

a trial court have earlier discharged judicial-investigation

functions in the same case or taken decisions on the pre-trial

detention of the accused.

11. Taking all the foregoing into consideration, it may be

thought that our case-law on the concept of an "impartial

tribunal" has become very "uncertain" (21).

_______________

21. See the dissenting opinion of Mr Morenilla in the Diennet

case, ibid., pp. 19-20.

_______________

In these various cases were there differences between the

functions discharged by the judges in question which justified

the different conclusions reached by the Court? And what was the

relevance of them?

According to several of the judgments, there were

differences in the "extent", "scope" or "nature" of the "measures

taken by the judge before the trial" (22). But we have never

said clearly what that might mean.

_______________

22. Hauschildt judgment previously cited, p. 22, para. 50 ("the

nature", "la nature"). Fey judgment previously cited, p. 12,

para. 30 ("the extent and nature", "l'étendue et la nature").

Nortier judgment previously cited, p. 15, para. 33 ("the scope

and nature", "la portée et la nature"). Saraiva de Carvalho

judgment previously cited, p. 38, para. 35 ("the scope and

nature", "l'étendue et la nature").

_______________

12. The "nature of the functions which the judges involved in

[the] case exercised before taking part in its

determination" (23) was fairly varied. Except in the Diennet

case, what was involved was various kinds of investigative

measures or steps in the preparation of the trial or decisions

relating to pre-trial detention. But these differences in kind

or "nature" do not seem to have weighed decisively with the Court

in one direction or the other.

_______________

23. Hauschildt judgment previously cited, loc. cit.

_______________

Was the difference due to the fact that, as we said in

the Hauschildt judgment, "suspicion and a formal finding of guilt

are not to be treated as being the same" (24)? No doubt there

is a difference in kind or "nature" there, and perhaps also in

"extent" or "scope", but it cannot have been of much use as a

criterion for assessing the impartiality of the judges concerned,

since there had been no "formal finding of guilt" in any of the

cases cited above, except of course in the Diennet case.

_______________

24. Ibid.,loc. cit.

_______________

There is probably also some difference between the brief

assessment of the substance of police suspicions (25) and that

of whether there is a "particularly confirmed suspicion" (26).

But in what way must such suspicions be stronger than those which

may be based on "sufficient evidence pointing to ... guilt" (27)

or on "evidence ... sufficient to enable a reliable assessment

to be made of the probability of guilt" (28)?

_______________

25. Sainte-Marie judgment previously cited, p. 16, para. 33.

26. Hauschildt judgment previously cited, p. 22, para. 52.

27. Padovani judgment previously cited, p. 17, para. 11.

28. Saraiva de Carvalho judgment previously cited, p. 32,

para. 12.

_______________

The "detailed knowledge of the case" acquired by the

judge who issued the despacho de pronúncia in the Saraiva de

Carvalho case did not prevent the Court from considering him as

"being impartial when the case came to trial" (29), whereas,

according to the De Cubber judgment, the "particularly detailed"

knowledge of the file that has been acquired by an investigating

judge in the course of his inquiries was one of the reasons why

he should have been excluded from the trial court (30). What is

the difference between these two kinds of detailed knowledge?

Or must it be recognised, rather, that, as Mr Spielmann pointed

out in the Fey case, "no distinction should be drawn between

extensive investigations and less extensive investigations" - it

was a matter of principle (31)?

_______________

29. Ibid., p. 39, para. 38.

30. De Cubber judgment previously cited, p. 16, para. 29.

31. Fey judgment previously cited, p. 15.

_______________

13. These over-subtle distinctions, which give rise to

uncertainty and confusion, are scarcely compatible with legal

certainty.

As regards a tribunal's impartiality, we must firstly, it

seems to me, not be obsessed with "appearances", as we too often

are in the reasoning of our judgments, but simply take into

account the reality of the proceedings, in the light of what

common sense tells us.

That being so, we must above all endeavour to formulate

rules that are as precise as possible and will enable litigants

to see things more clearly.

Leaving aside the special problem of the criminal law in

respect of juveniles, which the Nortier case was concerned with,

and of judicial bodies which have to rehear a case after their

original decision has been set aside, as in the Diennet case, I

am prompted to distinguish several types of case.

14. It is obviously not appropriate that someone who has

already dealt with the case as a party or representative of a

party, whether on the prosecution side or for the defence and

even if only minimally or purely formally, should subsequently

deal with it as a member of a trial court. That is wholly

unhealthy and the Court so held in the Piersack case.

15. What of the situation where a judge has taken decisions

in respect of the accused's pre-trial detention? It may be said

that such decisions, whether favourable or unfavourable to the

accused, mean that the judge who takes them must, as the terms

of Article 5 (art. 5) of the Convention indicate, have determined

whether there is "reasonable suspicion" of his having committed

an offence or whether it is "reasonably considered necessary to

prevent his committing an offence or fleeing after having done

so". But is that sufficient to put the judge's impartiality in

doubt and consequently rule out his taking part later in the

trial of the case?

It may be considered that it is, but it may equally be

considered that it is not.

Have we not, in some of our judgments, given undue weight

to the necessarily biased and subjective point of view of the

accused? Have we sufficiently considered the objective and

reasonable justification for his fears?

I will go no further here than to raise questions. They

do not have to be settled in the instant case, but further

serious thought will have to be given to them.

16. The position of a judge who has taken a decision to

charge, to commit for trial or not to bring charges is very

similar to that of a judge who has taken a decision concerning

pre-trial detention.

It raises the same questions and these must probably be

answered in the same way.

17. The questions raised under 15 and 16 above cannot be

answered differently according as the decisions in question were

taken by a judge specifically responsible for the preliminary

investigation, as in the De Cubber case, or by the trial judge

himself as such, as in the Padovani and Saraiva de Carvalho

cases.

18. There remains the case of a judge who has carried out

what I would call purely preparatory or preliminary steps, such

as questioning an accused or witnesses, gathering information,

seizing objects connected with the offence or ordering an expert

opinion. Such steps (32) are neutral in themselves and, as such,

certainly do not suffice for it to be assumed a priori that the

judge who carries them out will consequently be prejudiced, one

way or the other, when the case comes to trial. The more

detailed knowledge thus acquired by the judge concerned is more

an advantage than a drawback; it is no bad thing if justice is

done in full knowledge of the facts.

_______________

32. It is of little importance whether the judge who carries

them out is described as an "investigating judge" or not.

_______________

Purely preparatory or preliminary steps of this kind were

what was carried out in the Fey case by Mrs Kohlegger and also

in the instant case by Mr Schaumburger, who had merely questioned

two witnesses (33).

_______________

33. Paragraphs 9, 33 and 34 of this judgment.

_______________

That is why I ultimately think that the principle of

impartiality was not infringed in the present case.

II. No adversarial hearing before the Supreme Court

19. The applicant's appeal on grounds of nullity raised not

only issues of law but also issues of fact - whether he had

really waived his right to rely on Article 68 para. 2 of the Code

of Criminal Procedure and the questions he had raised as to the

credibility of the witnesses and the alleged incompleteness and

contradictoriness of the examination and determination of the

facts by the court of first instance (34).

_______________

34. Paragraphs 13 and 19 of this judgment.

_______________

In my view, that made an adversarial hearing

necessary (35).

_______________

35. See the Ekbatani v. Sweden judgment of 26 May 1988, Series A

no. 134, p. 14, para. 32, and the Helmers v. Sweden judgment of

29 October 1991, Series A no. 212-A, p. 17, para. 35, and also

the dissenting opinions annexed to the Jan-Åke Andersson

v. Sweden and Fejde v. Sweden judgments of the same date,

Series A no. 212-B, pp. 48 and 49, and Series A no. 212-C, pp. 71

and 72.

_______________

20. I also consider that Austria's reservation in respect of

Article 6 (art. 6) of the Convention cannot be relied on in this

case; as I have already pointed out in another case, Article 64

(art. 64) of the Convention does not allow situations that are

incompatible with the fundamental rights guaranteed in the

Convention to continue indefinitely (36).

_______________

36. Belilos v. Switzerland judgment of 29 April 1988, Series A

no. 132, p. 36.

_______________

III. The observations of the Attorney-General at the Supreme

Court

21. On this point I have no difficulty in agreeing with the

Court's conclusion. A single sentence would have been enough to

justify it.

It is manifestly unacceptable that observations may be

filed with a court by the prosecution without the knowledge of

the defence.

This is certainly not a matter of "appearances" but of

real and rather shocking fact.

PARTLY DISSENTING OPINION OF JUDGE MORENILLA

(Translation)

1. My disagreement with the majority relates solely to their

finding that there has been no breach of Article 6 para. 1

(art. 6-1) of the Convention in respect of Judge Schaumburger's

participation in the trial proceedings although he had "acted as

investigating judge for part of the preliminary proceedings"

(paragraph 10 of the judgment) including "the questioning of two

witnesses during the preliminary investigation" (paragraph 9 of

the judgment).

2. In my opinion, that fact amounted to a breach of

Mr Bulut's right to have the criminal charge against him heard

by an impartial tribunal in accordance with Article 6 para. 1

(art. 6-1). In the De Cubber v. Belgium judgment of

26 October 1984 (Series A no. 86, pp. 15-16) the Court explained

at length the reasons why investigation functions are

incompatible with those of trying a case where, "through the

various means of inquiry which he will have utilised at the

investigation stage," a judge, "unlike his colleagues, [has]

already ... acquired well before the hearing a particularly

detailed knowledge of the - sometimes voluminous - file or files

which he has assembled. Consequently, it is quite conceivable

that he might, in the eyes of the accused, appear, firstly, to

be in a position enabling him to play a crucial role in the trial

court and, secondly, even to have a pre-formed opinion which is

liable to weigh heavily in the balance at the moment of the

decision" (loc. cit., p. 16, para. 29). In the same judgment

(p. 16, para. 30) the Court held: "... a restrictive

interpretation of Article 6 para. 1 (art. 6-1) - notably in

regard to observance of the fundamental principle of the

impartiality of the courts - would not be consonant with the

object and purpose of the provision (art. 6-1), bearing in mind

the prominent place which the right to a fair trial holds in a

democratic society within the meaning of the Convention (see the

Delcourt v. Belgium judgment of 17 January 1970, Series A no. 11,

pp. 14-15, para. 25 in fine)."

3. The clarity and the very tone of this doctrine - which

has led to changes in legislation and in the judicial system in

States parties to the Convention, such as Spain - have been

attenuated, however, by later judgments of the Court, beginning

with the Hauschildt v. Denmark judgment of 24 May 1989 (Series A

no. 154). Under this new case-law, each case is to be examined

to ascertain whether there were guarantees "sufficient" to

exclude any legitimate doubt in this respect on the part of the

accused. In my dissenting opinion in the Diennet v. France case

(judgment of 26 September 1995, Series A no. 325-A) I criticised

this approach of the Court's to the problem of a tribunal's

impartiality on account of the uncertainty it entailed.

4. The present judgment, to my regret, continues this trend

and departs even further from the earlier case-law, not only in

finding no breach of Article 6 (art. 6) but also in the reasoning

adopted by the majority in order to reach that finding. The

majority hold that in the "limited" context of the case, the

applicant's fear as to the impartiality of the court which tried

and convicted him cannot be regarded as objectively justified.

The reasons set out by the majority in paragraph 34 to support

their finding do not seem to me to be persuasive, however. On

the contrary, their analysis strengthens my opinion that the

circumstances of the case should not be seen as justifying an

exception to the principle laid down in the De Cubber judgment.

5. To begin with, the right to an impartial tribunal is a

"fundamental" right relating to jurisdiction, that is to say the

power to judge. The right is an absolute one, which cannot

lawfully be waived; the constitution of a criminal court is a

matter of public policy and cannot be left to the wishes of the

accused. Certainly, there are procedural rights which can be

waived where the waiver has been established in an unequivocal

manner (see, among other authorities, the Colozza v. Italy

judgment of 12 February 1985, Series A no. 89, p. 14, para. 28,

and the Barberà, Messegué and Jabardo v. Spain judgment of

6 December 1988, Series A no. 146, p. 35, para. 82), but where

the right at issue is a fundamental one, like the right to an

impartial tribunal, such a waiver is not permissible.

In the Pfeifer and Plankl v. Austria case (judgment of

25 February 1992, Series A no. 227, pp. 16-17, paras. 35-39) the

Court, without explanation, left this question open, however.

The instant case gave the Court an opportunity to decide the

issue. Yet it has not considered it appropriate to do so,

despite both parties' allegations. The Government alleged that

Mr Bulut had not exercised his right to challenge

Judge Schaumburger (paragraph 27) and the applicant expressly

stated that such a waiver would be impossible in law

(paragraph 26); the national courts had interpreted Austrian law

(paragraphs 18-20) as meaning that a waiver could lawfully be

made. The majority have confined themselves to stating that they

see "no reason to call into question the resolution of this issue

by the Austrian courts" and similarly they regard the applicant's

failure to challenge the composition of the court as showing that

he did not have legitimate reasons to doubt the impartiality of

the court which tried him.

6. To reach their conclusion, the majority firstly take into

consideration that in the instant case "it has not been suggested

that Judge Schaumburger was responsible for preparing the case

for trial" and that "in fact, it has not been established that

he had to take any procedural decisions at all". I cannot concur

in this reasoning. Mr Bulut, a 21-year-old waiter of Turkish

nationality, was not under an onus to prove what role had been

played by Judge Schaumburger in the investigation of the case.

The onus lay exclusively on the Austrian Government to show that

the steps carried out by Judge Schaumburger were of no

significance in the proceedings, and the failure to discharge it

should not in any way benefit the Government; on the contrary,

they should suffer the consequences of that failure.

7. The majority go on to say that Judge Schaumburger's role

"consisted of questioning two witnesses. It did not entail any

assessment of the evidence by him nor did it require him to reach

any kind of conclusion as to the applicant's involvement". Since

the extent of Judge Schaumburger's intervention in the

preliminary investigation is not known, I cannot concur in the

majority's reasoning here either. But it is clear that for the

investigating judge to be able to question witnesses, he must

have a knowledge of the case and take an active role which

inevitably entails an assessment of the evidence and of the

witnesses that could lead him to prejudge the accused's guilt or

innocence. It is precisely for this reason that a judge who has

taken part in the investigation by carrying out such steps must

never try the case. The trial judge's view must be formed

exclusively by evidence produced "in the presence of the accused

at a public hearing with a view to adversarial argument"

(Barberà, Messegué and Jabardo judgment previously cited, p. 34,

para. 78).

8. As indicated above, I am likewise unable to accept the

final argument - "in any event" - that it is not open to the

applicant to complain that he had legitimate reasons to doubt the

impartiality of the court. In my opinion, the fact that an

accused has not challenged a judge or court cannot found an

argument to show that the accused could not have any legitimate

doubt as to their impartiality. In the instant case, for

example, having regard to Mr Bulut's personal circumstances and

the offence with which he was charged (paragraph 8), this

omission could also have been explained by a fear that making

such a challenge might be prejudicial to him. At all events, the

objectiveness of his doubts and Article 68 para. 2 of the

Austrian Code of Criminal Procedure (paragraph 18) required that

Judge Schaumburger withdraw of his own motion in accordance with

our Court's case-law (see the following judgments: Piersack

v. Belgium, 1 October 1982, Series A no. 53, pp. 14-15, para. 30;

De Cubber, previously cited, p. 14, para. 26; and Hauschildt,

previously cited, p. 21, para. 48): "... any judge in respect of

whom there is a legitimate reason to fear a lack of impartiality

must withdraw. What is at stake is the confidence which the

courts in a democratic society must inspire in the public and

above all, as far as criminal proceedings are concerned, in the

accused."