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	European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> FEY v. AUSTRIA - 14396/88 [1993] ECHR 4 (24 February 1993) URL: http://www.bailii.org/eu/cases/ECHR/1993/4.html Cite as: (1993) 16 EHRR 387, [1993] ECHR 4, 16 EHRR 387

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In the case of Fey v. Austria*,

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 the Rules of Court, as a Chamber composed of the

following judges:

Mr R. Bernhardt, President,

Mr F. Gölcüklü,

Mr F. Matscher,

Mr R. Macdonald,

Mr A. Spielmann,

Mr S.K. Martens,

Mr A.N. Loizou,

Sir John Freeland,

Mr A.B. Baka,

and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy

Registrar,

Having deliberated in private on 24 September and

28 October 1992, and 28 January 1993,

Delivers the following judgment, which was adopted on the

last-mentioned date:

_______________

Notes by the Registrar

* The case is numbered 93/1991/345/418. 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.

** As amended by Article 11 of Protocol No. 8 (P8-11), which came into

force on 1 January 1990.

_______________

PROCEDURE

1. The case was referred to the Court on 13 December 1991 by the

European Commission of Human Rights ("the Commission") and on

7 February 1992 by the Government of the Republic of Austria ("the

Government"), within the three-month period laid down in

Article 32 para. 1 and Article 47 (art. 32-1, art. 47) of the

Convention. It originated in an application (no. 14396/88) against

Austria lodged with the Commission under Article 25 (art. 25) by

Mr Hans Jürgen Fey, a German citizen, on 10 November 1988.

The Commission's request referred to Articles 44 and 48

(art. 44, art. 48) and the declaration whereby Austria recognised the

compulsory jurisdiction of the Court (Article 46) (art. 46) and the

Government's application referred to Article 48 (art. 48). The object

of the request and of the application was to obtain a decision as to

whether or not the facts of the case disclosed a breach by the

respondent State of its obligations under Article 6 para. 1 (art. 6-1).

2. In response to the enquiry made in accordance with

Rule 33 para. 3 (d) of the Rules of Court, the applicant stated that

he wished to take part in the proceedings and designated the lawyer who

would represent him (Rule 30). The German Government, having been

informed by the Registrar of its right to intervene in the proceedings

(Article 48, sub-paragraph (b), of the Convention and

Rule 33 para. 3 (b)) (art. 48-b), replied that they did not wish to do

so.

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 24 January 1992 the President drew by

lot, in the presence of the Registrar, the names of the seven other

members, namely Mr F. Gölcüklü, Mr R. Macdonald, Mr A. Spielmann,

Mr S.K. Martens, Mr A.N. Loizou, Sir John Freeland and Mr A.B. Baka

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

4. Mr Ryssdal assumed the office of President of the Chamber

(Rule 21 para. 5) and, through the Registrar, consulted the Agent of

the Government, the Delegate of the Commission and the representative

of the applicant on the organisation of the procedure (Rules 37 para. 1

and 38). In accordance with the order made in consequence, the

registry received, on 15 July 1992 the Government's memorial and, on

20 July the applicant's. By letter of 29 July 1992 the Secretary to

the Commission informed the Registrar that the Delegate would submit

his observations at the hearing.

On 24 August 1992 further particulars were submitted by the

applicant on his claim under Article 50 (art. 50). On 4 September the

Commission filed a number of documents which the Registrar had sought

from it on the President's instructions.

5. As directed by the President, the hearing took place in public

in the Human Rights Building, Strasbourg, on 22 September 1992. The

Court had held a preparatory meeting beforehand. Mr R. Bernhardt,

Vice-President of the Court, replaced Mr Ryssdal who was unable to take

part in the further consideration of the case (Rule 21 para. 5, second

sub-paragraph).

There appeared before the Court:

(a) for the Government

Mr H. Türk, Ambassador, Legal Adviser,

Ministry of Foreign Affairs, Agent,

Mrs S. Bernegger, Federal Chancellery,

Mrs I. Gartner, Federal Ministry of Justice, Advisers;

(b) for the Commission

Mr A. Weitzel, Delegate;

(c) for the applicant

Mr M. Orgler, Rechtsanwalt, Counsel.

The Court heard addresses by them.

AS TO THE FACTS

I. The particular circumstances of the case

6. The applicant, a German national residing at Geeste in Germany,

is a pensioner.

7. From 17 to 27 January 1988 he rented a room in Mayrhofen in

Austria from a Mrs Rosa Kröll. During this period he told her that his

wife was very ill and was undergoing treatment in an Innsbruck

hospital. He also claimed that he was expecting to receive payments

under a pension scheme in Germany. As a result Mrs Kröll handed over

to him 2,500 schillings and waived the rent of 1,500 schillings.

Purportedly in the expectation of receiving the above-mentioned

payments, the applicant opened an account at a bank in Mayrhofen on

19 January 1988 and, on 22 January, Mrs Kröll gave him a further

600 schillings.

8. On 27 January 1988, Mrs Kröll reported the matter to the

police. The Innsbruck Public Prosecutor's Office (Staatsanwaltschaft)

asked, on 8 February 1988, the investigating judge of the Innsbruck

Regional Court (Landesgericht) to institute a preliminary investigation

concerning the applicant on suspicion of fraud as a recidivist

offender. In addition, the prosecutor requested the judge to order his

detention on remand on the ground that there was a risk of his

absconding.

The judge granted these requests on 9 February 1988. Prior to

this, the applicant had been detained since 4 February, pending

extradition to Germany. On 10 February he was questioned by the

investigating judge.

9. The latter sent, on 12 February 1988, a rogatory letter

(Rechtshilfeersuchen) to the Zell am Ziller District Court

(Bezirksgericht) asking it to put some specific questions to Mrs Kröll

as a witness. District Court Judge, Mrs Andrea Kohlegger, did so on

25 February.

10. On 1 March 1988, the Innsbruck Public Prosecutor's Office

dropped one of the fraud charges against the applicant. As a result,

the Regional Court no longer had jurisdiction. Accordingly, the

prosecutor asked to have the case, which now concerned only the alleged

fraud against Mrs Kröll, transmitted to the District Court which had

jurisdiction to deal with offences of lesser gravity, that is,

according to Article 9 of the Code of Criminal Procedure

(Strafprozeßordnung), offences punishable by a fine or a term of

imprisonment not exceeding six months. Moreover, on the same date, the

prosecutor, in pursuance of Article 451 (1) of the Code, called for the

applicant's conviction on charges of fraud.

11. At the time when the case was referred to the District Court

the case-file contained mainly the following items:

- criminal information to the Mayrhofen police;

- the applicant's criminal record in Germany;

- the order made by the Regional Court's investigating judge

for the applicant's detention on remand;

- a record of the investigating judge's interrogation of the

applicant;

- a record of District Court Judge, Mrs Kohlegger's

interrogation of witness, Mrs Kröll;

- letters from the applicant to the prosecution, asking it to

drop the charges, and to the Regional Court, complaining about his

detention on remand;

- a note to the effect that the applicant had withdrawn his

complaint against detention.

12. During the ensuing period, Judge Kohlegger took the following

steps in the applicant's case:

In a letter to the Osnabrück Execution of Sentence Chamber

(Strafvollstreckungskammer) in Germany, she enquired why a prison

sentence imposed on the applicant had been partly suspended. She

received a reply on 1 April 1988.

She sent the case-file to the Innsbruck District Court together

with a rogatory letter asking it to question the applicant in order to

establish whether his expectations as regards the pension payments

allegedly due in January 1988, had been justified and to obtain details

of his pension or any other revenue from insurance policies.

On 17 March 1988, she telephoned the Mayrhofen bank to

establish whether any payments had been entered on the account opened

by the applicant (see paragraph 7 above); by letter of the same date

the bank replied that no payment had so far been recorded.

In addition, she telephoned the Provincial Insurance Companies

of Hannover and of Oldenburg-Bremen (Germany) in order to find out

whether the applicant had ever applied for or received a pension.

According to a note in the case-file, prepared by Judge Kohlegger on

18 March 1988, the first of these companies had replied that, under the

reference number which the applicant had indicated, a pension had never

been requested by him and that no pension benefits had been paid to

him; the other company had stated that he had not been granted a

pension.

On 18 March 1988, she set down the trial hearing for 24 March

(Article 451 (4) of the Code of Criminal Procedure).

13. On the latter date a hearing was held by the Zell am Ziller

District Court, with Judge Kohlegger sitting as a single judge. The

District Prosecutor (Bezirksanwalt) was present, but the applicant's

lawyer at the time did not appear although he had been summoned. The

court heard the applicant first, who claimed that he was innocent. It

then heard Mrs Kröll as a witness and a police officer replacing a

colleague who had visited her house after the applicant's arrest.

Various documents were exhibited (dargetan), including:

- the complaint to the police;

- the results of the police investigations in the case;

- the applicant's criminal record;

- the case-file of the Regional Court (see paragraph 11 above);

- the information provided by the Mayrhofen bank and the two

German insurance companies and a letter from a third

such company.

After the court had finished taking evidence, the prosecutor

invited it to find the applicant guilty. The applicant asked the court

to ascertain that, on 9 April 1987, he had applied to a German

insurance company for a pension. The court dismissed this request,

finding that the facts in the case were sufficiently clear.

14. By judgment of 24 March 1988, the District Court acquitted the

applicant of the fraud charge concerning the 600 schillings which he

had received from Mrs Kröll on 22 January 1988 but convicted him of

having fraudulently induced her to hand over 2,500 schillings to him

and to waive the rent of 1,500 schillings; it sentenced him to three

months' imprisonment and ordered him to pay Mrs Kröll 4,000 schillings.

The periods of detention pending extradition and the trial were

deducted from the sentence.

The judgment, which was signed by Judge Kohlegger, was founded

inter alia on Mrs Kröll's testimony as well as the information obtained

from the bank and the insurance companies.

15. The applicant appealed against his conviction and sentence to

the Regional Court. He complained, inter alia, that in the proceedings

before the District Court, the case had been investigated and tried by

the same person.

16. On 20 April 1988 the Review Chamber (Ratskammer) of the

Regional Court dismissed several requests for release submitted by the

applicant on 6, 12 and 15 March.

17. In a judgment of 13 May 1988, the Regional Court, composed of

three members who had previously taken the above-mentioned decision of

20 April 1988, dismissed the appeal. As to his complaint described in

paragraph 15 above, the judgment stated:

"As a reply thereto, reference should be made to the

prevailing legal opinion derived from Articles 451 and 452 of

the Code of Criminal Procedure, according to which the trial

judge in District Court proceedings may also undertake

preliminary inquiries and a judge who has carried out such

inquiries will therefore not be excluded from the trial ... .

Equally, if a judge acts in a criminal case as a judge ...

under a rogatory letter, this will not prevent him from

participating at the trial ... . It is not necessary for the

[Regional Court] in the present case to make a thorough

examination of the extent to which this legal opinion, which

is generally applied, corresponds to Article 6 (art. 6) of the

Convention ..., since the accused, who became aware of the

(alleged) ground of nullity at the latest at the beginning of

the trial, did not ... immediately raise this ground before

the Zell am Ziller District Court."

II. The relevant domestic law

18. In order to procure the necessary evidence for the institution

of criminal proceedings or for the closing of the file (Zurücklegung)

on a complaint, the public prosecutor may have preliminary inquiries

(Vorerhebungen) carried out by the investigating judge, the District

Courts and the police authorities (Article 88 (1) of the Code of

Criminal Procedure).

Where the public prosecutor is satisfied that there are

sufficient grounds for bringing a criminal prosecution, he shall either

apply for the institution of a preliminary investigation

(Voruntersuchung) or file a formal accusation (Anklageschrift,

Article 90 (1)). However, in District Court proceedings there is no

formal process of investigation and no special procedure of committal

for trial: all that is required is a written or oral application from

the District Prosecutor seeking the imposition of a penalty on the

person concerned (Antrag auf gesetzliche Bestrafung, Article 451 (1)).

19. Pursuant to Article 451 (1) and (4), taken together, the

District Court may carry out preliminary inquiries, but not formal

preliminary investigations like the Regional Court. When undertaking

preliminary inquiries a District Court judge must in principle observe

the same rules as those that apply to an investigating judge of the

Regional Court during preliminary investigations. However, according

to Article 452, which sets out exceptions to this principle, the

District Court judge has narrower powers with respect to such matters

as pre-trial detention, arrest and search for documentary evidence.

Under Article 194 (1) of the Code of Criminal Procedure, the

District Court judge may order the release of a person held on remand,

subject to agreement with the District Prosecutor that the grounds for

detention have ceased to exist.

The District Court judge shall set a date for the hearing after

such preliminary inquiries as may be necessary have been made

(Article 451 (4)).

20. Article 68 (2) of the Code of Criminal Procedure, which

provides that an investigating judge may not participate in the trial

of the case, does not apply to District Court proceedings. In such

proceedings, preliminary inquiries are, according to established court

practice, carried out by the trial judge.

21. A judge who has acted under a rogatory letter in a case, but

not as an investigating judge, is not thereby excluded from trying the

same case (see the collection of Supreme Court decisions SSt 30/50).

PROCEEDINGS BEFORE THE COMMISSION

22. In his application (no. 14396/88) lodged with the Commission

on 10 November 1988, Mr Fey alleged that the criminal charge raised

against him had not been determined by an "impartial tribunal" within

the meaning of Article 6 para. 1 (art. 6-1), as the District Court

judge had both undertaken preliminary investigations and tried the

case. Further, the applicant complained that the Regional Court judges

who had rejected his request for release were subsequently called upon

to rule on his appeal.

23. By decision of 9 October 1990, the Commission declared the

first of these complaints admissible and the second inadmissible.

In its report of 15 October 1991 (Article 31) (art. 31), the

Commission expressed the opinion that there had been a violation of

Article 6 para. 1 (art. 6-1) (by sixteen votes to three). The full

text of the Commission's opinion and the dissenting opinion contained

in the report is reproduced as an annex to this judgment*.

_______________

* Note by the Registrar: for practical reasons this annex will appear

only with the printed version of the judgment (volume 255-A of

Series A of the Publications of the Court), but a copy of the

Commission's report is available from the registry.

_______________

FINAL SUBMISSIONS MADE TO THE COURT

24. At the hearing on 22 September 1992 the Government confirmed

the submission set out in their memorial, in which they asked the Court

to hold that the applicant's right to an impartial tribunal under

Article 6 para. 1 (art. 6-1) had not been violated in the proceedings

before the District Court.

AS TO THE LAW

25. Mr Fey contended that he had not received a fair hearing by an

impartial tribunal within the meaning 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 ... hearing ... by an ...

impartial tribunal ..."

This claim was contested by the Government, but was accepted

by the Commission.

26. In support of his allegation the applicant advanced arguments

that fell into two categories.

The first category concerned the functions of District Court

judges at the pre-trial stage of criminal proceedings in Austria (see

paragraphs 18-19 above), which functions were, the applicant

maintained, essentially the same as those of investigating judges of

a Regional Court. Although a District Court judge could only carry out

preliminary inquiries, such inquiries could in fact be just as

extensive as formal preliminary investigations conducted by an

investigating judge. Moreover, the former was vested with powers to

order detention on remand which were similar to, albeit more limited

than, those of the latter. What is more, a District Court judge had

a "suspiciously close relationship" with a public prosecutor. For

instance, whilst an investigating judge had to send the case back to

the prosecutor once the investigations had been completed, a District

Court judge might himself set the case down for trial at that stage;

if he did so, this provided a clear indication of a belief on his part

that there was a likelihood that the accused was guilty.

The applicant's second category of arguments related to the

measures undertaken at the pre-trial stage by District Court

Judge Kohlegger (see paragraphs 9-12 above). He shared the

Commission's view that they were measures that were typical of an

investigating judge. They had been aimed at establishing whether the

applicant had fraudulently obtained money from the landlady, Mrs Kröll,

yet this was precisely the issue to be determined at his trial (see

paragraph 13 above). Judge Kohlegger had thus acquired, before the

trial, a particularly detailed knowledge of the file. By having

previously acted as an investigating judge in the case, she had also,

according to the applicant, formed an opinion on the case before she

set it down for trial.

27. The Court's task is not to review the relevant law and practice

in abstracto, but to examine whether the manner in which they were

applied to or affected the applicant gave rise to a violation of

Article 6 para. 1 (art. 6-1) (see, amongst other authorities, the

Thorgeir Thorgeirson v. Iceland judgment of 25 June 1992, Series A

no. 239, p. 23, para. 48).

28. The existence of impartiality for the purposes of

Article 6 para. 1 (art. 6-1) must be determined according to a

subjective test, that is on the basis of the personal conviction of a

particular judge in a given case, and also according to an objective

test, that is ascertaining whether the judge offered guarantees

sufficient to exclude any legitimate doubt in this respect (ibid.,

para. 49).

29. As to the subjective test, the applicant did not dispute the

personal impartiality of Judge Kohlegger.

30. Under 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. In this respect even

appearances may be of a certain importance. 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. This implies that in deciding whether in a given case

there is a legitimate reason to fear that a particular judge lacks

impartiality, the standpoint of the accused is important but not

decisive. What is determinant is whether this fear can be held to be

objectively justified (ibid., para. 51).

In this regard, the Court has previously held that the mere

fact that a judge has also made pre-trial decisions in the case cannot

be taken as in itself justifying fears as to his impartiality (see the

Hauschildt v. Denmark judgment of 24 May 1989, Series A no. 154, p. 22,

para. 50). Although this statement referred to systems like the

Danish, where investigation and prosecution are exclusively the domain

of the police and the prosecution, it must also be of some relevance

to systems of an inquisitorial character, such as the Austrian. What

matters is the extent and nature of the pre-trial measures taken by the

judge (see, mutatis mutandis, the De Cubber v. Belgium judgment of

26 October 1984, Series A no. 86, pp. 15-16, paras. 29-30, and the

above-mentioned Thorgeir Thorgeirson judgment, Series A no. 239, p. 24,

para. 53).

31. The Court observes, in the first place, that before the case

was referred to the District Court on 1 March 1988, a formal

preliminary investigation had already been carried out by the

investigating judge of the Innsbruck Regional Court. This had

involved, inter alia, interrogations of the applicant and the landlady,

the records of which were subsequently included in the case-file of the

District Court (see paragraphs 8, 9, 11 and 13 above).

It is true that interrogation of the landlady had been

conducted by Judge Kohlegger, but this had been done under a rogatory

letter from the investigating judge that asked the District Court to

put some very specific questions to the landlady. Judge Kohlegger

carried out this task and sent the investigating judge a report of the

interrogation of Mrs Kröll, which consisted in essence solely of making

a record of the statements made by her. In the limited capacity in

which she acted it was not for Judge Kohlegger to examine the merits

of the accusations against the applicant, nor does it appear from the

case-file that she actually did so, and there is no indication that at

the time when the questioning took place there was any prospect of

Judge Kohlegger later trying the case.

32. Following referral of the case to the Zell am Ziller District

Court, Judge Kohlegger admittedly undertook certain pre-trial measures,

which consisted of collecting simple information, mainly by asking a

bank and two insurance companies whether any payments had been made to

the applicant's account and whether he had applied for or received a

pension; she also transmitted the case-file to the Innsbruck District

Court so that it could put further questions to the applicant (see

paragraph 12 above). However, these measures were, in the Court's

view, of a preparatory character, being designed to complete the

case-file before the hearing (see paragraph 13 above).

33. The Court does not consider that Judge Kohlegger's decision of

18 March 1988 to set the case down for trial reflected, as the

applicant alleged, a belief on her part that there was a likelihood

that he was guilty. That decision merely gave effect to the rule,

under the applicable law, that the hearing date should be fixed as soon

as such preliminary inquiries as may be necessary have been made (see

paragraph 19 above). It cannot be regarded as the equivalent of a

formal decision to commit an accused for trial, a step which was not

provided for in proceedings, such as the present, instituted simply on

an application by a public prosecutor to a District Court for the

imposition of a penalty (see paragraph 18 above).

34. It was not until the hearing on 24 March 1988 that

Judge Kohlegger was faced with the applicant for the first time; she

then heard both him and the landlady and all the evidence in the case

was presented (see paragraph 13 above). In the Court's view, it was

only at that stage that she was in a position to form any opinion as

to the applicant's guilt. It does not appear that the various measures

which she had taken prior to the trial were such as could have led her

to reach a preconceived view on the merits. In this regard, it should

be noted that she did acquit Mr Fey on one of the two counts (see

paragraph 14 above).

35. Thus, the extent and nature of the pre-trial measures taken by

the District Court judge are clearly distinguishable from those that

were dealt with in the above-mentioned De Cubber judgment. In that

case the Court concluded that the impartiality of the tribunal in

question had been capable of appearing to the applicant to be open to

doubt, bearing in mind, inter alia, the fact that one of its members

had carried out extensive investigations in the case, including

numerous interrogations of the accused (see pp. 15-16, paras. 29-30,

of the judgment).

36. In the light of the foregoing, the Court does not find that

such fears as the applicant may have had as to the District Court

judge's impartiality can be held to have been objectively justified.

Accordingly, there has been no violation of Article 6 para. 1

(art. 6-1) in the present case.

FOR THESE REASONS, THE COURT

Holds by seven votes to two that there has been no violation

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

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

hearing in the Human Rights Building, Strasbourg, on 24 February 1993.

Signed: Rudolf BERNHARDT

President

Signed: Marc-André EISSEN

Registrar

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

Convention and Rule 53 para. 2 of the Rules of Court, the following

separate opinions are annexed to this judgment:

(a) dissenting opinion of Mr Spielmann;

(b) concurring opinion of Mr Martens;

(c) dissenting opinion of Mr Loizou.

Initialled: R. B.

Initialled: M.-A. E.

DISSENTING OPINION OF JUDGE SPIELMANN

(Translation)

1. I have been unable to vote with the majority for a finding of

non-violation, since in my opinion there has quite evidently been a

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

Human Rights.

2. I entirely adopt the majority opinion of the Commission

(sixteen votes to three) in particular paragraph 56 of its report,

which reads as follows:

"In the Commission's opinion, at a stage preceding the trial,

Judge Kohlegger in fact undertook typical acts of an

investigating judge. The investigations aimed at establishing

whether the applicant had fraudulently obtained money from the

landlady. Yet these issues were precisely those which she had

to deal with at the trial when deciding on the applicant's

guilt."

The majority of the Commission accordingly concluded, rightly

in my opinion, that the applicant could legitimately fear that

Judge Kohlegger, when acting as the sole trial judge, had a

preconceived opinion as to his guilt, and therefore have doubts as to

her impartiality (see paragraph 58 of the Commission's report).

3. While I agree with the Court's finding that there is no

indication that at the time when the landlady was questioned under a

warrant issued by an investigating judge there was any prospect of

Judge Kohlegger later trying the case (see paragraph 31 of the

judgment), I consider, however, that that judge should have stood down

and not tried the case.

If the composition of District Courts in Austria might indeed

on certain occasions pose organisational problems, that is not a factor

which can have any influence on the decisions of the Strasbourg

institutions.

4. Finally, I do not share the opinion of the majority of the

Court that the present case is clearly distinguishable from the

De Cubber v. Belgium case (see paragraph 35 of the judgment). In my

opinion, no distinction should be drawn between extensive

investigations and less extensive investigations.

This is a question of principle.

CONCURRING OPINION OF JUDGE MARTENS

1. The procedure followed by Judge Kohlegger of the Zell am Ziller

District Court, which in the applicant's view violated

Article 6 para. 1 (art. 6-1), was in every respect in conformity with

Articles 451 and 452 of the Austrian Code of Criminal Procedure.

Consequently, in assessing whether the application of those provisions

in fact gave rise to a violation, the first step should be to review

whether they are in conformity with the Convention.

This approach is not only required by logic and truthfulness

(see my dissenting opinion in the Brogan and Others v. the United

Kingdom case, judgment of 29 November 1988, Series A no. 145-B, p. 50,

para. 7), but also by the Court's present position within the legal

community instituted by the Convention and gradually elaborated by the

Court's case-law. That position implies that, where possible, the

Court should not base its decision (solely) on the particular

circumstances of the individual case, but should endeavour (also) to

give reasons that afford clear guidance to national courts and

authorities for the category of cases under consideration.

2. When assessing whether Articles 451 and 452 of the Austrian

Code of Criminal Procedure are compatible with the Convention, a first

point to be made is that a District Court judge who is conducting a

preliminary inquiry must be deemed to be carrying out the functions of

an investigating judge. His inquiries are of an inquisitorial nature,

they are secret and are not in principle conducted in the presence of

both parties. When undertaking such inquiries, the District Court

judge is not exercising the typical functions of a judge presiding over

the hearing of the parties, but those of a judicial officer preparing

the case for trial. Significantly Article 452 requires him to observe

the provisions pertaining to an investigating judge*.

_______________

* The provision clearly implies that a District Court judge who is

conducting a preliminary inquiry has - save for the exception specified

therein - the samer powers as an investigating judge.

_______________

I am not persuaded by the Government's argument that there is

a fundamental difference between the preliminary investigations

(Voruntersuchungen) conducted by an investigating judge under

Articles 91 et seq. and the preliminary inquiries (Vorerhebungen)

carried out by a District Court judge under Articles 451 and 452**.

From the point of view of increasing the chances that the judge, as a

result of his pre-trial fact-finding activities, will start the trial

with a pre-formed opinion, there is no difference at all.

_______________

** The Government have sought to reinforce their argument by comparing

preliminary inquiries conducted by a District Court judge with those

provided for in Article 224 para. 1 which, according to the Government,

empowers the presiding judge in Regional Court proceedings to make

further investigations during the period after the accused has been

committed for trial, in which the judge is preparing for the trial.

This comparison, however, in fact undermines their argument, in that

one reads in Mayerhofer/Rieder, Das österreichische Strafrecht, II,

Strafprozessordnung (3rd ed. 1991), 1, p. 563, Anm. 4 ad Article 224,

that the presiding judge should not make such further investigations

himself but should request the investigating judge to do so, since

making them himself would preclude him from presiding at the trial.

_______________

3. Since a District Court judge who is conducting a preliminary

inquiry must be deemed to be carrying out the functions of an

investigating judge, Articles 451 and 452 do, in principle, violate

Article 6 para. 1 (art. 6-1) as that provision has to be interpreted

under the De Cubber doctrine.

It is intentionally that I have referred to the De Cubber

doctrine. Both the considerations set out in paragraph 1 above and the

arguments used in the Court's De Cubber v. Belgium judgment of

26 October 1984 (Series A no. 86, pp. 15-16, paras. 29-30) - which

latter centre around an abstract analysis of the legal position of the

investigating judge within the national legal system - warrant the

conclusion that in that judgment the Court laid down a rule that the

functions of an investigating judge are incompatible with those of a

trial judge.

This interpretation finds further support in paragraph 50 of

the Hauschildt v. Denmark judgment of 24 May 1989, Series A no. 154,

p. 22: there the Court, evidently in order to distinguish that case

from the De Cubber case, analysed "[t]he judge's functions on the

exercise of which the applicant's fear of lack of impartiality [was]

based, and which relate[d] to the pre-trial stage". It found that they

were those of "an independent judge who [was] not responsible for

preparing the case for trial or deciding whether the accused should be

brought to trial" and concluded by saying:

"Indeed, as to the nature of the functions which the judges

involved in this case exercised before taking part in its

determination, this case is distinguishable from the Piersack

and the De Cubber cases." (emphasis added)

The De Cubber doctrine may be compared with that enunciated in

the Huber v. Switzerland judgment of 23 October 1990, Series A no. 188,

where the Court laid down the rule that membership of the prosecution

disqualifies a person from being a trial judge (compare the Brincat v.

Italy judgment of 26 November 1992, Series A no. 249-A, p. 11,

para. 20).

These rules should, in principle, apply irrespective of

differences of detail between the relevant national provisions. It is

therefore unnecessary to examine whether the Austrian District Court

judge - when making preliminary inquiries - displays all the features

which have been held to be decisive in respect of the Belgian

investigating judge. It suffices that when making these inquiries he

belongs to the same category of judicial officers, namely officers

whose function it is to prepare the case for trial by actively

conducting an inquisitorial inquiry. By the same token the extent of

the inquiries made is also immaterial: what is at issue is a functional

lack of impartiality.

4. However, the conclusion that Articles 451 and 452 are

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

only be a preliminary one. The fact that a District Court judge who

has made preliminary inquiries carried out the functions of an

investigating judge admittedly shows that the circumstances are such

that the possibility of his being prejudiced cannot be excluded.

Nevertheless, as I stated in paragraphs 3.4 and 3.5 of my dissenting

opinion in the Borgers v. Belgium case (judgment of 30 October 1991,

Series A no. 214-B, pp. 45-46), for a final conclusion a second test

is required. Indeed, determining whether fears as to impartiality are

"objectively justified" implies also a weighing of interests, since

what is at stake is not only the confidence which the courts must

inspire, but also the public interest in having a rational and smoothly

operating judicial system. Consequently, it remains to be seen

whether, in cases like the present one, the latter interests should

prevail.

In my opinion, this question has to be answered in the

affirmative. Many Contracting States have a District Court system

which is essentially similar to the Austrian one. Its main features

are a close network of often small courts where both civil and criminal

cases of lesser importance are dealt with locally (i.e. where those

concerned are domiciled), in proceedings characterised by a minimum of

formalities. This makes it possible for those who so wish to defend

themselves and to settle cases within a short time and with a minimum

of costs and expenses. Extension of the De Cubber doctrine to criminal

proceedings before District Courts would undoubtedly upset this

valuable system, if only because it may be supposed that the situation

will not infrequently be like that described by the Government which

alleged*** that "in Austria's rural areas many District Courts have

only one judge or one judge may be in charge of several district

courts". To require in such situations that a case not be tried by a

judge who has made preliminary inquiries would result in the trial

having to be held before another District Court to which the accused

would have to travel. Seeing also that a professional judge who has

already had to deal with a case at an earlier stage of the proceedings

must be deemed to be able to put this out of his mind when sitting as

a trial judge (this being the rationale of paragraphs 49 and 50 of the

above-mentioned Hauschildt judgment of 24 May 1989), I feel that to

oblige Contracting States to change the District Court system by

extending the De Cubber doctrine would amount to setting too much store

by appearances.

_______________

*** At the hearing the applicant's lawyer contested this allegation;

he told the Court that in 1988 it was already exceptional for Austrian

District Courts to have only one judge. In the context of my reasoning

this factual dispute is immaterial: what is material, is that it cannot

be excluded that, in those Contracting States where the District Court

system exists, it is not exceptional for there to be only one judge.

_______________

5. For these reasons I have voted for non-violation of

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

DISSENTING OPINION OF JUDGE LOIZOU

I regret that I cannot share the Court's opinion in its

conclusion that there has been no violation of Article 6 para. 1

(art. 6-1) of the Convention.

The salient facts appear sufficiently in the judgment of the

Court, and in particular in paragraphs 9 to 12, but I wish to stress

for the purposes of this opinion that Judge Kohlegger, inter alia,

questioned the landlady, Mrs Rosa Kröll, as a witness and then tried

to secure further evidence by telephoning later to the bank in

Mayrhofen to establish whether money had been paid into the bank

account opened by the applicant. The bank replied by letter on the

same day that so far there had been no receipts from the applicant.

Furthermore, she telephoned the two German insurance companies to

establish whether the applicant had applied for, or received, a pension

payment on 18 March 1988. Their reply over the telephone was that the

applicant had not received a pension. She was thus collating all the

essential material with which the elements of the offence with which

the applicant was charged would be established.

The very fact that the judge was collecting evidence and

ascertaining facts could not but create reasonable doubt in the mind

of the accused as to the impartiality of the judge who to the knowledge

of the accused had full knowledge of the file which she herself had

compiled. His fears could not but be, in the circumstances of this

case, objectively justified.

These circumstances have led me to the conclusion like the

Commission that the applicant could have a legitimate fear that this

judge, when acting as the sole trial court judge, could have a

preconceived opinion as to the applicant's guilt, and that her

impartiality accordingly could appear to be open to doubt.

In my view, the applicant at his trial was not heard by an

impartial tribunal within the meaning of Article 6 para. 1 (art. 6-1)

of the Convention. Needless to say that the rights enshrined in it are

equally applicable to all categories of cases, whether serious or not.