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European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> BULUT v. AUSTRIA - 17358/90  ECHR 10 (22 February 1996)
Cite as: 24 EHRR 84,  ECHR 10, (1997) 24 EHRR 84
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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
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
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
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
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
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
"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
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
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
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
20. Article 285d para. 1 of the Code of Criminal Procedure
"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
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
"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
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
25. The applicant alleged a breach of Article 6 para. 1
(art. 6-1) of the Convention, which, in so far as relevant,
"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
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
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,
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
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
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
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
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
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
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
"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
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.
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
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
(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
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
Signed: Herbert PETZOLD
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
(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
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
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
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
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
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
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
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
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
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
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
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,
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
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
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
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
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
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
21. On this point I have no difficulty in agreeing with the
Court's conclusion. A single sentence would have been enough to
It is manifestly unacceptable that observations may be
filed with a court by the prosecution without the knowledge of
This is certainly not a matter of "appearances" but of
real and rather shocking fact.
PARTLY DISSENTING OPINION OF JUDGE MORENILLA
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
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,
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