Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

Application No. 17602/91

Martin Thomann

against

Switzerland

REPORT OF THE COMMISSION

(adopted on 2 March 1995)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-16). . . . . . . . . . . . . . . . . . . . . .1

A. The application

(paras. 2-4). . . . . . . . . . . . . . . . . . . .1

B. The proceedings

(paras. 5-11) . . . . . . . . . . . . . . . . . . .1

C. The present Report

(paras. 12-16). . . . . . . . . . . . . . . . . . .2

II. ESTABLISHMENT OF THE FACTS

(paras. 17-53) . . . . . . . . . . . . . . . . . . . . .3

A. The particular circumstances of the case

(paras. 17-39). . . . . . . . . . . . . . . . . . .3

B. The relevant domestic law

(paras. 40-53). . . . . . . . . . . . . . . . . . .6

III. OPINION OF THE COMMISSION

(paras. 54-75) . . . . . . . . . . . . . . . . . . . . .8

A. Complaint declared admissible

(para. 54). . . . . . . . . . . . . . . . . . . . .8

B. Point at issue

(para. 55). . . . . . . . . . . . . . . . . . . . .8

C. Article 6 of the Convention

(paras. 56-74). . . . . . . . . . . . . . . . . . .8

CONCLUSION

(para. 75). . . . . . . . . . . . . . . . . . . . 11

DISSENTING OPINION OF Mr. DANELIUS, Mrs. THUNE and

Mr. LOUCAIDES . . . . . . . . . . . . . . . . . . . . . . . 12

DISSENTING OPINION OF Mrs. LIDDY . . . . . . . . . . . . . . . 14

APPENDIX I : HISTORY OF THE PROCEEDINGS . . . . . . . . . 15

APPENDIX II : DECISION OF THE COMMISSION AS TO THE

ADMISSIBILITY OF THE APPLICATION . . . . . . 16

I. INTRODUCTION

1. The following is an outline of the case as submitted to the

European Commission of Human Rights, and of the procedure before the

Commission.

A. The application

2. The applicant is a Swiss citizen, born in 1949 and resident in

Zurich. He was represented before the Commission by Mr. P. Joset, a

lawyer practising in Binningen.

3. The application is directed against Switzerland. The respondent

Government were represented by Mr. P. Boillat, Head of the European Law

and International Affairs Section, Federal Office of Justice.

4. The applicant complains of the partiality of trial judges who,

after having convicted him in absentia, subsequently decided upon his

request for a rehearing and sat at the new trial against him. The

applicant invokes Article 6 paras. 1 and 2 of the Convention.

B. The proceedings

5. The application was introduced on 5 December 1990 and registered

on 7 January 1991.

6. On 13 October 1993 the Commission (First Chamber) decided,

pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give

notice of the application to the respondent Government and to invite

the parties to submit written observations on its admissibility and

merits.

7. The Government's observations were submitted on 7 January 1994.

The applicant replied on 8 March 1994.

8. On 17 May 1994 the Commission refused the applicant's request for

legal aid.

9. On 30 August 1994 the plenary Commission ordered the transfer to

it of the present application. On 5 September 1994 the application was

declared admissible.

10. The text of the Commission's decision on admissibility was sent

to the parties on 12 September 1994 and they were invited to submit

further observations on the merits. The applicant submitted further

observations on 28 October 1994 and the Government on 31 October 1994.

11. After declaring the case admissible, the Commission, acting in

accordance with Article 28 para. 1 (b) of the Convention, also placed

itself at the disposal of the parties with a view to securing a

friendly settlement. In the light of the parties' reaction, the

Commission now finds that there is no basis on which such a settlement

can be effected.

C. The present Report

12. The present Report has been drawn up by the Commission in

pursuance of Article 31 of the Convention and after deliberations and

votes, the following members being present:

MM. C.A. NØRGAARD, President

H. DANELIUS

C.L. ROZAKIS

G. JÖRUNDSSON

S. TRECHSEL

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

Mrs. G.H. THUNE

Mr. F. MARTINEZ

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

I. BÉKÉS

J. MUCHA

D. SVÁBY

E. KONSTANTINOV

G. RESS

13. The text of this Report was adopted on 2 March 1995 by the

Commission and is now transmitted to the Committee of Ministers of the

Council of Europe, in accordance with Article 31 para. 2 of the

Convention.

14. The purpose of the Report, pursuant to Article 31 of the

Convention, is:

(i) to establish the facts, and

(ii) to state an opinion as to whether the facts found disclose

a breach by the State concerned of its obligations under

the Convention.

15. A schedule setting out the history of the proceedings before the

Commission is attached hereto as Appendix I and the Commission's

decision on the admissibility of the application as Appendix II.

16. The full text of the parties' submissions, together with the

documents lodged as exhibits, are held in the archives of the

Commission.

II. ESTABLISHMENT OF THE FACTS

A. The particular circumstances of the case

17. On 13 December 1988 the Basel-Stadt Public Prosecutor's Office

(Staatsanwaltschaft) preferred an indictment (Anklageerhebung) against

the applicant on charges of professional fraud, simple bankruptcy

(leichtsinniger Konkurs), and violation of his obligation to keep books

(Unterlassung der Buchführung).

18. The Basel-Stadt Criminal Court (Strafdreiergericht) fixed the

period between 10 and 17 May 1989 as dates for the trial against the

applicant. The applicant could not be summoned to the trial on the

ground that he had given notice of departure from his last place of

residence without indicating his new place of residence. A warrant of

arrest was issued, which referred to the possibility that the trial

could, at any time, be conducted in the applicant's absence

(Kontumazialverhandlung).

19. Between 10 and 17 May 1989 the Criminal Court, sitting with

Judges Metzener, Becht-Gutmann and Memminger, conducted the trial in

the applicant's absence, pursuant to S. 263 of the Basel-Stadt Code of

Criminal Procedure (Strafprozessordnung).

20. On 16 May 1989 the applicant was arrested. He was brought before

the Criminal Court on 17 May 1989 for the pronouncement of the

judgment.

21. On 17 May 1989 the Criminal Court convicted the applicant of

professional, completed and attempted fraud, simple bankruptcy and

violation of his obligation to keep books, and sentenced him to two and

a half years' imprisonment.

22. Thereupon, the applicant requested a rehearing of his case

(Revision) under S. 267 para. 2 of the Basel-Stadt Code of Criminal

Procedure, which was granted immediately by the three judges mentioned

above.

23. Subsequently, in normal trial proceedings, the Criminal Court

fixed 30 October 1989 as the date for the new trial, to be conducted

by Judges Metzener, Becht-Gutmann and Memminger.

24. On 29 June 1989 the applicant challenged Judges Metzener,

Becht-Gutmann and Memminger for bias, referring to their participation

in the trial proceedings leading to his conviction on 17 May 1989.

25. On 27 August 1989 the Basel-Stadt Criminal Court, sitting with

the said judges, dismissed the applicant's motion of challenge.

26. On 5 October 1989 the Basel-Stadt Court of Appeal (Appellations-

gericht), upon the applicant's appeal (Beschwerde), quashed the

decision of 27 August 1989 and ordered the Criminal Court to decide

upon the applicant's motion of 29 June 1989 in the absence of the three

judges concerned.

27. The trial fixed for 30 October 1989 was postponed.

28. On 25 October 1989 the Basel-Stadt Criminal Court, sitting with

Judges Kunz, Stephenson and Stamm, dismissed the applicant's motion of

challenge.

29. On 14 November 1989 the Basel-Stadt Court of Appeal dismissed the

applicant's appeal against the decision of 25 October 1989. The Court

of Appeal considered in particular that the request under S. 267

para. 2 of the Basel-Stadt Code of Criminal Procedure was not an

ordinary remedy, but, under given circumstances, resulted in a reversal

of the conviction passed in the accused's absence (Kontumazurteil), the

holding of a normal trial and passing of a new judgment (S. 267

para. 4). There was no legal rule of competence regarding the decision

on whether the request would be granted and regarding the new trial,

but, according to practice, the court in the composition which had

conducted the trial in the accused's absence was also competent for the

proceedings following a request for rehearing of the case. The Court

of Appeal observed that the new trial was supposed to amend the

proceedings conducted in the accused's absence and that the judges

conducting a trial in the accused's absence were aware of the

provisional nature of their judgment and the possibility of a

repetition of the trial in normal proceedings. As the trial was

completely repeated, its outcome was open. There were no objective

reasons to doubt the impartiality of the judges who had first

participated in the trial in the accused's absence and then again

participated in the trial in his presence.

30. On 2 May 1990 the Federal Court (Bundesgericht) dismissed the

applicant's public law appeal (staatsrechtliche Beschwerde).

31. The Federal Court, referring to its case-law on the question of

impartiality of judges, considered that the participation of judges,

who had passed a conviction in the accused's absence, in the

proceedings on the request of the person concerned for a rehearing of

his case and the subsequent new trial against him, could not be

challenged if the outcome of the normal trial appeared to be open and

there was no appearance of predetermination.

32. The Federal Court found that the main difference between a normal

trial and a trial in the accused's absence was that the accused could

not make use of his rights of defence under SS. 181, 185 and 186 of the

Code of Criminal Procedure, and could not be questioned by the court.

Thus, in proceedings in the accused's absence, the basis for the

court's judgment was incomplete so far as those procedural elements

were concerned which presupposed the accused's presence. The accused's

statements at the trial and the personal impression made upon the court

were of great importance for the finding of the truth and the fixing

of the sentence. In order to make up for the disadvantages possibly

suffered by the accused due to his absence, the different Swiss Codes

of Criminal Procedure providing for a conviction in the accused's

absence also entitled the convicted person to request a rehearing of

his case in normal proceedings. The purpose of the request for a

rehearing under S. 267 of the Basel-Stadt Code of Criminal Procedure

was not to review the judgment passed in the accused's absence, but to

restore the case to the stage of the main proceedings in order for the

case to be freshly examined at a new trial in the accused's presence.

33. The Federal Court considered that, taking into account the

importance of the accused's statements and the impression he makes at

the trial, it appeared quite possible that the judges, when reexamining

the case in normal trial proceedings, could come to a result different

from that which had been reached in the proceedings in the accused's

absence. Thus the result of the normal trial proceedings appeared open

although the judges had already participated in the proceedings in the

accused's absence, and there was objectively no indication of

predetermination.

34. The Federal Court also observed that the present case could not

be compared to the case where a judge initially acted as investigating

judge, as judge deciding on the committal for trial or as judge issuing

a penalty order (Strafmandat), and then subsequently as trial judge.

If, in cases of a conviction in the applicant's absence, the further

participation of the judges concerned in the review proceedings and the

possible new trial amounted to a breach of the Constitution and of

Article 6 para. 1 of the Convention, there would be a risk of abuse.

In this respect, the Federal Court noted that, in those Swiss Cantons

where the Code of Criminal Procedure did not subject the request for

a rehearing to any conditions, the accused could avoid judges whom he

disliked by not appearing in court. Moreover, new judges would have

to make themselves acquainted with the files, and thereby the workload

of the courts would be further increased and criminal proceedings be

delayed.

The judgment was sent to the applicant on 6 June 1990.

35. The new trial against the applicant who was assisted by an

official defence counsel was held before the Basel-Stadt Criminal

Court, sitting with Judges Metzener, Becht-Gutmann and Memminger,

between 26 September and 3 October 1990. On 26 and 27 September as

well as on 1 October 1990 the Criminal Court heard in particular the

applicant and several witnesses, and several documents were read out.

36. On 3 October 1990 the Basel-Stadt Criminal Court convicted the

applicant again of professional, completed and attempted fraud, simple

bankruptcy and breach of his obligation to keep books and sentenced him

to two years and three months' imprisonment.

37. The applicant filed an appeal (Rekurs) against his conviction

with the Basel-Stadt Court of Appeal (Appellationsgericht).

38. On 11 July 1991, the Basel-Stadt Court of Appeal, following a

hearing in the presence of the applicant and his defence counsel,

convicted the applicant of fraud, simple bankruptcy and breach of his

obligation to keep books and sentenced him to two years' imprisonment

and imposed a fine of SFR 500. The applicant was acquitted of the

charge of fraud on some counts.

39. On 9 December 1992 the Federal Court dismissed the public law

appeal by the applicant against the judgment of 11 July 1991.

B. The relevant domestic law

a. Proceedings in the presence of the accused

40. In the course of a trial conducted in the presence of the

accused, the President of the court (Gerichtspräsident) questions the

accused about his personal situation. Subsequently, the accused has

the opportunity to make a brief statement on the indictment. The

President then questions him in detail on the charges against him

(S. 178 of the Basel-Stadt Code of Criminal Procedure - Straf-

prozessordnung).

41. According to S. 179, the accused can be confronted with

witnesses.

42. S. 181 provides that the accused can request the further taking

of evidence.

43. Under SS. 185 and 186, he is entitled to put forward his defence

following the statements of the public prosecutor and, possibly, the

victim of the offence, and he has the last word following the public

prosecutor's reply.

44. According to S. 236, second sentence, the parties to criminal

proceedings, with the exception of the public prosecutor's office, can

lodge an appeal against the first instance judgment to the extent that

they have a legal interest. A full hearing of the case will take place

before the appellate court.

b. Proceedings in the absence of the accused

45. SS. 260 to 267 of the Basel-Stadt Code of Criminal Procedure

regulate the conduct of criminal proceedings against suspect persons

and accused who are absent.

46. According to S. 260 preliminary investigations against a suspect

who is absent are to be conducted, so far as possible and feasible, as

completely as if he were present; in particular the relevant evidence

is to be taken.

47. S. 261 para. 1 provides that the indictment may only be preferred

(öffentliche Anklage erheben) against an absentee, who has been heard

on the charges against him or who has himself rendered such hearing

impossible, and if a reliable result of the trial appears secured

despite the accused's absence.

48. Pursuant to S. 262 para. 1, the president of the criminal court

(Strafgerichtspräsident) orders that the trial be conducted in the

accused's absence (Kontumazialverhandlung), if an indictment has been

preferred against an absentee or if the accused absents himself without

sufficient excuse after having been committed for trial. This order

is included in the publications relating to search and investigation

into the person's whereabouts.

49. S. 263 para. 1 provides that, if the accused cannot be brought

before the court, the relevant parts of the investigation files are

brought to the court's notice in that they are circulated or read out.

Judgment is passed on the basis of the files after the parties present

have been heard. Under S. 263 para. 2, the president may, ex officio,

or upon request of a party, order the hearing of witnesses or experts.

The court may also order the further taking of evidence.

50. S. 264 relates to the judgment passed in the accused's absence

(Kontumazurteil). The proceedings are provisionally suspended, if the

evidence does not suffice to convict the accused (S. 264 para. 1). In

case of the accused's conviction, the court decides upon the measures

to be taken upon his apprehension. The judgment shall, if possible,

immediately be executed (S. 264 para. 2).

51. S. 266 concerns the remedies open to the parties present at the

trial.

52. S. 267 regulates the accused's remedy against his conviction in

absentia.

53. Pursuant to S. 267 para. 1 the accused convicted in his absence

is notified of his conviction as soon as he is brought before or

surrenders to the court; the notification is made in the presence of

the public prosecutor's office, if the conviction followed an

indictment (öffentliche Klage). According to S. 267 para. 2, the

convicted person is entitled to request a rehearing of his case

(Revision des Verfahrens) within ten days after notification; the

public prosecutor's office has the same right in case of judgments

following an indictment. The request of a convicted person who was

summoned to the trial may only be granted if he shows that he did not

receive the summons or was, through no fault of his, prevented from

appearing in court (S. 267 para. 3). If the request for a rehearing

is granted, normal trial proceedings are instituted against the

convicted person and a new judgment is passed (S. 267 para. 4). In the

absence of a request for rehearing or dismissal of such a request, the

judgment passed in the accused's absence becomes final (S. 267

para. 5).

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

54. The Commission has declared admissible the applicant's complaint

that, in the proceedings resulting in his conviction by the Basel-Stadt

Criminal Court of 3 October 1990, he did not have a hearing by an

impartial tribunal.

B. Point at issue

55. Accordingly, the issue to be determined is whether there has been

a violation of Article 6 para. 1 (Art. 6-1) of the Convention.

C. Article 6 (Art. 6) of the Convention

56. The applicant relied on Article 6 paras. 1 and 2 (Art. 6-1,2) of

the Convention. The Commission has considered the application under

Article 6 para. 1 (Art. 6-1) which is the relevant provision in the

instant case.

57. Article 6 para. 1 (Art. 6-1), in so far as relevant, provides as

follows:

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

everyone is entitled to a ... hearing ... by an ... impartial

tribunal ... "

58. The applicant considers that the outcome of the proceedings upon

the rehearing in the accused's presence should be fully open. However,

judges, who had passed a conviction in the accused's absence, but in

full knowledge of all material, could not be regarded as impartial when

sitting on the rehearing of the same case. He submits that the main

question in the criminal proceedings against him was the legal

qualification of the facts which he had admitted, a question already

determined by the judges at the trial in his absence.

59. The respondent Government, referring to the case-law of the

Convention organs, compare the present case with the Ringeisen case in

particular (Eur. Court H.R., Ringeisen judgment of 16 July 1971, Series

A no. 13). They submit that the Basel-Stadt Criminal Court, following

the applicant's request for a rehearing of his case, was merely called

upon to hold the hearing in the presence of the applicant in order

fully to secure his rights of defence. The Government maintain that

the criminal court, when passing a conviction in the accused's absence,

has a view of the case different from the view it has when conviction

is passed in his presence. In this respect, they refer to the record

of the applicant's trial before the Basel-Stadt Criminal Court between

26 September and 3 October 1990. They consider that there was nothing

to indicate that the judges, who had first convicted the applicant in

his absence, had lost their impartiality when they decided again on the

charges against him. Rather, in such cases, the trial starts again

from the very beginning and the accused's presence at the hearing can

show new aspects.

60. The Commission recalls that 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 (cf. Eur.

Court H.R., De Cubber judgment of 26 October 1984, Series A no. 86,

p. 14, paras. 25, 26; Hauschildt judgment of 24 May 1989, Series A

no. 154, p. 21, para. 46; Thorgeir Thorgeirsson judgment of 25 June

1992, Series A no. 239, p. 23, para. 49; Fey judgment of

24 February 1993, Series A no. 255-A, p. 12, para. 28; Padovani

judgment of 26 February 1993, Series A no. 257-B, p. 20, para. 25).

61. As to the subjective test, the personal impartiality of a judge

must be presumed until there is proof to the contrary (Padovani

judgment, loc. cit., para. 26). The applicant has not alleged that

there was any personal bias on the part of the judges in question.

62. 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. It follows that in deciding whether in a given case there

is a legitimate reason to fear that a particular judge lacks

impartiality, the opinion of the accused is important, but not

decisive. What is decisive is whether his fear can be regarded as

objectively justified (cf. Hauschildt judgment, loc. cit., para. 48;

Thorgeir Thorgeirsson judgment, loc. cit., para. 51, Fey judgment,

loc. cit., para. 30; Padovani judgment, loc. cit., para. 27; Nortier

judgment of 24 August 1993, Series A no. 267, p. 15, para. 33).

63. According to the case-law on this question, there is no 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 (Ringeisen judgment,

loc. cit., p. 40, para. 97; Diennet v. France, Comm. Report 5.4.94,

para. 49, to be published).

64. Moreover, the mere fact that a judge has already taken some

pre-trial measures, which only require a summary assessment of the

available data in order to consider reasons of suspicion, does not

justify fears as to his impartiality (Hauschildt judgment, loc. cit.,

p. 22, para. 50; Sainte-Marie judgment of 16 December 1992, Series A

no. 253-A, p. 16, paras. 32-34; Fey judgment, loc. cit., paras. 31-33;

Padovani judgment, loc. cit., pp. 20-21, para. 28; Nortier judgment,

loc. cit., pp. 15-16, paras. 33-35).

65. The fear of an accused was regarded objectively justified where

a trial judge had previously held in the public prosecutor's department

an office whose nature was such that he may have had to deal with the

case (Eur. Court H.R., Piersack judgment of 1 October 1982, Series A

no 53, p. 15, para. 31), or exercised the functions of an investigating

judge with extensive powers and particularly detailed knowledge of the

files (Eur. Court H.R., De Cubber judgment of 26 October 1984, Series

A no. 86, pp. 15-16, paras. 29-30), or taken pre-trial decisions on the

basis of legal provisions requiring a particularly confirmed suspicion

(Hauschildt judgment, loc. cit., pp. 22-23, paras. 51).

66. In the present case, the Basel-Stadt Criminal Court convicted the

applicant of fraud, bankruptcy and book-keeping offences following a

trial in his absence, which extended, according to the relevant

provisions of the Basel-Stadt Code of Criminal Procedure, in particular

to an examination of the file. This judgment did not become final as

the applicant successfully applied for a rehearing of his case with the

effect that his conviction was set aside. In the new proceedings in

his presence, the same judges as in the proceedings in his absence were

sitting again. The Swiss courts dismissed his motion of challenge on

the ground that, having regard to the particular features of these

proceedings, the outcome of the second trial in his presence appeared

open and there was thus no objectively justified suspicion of lack of

impartiality. The Federal Court, confirming this reasoning, also

referred to a risk of abuse in that the accused could avoid judges whom

he disliked by not appearing in court.

67. When conducting the new trial against the applicant, Judges

Metzener, Becht-Gutmann and Memminger were acquainted with his case,

in particular with the investigation files, the evidence and the legal

questions involved, and had, in his absence, come to a formal finding

of guilt. This kind of situation may have occasioned misgivings on the

part of the applicant, which cannot, however, necessarily be treated

as objectively justified.

68. The Commission observes that, under the relevant provisions of

the Basel-Stadt Code of Criminal Procedure and of other Swiss Codes of

Criminal Procedure, if an accused cannot be brought before the court,

the trial may be conducted against him in his absence, and a conviction

be passed on the basis of the investigation files and after having

heard the parties present, if the evidence is sufficient. In order to

make up for the disadvantages possibly suffered by the accused due to

his absence, the convicted person is entitled to request a rehearing

of his case in normal trial proceedings where he can then exercise his

defence rights. When the rehearing is granted, the accused's case is

restored to the stage of the main proceedings in order to be freshly

examined at a new trial in his presence.

69. This legislation does not provide that the criminal court should

not be composed of the judges who have previously dealt with it in the

accused's absence. Thus, as confirmed by the Federal Court in its

detailed judgment of 2 May 1990, the impartiality of Judges Metzener,

Becht-Gutmann and Memminger of the Basel-Stadt Criminal Court was not

open to doubt under domestic law (cf., mutatis mutandis, Eur. Court

H.R., Oberschlick judgment of 23 May 1991, Series A no. 204, p. 23,

para. 50; Diennet, Comm. Report, loc. cit.).

70. The Commission also recalls that the Contracting States enjoy a

wide discretion as regards the choice of means calculated to ensure

that their legal systems are in compliance with the requirements of

Article 6 para. 1 (Art. 6-1) that a person who has been tried in his

or her absence should be able to obtain a fresh determination of the

merits of the charge (cf. Eur. Court H.R., Colozza judgment of

12 February 1985, Series A no. 89, pp. 15-16, paras. 29-30).

71. The Basel-Stadt Code of Criminal Procedure, providing for the

same judges to conduct the trial proceedings against an accused

following a first conviction in his absence, pursues considerations of

efficiency and also seeks to avoid that an accused has an undue

influence on the determination of the judges competent in his case.

The professional training and experience of the judges ensures that

their findings in the context of the proceedings in the accused's

absence would not predetermine their taking and evaluation of the

evidence and appreciation of all relevant circumstances in the ensuing

new examination of the charges in the accused's presence.

72. In the present case, Judges Metzener, Becht-Gutmann and Memminger

of the Basel-Stadt Criminal Court, when conducting the new trial in

autumn 1990 in order to respect the applicant's right to take part in

the hearing and to achieve a complete establishment of the relevant

facts and debate of the underlying legal issues, were aware that their

judgment of 17 May 1989 had had an incomplete basis. In this context,

the Commission notes the summary nature of the proceedings under S. 263

para. 1 of the Basel-Stadt Code of Criminal Procedure. The course of

the new trial and the judgment of 3 October 1990 do not confirm the

apprehensions of the applicant that the judges concerned had not

conscientiously started a fresh determination of the charges against

him, in accordance with the principle of presumption of innocence under

paragraph 2 of Article 6 (Art. 6-2).

73. The Commission further observes that the applicant was assisted

by an official defence counsel in the proceedings on the rehearing of

his case, and he availed himself of the right to lodge an appeal

against the judgment of 3 October 1990 with the Basel-Stadt Court of

Appeal, which proceeded to a full hearing of his case (cf., mutatis

mutandis, Eur. Court H.R., Nortier judgment, loc. cit., p. 16,

para. 36; Belilos judgment of 29 April 1988, Series A no. 132, pp.

30-32, paras. 68-72 with further reference; Zumtobel judgment of 21

September 1993, Series A no. 268-A, pp. 13-14, paras. 29-32 with

further reference).

74. In these circumstances the applicant's fear that Judges Metzener,

Becht-Gutmann and Memminger lacked impartiality cannot be regarded as

objectively justified.

CONCLUSION

75. The Commission concludes, by 20 votes to 4, that there has been

no violation of Article 6 para. 1 (Art. 6-1) of the Convention.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

(Or. English)

DISSENTING OPINION OF Mr. H. DANELIUS, Mrs. G.H. THUNE

and Mr. L. LOUCAIDES

In our opinion, Article 6 para. 1 of the Convention has been

violated in the present case for the following reasons.

The impartiality required by Article 6 para. 1 of the Convention

implies that judges who decide in a criminal case must not have a

preconceived view on the guilt of the accused. A further requirement

must be that the judges have not had such previous impressions or

information about the matters in regard to which they are to adjudicate

as to create a risk that they will be influenced, in the determination

of the charges against the accused, by elements which should be

irrelevant to that determination. Moreover, since the condition of

impartiality also has an objective side, Article 6 para. 1 must be

considered to require that the circumstances should not be such as to

give the accused a legitimate fear of such elements affecting the

judgment in his case.

In the present case, it appears that the three judges who

convicted the applicant on 3 October 1990 of professional, completed

and attempted fraud, simple bankruptcy and breach of book-keeping

obligations had already found him guilty of the same offences in a

previous judgment of 17 May 1989. This latter conviction had been

preceded by a trial which had been held in the applicant's absence,

whereas the second trial was held in his presence and with his

participation.

We accept that the applicant's presence at the second trial

changed the procedural situation considerably and that, after rehearing

the case, the judges could well have been prepared to change their

original opinions. Nevertheless, it cannot be disregarded that the

three judges had already evaluated the charges against the applicant

in previous proceedings and had then found him guilty of certain

offences and had sentenced him to a term of imprisonment. We consider

that, when the same judges again had to consider the same case against

the applicant, there must have been at least a risk that they would be

to some extent influenced by their impressions from the previous

proceedings or by the deliberations which had taken place on that

occasion. The fear that the applicant had in this regard would thus

seem to have been objectively justified.

Our opinion that in this respect there was a lack of impartiality

within the meaning of Article 6 para. 1 of the Convention is supported

by the position taken by the Court in the Hauschildt case where a judge

who had taken pretrial decisions on detention on remand, based on the

finding that there was a "particularly confirmed suspicion" against the

accused person, was found not to be impartial when, subsequently, he

conducted the trial against the accused (Eur. Court H.R., Hauschildt

judgment of 24 May 1989, Series A no. 154). Here too, the decision

which the judge had taken was based on a much less complete material

than that which was made available at the trial, but the Court

nevertheless considered that the position taken by the judge in regard

to the existence of the particular ground of detention was sufficient

to create a legitimate doubt about his impartiality.

The further question arises whether the lack of impartiality at

first instance was remedied by the fact that there was a full review

of the applicant's conviction and sentence in the subsequent appeal

proceedings.

We consider, however, that where criminal justice, as is often

the case, is administered at two levels - at first instance and on

appeal - it is not sufficient that the requirement of impartiality is

satisfied at the appeal stage. While various minor procedural

deficiencies may well be remedied in appeal proceedings, the

requirement of an impartial tribunal is of such a fundamental character

that it should be satisfied already during the trial at first instance,

this being in general an essential - and perhaps even the most

important - part of the criminal proceedings against an accused person,

in particular where - as would seem to have been the situation in the

present case - the evidence in the case was not heard again by the

court of appeal. We also refer in this regard to the Court's finding

in the De Cubber case (Eur. Court H.R., De Cubber judgment of

26 October 1984, Series A no. 86, p. 19, para. 33).

It follows that, in our view, the applicant did not have a

hearing by an impartial tribunal.

(Or. English)

DISSENTING OPINION OF Mrs. J. LIDDY

I agree generally with the opinion of Mr. Danelius, Mrs. Thune

and Mr. Loucaides to the effect that Article 6 para. 1 has been

violated, but wish to add a slight qualification to the statement that

a requirement of Article 6 para. 1 "must be that the judges have not

had such previous impressions or information about the matters in

regard to which they are to adjudicate as to create a risk that they

will be influenced, in the determination of the charges against the

accused, by elements which should be irrelevant to that determination".

I would qualify that requirement by the words "to the extent

feasible". It appears to me that unavoidable circumstances may arise

where a judge has had some impression of the personalities, issues or

events involved. This could arise, for example, where the highest

court in the land is seized of a private dispute to which a judicial

colleague or well-known counsel is party, or where the resolution of

the dispute between any parties may have financial repercussions or

implications for judges' own salary or pension rights, or where there

has been massive daily press, television and radio coverage of the

events, personalities or issues involved which no court could be

expected to remain ignorant of. It seems to me that the reality is

that both in big countries and in small countries unavoidable

circumstances may arise whereby, unless the parties are to be deprived

of their right to a determination of the issue, confidence must be

placed in the discipline of judges to set aside extraneous and unproved

information or comment to which they have been exposed.

No such insurmountable difficulties or outside influences arose

in the present case. Here, the judges who convicted the applicant on

3 October 1990 had already been called upon to formulate and express

their own professional opinions - indeed, formal findings - on the

question of the innocence or guilt of the applicant, a situation to be

distinguished from one of unavoidable exposure to others' opinions.

The applicant could objectively fear that the judges were not

impartial. Accordingly, I voted for a violation of Article 6 para. 1.

APPENDIX I

HISTORY OF THE PROCEEDINGS

Date Item

_________________________________________________________________

5 December 1990 Introduction of application

7 January 1991 Registration of application

Examination of admissibility

13 October 1993 Commission's decision (First Chamber) to

communicate the case to the respondent

Government and to invite the parties to

submit observations on admissibility and

merits

7 January 1994 Government's observations

8 March 1994 Applicant's observations in reply

17 May 1994 Commission's decision not to grant legal

aid

30 August 1994 Transfer of the case to plenary Commission

5 September 1994 Commission's decision to declare

application admissible

Examination of the merits

12 September 1994 Decision on admissibility transmitted to

parties. Invitation to parties to submit

further observations on the merits

28 October 1994 Applicant's observations

31 October 1994 Government's observations

14 January 1995 Commission's consideration of state of

proceedings

21 February 1995 Commission's deliberations on the merits,

final vote and consideration of text of

the Report

2 March 1995 Adoption of Report

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THOMANN v. SWITZERLAND

THOMANN v. SWITZERLAND

LEXI