Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

Application No. 17358/90

M. B.

against

Austria

REPORT OF THE COMMISSION

(adopted on 8 September 1994)

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. 17-25) . . . . . . . . . . . . . . . . . . . . .3

A. The particular circumstances of the case

(paras. 17-22). . . . . . . . . . . . . . . . . . .3

B. Relevant domestic law

(paras. 23-25). . . . . . . . . . . . . . . . . . .4

III. OPINION OF THE COMMISSION

(paras. 26-64) . . . . . . . . . . . . . . . . . . . . .5

A. Complaints declared admissible

(para. 26). . . . . . . . . . . . . . . . . . . . .5

B. Points at issue

(para. 27). . . . . . . . . . . . . . . . . . . . .5

C. As to compliance with Article 6 para. 1

(para. 28). . . . . . . . . . . . . . . . . . . . .5

(i) As to the participation of Judge Schaumburger

(paras. 29-40). . . . . . . . . . . . . . . . . . .5

CONCLUSION (para. 41). . . . . . . . . . . . . . . . . .7

(ii) As to the absence of a hearing before

the Supreme Court (paras. 42-50). . . . . . . . . .7

CONCLUSION (para. 51). . . . . . . . . . . . . . . . . .8

(iii)As to the passing of a statement to the

Supreme Court (paras. 52-57). . . . . . . . . . . .9

CONCLUSION (para. 58). . . . . . . . . . . . . . . . . .9

(iv) As to the divulging of the judge rapporteur's

name (para. 59) . . . . . . . . . . . . . . . . . 10

CONCLUSION (para. 60). . . . . . . . . . . . . . . . . 10

D. Recapitulation

(paras. 60-64). . . . . . . . . . . . . . . . . . 10

PARTIALLY CONCURRING AND PARTIALLY DISSENTING

OPINION OF MRS LIDDY. . . . . . . . . . . . . . . . . . . . 11

APPENDIX I : HISTORY OF THE PROCEEDINGS . . . . . . . . . 13

APPENDIX II : DECISION OF THE COMMISSION AS TO THE

ADMISSIBILITY OF THE APPLICATION . . . . . . 14

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 Turkish citizen, born in 1969. He lives in

Innsbruck. He was represented before the Commission by Mr. W.L. Weh,

a lawyer practising in Bregenz.

3. The application is directed against the Republic of Austria whose

Government were represented by their agent, Ambassador F. Cede, Head

of the International Law Department of the Federal Ministry for Foreign

Affairs.

4. The case concerns criminal proceedings against the applicant in

which he was convicted of attempting to bribe civil servants. The

applicant complains that he did not have a fair hearing before an

impartial tribunal. He invokes Article 6 para. 1 of the Convention.

B. The proceedings

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

on 25 October 1990.

6. On 11 May 1992 the Commission 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

11 September 1992. The applicant replied on 26 November 1992.

8. On 2 April 1993 the Commission declared the application

admissible.

9. On 8 April 1993 the parties were invited to submit such further

information or observations on the merits as they wished. The

Government submitted observations on 19 May 1993, and the applicant

submitted comments on 22 June 1993 to which the respondent Government

replied on 17 September 1993. The applicant submitted a further

statement on 13 October 1993.

10. On 9 February 1994, the President of the Commission granted the

applicant legal aid for the representation of his case.

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, including

the result of negotiations in Strasbourg and Vienna between June 1993

and February 1994, 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

S. TRECHSEL

A. WEITZEL

F. ERMACORA

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G.H. THUNE

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

J. MUCHA

E. KONSTANTINOV

D. SVÁBY

13. The text of this Report was adopted on 8 September 1994 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 23 March 1990, the applicant was convicted by the Innsbruck

Regional Court (Landesgericht) of attempting to bribe civil servants.

He was fined AS 25,200, suspended for three years. On 6 March 1990,

before the trial had begun, the presiding judge had sent a note to

Mr. Heiss, the applicant's lawyer during those proceedings, that one

of the judges, Judge Schaumburger, had taken part in the preliminary

proceedings at the questioning of witnesses. The lawyer was asked to

inform the court by 16 March 1990 whether he challenged the judge on

this ground. The lawyer received the note on 12 March and did not

reply. At the beginning of the trial on 23 March, the presiding judge

again stated that Judge Schaumburger had officiated as investigating

judge for part of the preliminary proceedings. The trial record 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"). Mr. Heiss, in a document of 2 June 1993

which was submitted in the course of the proceedings before the

Commission, states that he answered the question whether he was

prepared to waive the right to raise the point in his nullity appeal

by stating that, in his view, it was not possible to waive the

possibility of raising questions of the exclusion of a judge. He

considered that it was only possible to waive a challenge to a judge

on grounds of partiality. The presiding judge at the trial, in a

document of 11 August 1993 which was also submitted in the course of

the proceedings before the Commission, states that the waiver which is

included in the trial record did take place as recorded. He adds that

he remembers Mr. Heiss adding words to the effect that he did not

consider the waiver to be valid.

18. The applicant filed a plea of nullity and an appeal against

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

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

(Strafprozeßordnung) he alleged that he had been heard by a judge who

was excluded by operation of law from participation. He also alleged

violations of Article 281 para. 1(4), (5) and (9)(a) of the Code of

Criminal Procedure. In particular, in connection with

Article 281 para. 1 (5), the applicant complained that the trial court

had found two witnesses completely credible, and had found that

contradictions in their stories were easily explained as mistakes of

memory. He alleged that the contradictions were fundamental. He also

stated that there should have been a confrontation between two

witnesses and the applicant's brother, who had for a certain time been

suspected of the offences. The prosecution also appealed against the

sentence.

19. On 29 June 1990, the Procurator General's office

(Generalprokuratur) sent the following note to the Supreme Court:

"In the view of the Procurator General's office, the plea of

nullity brought by the accused, [M. B.], meets the criteria for

a decision pursuant to Article 285 (d) of the Code of Criminal

Procedure. The transmission of a copy of the decision is

requested."

The statement was not submitted to the defence.

20. On 7 August 1990 the Supreme Court rejected the applicant's plea

of nullity under Article 285 (d) para. 1 of the Code of Criminal

Procedure. After confirming that a disqualified judge had taken part

in the trial, the Supreme Court referred to the waiver contained in the

record of the trial proceedings, and noted that Article 281 para. 1 (1)

of the Code of Criminal Procedure required a ground of nullity relating

to Articles 67 and 68 of the Code of Criminal Procedure first to have

been raised at the trial itself. In connection with the applicant's

plea of nullity under Article 281 para. 1 (5) of the Code of Criminal

Procedure, the Supreme Court found that the complaints were an attempt

to challenge the assessment of the evidence made by the judges of fact,

and as such were inadmissible and insufficient to constitute a ground

of nullity under Article 281 para. 1 (5) of the Code of Criminal

Procedure. The Supreme Court also found that there had, in fact, been

a confrontation between the two witnesses and the applicant's brother,

notwithstanding the applicant's allegation that there had been none.

The plea of nullity was rejected. The Supreme Court remitted the

question of the applicant's appeal against sentence to the Innsbruck

Court of Appeal (Oberlandesgericht).

21. The applicant's lawyer received the Supreme Court's decision on

6 September 1990.

22. On 3 October 1990 the Innsbruck Court of Appeal, after an oral

hearing, increased the applicant's sentence to nine months'

imprisonment, suspended for three years. The applicant's lawyer

received this decision on 16 October 1990.

B. Relevant domestic law

23. Article 68 para. 2 of the Code of Criminal Procedure (Straf-

prozeßordnung) provides that "a person shall be disqualified

(ausgeschlossen) from participating or deciding in the trial

proceedings if he has acted as investigating judge in the same case

...".

24. Article 281 para. 1 of the Code of Criminal Procedure provides

for the specific grounds on which a plea of nullity may be made. These

include:

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

took part in the decision who is excluded (under Articles 67 and

68), unless the cause of the plea of nullity was known to the

applicant 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,

...

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

facts is unclear, incomplete or self-contradictory ..."

25. Article 285 (d) para. 1 of the Code of Criminal Procedure

provides:

"A plea of nullity may be rejected immediately after deliberation

in private:

1. if it should already have been rejected by the court at first

instance, pursuant to Article 285 (a) ...,

2. if the plea of nullity is based on the grounds of nullity

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

Court unanimously finds that the complaint should be dismissed

as manifestly ill-founded without any need for further

deliberation."

III. OPINION OF THE COMMISSION

A. Complaints declared admissible

26. The Commission has declared admissible the applicant's complaints

that he did not have a fair hearing before an impartial tribunal.

B. Points at issue

27. The issues to be determined are whether there has been a

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

of:

- the participation of Judge Schaumburger at the applicant's trial;

- the absence of an oral hearing before the Supreme Court;

- the passing of a statement to the Supreme Court by the Procurator

General's office of which the applicant was not aware; and/or

- the fact that the name of the judge rapporteur in the case was

divulged to the Procurator General in violation of Section 20 of

the Supreme Court Act.

C. As to compliance with Article 6 para. 1 (Art. 6-1)

28. Article 6 para. 1 (Art. 6-1) of the Convention provides, so far

as relevant, as follows:

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

everyone is entitled to a fair and public hearing within a

reasonable time by an independent and impartial tribunal

established by law."

(i) As to the participation of Judge Schaumburger

29. The applicant points to a distinction in Austrian law between

matters which give rise to the exclusion of a judge and those which

give rise to the possibility of challenge: in cases such as the

present, exclusion is effected by operation of law without the parties'

raising it. The applicant considers that it cannot be possible to

waive objection to participation by a judge who is excluded by

operation of law, as the very wording of the provision precludes

acceptance by a defendant. He considers therefore that the court was

neither "independent and impartial" nor a tribunal "established by

law".

30. The Government point out that the applicant was twice given the

opportunity to challenge the judge, but did not avail himself of either

opportunity. They consider that the applicant has validly waived his

right to challenge the judge. They point out that Judge Schaumburger

refrained from any procedural action until the waiver was declared, and

that it was the presiding judge (who was not excluded) who invited the

applicant's lawyer on each occasion to state whether he objected to the

participation of Judge Schaumburger. The Government consider that it

is unrealistic to allege that a refusal to waive would have entailed

extra costs and delay as, had the applicant chosen to reject Judge

Schaumburger's participation before the trial, the presiding judge

would simply have nominated the next judge on the schedule of business

to take part in the trial.

31. The Commission first finds that the complaint of the lack of an

"impartial" tribunal in the present case is, in substance, the same as

that of the absence of a tribunal "established by law" (cf. Eur. Court

H.R., Pfeifer and Plankl judgment of 25 February 1992, Series A

no. 227, p. 16, para. 36).

32. The Commission next recalls that where it is permissible, the

waiver of a right guaranteed by the Convention must be established in

an unequivocal manner, and in the case of procedural rights, a waiver

must be accompanied by minimum guarantees commensurate to its

importance (above-mentioned Pfeifer and Plankl judgment, p. 16,

para. 37).

32. In the case of Pfeifer and Plankl, the Court found that the

waiver had not been made unequivocally because the judge concerned had

approached the applicant in person rather than his lawyer, who had not

been summoned.

33. The present case is similar to the above mentioned case of

Pfeifer and Plankl in that it relates to the participation in a trial

by a judge who was formally, under Austrian law, precluded from

involvement by Article 68 para. 2 of the Code of Criminal procedure.

Although the Court in Pfeifer and Plankl indicated that it was not

necessarily permissible to waive all Convention rights, the Commission

finds nothing in the judgment in that case which precludes the

operation of a waiver in the circumstances of the present case. The

question did not have to be decided in Pfeifer and Plankl because the

Court found the waiver in any event not to have been valid.

34. The participation of an investigating judge as a judge of the

trial court is not per se a violation of Article 6 para. 1 (Art. 6-1).

It is in the nature of things that the degree to which an investigating

judge has been involved in a case varies according to the circumstances

of the case (see, for example, Eur. Court H.R., Fey judgment of

24 February 1993, Series A no. 255, pp. 12-14, paras. 30-35 with

further references). Whilst the Commission finds the stringency with

which Austrian law precludes the investigating judge from participating

at trial before the Regional Court to be in line with Article 6

(Art. 6) of the Convention, it does not follow that the presence of the

investigating judge at trial is so undesirable that an individual

should not be permitted to accept that judge's participation - provided

always that the individual is able to consent on the basis of all

relevant information and without undue pressure.

35. The present case is thus not one in which waiver of the

Convention right at issue is not permissible.

36. In connection with the applicant's contention that Judge

Schaumburger was excluded by operation of law, such that no waiver was

possible, the Commission would comment Article 281 para. 1 (1) of the

Code of Criminal Procedure provides for such disqualification to be a

ground of nullity, so that although Article 68 para. 2 sets out the

disqualification, the mechanism by which it can be raised is in

Article 281 para. 1 (1). The applicant has not pointed to any

provision of Austrian law which would indicate that proceedings are

invalid where a disqualified judge participates and the matter is not

raised on a plea of nullity.

37. The Commission next notes that the applicant's lawyer was twice

given the opportunity to object to Judge Schaumburger's participation.

The first occasion was before the trial when, on 12 March 1990, the

lawyer received the presiding judge's note that Judge Schaumburger was

technically excluded by operation of law. The lawyer was asked to

inform the Court by 16 March 1990 if he objected to the judge's

participation, and he did not do so. The second occasion was at the

beginning of the trial, when the lawyer was expressly asked whether he

objected to Judge Schaumburger's participation.

38. The Commission considers that the lawyer's silence following the

request from the Court cannot be regarded, in the present case, as an

unequivocal acceptance of the judge in question. On the second

occasion, however, the applicant and his lawyer were both present in

court, and the Commission finds it established that the lawyer agreed

to Judge Schaumburger taking part in the trial. The lawyer may have

regarded the waiver he made as not valid, but it has not been contended

that he did not make it. No request was made for the trial record to

be amended.

39. Moreover, the Commission notes, as the Government submit, that

Judge Schaumburger took no procedural steps after he realised that he

was technically precluded from acting in the case, and it was the

presiding judge (not Judge Schaumburger) who asked the applicant's

lawyer whether he agreed to Judge Schaumburger continuing to

participate. The Commission further notes that, although the

applicant's representative before the Commission has alleged that the

waiver was accepted with a view not to losing time and money, there is

no indication of any pressure being put on the trial lawyer and, as the

Government have submitted, if Judge Schaumburger had been objected to,

his place would simply have been taken by the next judge on the list.

Finally, the Commission notes that, although it is true "there is no

provision of Austrian law which allows for a defendant expressly to

waive his right to be tried by a court whose composition is in

accordance with the law" (above-mentioned Pfeifer and Plankl judgment,

p. 17, para. 38), Article 281 para. 1 (1) of the Code of Criminal

Procedure envisages the possibility that a defendant may be tried by

a court which was not properly constituted and that the defendant

cannot complain of that lack of proper constitution on his plea of

nullity because he failed to raise the matter "at the beginning of the

trial or as soon as he became aware of it".

40. The Commission finds thus that the applicant was able to and did

validly waive his right to challenge Judge Schaumburger.

CONCLUSION

41. The Commission concludes, by 25 votes to 1, that there has been

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

virtue of the participation of Judge Schaumburger at the applicant's

trial.

(ii) As to the absence of a hearing before the Supreme Court

42. As to the question of the absence of a hearing before the Supreme

Court, the Commission notes the Austrian reservation to Article 6

(Art. 6) of the Convention which provides 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."

43. The applicant considers that this reservation does not comply

with the criteria of Article 64 (Art. 64) of the Convention, that the

plea of nullity raised under Article 281 para. 1 (5) of the Code of

Criminal Procedure related exclusively to questions of fact, and that

he should therefore have been entitled to a public hearing before the

Supreme Court.

44. The Government consider that the complaint is covered by the

reservation. They accept that a request by the applicant to the Supreme

Court to conduct an oral hearing would have had no prospects of

success, but they argue that the applicant's complaint under

Article 281 para. 1 (5) of the Code of Criminal Procedure was rejected

by the Supreme Court for legal reasons and without regard to the

merits.

45. The Commission recalls that even where an appeal court has

jurisdiction to review a case both as to the facts and as to the law,

and provided a public hearing has been held at first instance,

Article 6 (Art. 6) does not always require a right to a public hearing

irrespective of the issues to be decided. In particular, leave to

appeal proceedings and proceedings involving only questions of law may

be in conformity with Article 6 (Art. 6) of the Convention even in the

absence of a hearing (cf. Eur. Court H.R., Jan-Ã…ke Andersson judgment

of 29 October 1991, Series A no. 212-B, p. 27, p. 45).

46. The Commission notes that a hearing was held at first instance.

47. The applicant's plea of nullity (that is, his appeal in the case)

was rejected by the Supreme Court under Article 285 (d) para. 1 of the

Code of Criminal Procedure. That provision does not formally

constitute a leave to appeal procedure as referred to by the Court in

the above-mentioned case of Jan-Ã…ke Andersson, but its effect is

similar in that it enables the courts to consider whether an appeal has

sufficient merits to warrant further consideration. The Supreme Court

rejected the applicant's plea of nullity unanimously and expeditiously.

48. Whilst it is true that the applicant claims that his plea of

nullity, which alleged nullity inter alia under Article 281 para. 1

(5), raised questions of fact as well as questions of law, the

Commission notes that the Supreme Court regarded the ground of nullity

as an inadmissible attempt to challenge the first instance court's

assessment of the evidence. It answered his complaint concerning a

confrontation between two witnesses and the applicant's brother by

pointing out that there had in fact been such a confrontation. The

Commission is not satisfied that the applicant's plea of nullity raised

questions of fact which could have called for a hearing.

49. In the circumstances of the present case, the Commission thus

finds that Article 6 para. 1 (Art. 6-1) of the Convention did not

require the Supreme Court to hold a hearing on the applicant's plea of

nullity.

50. The Commission is therefore not required to determine questions

concerning the validity and applicability of the Austrian reservation

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

CONCLUSION

51. The Commission concludes, unanimously, that there has been no

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

of the absence of an oral hearing before the Supreme Court.

(iii) As to the passing of a statement to the Supreme Court

52. The applicant complains that the Procurator General submitted a

statement to the Supreme Court which was not made available to the

defence. He underlines that the Procurator General is a prosecution

authority, and he considers that the fact that the "submissions" did

not deal with the merits of the case is irrelevant.

53. The Government accept that the statement by the Procurator

General's office was not served on the applicant. They consider,

however, that the "submissions" did not amount to comments on the facts

of the case, nor did they amount to factual arguments, and concludes

that the principle of "equality of arms" was not violated.

54. The Commission has dealt with the question of the absence of an

oral hearing before the Supreme Court on the basis that the Supreme

Court did not need a full examination of the appeal, and was therefore

not required to hold an oral hearing. Article 6 (Art. 6) remains

applicable, however, and in particular the principle of equality of

arms, inherent in the notion of fairness under Article 6 para. 1

(Art. 6-1) of the Convention, must always be respected (cf., in the

context of actual leave to appeal proceedings, Eur. Court H.R., Monnell

and Morris judgment of 2 March 1987, Series A no. 115, pp. 23-24,

para. 62).

55. The Commission recalls that the European Court of Human Rights

has found a violation of the Convention where the Senior Public

Prosecutor (Oberstaatsanwalt) filed submissions with the Court of

Appeal of which the defence knew nothing (Eur. Court H.R., Brandstetter

judgment of 28 August 1991, Series A no. 211, pp. 27-28, paras. 64-69).

On the other hand, where the defence obtain a copy of the submissions

of the Procurator General in advance of a hearing before the Supreme

Court, there may well be no violation of Article 6 (Art. 6) of the

Convention (Eur. Court H.R., Kremzow judgment of 21 September 1993,

Series A no. 268-B, p. 42, paras. 48-50).

56. In the present case the applicant did not receive the Procurator

General's submissions to the Supreme Court at all. He was only aware

that the Procurator General had made submissions because of the phrase

"after consideration of the Procurator General's office's submissions"

("nach Anhörung der Generalprokuratur") in the Supreme Court's

judgment. It is true, as the Government submit, that the observations

were not, in the event, very detailed, as they merely considered that

the case could be considered under the Article 285 (d) procedure (as

it was). The principle of equality of arms does not, however, depend

on further, quantifiable unfairness flowing from a procedural

inequality: it is inherently unfair for the prosecution to make

submissions to a court of which the defence is unaware and on which the

defence has no opportunity to comment.

57. The Commission therefore finds that the passing of submissions

by the prosecution to the Supreme Court in the present case was not

compatible with the principle of equality of arms.

CONCLUSION

58. The Commission concludes, by 25 votes to 1, that there has been

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

of the passing of a statement to the Supreme Court by the Procurator

General's office of which the applicant was not aware.

(iv) As to the divulging of the judge rapporteur's name

59. As to the complaint that the Supreme Court divulged the name of

the judge rapporteur to the Procurator General in violation of Section

20 of the Supreme Court Act, the Commission finds that, even if true,

this cannot in itself render the proceedings unfair (Eur. Court H.R.,

above-mentioned Kremzow judgment, p. 46, para. 75).

CONCLUSION

60. The Commission concludes, unanimously, that there has been no

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

of the fact that the name of the judge rapporteur in the case was

divulged to the Procurator General in violation of Section 20 of the

Supreme Court Act.

D. Recapitulation

61. The Commission concludes, by 25 votes to 1, that there has been

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

virtue of the participation of Judge Schaumburger at the applicant's

trial (para. 41).

62. The Commission concludes, unanimously, that there has been no

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

of the absence of an oral hearing before the Supreme Court (para. 51).

63. The Commission concludes, by 25 votes to 1, that there has been

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

of the passing of a statement to the Supreme Court by the Procurator

General's office of which the applicant was not aware (para. 58).

64. The Commission concludes, unanimously, that there has been no

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

of the fact that the name of the judge rapporteur in the case was

divulged to the Procurator General in violation of Section 20 of the

Supreme Court Act (para. 60).

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

(Or. English )

PARTIALLY CONCURRING AND PARTIALLY DISSENTING

OPINION OF MRS. LIDDY

With respect, I disagree with the conclusions of the majority on

the first of the points at issue, that is, as to the participation of

Judge Schaumburger at the applicant's trial.

The Government consider that the applicant has waived his right

to be tried by "an independent and impartial tribunal established by

law" as required by Article 6 para.1. The record states that the

parties waived the right to raise as a ground of nullity the fact that

Judge Schaumburger was disqualified from participating (by operation

of Article 68 (2) of the Code of Criminal Procedure). In fact, the

evidence before the Commission is to the effect that defence counsel

expressly added that he did not regard any waiver as valid, because

Dr. Schaumburger was already legally disqualified. However, he

refrained from making a formal declaration challenging the judge.

Even supposing that the above-quoted rights under

Article 6 para. 1 of the Convention can be waived, do these facts meet

the two criteria set by the Court in Pfeifer and Plankl (Series A,

No. 227)? First, is the waiver established in an unequivocal manner?

Second, was the waiver accompanied by minimum guarantees commensurate

to its importance?

As to the first question, it seems to me that defence counsel's

protest to the effect that no waiver could be valid casts doubt on

whether the waiver could be regarded as unequivocal.

As to the second question, there is no provision of Austrian law

which allows for a defendant expressly to waive his right to be tried

by a court whose composition is in accordance with law. It is true,

as noted by the majority, that the failure of a defendant to query the

proper constitution of a trial court as soon as he becomes aware of the

defect may be a barrier to a plea of nullity pursuant to

Article 281 (1) of the Code of Criminal Procedure. However, in the

present case there was no need for defence counsel to draw the matter

to the trial court's attention (the trial court having noted the

problem already) and there was no law, with commensurate guarantees,

providing for an express waiver of the right to a properly constituted

court. Moreover, in its judgment in the Pfeifer and Plankl case, the

Court noted (at para. 24) the substance of Article 281(1). The Court

nonetheless (at para. 38) noted the absence of any law providing for

waiver of the right to be tried by a court whose composition is in

accordance with the law and the consequent absence of the procedure to

be followed for this purpose. It added, "But such a right is of

essential importance and cannot depend on the parties alone."

In these circumstances, while I have difficulty in fully

appreciating why, on the one hand, defence Counsel refrained from

formally objecting, and why, on the other hand, the trial court

refrained from deeming his statements as amounting in substance to an

objection, rather than as waiver of a ground of plea of nullity (and

therefore refrained from replacing Judge Schaumburger), it does seem

to me that there was neither a clear-cut law providing for valid waiver

of the right to be tried by a court composed in accordance with the

law, nor an unequivocal waiver of a right of such essential importance.

Therefore, even supposing that this right can be waived, there

has, in my opinion, been a violation of Article 6 para. 1.

APPENDIX I

HISTORY OF THE PROCEEDINGS

Date Item

_________________________________________________________________

5 October 1990 Introduction of application

25 October 1990 Registration of application

Examination of admissibility

11 May 1992 Commission's decision to communicate the

case to the respondent Government and to

invite the parties to submit observations

on admissibility and merits

11 September 1992 Government's observations

26 November 1992 Applicant's observations in reply

2 April 1993 Commission's decision to declare

application admissible

Commission's adoption of text of decision

on admissibility

Examination of the merits

8 April 1993 Decision on admissibility transmitted to

parties. Invitation to parties to submit

further observations on the merits

19 May 1993 Government's observations on the merits

22 June 1993 Applicant's observations on the merits

4 September 1993 Commission's consideration of state of

proceedings

17 September 1993 Government's further observations on the

merits

13 October 1993 Applicant's further observations on the

merits

9 February 1994 President's grant of legal aid

14 May 1994 Commission's consideration of state of

proceedings

30 August 1994 Commission's deliberations on the merits,

final vote and consideration of text of

the Report

8 September 1994 Adoption of Report

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M.B. v. AUSTRIA

M.B. v. AUSTRIA

LEXI