Lexploria

Application No. 14396/88

Hans Jürgen FEY

against

AUSTRIA

REPORT OF THE COMMISSION

(adopted on 15 October 1991)

TABLE OF CONTENTS

PAGE

I. INTRODUCTION

(paras. 1 - 14) ........................................ 1

A. The application

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

B. The proceedings

(paras. 5 - 9) ................................. 1

C. The present Report

(paras. 10 - 14) ............................... 2

II. ESTABLISHMENT OF THE FACTS

(paras. 15 - 40) ....................................... 3

A. The particular circumstances of the case

(paras. 15 - 32) ............................... 3

B. Relevant domestic law and practice

(paras. 33 - 40) .............................. 6

III. OPINION OF THE COMMISSION

(paras. 41 - 61) ....................................... 7

A. Complaint declared admissible

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

B. Point at issue

(para. 42) ..................................... 7

C. Compliance with Article 6 para. 1

of the Convention

(paras. 43 - 60) ............................... 7

D. Conclusion

(para. 61) ..................................... 10

DISSENTING OPINION OF MM. F. ERMACORA, F. MARTINEZ AND B. MARXER

.................................................. 11

APPENDIX I : HISTORY OF THE PROCEEDINGS .................. 12

APPENDIX II : DECISION ON THE ADMISSIBILITY ............... 13

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, a German citizen born in 1922, is a pensioner

residing at Geeste in the Federal Republic of Germany. Before the

Commission he has been represented by Mr. M. Orgler, a lawyer

practising at Innsbruck in Austria.

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

The Government are represented by their Agent, Ambassador Helmut Türk,

Head of the International Law Department at the Federal Ministry of

Foreign Affairs.

4. The case concerns the applicant's complaint under Article 6

para. 1 of the Convention of the lack of impartiality of a District

Court judge who first undertook preliminary investigations and later

acted as trial judge.

B. The proceedings

5. The application was introduced on 10 November 1988 and

registered on 24 November 1988.

6. On 2 October 1989 the Commission decided to give notice of the

application to the respondent Government and to invite them to present

their observations on the application limited to issues under Article

6 para. 1 of the Convention.

7. The Government's observations were submitted on 22 October

1989. The applicant submitted his observations in reply on 14 February

1990.

8. On 9 October 1990 the Commission declared the application

admissible with regard to the applicant's complaint under Article 6

para. 1 of the Convention concerning the position of the District Court

judge. It also decided not to refer the case to a Chamber.

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

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

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

settlement of the case. Consultations with the parties took place

between 15 October 1990 and 3 April 1991. The Commission now finds

that there is no basis on which such a settlement can be effected.

C. The present Report

10. 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

J.A. FROWEIN

S. TRECHSEL

F. ERMACORA

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

A. WEITZEL

J.C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G.H. THUNE

Sir Basil HALL

Mr. F. MARTINEZ

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

11. The text of this Report was adopted on 15 October 1991 and is

now transmitted to the Committee of Ministers of the Council of Europe,

in accordance with Article 31 para. 2 of the Convention.

12. 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

under the Convention.

13. 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.

14. 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

15. According to the subsequent judgment of the Zell am Ziller

District Court (Bezirksgericht) of 24 March 1988, the applicant rented

a room in Mayrhofen in Austria from a certain Mrs R.K. from 17 to 27

January 1988. He told Mrs R.K. that his wife was very ill and in an

Innsbruck hospital, and that he was expecting a pension payment from

Germany. Mrs R.K. handed him the amount of 2,500 AS and waived the

rent amounting to 1,500 AS.

16. On 19 January 1988 the applicant opened for the prospective

pension payments an account at a Mayrhofen bank. On 22 January 1988

Mrs R.K. handed the applicant further 600 AS.

17. On 27 January 1988 Mrs R.K. reported the applicant to the

police. On 28 January 1988 the District Attorney (Bezirksanwalt) at

the Zell District Court filed an application with the District Court

requesting the applicant's punishment on account of fraud.

18. On 4 February 1988 the applicant was detained at Innsbruck

awaiting extradition to the Federal Republic of Germany with regard to

another offence.

19. On 8 February 1988 the Innsbruck Public Prosecutor's Office

(Staatsanwaltschaft) asked the investigating judge of the Innsbruck

Regional Court (Landesgericht) to institute preliminary investigations

against the applicant on suspicion of fraud and to order his detention

on remand on the ground of a danger of his absconding.

20. Detention on remand was imposed on the applicant on 10 February

1988. The criminal proceedings were then conducted by the Innsbruck

Regional Court in view of a second charge of fraud brought against the

applicant.

21. On 12 February 1988 the Innsbruck Regional Court filed a letter

rogatory (Rechtshilfeersuchen) with the Zell District Court for the

questioning of Mrs R.K. as a witness. Thereupon, Mrs. A.K., a judge

at the Zell District Court, questioned Mrs R.K. on 25 February 1988.

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

terminated the investigations in respect of the second charge of fraud,

and requested the transfer of the proceedings to the Zell District

Court. The latter had jurisdiction in respect of the charge of fraud

concerning Mrs R.K. On 4 March 1988 the Zell District Court received

the case-file.

23. On 6 March 1988 the applicant, who was in a prison in

Innsbruck, requested to be released from detention on remand. Two

further requests were filed on 12 and 15 March 1988.

24. During the ensuing period judge A.K. wrote to a court in

Osnabrück in the Federal Republic of Germany as to the reasons why part

of a prison sentence concerning the applicant had been suspended. Judge

A.K. also transmitted the case-file to the Innsbruck District Court

which was asked further to question the applicant, in particular as to

the expected payment of pension in January 1988, and as to the details

of his pension.

25. On 17 March 1988 judge A.K. telephoned the bank in Mayrhofen

to establish whether money had been paid into the bank account opened

by the applicant on 19 January 1988. By letter of 17 March 1988 the

bank replied that, while the applicant had opened an account at their

bank, "we could not since this account was opened register any receipts

until today" ("wir konnten aber seit der Eröffnung dieses Kontos bis

heute keine Eingänge verbuchen").

Judge A.K. furthermore telephoned the two German insurance

companies to establish whether the applicant had applied for, or

received, a pension payment. According to a note in the case-file

prepared by judge A.K. on 18 March 1988, a person at one insurance

company replied by telephone that, under the reference number mentioned

by the applicant, "a pension was never requested and also was never

paid out" ("nie eine Rente beantragt wurde und auch nie eine ausbezahlt

wurde"). A person at the other insurance company replied by telephone

that, while the applicant did have an account, he had "until today not

received a pension" ("bis heute keine Rente bezogen").

26. On 18 March 1988 judge A.K. fixed the trial for 24 March 1988.

27. The trial took place before the Zell District Court on 24 March

1988, Mrs A.K. sitting as single judge. According to the minutes of

the trial, a District Prosecutor (Bezirksanwalt) was present as

Prosecutor (Ankläger). The applicant spoke first, claiming that he was

innocent. Thereafter, the witness R.K. spoke as well as a police

officer as a substitute for the police officer who had visited R.K.'s

house after the applicant's arrest. Various documents were presented

(dargetan) namely the criminal report and the result of the police

investigations; the applicant's entry in the criminal record

(Strafregisterauskunft); the case-file of the Innsbruck Regional Court;

the information provided by the two German insurance companies and the

Mayrhofen bank; and a letter of a further German insurance company.

After evidence had been taken the Prosecutor requested the applicant's

punishment. The applicant requested the Court to establish that on 9

April 1987 he had applied to one German insurance company for a

pension. The Court rejected this request as the facts were

sufficiently clear (da die Sachlage hinreichend geklärt ist).

28. On 24 March 1988 the Zell District Court convicted the

applicant of fraud, namely for having induced Mrs R.K. to hand him

2,500 AS and to waive the rent of 1,500 AS, and sentenced him to three

months' imprisonment. The period of detention awaiting extradition and

of detention on remand was deducted from the applicant's prison

sentence. The applicant was also ordered to pay Mrs R.K. 4,000 AS. The

judgment was signed by judge A.K.

29. The judgment relied inter alia on the testimony of Mrs R.K. and

the information submitted by the Mayrhofen bank and German insurance

companies.

30. The applicant appealed against the judgment to the Innsbruck

Regional Court, complaining in particular that trial judge A.K. had

previously undertaken investigations. He also complained about the

sentence.

31. On 20 April 1988 the Review Chamber (Ratskammer) at the

Innsbruck Regional Court dismissed the applicant's complaints about his

detention on remand of 6, 12 and 15 March 1988.

32. On 13 May 1988 the Innsbruck Regional Court, composed of judges

F., P. and W., dismissed the applicant's appeal. As to the applicant's

complaint that the trial judge had previously undertaken investigations

the judgment stated:

"As a reply thereto, reference may be made to the legal view derived

from SS. 451 and 452 of the Code of Criminal Procedure, according to

which in the District Court proceedings the trial judge may also

undertake preliminary inquiries, and the preliminary inquiries judge

will nevertheless not be excluded from the trial... Equally, if a

judge participates in a penal case as a judge in proceedings under

letters rogatory, this will not exclude him from participating at the

trial... A detailed examination as to the extent to which this legal

view, which is generally applied, corresponds to Article 6 of the

Convention on Human Rights ... is unnecessary in the present case for

the Appeal Court, since the accused, who became aware of the [alleged]

ground of nullity at the latest at the beginning of the trial, did not

... immediately raise this ground before the Zell am Ziller District

Court."

"Dem ist die aus den Bestimmungen der §§ 451 und 452 StPO abgeleitete

herrschende Rechtsansicht entgegenzuhalten, wonach im

bezirksgerichtlichen Verfahren der Erkenntnisrichter auch Vorerhebungen

pflegen kann und der Vorerhebungsrichter daher nicht von der

Hauptverhandlung ausgeschlossen ist ... Ebenso schließt auch die

Beteiligung eines Richters als Rechtshilfe- richter an einer Strafsache

diesen nicht von der Teilnahme an der Hauptverhandlung aus ... Eine

eingehende Prüfung dahin, inwieweit diese allgemeine geübte

Rechtsauffassung mit Artikel 6 der Konvention zum Schutze der

Menschenrechte und Grundfreiheiten ... im Einklang steht, erübrigt

sich im vorliegenden Fall für das Berufungsgericht deshalb, weil der

Angeklagte den ihm spätestens bei Beginn der Hauptverhandlung bekannt

gewordenen [angeblichen] Nichtigkeitsgrund ... nicht sofort vor dem

Bezirksgericht Zell am Ziller geltend gemacht hat."

B. Relevant domestic law and practice

33. Section 9 of the Austrian Code of Criminal Procedure

(Strafprozessordnung) provides for the jurisdiction of the District

Court in respect of all offences the threatened punishment of which

does not exceed six months.

34. Proceedings before the District Court are instituted on the

basis of an informal request for prosecution by the District

Prosecutor.

35. According to Section 451 para. 1, in District Court proceedings

there are no formal preliminary investigations (Voruntersuchung).

Preliminary inquiries (Vorerhebungen) are possible, though these do not

correspond to the preliminary inquiries before the other first instance

courts.

36. According to legal practice, the trial judge himself will in

District Court proceedings conduct the preliminary inquiries. In

particular, Section 68 para. 2 of the Code of Criminal Procedure, which

excludes the investigating judge from participating at the trial, does

not apply (see E. Foregger/E. Serini, Die österreichische

Strafprozessordnung, Vienna 1982, 3rd ed., p. 534).

37. Paragraph 1 of Section 452 of the Code of Criminal Procedure

which concerns "Rights of the judge during preliminary inquiries"

("Befugnisse des Richters bei Vorerhebungen") states that the District

Court judge has in principle to comply with all provisions applying to

the investigating judge though a number of exceptions are mentioned.

For instance, according to Section 452 para. 3, detention on remand may

only be imposed on the grounds of a danger of absconding and of

collusion.

38. Under Section 194 para. 1 of the Code of Criminal Procedure,

the District Court judge may order a person's release from detention

on remand if the judge and the District Prosecutor agree that the

grounds for detention no longer exist.

39. According to Section 451 paras. 1 and 4, there is no special

procedure for the committal to trial (Versetzung in den Anklagestand).

Once the preliminary inquiries deemed necessary have been undertaken,

the trial must be fixed. The evidence previously collected is

presented at the trial, and the accused can comment thereupon.

40. Section 12 of the Code of Criminal Procedure provides that the

Review Chamber will supervise all preliminary inquiries and

investigations in its district. It consists of a chamber of three

judges of the Regional Court. The Review Chamber is the appeal body

against orders or delays on the part of the investigating judge

(Section 113). In District Court proceedings the Review Chamber of the

Regional Court will also examine complaints about detention on remand.

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

41. The Commission has declared admissible the applicant's

complaint under Article 6 para. 1 (Art. 6-1) of the Convention

concerning the position of the District Court judge.

B. Point at issue

42. 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. Compliance with Article 6 para. 1 (Art. 6-1) of the Convention

43. The applicant complains under Article 6 para. 1 (Art. 6-1) of

the Convention of the lack of impartiality of a District Court judge

who first undertook preliminary investigations and later acted as trial

judge.

44. Article 6 para. 1 (Art. 6-1) of the Convention provides,

insofar as relevant:

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

him, everyone is entitled to a fair ... hearing by an

... impartial tribunal."

45. In the applicant's view, while there are certain formal

differences between the District Court proceedings and those before

other first instance courts the District Court judge nevertheless

exercises in the preliminary proceedings largely the same functions as

those of an investigating judge. Contrary to the first instance court

proceedings, where the Public Prosecutor's Office applies for

preliminary inquiries, the District Court judge undertakes these

inquiries on his own authority. Judge A.K.'s investigations in fact

corresponded to those of an investigating judge.

46. The Government submit that for organisational reasons District

Court proceedings are less complex. Often, the courts are widely

dispersed and comprise only one or two judges. It would hardly be

possible to conduct proceedings consisting of sharply separated stages.

47. The Government contend that the preliminary proceedings before

District Courts differ from those before other courts where the

preliminary inquiries provide the foundation for the decision to commit

an accused for trial. In District Court Proceedings, the District

Prosecutor orally or in writing requests punishment; the subsequent

preliminary inquiries of the District Court judge, which he undertakes

on his own initiative, serve the purpose of preparing the trial. These

preliminary inquiries correspond to the stage of proceedings before a

first instance court when the accused has been committed for trial and

the judge is preparing the trial.

48. The Government further recall that in the present case judge

A.K. undertook only a limited number of investigations. She did not

order the applicant's detention on remand and she did not see him

before the trial. The applicant could not assume that she had such a

considerable knowledge of his case as to have a predetermined view on

his guilt. Rather, the basis for the applicant's conviction was the

trial hearing which is of overriding importance for District Court

proceedings. The Government conclude that the impartiality of judge

A.K. could not be called in question.

49. The Commission recalls that the existence of impartiality 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 by ascertaining whether the

judge offered guarantees sufficient to exclude any legitimate doubts

in this respect (see, among other authorities, Eur. Court H.R., De

Cubber judgment of 26 October 1984, Series A no. 86, pp. 13-14, para.

24).

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

must be presumed until there is a proof to the contrary. In the

present case, no issue arises in this respect.

51. Under the objective test, it must be determined whether, 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 in the parties to the proceedings. Accordingly,

any judge in respect of whom there is a legitimate reason to fear lack

of impartiality must withdraw (see De Cubber judgment, loc. cit., p.

14, para. 26).

52. In the present case, the fear of lack of impartiality was based

on the fact that Mrs. A.K., the District Court judge, first undertook

investigations concerning the applicant and later as trial judge

convicted him of the offences concerned.

53. According to the Government, the preliminary inquiries

undertaken by a District Court judge correspond to the proceedings

before a first instance court when the accused has been committed for

trial and the judge is preparing the trial (see above, para. 47). In

this respect, the Commission notes that on 27 January 1988 the

applicant's landlady, Mrs R.K., reported the applicant to the police.

On 28 January 1988 the District Attorney at the Zell District Court

filed an application with the District Court requesting the applicant's

punishment. On 18 March 1988 judge A.K. fixed the trial for 24 March

1988. On that day the District Court held the trial and gave its

judgment in which it convicted the applicant of fraud.

54. The Commission finds that these proceedings can be separated

into two distinct parts. The second part was the actual trial before

the District Court on 24 March 1988, with Mrs A.K. sitting as single

judge, at which the applicant and the District Attorney were present.

In the first period preceding the trial, judge A.K. acted alone, or at

least in the absence of the applicant, who was then detained on remand

at Innsbruck prison.

55. The Commission has considered judge A.K.'s activities in the

period preceding the trial. In this respect, it notes the following:

On 25 February 1988, upon a letter rogatory, judge A.K. questioned the

landlady Mrs R.K. as a witness (see above, para. 21). Moreover, on 17

March 1988 judge A.K. telephoned the bank in Mayrhofen to establish

whether money had been paid into the bank account opened by the

applicant. The bank replied by letter on the same day that so far

there had been no receipts from the applicant. Judge A.K. furthermore

telephoned the two German insurance companies to establish whether the

applicant had applied for, or received, a pension payment. According

to a note in the case-file prepared by judge A.K. on 18 March 1988, the

insurance companies each replied by telephone that the applicant had

not received a pension (see above, para. 25).

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

judge A.K. in fact undertook typical acts of an investigating judge.

The investigations aimed at establishing whether the applicant had

fraudulently obtained money from the landlady. Yet these issues were

precisely those which she had to deal with at the trial when deciding

on the applicant's guilt.

57. The applicant might therefore have felt some unease by knowing

that the judge called upon to determine the charges against him at the

trial was the same judge who had previously undertaken the

investigations and therefore now had a particularly detailed knowledge

of the file (see mutatis mutandis Eur. Court H.R., De Cubber judgment,

loc. cit., pp. 15-16, para. 29).

58. In the Commission's opinion these considerations lead to the

conclusion that the applicant could have a legitimate fear that judge

A.K., when acting as the sole trial court judge, had a preconceived

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

accordingly appeared open to doubt.

59. The Commission has had due regard to the difficulties

concerning the organisation of District Courts in Austria, often

situated in rural surroundings. It notes that the less complex

structure of these courts corresponds to the nature of offences they

are confronted with, i.e. offences the threatened punishment of which

does not exceed six months (see above, para. 33). However, the

Commission considers the principle of the impartiality of the judiciary

to be of paramount importance which outweighs such organisational

difficulties.

60. The Commission finds therefore that, at his trial, the

applicant was not heard by an impartial tribunal within the meaning of

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

D. Conclusion

61. The Commission concludes, by 16 votes to 3, that there has been

a 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)

DISSENTING OPINION OF MM. F. ERMACORA, F. MARTINEZ AND B. MARXER

We find ourselves unable to agree with the opinion of the

majority of the Commission that there has been a violation of Article

6 para. 1 of the Convention.

We have first considered the acts of investigation which judge

A.K. undertook in the proceedings leading up to the trial. We observe

that she questioned the person who had reported the applicant to the

police; she also wrote to the court in the Federal Republic of Germany

and she telephoned the two German insurance companies as well as an

Austrian bank (see above, paras. 24-25).

In our opinion, these acts of investigation cannot warrant the

conclusion that judge A.K. had a particularly detailed knowledge of the

case-file which in itself would have justified fears as to her

impartiality.

Moreover, we note that judge A.K. never actually spoke with the

applicant and did not therefore gather a personal opinion of him. Above

all, she did not take a decision to remand the applicant in custody

which may have implied considerations as to his guilt. In any event,

"the mere fact that a trial judge ... has made pre-trial decisions in

the case, including those concerning detention on remand, cannot be

held as in itself justifying fears as to his impartiality" (see Eur.

Court H.R., Hauschildt judgment of 24 May 1989, Series A no. 154, p.

22, para. 50).

Finally, in the District Court proceedings in Austria there is

no formal procedure concerning an accused's committal for trial in

respect of which, for instance, substantial evidence of guilt must be

adduced and which would call in question the judge's subsequent

participation in the trial court (see Ben Yaacoub v. Belgium, Comm.

Report 7.5.85, Eur. Court H.R., Series A no. 127, pp. 14-15, para.

109).

Thus, it can again not be said that the applicant was justified

in fearing that at the trial judge A.K. had formed an unfavourable

preconceived opinion as to his guilt.

We furthermore note that the less complex structure of District

Courts in Austria corresponds to the nature of offences they are

confronted with, i.e. offences the threatened punishment of which does

not exceed six months (see above, para. 33).

As a result, we find no basis for the conclusion that the

impartiality of District Court judge A.K., when acting as a trial

judge, was capable of appearing open to doubt.

APPENDIX I

HISTORY OF THE PROCEEDINGS

Date Item

______________________________________________________________________

10 November 1988 Introduction of the application

24 November 1988 Registration of the application

Examination of the Admissibility

2 October 1989 Commission's decision to invite

the Government to submit

observations on the admissibility

and merits of the application,

limited to issues under Article 6

para. 1 of the Convention

22 October 1989 Government's observations

14 February 1990 Applicant's observations in reply

9 October 1990 Commission's decision to declare

admissible the applicant's complaint

under Article 6 para. 1 of the

Convention concerning the position

of the District Court judge. It

also decided not to refer the case

to a Chamber.

Examination of the Merits

12 January, ) Commission's consideration of the 2 March 1991

) state of proceedings

8 October 1991 Commission's deliberations on the

merits and final vote

15 October 1991 Adoption of the Report

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FEY v. AUSTRIA

FEY v. AUSTRIA

LEXI