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AS TO THE ADMISSIBILITY OF

Application No. 27742/95

by Georg ZIEGLER

against Switzerland

The European Commission of Human Rights (First Chamber) sitting

in private on 3 December 1997, the following members being present:

Mrs J. LIDDY, President

MM S. TRECHSEL

M.P. PELLONPÄÄ

E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

L. LOUCAIDES

B. MARXER

B. CONFORTI

N. BRATZA

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

M. VILA AMIGÓ

Mrs M. HION

Mr R. NICOLINI

Mrs M.F. BUQUICCHIO, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 20 June 1995 by

Georg Ziegler against Switzerland and registered on 28 June 1995 under

file No. 27742/95;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, a Swiss citizen born in 1963, is a locksmith

(Metallbauschlosser) residing in Emmenbrücke in Switzerland. Before

the Commission he is represented by Mr B. Haefliger, a lawyer

practising in Lucerne.

The facts of the case, as submitted by the applicant, may be

summarised as follows.

The applicant was accused of having raped his then life

companion, Mrs H.-B., in 1991. The applicant, who disputed the

charges, was acquitted by the Criminal Court (Kriminalgericht) of the

Canton of Lucerne on 22 April 1994.

Against this decision the Public Prosecutor's Office

(Staatsanwaltschaft) filed an appeal (Berufung) with the Court of

Appeal (Obergericht) of the Canton of Lucerne.

Meanwhile, it appears that Mrs H.-B. (later: Mrs B.) and her

husband, Mr H., were involved in divorce proceedings, and that in this

respect an appeal was pending before the Court of Appeal of the Canton

of Lucerne. The bench consisted, inter alia, of Court of Appeal judges

W. and R.

A hearing in the applicant's case took place before the Court of

Appeal on 29 November 1994. The bench consisted of Court of Appeal

judges W., R. and H. At the hearing, the applicant requested the Court

to obtain the case-file of the divorce proceedings of Mrs H.-B.

After consulting the case-file, the applicant challenged judges

W., R. and H. He submitted that judge H., who was also a practising

lawyer, shared an office with the lawyer who was representing Mrs H.-B.

in the criminal proceedings. He further complained that judges W. and

R. were on the bench in the appeal proceedings concerning Mrs H.-B.'s

divorce for which reason these judges would have a preconceived opinion

as to Mrs H.-B.'s credibility. Also, it could not be excluded that,

after the appeal hearing on 29 November 1994, the judges had already

had a meeting where judge H. had influenced judges W. and R.

On 13 January 1995 the Court of Appeal upheld the applicant's

challenge insofar as it concerned judge H. Thus, even if it appeared

unlikely that judge H. had spoken with her office colleague about

Mrs H.-B.'s divorce case, it sufficed that the two persons shared an

office to raise doubts as to the impartiality of judge H.

On the other hand, the Court of Appeal dismissed the challenge

in respect of judges W. and R. In the Court's view, it could certainly

(ohne weiteres) consider any conclusions (Erkenntnisse) of the divorce

proceedings, and any deliberations between the three judges after the

appeal hearing could not call in question their impartiality.

The applicant's public law appeal (staatsrechtliche Beschwerde)

was dismissed by the Federal Court (Bundesgericht) on 19 May 1995.

In its decision, the Court considered that the proceedings

instituted against the applicant had no links with Mrs H.-B.'s divorce

proceedings, and it did not transpire how knowledge of one case could

be relevant for the other.

Insofar as the applicant complained that judge H. had already

discussed the case with judges W. and R., the Court found that the

outcome of the proceedings against the applicant was open, particularly

as a new judge would participate in the proceedings. The situation

resembled the case where judges of a lower court resumed proceedings

after an appeal against its decision had been upheld.

Meanwhile, on 2 February 1995 the Court of Appeal of the Canton

of Lucerne convicted the applicant of rape and sentenced him to

18 months' imprisonment, suspended on probation. The judgment was

given by judges W., R. and Z.

The applicant's public law appeal against this decision was

dismissed by the Federal Court on 4 December 1995.

COMPLAINTS

The applicant complains under Article 6 para. 1 of the Convention

of the possible lack of impartiality of judges W. and R. He fears that

they had a preconceived opinion as to the outcome of his criminal case.

The applicant points out that he contested the accusations of

rape, and that the outcome of the proceedings depended on the

credibility of his statements and those of Mrs H.-B. The two judges

W. and R. had had direct contact with Mrs H.-B.; they had therefore

gained a direct impression of Mrs H.-B. It was also possible that they

had information on her which the applicant did not have, as his lawyer

was only allowed to consult the case-file until 6 January 1995.

The applicant further points out that judges W., R. and H.

deliberated after the appeal hearing, and it was not excluded that

judge H., who had insider knowledge, had influenced judges W. and R.

THE LAW

1. The applicant complains of the possible lack of impartiality of

judges W. and R. He relies on Article 6 para. 1 (Art. 6-1) of the

Convention which states, insofar as relevant:

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

everyone is entitled to a fair ... hearing ... by an independent

and impartial tribunal."

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

(see Eur. Court HR, De Cubber v. Belgium judgment of 26 October 1984,

Series A no. 86, pp. 13 et seq., para. 24).

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

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

case, the applicant does not contest the personal impartiality of the

various judges.

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 the De Cubber v. Belgium judgment,

op. cit., p. 14, para. 26). This implies that in deciding whether in

a given case there is a legitimate reason to fear that a particular

judge lacks impartiality, the view of the complaining party is

important but not decisive. What is decisive is whether this fear can

be said to be objectively justified.

In the present case the applicant submits, first, that the fact

that judges W. and R. had sat in the appeal proceedings concerning

Mrs H.-B.'s divorce raised doubts as to their impartiality. Thus, they

had had direct contact with Mrs H.-B. and would therefore have formed

a direct impression of her.

The Commission observes that the civil proceedings concerning

Mrs H.-B.'s divorce were in no way related to the criminal proceedings

instituted against the applicant. Objectively seen, the judges were

in a position fully to form their opinion on the credibility of

Mrs H.-B.'s statements in the criminal proceedings against the

applicant. Indeed, the applicant has not referred to any particular

element in the divorce proceedings which could have affected the

judges' views in the proceedings concerning the applicant.

The applicant submits, secondly, that judge H. could have

influenced judges W. and R. following the appeal hearing.

In the Commission's opinion, there is no indication that such

deliberations took place after the appeal hearing or, if they did, that

judges W. and R. were influenced in such a manner. In any event, as

the Federal Court pointed out in its judgment of 19 May 1995, the

outcome of the appeal proceedings against the applicant was open,

particularly as judges W. and R. were eventually joined by a new third

judge Z., replacing judge H.

As a result, there are no indications that the impartiality of

judges W. and R. appeared open to doubt.

This part of the application is, therefore, manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

2. The applicant may be understood as complaining under Article 6

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

proceedings in that the judges might have had information on the case

which he did not.

However, the applicant has not shown that he obtained a decision

of the Federal Court on this complaint. He has not, therefore,

complied with the requirement as to the exhaustion of domestic remedies

within the meaning of Article 26 (Art. 26) of the Convention.

The remainder of the application must, therefore, be rejected

according to Article 27 para. 3 (Art. 27-3) of the Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

M.F. BUQUICCHIO J. LIDDY

Secretary President

to the First Chamber of the First Chamber

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ZIEGLER v. SWITZERLAND

ZIEGLER v. SWITZERLAND

LEXI