Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 20577/92

by G.S.

against Austria

The European Commission of Human Rights sitting in private on

6 December 1993, the following members being present:

MM. C.A. NØRGAARD, President

S. TRECHSEL

A. WEITZEL

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G.H. THUNE

MM. F. MARTINEZ

Mrs. J. LIDDY

MM. L. LOUCAIDES

M.P. PELLONPÄÄ

B. MARXER

G.B. REFFI

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 28 August 1993 by

G.S. against Austria and registered on 3 September 1993 under file No.

20577/92;

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

of Procedure of the Commission;

Having regard to :

- the Commission's decision of 8 January 1993 to communicate the

application;

- the observations submitted by the respondent Government on 27

April 1993 and the observations in reply submitted by the

applicant on 18 May 1993;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is an Austrian citizen born in 1949 and living in

St. Pölten. He is represented by Mr. S. T. Gloß, a lawyer practising

in St. Pölten.

It follows from the applicant's statements and the documents

submitted that the applicant was indicted before the Regional Court

(Landesgericht) of St. Pölten for having inflicted on 6 September 1990

grievous bodily harm upon his wife. The trial was presided over by

Judge B. At a hearing on 11 January 1991 the applicant pleaded not

guilty. His wife invoked her right not to give evidence. Dr. F. who

had examined her at the relevant time was heard as witness. Judge B.

decided at the request of defense counsel that medical expert opinion

should be obtained to determine the seriousness of the injury. The

expert opinion was submitted on 3 May 1991. It follows from the expert

opinion that the expert had not only been asked to comment on the scale

of seriousness of the applicant's wife's injury but also on its

possible causes.

According to the expert the injury in question was of a trifling

nature and had been caused by another person who slapped the victim

with the flat of his hand on her ear.

Subsequently the case was at the request of the Public

Prosecution referred to the District Court (Bezirksgericht), because

the injuries caused to the applicant's wife were considered, in the

light of the expert opinion, not to be serious enough to constitute

grievous bodily harm.

On 13 August 1991 the applicant was acquitted by the District

Court which found the applicant's wife had to be treated until 13

September 1990 in a hospital; according to the medical report her

eardrum had been perforated and she showed signs of strangulation as

well as bruises on her chest. However, as the wife refused to give

evidence, the court considered that there was insufficient proof to

show that the applicant had caused his wife's injuries, given that he

himself denied the facts.

On appeal by the public prosecution the applicant was convicted

on 2 March 1992 by the Regional Court of St. Pölten of having caused

bodily harm. A fine of 40 day rates in the amount of AS 450 per day

was imposed on the applicant. The Regional Court considered that it

followed from a medical expert opinion that the perforation of the

applicant's wife's eardrum had been caused by a slap on the ear.

Furthermore the court considered the evidence given by two medical

doctors who had examined the applicant's wife after the events and

whom the wife had told that she had been beaten by her husband.

Furthermore there were no circumstances indicating that the applicant's

wife could have been beaten by another person. In the court's opinion

it was unlikely that the applicant's wife had lied to the medical

doctors and slandered her husband considering that later she made use

of her right not to give evidence against him.

The applicant unsuccessfully tried to challenge Judge B. who

acted as Rapporteur in the appeal proceedings.

COMPLAINTS

The applicant complains that Judge B. who had already presided

over his first trial before the Regional Court also participated as

judge in the appeal proceedings which led to his conviction. Even

though the charges were not eventually determined in the first trial

before the Regional Court, evidence had been taken and the applicant

therefore considers that Judge B. was biased when he participated in

the appeal proceedings.

PROCEEDINGS

The application was introduced on 25 August 1992 and registered

on 3 September 1992.

On 8 January 1993 the Commission decided to communicate the

application to the respondent Government and invite them to submit

written observations on the admissibility and merits of the

application.

The Government's observations were received by letter dated

27 April 1993 and the applicant's observations were dated 18 May 1993.

THE LAW

The applicant has complained that his appeal against conviction

and sentence was decided by a panel of judges of the Regional Court in

which Judge B. participated. He considers that Judge B. was biased

because he had initially presided over his trial which was first opened

before the Regional Court. After certain evidence had been taken his

case was referred to the District Court, as a medical expert opinion

had shown that the bodily harm which the applicant was accused of

having inflicted on his wife was not sufficiently serious to require

a trial before the Regional Court.

The existence of impartiality for the purposes of Article 6 para.

1 (Art. 6-1) of the Convention 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 (Eur. Court

H.R., Fey judgment of 24 February 1993, Series A no. 255, para. 28).

As to the subjective test, the applicant did not dispute the

personal impartiality of Judge B.

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 are of 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. This implies that in deciding whether in a given case there

is a legitimate reason to fear that a particular judge lacks

impartiality, the standpoint of the accused is important but not

decisive. What remains to be determined is whether this fear can be

held to be objectively justified (ibid., para. 30).

In this regard, the Court has continuously held that the mere

fact that a judge has also made pre-trial decisions in the case cannot

be taken as in itself justifying fears as to his impartiality

(see Hauschildt judgment of 24 May 1989, Series A no. 154, p. 22, para.

50).

Contrary to the facts of the present case the judgments referred

to related to pre-trial decisions taken by a judge who later decided

on the merits. However, the principles established in these judgments

also apply, mutatis mutandis, to any kind of decision taken by a judge

in the course of criminal proceedings prior to his being called upon

to determine whether the charges in question are well founded or not.

The applicant points out that Judge B. when initially presiding

over the trial took evidence by hearing the applicant himself, the

applicant's wife (who refused to give evidence) and Dr. F. who had

examined the alleged victim after the events.

The applicant argues that by ordering an expert opinion on the

degree of seriousness of the victim's injuries, Judge B. must have

proceeded on the basis that in any event the applicant was guilty of

having caused bodily harm to his wife because if he had not already

formed an opinion he would have had to acquit him immediately after the

hearing of the witness.

The Commission notes that it follows from the medical expert

opinion submitted on 3 May 1991 that the expert was asked to comment

not only on the seriousness of the injuries to the applicant's wife but

also on their possible causes.

It can in these circumstances not be found that Judge B. took,

at the initial phase of the trial, any action or decision that could

imply, from an objective point of view, the supposition that he had

already made up his mind about the applicant's guilt. Rather, the

judge in question seemed to have doubts as to the causes of the

victim's injuries and these doubts were part of the reasons why he

ordered an expert opinion to be established. After the expert opinion

had been submitted he abandoned jurisdiction before determining the

criminal charge laid against the applicant. In the light of the

foregoing the Commission does not find that the applicant's fears as

to Judge B.'s impartiality can be held to be effectively justified.

It follows that there is no appearance of a violation of Article

6 (Art. 6) of the Convention and the application therefore has to be

rejected in accordance with Article 27 para. 2 (Art. 27-2) of the

Convention as being manifestly ill-founded.

For these reasons, the Commission, by a majority

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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