DISSENTING OPINION OF MR E.A. ALKEMA JOINED BY MRS J. LIDDY

1. The reasons why I have voted against a violation of Article 6 with regard to the lack of impartiality of the presiding judge of the Vienna Regional Criminal Court are the following: The present application concerns judicial impartiality connected with the particular judge’s personal conviction. The applicant complains notably about two incidents occurred in court: one remark by the presiding judge directed to him directly as defendant about his removal of office in case he would withdraw his confession of the indicted offences, the other remark also by the presiding judge directed to the applicant’s lawyer to the effect that the latter apparently misunderstood the indictment. Both incidents were duly challenged in the instant court.

2. Were these alleged failings “capable of being redressed at a later stage of the proceedings” (see Eur. Court HR, De Haan v. the Netherlands judgment of 26 August 1997 Reports of Judgments and Decisions 1997-IV, p. 1391, para. 45)? They indeed had been submitted to the Supreme Court in the plea of nullity and the appeal lodged by the applicant. This court dealt with both incidents in substance and considered inter alia that the Regional Court’s findings of fact supported its conclusion (para. 36 of the present Report). It found that the presiding judge’s caution directed to the applicant was legitimate and that his statement directed to the applicant’s counsel did not warrant the inference that the presiding judge was biased (para. 36). Thus the Supreme Court in the instant case had adequate competencies and exercised them in this case in such a manner that the requirements of Article 6 were met by that court itself. Consequently, as the Supreme Court has examined fully the applicant's grievances I see no reason why the applicant is to be considered as a victim in the sense of former Article 25 or - in the alternative - why the impugned incidents ought to be qualified as a violation. It may be added that, in contrast to the Eur. Court HR, Findlay v. the United Kingdom judgment of 25 February 1997, Reports 1997-I, p. 282, paras. 78-79, the Austrian judicial system did not present fundamental gaps which therefore were beyond redress in the further proceedings. In the present case - although almost equally serious for what was at stake - the challenged incidents were not structural or systemic in nature. It is precisely for the correction of these and similar alleged procedural and substantive judicial flaws that most states have a judicial system providing for appellate jurisdiction. In a similar vein former Article 26 of the Convention requires the exhaustion of such remedies as a condition for admissibility.

3. The majority, however, has preferred a more autonomous approach for the interpretation of Article 6 in the instant case. It heavily relies on the Supreme Court’s observation that the challenged remarks by the presiding judge were in breach of the Courts’ Rules of Procedure. It is noteworthy, though, that the majority at the same time passes over the equally authoritative interpretation of domestic law by the Supreme Court to the effect that the incidents were legitimate and no proof of judicial bias respectively. In my opinion the Supreme Court’s latter judgment should prevail since the infringed procedural rule rather is a directive for judicial conduct than a binding legal norm attracting nullity in case of non-compliance. In that respect the rule differs in kind from Article 489 para. 3 of the Austrian Code of Criminal Procedure which the Austrian courts had not complied with in the case of Oberschlick v. Austria (No. 1) and which rendered the judicial impartiality in that case open to doubt (judgment of 23 May 1991, Series A no. 204, p. 23, para. 50).

4. Following - for a moment and for the sake of argument - the majority’s reasoning, it is clear that in the present case a “subjective test” has to be applied to establish the impugned judicial partiality. As the European Court has repeatedly held “the personal impartiality of a judge must be presumed until there is proof of the contrary” ( Castillo Algar v. Spain judgment of 28 October 1998, para. 44, to be published in Reports 1998). In addition, political bias of the members of the court may be of relevance (see Appl . 8603/79 etc. Crociani e.a . v. Italy, D.R. 22, p. 147 at p. 200) and so may be hostility or ill will vis-à-vis the defendant (Eur. Court HR, De Cubber v. Belgium judgment of 26 October 1984, Series A no. 86, p. 14, para. 25).

This puts the burden of proof on the applicant. Indeed he challenged the presiding judge’s impartiality but in my opinion not convincingly. Firstly, when the judge voiced the opinion that the applicant would “have to polish shoes” he cautioned him in an admittedly rough manner about the consequences in penal law of the applicant’s withdrawal of a previously made confession. In doing so he did not, however, express himself about the applicant’s guilt. It seems doubtful whether such a non offensive colloquial manner of speaking went beyond a warning or instruction about the law and whether it could reasonably have been considered as a threat, intimidation, hostility or sign of ill will on the part of the judge. The more so, since the applicant as a defendant had been assisted by a lawyer throughout the proceedings. Similarly the remark directed to the same lawyer did not concern the applicant’s guilt either but addressed primarily the lawyer’s handling of the defense.

To sum up: if and to the extent that the “subjective test” is to be applied in the instant case, I do not think that the presiding judge’s remarks - although robust and open to criticism - were sufficient evidence to prove judicial partiality and to justify the applicant’s fears in this respect.