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THOMANN v. SWITZERLANDDISSENTING OPINION OF Mrs. J. LIDDY

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Document date: March 2, 1995

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THOMANN v. SWITZERLANDDISSENTING OPINION OF Mrs. J. LIDDY

Doc ref: • ECHR ID:

Document date: March 2, 1995

Cited paragraphs only

DISSENTING OPINION OF Mrs. J. LIDDY

I agree generally with the opinion of Mr. Danelius, Mrs. Thune

and Mr. Loucaides to the effect that Article 6 para. 1 has been

violated, but wish to add a slight qualification to the statement that

a requirement of Article 6 para. 1 "must be that the judges have not

had such previous impressions or information about the matters in

regard to which they are to adjudicate as to create a risk that they

will be influenced, in the determination of the charges against the

accused, by elements which should be irrelevant to that determination".

I would qualify that requirement by the words "to the extent

feasible". It appears to me that unavoidable circumstances may arise

where a judge has had some impression of the personalities, issues or

events involved. This could arise, for example, where the highest

court in the land is seized of a private dispute to which a judicial

colleague or well-known counsel is party, or where the resolution of

the dispute between any parties may have financial repercussions or

implications for judges' own salary or pension rights, or where there

has been massive daily press, television and radio coverage of the

events, personalities or issues involved which no court could be

expected to remain ignorant of. It seems to me that the reality is

that both in big countries and in small countries unavoidable

circumstances may arise whereby, unless the parties are to be deprived

of their right to a determination of the issue, confidence must be

placed in the discipline of judges to set aside extraneous and unproved

information or comment to which they have been exposed.

No such insurmountable difficulties or outside influences arose

in the present case. Here, the judges who convicted the applicant on

3 October 1990 had already been called upon to formulate and express

their own professional opinions - indeed, formal findings - on the

question of the innocence or guilt of the applicant, a situation to be

distinguished from one of unavoidable exposure to others' opinions.

The applicant could objectively fear that the judges were not

impartial. Accordingly, I voted for a violation of Article 6 para. 1.

APPENDIX I

HISTORY OF THE PROCEEDINGS

Date Item

_________________________________________________________________

5 December 1990 Introduction of application

7 January 1991 Registration of application

Examination of admissibility

13 October 1993 Commission's decision (First Chamber) to

communicate the case to the respondent

Government and to invite the parties to

submit observations on admissibility and

merits

7 January 1994 Government's observations

8 March 1994 Applicant's observations in reply

17 May 1994 Commission's decision not to grant legal

aid

30 August 1994 Transfer of the case to plenary Commission

5 September 1994 Commission's decision to declare

application admissible

Examination of the merits

12 September 1994 Decision on admissibility transmitted to

parties. Invitation to parties to submit

further observations on the merits

28 October 1994 Applicant's observations

31 October 1994 Government's observations

14 January 1995 Commission's consideration of state of

proceedings

21 February 1995 Commission's deliberations on the merits,

final vote and consideration of text of

the Report

2 March 1995 Adoption of Report

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