OPINION OF MRS. LIDDY

     With respect, I disagree with the conclusions of the majority on

the first of the points at issue, that is, as to the participation of

Judge Schaumburger at the applicant's trial.

     The Government consider that the applicant has waived his right

to be tried by "an independent and impartial tribunal established by

law" as required by Article 6 para.1.  The record states that the

parties waived the right to raise as a ground of nullity the fact that

Judge Schaumburger was disqualified from participating (by operation

of Article 68 (2) of the Code of Criminal Procedure).  In fact, the

evidence before the Commission is to the effect that defence counsel

expressly added that he did not regard any waiver as valid, because

Dr. Schaumburger was already legally disqualified.  However, he

refrained from making a formal declaration challenging the judge.

     Even supposing that the above-quoted rights under

Article 6 para. 1 of the Convention can be waived, do these facts meet

the two criteria set by the Court in Pfeifer and Plankl (Series A,

No. 227)?  First, is the waiver established in an unequivocal manner?

Second, was the waiver accompanied by minimum guarantees commensurate

to its importance?

     As to the first question, it seems to me that defence counsel's

protest to the effect that no waiver could be valid casts doubt on

whether the waiver could be regarded as unequivocal.

     As to the second question, there is no provision of Austrian law

which allows for a defendant expressly to waive his right to be tried

by a court whose composition is in accordance with law.  It is true,

as noted by the majority, that the failure of a defendant to query the

proper constitution of a trial court as soon as he becomes aware of the

defect may be a barrier to a plea of nullity pursuant to

Article 281 (1) of the Code of Criminal Procedure.  However, in the

present case there was no need for defence counsel to draw the matter

to the trial court's attention (the trial court having noted the

problem already) and there was no law, with commensurate guarantees,

providing for an express waiver of the right to a properly constituted

court.  Moreover, in its judgment in the Pfeifer and Plankl case, the

Court noted (at para. 24) the substance of Article 281(1).  The Court

nonetheless (at para. 38) noted the absence of any law providing for

waiver of the right to be tried by a court whose composition is in

accordance with the law and the consequent absence of the procedure to

be followed for this purpose.  It added,  "But such a right is of

essential importance and cannot depend on the parties alone."

     In these circumstances, while I have difficulty in fully

appreciating why, on the one hand, defence Counsel refrained from

formally objecting, and why, on the other hand, the trial court

refrained from deeming his statements as amounting in substance to an

objection,  rather than as waiver of a ground of plea of nullity (and

therefore refrained from replacing Judge Schaumburger), it does seem

to me that there was neither a clear-cut law providing for valid waiver

of the right to be tried by a court composed in accordance with the

law, nor an unequivocal waiver of a right of such essential importance.

     Therefore, even supposing that this right can be waived, there

has, in my opinion, been a violation of Article 6 para. 1.

                          APPENDIX I

                  HISTORY OF THE PROCEEDINGS

Date                     Item

_________________________________________________________________

5 October 1990          Introduction of application

25 October 1990          Registration of application

Examination of admissibility

11 May 1992              Commission's decision to communicate the

                         case to the respondent Government and to

                         invite the parties to submit observations

                         on admissibility and merits

11 September 1992        Government's observations

26 November 1992         Applicant's observations in reply

2 April 1993            Commission's decision to declare

                         application admissible

                         Commission's adoption of text of decision

                         on admissibility

Examination of the merits

8 April 1993            Decision on admissibility transmitted to

                         parties. Invitation to parties to submit

                         further observations on the merits

19 May 1993              Government's observations on the merits

22 June 1993             Applicant's observations on the merits

4 September 1993        Commission's consideration of state of

                         proceedings

17 September 1993        Government's further observations on the

                         merits

13 October 1993          Applicant's further observations on the

                         merits

9 February 1994         President's grant of legal aid

14 May 1994              Commission's consideration of state of

                         proceedings

30 August 1994           Commission's deliberations on the merits,

                         final vote and consideration of text of

                         the Report

8 September 1994        Adoption of Report