DISSENTING OPINION OF JUDGE MATSCHER

(Translation)

I approved the Chamber ’ s decision to relinquish jurisdiction so that the plenary Court could define the scope of Article 5 para. 3 (art. 5-3) of the Convention, thereby clarifying its case-law, which is somewhat vague in this area, and laying down clear guidelines for the Contracting States.

However, I had in mind that the Schiesser judgment (Series A no. 34) would be confirmed, with some of its ambiguous elements removed, rather than overruled. That is why I cannot subscribe to the conclusion which the majority of the Court has reached.

In this respect, I propose to set out a number of arguments which seem to me to be relevant.

1. The problem at issue is the interpretation of the phrase "judge or other officer authorised by law to excercise judicial power". While the scope of the word "judge" (or "court"/"tribunal") within the meaning of Article 5 paras . 3 and 4 and Article 6 (art. 5-3, art. 5-4, art. 6) of the Convention may be regarded as settled, that of the expression "... other officer ..." is the subject of dispute.

The starting point for my reasoning is that if for the exercise of the power mentioned in Article 5 para. 3 (art. 5-3) (i.e. the first review of the lawfulness of a detention under Article 5 para. 1 c) (art. 5-1-c) those responsible for drafting the Convention referred to two alternative and different organs, those organs do not have to satisfy exactly the same criteria, otherwise the alternative reference would have no sense, which would be absurd. It is a principle in the interpretation of a legal text that an interpretation which renders it absurd is not to be presumed.

It is therefore necessary to define the criteria for identifying an "officer" or in other words to consider in what way the "other officer" is to be distinguished from the "judge".

The criteria which the Court laid down in this connection in the Schiesser judgment (cited above, paragraph 31) may be summarised as follows:

(a) institutional guarantees: independence vis-à-vis the executive and the parties;

(b) procedural guarantees: obligation for the official concerned to hear himself the accused brought before him;

(c) substantive guarantees: decision on the continuation of detention or release to be taken by reference to legal criteria, after the circumstances militating for and against the detention have been examined; power to order release if there are insufficient reasons to justify the detention.

The formulation and application of criteria (b) and (c) give rise to scarcely any problems; that is also true of the first limb of criterion (a): independence vis-à-vis the executive. Clearly an organ cannot be regarded as acting as an "officer ... [who exercises] judicial power" where he is under the authority of the executive, in other words he is subject to the latter ’ s instructions.

The situation is, however, different with regard to the second limb of criterion (a): independence in relation to the parties. I confess that I have doubts on this question. The formula was borrowed from the Neumeister judgment (Series A no. 8, p. 44), where it related to a court within the meaning of Article 5 para. 4 (art. 5-4) (tribunal in Article 6 (art. 6)), and where it is entirely apt, whereas at the stage of the first examination of the lawfulness of the detention within the meaning of Article 5 para. 3 (art. 5-3), it is, in my view, scarcely appropriate to speak of "parties" in the judicial sense of the word. At that stage, it is material only that the organ which decides the detention is independent of the executive.

It is indeed true that in the Schiesser judgment (paragraphs 32 and 33) the Court made a number of observations on the question whether the simultaneous or successive exercise of the function of prosecution, whereby the prosecuting authority acquired the status of "party", could impair the independence of the District Attorney when taking his decision on the detention, which is a measure pertaining to the investigation procedure. However, it did so only in order to reply to an argument, put forward by the applicant and by the minority of the Commission, that such a combination of functions jeopardised the independence of a District Attorney. Ultimately, without however having expressed a view on this argument in the abstract, the Court dismissed it because, in the case under examination, the District Attorney had not acted as prosecuting authority. It was only in subsequent judgments, delivered in a very different context - they concerned military justice in the Netherlands and Belgium -, that the Court found that the combination of functions - whether it actually occurred or was merely theoretically possible - would affect the independence of the judicial officer called upon to decide whether the detention of an accused person should be continued.

Moreover, in the relevant cases there were other circumstances which prompted the Court to deny that - or to call in question whether - the "officer" satisfied the requirements laid down in Article 5 para. 3 (art. 5-3).

I would add that it was only in these latter decisions that the Court - rightly - also referred to the condition of impartiality inherent in the notion of "officer" within the meaning of Article 5 para. 3 (art. 5-3) (see the Pauwels judgment, Series A no. 135, p. 18, para. 37).

I conclude that the "officer" within the meaning of Article 5 para. 3 (art. 5-3) must satisfy the conditions set out in the Schiesser judgment, excluding that relating to independence vis-à-vis the parties, which has no relevance at the stage of the first examination of the lawfulness of the detention and adding the very important requirement of impartiality.

Where the judicial officer satisfies these conditions, "the purpose of Article 5 para. 3 (art. 5-3) [which] is to establish a system of judicial review and, by that means, to give specific guarantees to persons deprived of their liberty" - in the words of Judge Ryssdal in his dissenting opinion in the Schiesser judgment (Series A no. 35, p. 19) - is attained. To require more would in substance be equivalent to applying the same criteria for "officer" within the meaning of Article 5 para. 3 (art. 5-3) as for "judge" (or "court"/"tribunal") within the meaning of Articles 5 para. 4 and 6 (art. 5-4, art. 6), in other words, to removing any difference between them, and neither the letter of the Convention, which intentionally distinguishes between the two possibilities, nor its spirit lends support to that idea; nor would it serve the legitimate interests of the individuals concerned.

2. The recent decisions of the Court relating to criminal proceedings have often dealt with the question of the combination of the functions of prosecution, investigation and judgment. In certain cases such a combination may be contrary to the Convention; in others it may solely raise problems, without however necessarily leading to incompatibility with the requirements of that instrument.

In general the Convention in no way requires separation of the functions in question, although, in the interests of the proper administration of justice, it is desirable, because it provides a maximum of guarantees to the individuals concerned.

Thus for example for minor offences, the legislation of several countries entrusts the investigation to the same judge who, subsequently, conducts the trial and delivers judgment. In other legal systems, the institution of investigating judge does not exist and the task of investigation then falls to the Public Prosecutor ’ s Office, in other words the prosecuting authority. In those systems it could also happen that certain measures of investigation are left to be carried out by the trial judge.

In principle no criticism may be directed at this combination of functions from the point of view of the Convention, although, as I have just stated, separation is desirable. It is exactly for that reason that, with other colleagues, I was unable to agree with the majority in the Hauschildt case (Series A no. 154, separate opinion, p. 30). Moreover, what about the situation in which the trial judge decides at the hearing to remand the accused in custody? Is he now disqualified from taking this decision for the purposes of Article 5 para. 3 (art. 5-3) because, as the trial judge, he lacks independence and impartiality in this respect, or does he no longer provide the independence and impartiality required under Article 6 para. 1 (art. 6-1) because he took the decision as to the detention?

However, if a legal system provides for the separation as an additional guarantee of objectivity and impartiality, the successive exercise of the function of judgment by the same organ of the judiciary which previously was entrusted with the prosecution or the investigation in the same case infringes Article 6 (art. 6) of the Convention ( Piersack , Series A no. 53; De Cubber , Series A no. 86).

Yet I do not consider that an inversion of this order of ideas is permissible, even "mutatis mutandis" (as in the present judgment in paragraph 43), since the situation is fundamentally different in the two cases. In my view, in order to determine the independence or impartiality of a member of the judiciary, it is necessary to consider the first stage, in other words in the present case only the position of the District Attorney at the moment of his decision on the continuation of the detention is decisive. At that stage he may take this decision - a measure pertaining to the investigation procedure - as a fully independent and impartial organ regardless of the fact that at a subsequent stage in the proceedings he will be - or could be - called upon to exercise in the same case other functions, notably those of drawing up the indictment or conducting the prosecution case at the trial, thereby acquiring the status of "party", as provided for in Article 178 para. 1 of the Zürich Code of Criminal Procedure (which concerns, inter alia, the District Attorney).

Taking - mutatis mutandis - the underlying reasoning in the Piersack and the De Cubber judgments (supra), it could perhaps be argued that, at a later stage, since he has previously played a certain role in the investigation, the District Attorney would no longer be an independent and impartial representative of the prosecuting authority. However, no provision of the Convention entitles the accused to have as "opponent" an independent and impartial prosecutor.

[*]  The case is numbered 19/1989/179/237.  The first number is the case's position on the list of cases referred to the Court in the relevant year (second number).  The last two numbers indicate the case's position on the list of cases referred to the Court since its creation and on the list of the corresponding originating applications to the Commission.

[*]   The amendments to the Rules of Court which came into force on 1 April 1989 are applicable to this case.

[*]  Note by the Registrar: For practical reasons this annex will appear only with the printed version of the judgment (volume 188 of Series A of the Publications of the Court), but a copy of the Commission's report is obtainable from the registry.