CONCURRING OPINION OF JUDGE RYSSDAL

The first sentence of section 62(1) of the Administration of Justice Act entitles the parties to object to a judge hearing a case when circumstances, other than those referred to in section 60, "are capable of raising doubt about his complete impartiality". This wording would seem to indicate that Mr Hauschildt could have challenged Judge Larsen and the High Court judges on the ground that they had applied section 762(2) of the Act in pre-trial decisions concerning his detention on remand.

However, having regard to the specific provision in section 60(2) of the Act and to the fact that it was common practice in Denmark at the relevant time not to challenge a trial judge on the ground of his having made pre-trial decisions in the same case, I have come to the conclusion that Mr Hauschildt could not be expected to have objected to the judges in question. I therefore agree that the Government ’ s plea of non-exhaustion of domestic remedies must be rejected.

JOINT DISSENTING OPINION OF JUDGES THÓR VILHJÁLMSSON, PALM AND GOMARD

1.   Sections 60(2) and 62 of the Administration of Justice Act ("the Act"), which are cited in full in paragraph 28 of the Court ’ s judgment, clearly indicate - in accordance with the explanations given on pages 21 and 22 of the original proposal, dated March 1875, that led to the adoption of the Act - that normally a judge in a criminal case is not disqualified because he has had to deal with the case in another capacity before trial, but that disqualification may ensue because of special circumstances as mentioned in those sections. Consequently an appeal founded on the system itself, i.e. on the fact that judges who delivered pre-trial decisions are not normally disqualified from taking part in the trial, would undoubtedly have been unsuccessful. The relevant questions in the present case, however, are whether on a special appeal the Court of Appeal (the High Court) or the Supreme Court would have found that the impartiality of Judge Larsen or of the High Court judges was impaired because of his or their involvement in the case before the first-instance or the second-instance trial. Under the relevant provisions of the Act, the result of an appeal alleging that the first-instance judge or the second-instance judges lacked impartiality would have depended on the circumstances of the case as it stood before the City Court or later before the High Court. At that time - in 1981 and in 1983 - all relevant information could have been produced to and evaluated by the High Court or the Supreme Court. The only information available now, years later, in the case before this Court is a simple list of the number and contents of decisions made by various judges. It is not possible to arrive, solely on the basis of such a list, at a well-informed opinion on the partiality or impartiality of the trial judges.

Mr Hauschildt and his counsel decided at the relevant time against raising the question of impartiality. Mr Hauschildt ’ s present application is therefore, in our opinion, inadmissible because of failure to exhaust domestic remedies (Article 26 of the Convention) (art. 26).

2.   If Mr Hauschildt ’ s application is not found inadmissible for failure to have recourse to an available and relevant domestic remedy as required by Article 26 (art. 26) of the Convention, the objection of partiality now raised by him has to be examined and decided in the present case.

As stated in paragraph 50 of the Court ’ s judgment, the mere fact that a member of the trial court has also taken part as a judge in preliminary decisions in the case does not in itself justify fears as to his or her impartiality. The doubts that have been raised as to whether this is also true where the decisions have been rendered under section 762(2) of the Act are an indication that the wording of this particular provision - as it appears in the translations - may not be fortunate. This, however, does not alter the fact that the strong traditions of the judiciary and the ability of the judges, deriving from their education and training, provide the necessary effective and visible guarantee of impartiality. Judicial control of the question whether the prosecution has reasonable grounds for requesting detention on remand, solitary confinement, searches and seizure, etc. is a function that is different from the court ’ s evaluation of the evidence presented by the parties at the trial. For authorisation of detention on remand, information is not presented in the same way as evidence during the hearings before the trial court. The procedure is a summary one. Court sittings at the pre-trial stage are concluded in a matter of hours, whereas both of Mr Hauschildt ’ s trials lasted for months. After the City Court had passed judgment, that judgment became an important factor for the High Court judges in determining whether Mr Hauschildt should remain in custody during his de novo trial on appeal.

The role of judges at the pre-trial stage is confined to ascertaining whether the prosecution ’ s requests satisfy the conditions set out in the relevant section(s) of the Act. This judicial control may be exercised by any judge or panel of judges belonging to the competent court. In the present case the City Court ’ s first - and important - decision that Mr Hauschildt be detained on remand, that of 1 and 2 February 1980, was rendered not by Judge Larsen but by another judge (Mr Dalgas Rasmussen). Where the court proceedings last for several months, as in Mr Hauschildt ’ s case, the rule in section 767 of the Act that detention on remand cannot be authorised for more than four weeks necessitates continued decisions on this matter during the trial.

Judgment in Mr Hauschildt ’ s case - as in other cases - was passed on the basis of the evidence presented and commented on by both parties at the trials, first before the City Court and later before the High Court. There is no indication whatsoever of any lack of impartiality on the part of the judges involved in Mr Hauschildt ’ s case. There was no objective or reasonable subjective ground to fear that either Judge Larsen or the High Court judges could have had any improper motive when passing judgment. There is no indication that any of the judges involved in Mr Hauschildt ’ s case was not able - as qualified, professional judges are able - to form his opinion on the basis of the materials presented at the trial and of nothing else. Mr Hauschildt has not pointed to any ground for doubting the impartiality of the judges other than their having taken part in various decisions before and during trial, as described in paragraphs 10 et seq. of the European Court ’ s judgment.

For these reasons, Mr Hauschildt ’ s complaint that his case was not tried by an impartial tribunal must be rejected. In our opinion, Article 6 (art. 6) of the Convention has not been violated in the present case.