JOINT DISSENTING OPINION OF JUDGES GÖLCÜKLÜ AND MATSCHER

(Translation)

The majority of the Court rightly considered that - in a system such as that existing in Denmark, where there is no division of responsibilities between investigating judge and trial judge, with all the guarantees inherent in such a division of responsibilities - the mere fact that a trial judge or an appeal-court judge also takes certain pre-trial decisions, in particular concerning detention on remand, is not sufficient in itself to justify apprehensions as to the impartiality of the judge in question.

However, the majority reached the opposite conclusion, and found a violation of Article 6 para. 1 (art. 6-1), in this case on the ground that the trial judge and the appeal-court judges took several decisions on the continuation of the applicant ’ s detention on remand and based those decisions specifically on section 762(2) of the Danish Administration of Justice Act, whose application requires a "particularly confirmed suspicion".

It is our view that this fact does not justify the majority ’ s conclusion. In a legal system in which the function of investigating judge does not exist (and its existence is in no way required by the Convention), it naturally falls to the trial judge (or appeal-court judge) to take all the pre-trial measures which call for the intervention of a judge. Indeed it is of course the trial judge (or appeal-court judge) who is the most familiar with the case and who consequently is the best placed to determine the appropriateness of or the necessity for the measures envisaged, even if this assessment requires him to adopt a fairly clear-cut position on the case. This does not mean however that he may be regarded as lacking sufficient impartiality to decide the merits of the case.

Nor do we find the quantitative argument particularly convincing. In a case involving economic offences of a wide-ranging and extremely complicated nature, it will inevitably be necessary for the judge to make several interventions in the investigation and, acccordingly , to take a number of decisions concerning the extension of detention on remand.

CONCURRING OPINION OF JUDGE DE MEYER

I fully subscribe to the operative provisions of the judgment and to most of its reasoning. I cannot, however, agree with paragraph 50.

The "pre-trial functions" relating to detention on remand or to solitary confinement which were exercised in the present case by certain judges under sections 760, 762 and 770(3) of the Danish Administration of Justice Act, as applicable at the relevant time, were not essentially different from those which were exercised by the investigating judge in the De Cubber case.

In my view, the mere fact that a trial judge has previously exercised such functions in the case which he has to try, objectively justifies legitimate fears as to his impartiality, and this applies not only to functions exercised under section 762(2), but also to functions exercised under the other provisions just referred to.

[*]  Note by the registry: The case is numbered 11/1987/134/188.  The second figure indicates the year in which the case was referred to the Court and the first figure its place on the list of cases referred in that year; the last two figures indicate, respectively, the case's order on the list of cases and of originating applications (to the Commission) referred to the Court since its creation.