CONCURRING OPINION OF JUDGE BERNHARDT

I voted with the majority in finding no violation of Article 6 of the Convention. However, I would have preferred the judgment to express misgivings on the part of the Court about the way in which the experts in the present case performed their duties. The excerpts from the expert opinions quoted in paragraphs 11 and 13 of the present judgment contain statements which are in my view unacceptable and hardly compatible with the task of a neutral and objective expert.

Nevertheless, when considering all the elements of the case, I have come to the conclusion that these statements did not make the trial as a whole unfair. The defence had the opportunity to respond to and to comment on the experts’ opinions. It must also be assumed that all members of the Assize Court knew the specific role of experts in criminal proceedings and took their own decision in accordance with their own conviction and conscience.

DISSENTING OPINION OF JUDGE LÅŒHMUS

In paragraph 37 the Court recalls that “the presumption of innocence enshrined in paragraph 2 of Article 6 is one of the elements of the fair criminal trial that is required by paragraph 1”. I entirely agree with this principle, as expressed in this judgment and in other judgments of the Court.

Contrary to the majority of the Court, I have reached the conclusion that there has been an infringement of the applicant’s rights under Article 6 §§ 1 and 2.

According to my understanding, the majority based their reasoning on the fact that the psychiatric reports formed only one part of the evidence submitted to the jury and that the applicant’s conviction was based on the evidence obtained during the investigation and discussed at the hearing in the Assize Court (see paragraph 40).

I am of the opinion that this reasoning, leading to the finding that there was no breach of Article 6 §§ 1 and 2, is in some respects in contradiction with the principle set forth in paragraph 37. It is not the Court’s task to substitute its own assessment of the facts and the evidence for that of the domestic courts. The Court’s task is to ascertain whether the proceedings in their entirety were fair.

The expressions that were used in the reports by the experts went beyond medical or psychiatric terminology. The experts overstepped the limits of their competence by expressing their opinion as to the applicant’s guilt. Both experts were appointed by an investigating judge, that is, by the judicial authority. As no reasons are given in the Assize Court’s judgment it cannot be known to what extent the jurors, in declaring the applicant guilty, took the psychiatric reports into account. Jurors are very sensitive to opinions expressed by qualified experts. By using such expressions in the reports, the experts reinforced the opinion that the applicant was guilty and so created a situation in which the principles of presumption of innocence and fair trial were not observed.

[1] . This summary by the registry does not bind the Court.

[2] Notes by the Registrar

. The case is numbered 159 / 1996 / 778 / 979 . 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.

[3] . Rules of Court A apply to all cases referred to the Court before the entry into force of Protocol No. 9 (1 October 1994) and thereafter only to cases concerning States not bound by that Protocol. They correspond to the Rules that came into force on 1 January 1983, as amended several times subsequently.

[4] . Note by the Registrar . For practical reasons this annex will appear only with the printed version of the judgment (in Reports of Judgments and Decisions 1998), but a copy of the Commission’s report is obtainable from the registry.