DISSENTING OPINION OF JUDGE FOIGHEL

I agree with the statement of the majority of my colleagues set out in paragraph 43 of the judgment, which reads: "The Court notes at the outset that it is of fundamental importance in a democratic society that the courts inspire confidence in the public and above all, as far as criminal proceedings are concerned, in the accused."

The question therefore is whether in the circumstances of the case in issue sufficient guarantees or remedies existed to exclude any objectively justified or legitimate doubts as to the impartiality of the jury which tried the applicant.

I share the view of the minority of the Commission who concluded that: "... the issue to which the jury note referred [was] a serious one and [we] consider the ambiguity of the jury note central to the question of object ive impartiality in this case. It is possible that the note could have been evidence of the over-sensitivity of a juror to comments made by fellow jurors. However, it could equally be interpreted as referring to racist comments expressed by one, more or indeed all of the members of the jury."

If a legal system designates a jury as the ultimate arbiter of the facts of a case, it seems to me important to note that the members of that jury enter the courtroom with no training or awareness of the issues which may confront them in the course of the trial, inclu ding the issue of jury racism. The members of the jury are given no advance warning on how they are to address an unexpected occurre nce of racism within the jury. Their only point of reference is their own personal ex perience in their daily lives. This leads me to stress that it is of the utmost importance that remedies should be in place to enable a trial judge to ensure that the decision of the jury is not tainted with an y objective suspicion of bias. This is especially true when, as in the instant case, the suspicion of bias is brought directly to the attention of the judge.

I take the view that a speech from a judge – a redirection – cannot dispel racial prejudice within a jury, if such prejudice exists. The only safeguard which could have been offered by the trial judge in this case was to discharge part or the whole of the jury, or at least to have conducted a more probing enquiry into the effect of the note on the jury ’ s deliberations and decision-making by asking the jury in open court whether they were still capable of continuing and returning a verdict in the circumstances. The jury ’ s answer to that question would have enabled the judge either to exercise his powers of discharge or to cedes himself that the note was inconsequential. He took none of these courses of action and no other effective means were available since domestic law prevented the trial judge from questioning the jury members about the origin and nature of the note.

It is of the utmost importance to stress that it is not for this Court to decide whether the trial judge acted reasonably in accordance with domestic law. The Court ’ s task is to decide whether the proceedings taken as a whole meet the requirements of the Convention and especially Article 6 para . 1 (art. 6-1).

I do not find that the proceedings in this case were such as to secure for the applicant an impartial tribunal as guaranteed by Article 6 para . 1 (art. 6 ‑ 1). I therefore find a violation (art. 6-1) in this case.

[1] The case is numbered 111/1995/617/707. 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.

[2] Rules A apply to all cases referred to the Court before the entry into force of Protocol No. 9 (P9) (1 October 1994) and thereafter only to cases concerning States not bound by that Protocol (P9). They correspond to the Rules that came into force on 1 January 1983, as amended several times subsequently.

[3] 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 1997-I), but a copy of the Commission's report is obtainable from the registry.