SEPARA TE OPINION OF JUDGE DE MEYER

(Translation)

I.   Judge Schaumburge r's participation in the trial

A. Lawfulness of the tribunal

1.   Judge Schaumburger was disqualified from taking part in the applicant's trial at the Innsbruck Regional Court in March 1990 by virtue of Article 68 para . 2 of the Austrian Code of Criminal Procedure.  However, by Article 281 para . 1 of the same Code, the applicant could only put forward this ground of nullity if he had raised it at the beginning of the trial or as soon a s he had become aware of it [4]

There is a dispute as to whether the applicant validly waived the right to argue that the proceedings were a nullity on this ground.  What happened in this connection at the hearing on 23 March 1990 is not wholly clear [5] .

At all events, the Austrian courts held that the waiver was valid.  I agree with the Court's finding that there is no reason to ca ll their ruling into question [6]

B. Impartiality of the tribunal

2.   The present case has given me cause to ponder at length the problem which the exercise of different judicial functions in succession by one and the same judge in the same case poses as regards a criminal court's impartiality. It is possible to gain the impression that our case-law on the matter is neither consistent nor clear and that, as in some other recent judgments, the one we are delivering today does little to dispel the confusion and uncertainty.

3.   The course to be followed in this area seemed to have been set out clearly and unambiguously in 1982 in the Piersack judgment and in 1984 in the De Cubber judgment. In the Piersack judgment the Court indicated that a judge could not take part in the trial of a case that he had already dealt with - even if only wholly superficially - when he was on the side of the prosecution.  The principle of impartiality had been infringed in that the judge who presided over the Brabant Assize Court when it tried the case in question had, when he had been senior deputy procureur du Roi in Brussels, been head of the section of the public prosecutor's department responsible for the prosecution of the applicant; in that capacity he had signed or received certain (fairly innocuous) d ocuments relating to the case [7]

In the De Cubber judgment the Court held that the same applied if the judge participating in the trial of a case had already dealt with it as an investigating judge and had, in particular, issued a warrant for the arrest of the accused.  This had been true of one of the three judges who had sat on the Oudenaarde Criminal Court when it tried the applicant [8]

The Court thus seemed to have accepted that discharging prosecution functions, judicial-investigation functions or duties relating to pre-trial detention was incompatible with the subsequent discharge of the judicial function in the same case.

4.   What it held in these two judgments seemed so convincing that in the Ben Yaacoub case the respondent Government preferred to conclude a friendly settlement rather than challenge the Commission's opinion that a judge who, sitting in the chambre du conseil of the Criminal Court, had ruled on the confirmation of a warrant for an accused's arrest, on the extension of his detention on remand and on his committal for trial could not subsequently deal with the case as a member of the trial court [9] ; the Belgian Court of Cassation had already so held in another ca se after the De Cubber judgment [10]

5.   In 1991 we similarly held, in the Oberschlick case, that the principle of impartiality had been infringed - as had, moreover, Article 489 para . 3 of the Austrian Code of Criminal Procedure - in that the three members of the Vienna Court of Appeal who had quashed the order made by the Review Chamber of the Regional Court that proceedings should be discontinued and had referred the case back to the Regional Court had also heard the applicant's appeal against the Regional Court's judgme nt following the reference back [11]

A little later, in the Pfeifer and Plankl case, which was very similar to the instant one in that it likewise concerned the application of Article 68 para . 2 of the Austrian Code of Criminal Procedure, the facts were that two judges of the Klagenfurt Regional Court had sat to try Mr Pfeifer when one of them had, as investigating judge, issued the warrant for his arrest and ordered his transfer to Vienna and the other, as duty judge, had questioned him and remanded him in custody [12] .  In that case we found, as in the Oberschlick case, that "Mr Pfeifer was tried by a court whose impartiality was recognised by national law itself to be open to doubt" and we added that "in this respect, it [was] unnecessary to define the precise role played by the judges in question during the investigative stage" [13]

6.   There thus emerged a line of authority that was perhaps rather rigorous but at all events unambiguous and clear. I initially thought that, following that logic, we should also find a breach of the principle of impartiality in the present case.

7.   But in 1989 we began to deviate from the path laid down in the De Cubber judgment by suggesting, in the Hauschildt judgment, that "the mere fact that a trial judge or an appeal judge, in a system like the Danish, has also made pre-trial decisions in the case, including those concerning detention on remand, [could not] be held as in itself justifying fears as to his impartiality" and that "special circumstances [might] in a given case be such as to warrant a different conclusio n [14]

What in the De Cubber judgment had appeared to be the rule thus became the exception.

This method of reasoning may be explained to some extent by the fact that in Denmark there are no investigating judges as there are in Belgium or Austria .  It did not prevent the Court from finding a breach of the impartiality principle in the Hauschildt case in that nine of the many orders whereby a member of the trial court had extended the applicant's detention on remand were based on a "particularly confirmed suspicion" - it was only because of these "circumstances of the case" that "the impartiality of the ... tribunals was capable of appearing to be open to doubt" [15]

I n several judgments since then the Court has taken a similar approach.

8.   The Nortier case I am putting aside.  In that case a juvenile judge had sat successively as investigating judge, review-chamber judge and trial judge in respect of a 15-year-old prosecuted for attempted rape.  In the first capacity the judge had ordered the applicant to be placed in initial detention on remand and also directed that a preliminary investigation should be carried out with a view to having a psychiatric report drawn up.  As judge of the Review Chamber he had made an order for the applicant's extended detention on remand an d had twice renewed that order.

In that case, adopting a reasoning similar to the one in the Hauschildt case, we reached the conclusion that the principle of impartiality had not been breached [16]

It is, however, permissible to think that we could also have based that finding, as our colleague Morenilla indicated, on the special nature of proceedings in respect of juvenile offenders and, in particular, on the "educational and psychiatrical aspects of the treatment" th at should be provided for them [17] .

9.   The cases of Sainte-Marie, Fey, Padovani and Saraiva de Carvalho were cases of ordinary criminal law.

In the Sainte-Marie case two of the three members of the Criminal Division of the Pau Court of Appeal had earlier sat in the Indictment Division when it had decided to uphold an order refusing the applicant's release.  They had thus, as the Court found, made "a brief assessment of the available facts in order to establish whether prima facie the police suspicions had some substance and gave grounds for fearing that there was a risk of the accused's absconding" [18] .

In the Fey case the judge sitting as a single judge in the Zell am Ziller District Court had, before the trial, questioned the complainant, sent a rogatory letter to another District Court and obtained information from a German court, a bank and two insurance companies [19] .

In the Padovani case the Bergamo magistrate had, in immediate proceedings ( giudizio direttissimo ), tried an accused whom the police had arrested nine days earlier and brought before him.  Before the trial he had questioned him and two other accused and twice confirmed his arrest, noting on the second occasion that there was "sufficient evidence pointing to Mr Padovani's guilt" [20] .

In the case of Saraiva de Carvalho , the President of the division of the Lisbon Criminal Court before which the applicant had appeared had earlier, as the judge responsible for the case, issued the despacho de pronúncia , which meant that there was, in his view, sufficient evidence to "enable a reliable assessment to be made of the probability of guilt".  In so doing he also decided that the applicant should be kept in pre-trial detention [21]

In each of these four cases the Court held that the principle of impartiality had not been infringed.

10.   The Court held likewise more recently in the Diennet case.  This case, however, was slightly different from the ones discussed above, firstly in that it was not ordinary criminal law that was at issue but professional discipline, and secondly in that it posed the problem, already raised in the Ringeisen case, of the membership of a judicial body rehearing a case after an ear lier decision has been quashed.

It had already been held in the Ringeisen judgment that "it cannot be stated as a general rule resulting from the obligation to be impartial that a superior court which sets aside an administrative or judicial decision is bound to send the case back to a different jurisdictional authority or to a differently com posed branch of that authority" [22]

The Court similarly found in the Diennet case that "no ground for legitimate suspicion [could] be discerned in the fact that three of the seven members of the disciplinary section" of the National Council of the Ordre des médecins had "taken part in the first decision" that had been taken by that section in respect of misconduct of which he was accused and had subsequently been set aside by the Conseil d'Et at [23]

In actual fact the Ringeisen and Diennet cases did not, properly speaking, raise the issue of the discharge of different judicial functions in succession, since in both cases the bodies in question had to discharge the same function as on the occasion of their "first decision".  And where that function in fact consists in finding someone's guilt or imposing a penalty on him, the situation is even more problematic from the point of view of impartiality than the one which arises where judges sitting in a trial court have earlier discharged judicial-investigation functions in the same case or taken decisions on the pre-trial detention of the accused.

11.   Taking all the foregoing into consideration, it may be thought that our case-law on the concept of an "impartial tribunal" ha s become very "uncertain" [24] .

In these various cases were there differences between the functions discharged by the judges in question which justified the different conclusions reached by the Court?  And what was the relevance of them?

According to several of the judgments, there were differences in the "extent", "scope" or "nature" of the "measures taken by the judge before the tri al" [25] . But we have never said clearly what that might mean.

12.   The "nature of the functions which the judges involved in [the] case exercised before ta king part in its determination" [26] was fairly varied.  Except in the Diennet case, what was involved was various kinds of investigative measures or steps in the preparation of the trial or decisions relating to pre-trial detention.  But these differences in kind or "nature" do not seem to have weighed decisively with the Court in one direction or the other

Was the difference due to the fact that, as we said in the Hauschildt judgment, "suspicion and a formal finding of guilt are not to be treated as being the same" [27] ?  No doubt there is a difference in kind or "nature" there, and perhaps also in "extent" or "scope", but it cannot have been of much use as a criterion for assessing the impartiality of the judges concerned, since there had been no "formal finding of guilt" in any of the cases cited above, except of course in the Diennet case.

There is probably also some difference between the brief assessment of the substance of police suspicions [28] and that of whether there is a "particularly confirmed suspicion" [29] . But in what way must such suspicions be stronger than those which may be based on "sufficient evidence pointing to ... guilt" [30] or on "evidence ... sufficient to enable a reliable assessment to be made of the probability of guilt" [31] ?

The "detailed knowledge of the case" acquired by the judge who issued the despacho de pronúncia in the Saraiva de Carvalho case did not prevent the Court from considering him as "being impartial when the case came to trial" [32] , whereas, according to the De Cubber judgment, the "particularly detailed" knowledge of the file that has been acquired by an investigating judge in the course of his inquiries was one of the reasons why he should have been excluded from the trial court [33] .  What is the difference between these two kinds of detailed knowledge? Or must it be recognised, rather, that, as Mr Spielmann pointed out in the Fey case, "no distinction should be drawn between extensive investigations and less extensive investigations" - it was a matter of principle [34] ?

13.   These over-subtle distinctions, which give rise to uncertainty and confusion, are scarcely compatible with legal certainty.

As regards a tribunal's impartiality, we must firstly, it seems to me, not be obsessed with "appearances", as we too often are in the reasoning of our judgments, but simply take into account the reality of the proceedings, in the light of what common sense tells us.

That being so, we must above all endeavour to formulate rules that are as precise as possible and will enable litigants to see things more clearly.

Leaving aside the special problem of the criminal law in respect of juveniles, which the Nortier case was concerned with, and of judicial bodies which have to rehear a case after their original decision has been set aside, as in the Diennet case, I am prompted to dis tinguish several types of case.

14.   It is obviously not appropriate that someone who has already dealt with the case as a party or representative of a party, whether on the prosecution side or for the defence and even if only minimally or purely formally, should subsequently deal with it as a member of a trial court.  That is wholly unhealthy and the Court so held in the Piersack case.

15.   What of the situation where a judge has taken decisions in respect of the accused's pre-trial detention?  It may be said that such decisions, whether favourable or unfavourable to the accused, mean that the judge who takes them must, as the terms of Article 5 (art. 5) of the Convention indicate, have determined whether there is "reasonable suspicion" of his having committed an offence or whether it is "reasonably considered necessary to prevent his committing an offence or fleeing after having done so".  But is that sufficient to put the judge's impartiality in doubt and consequently rule out his taking part later in the trial of the case?

It may be considered that it is, but it may equall y be considered that it is not.

Have we not, in some of our judgments, given undue weight to the necessarily biased and subjective point of view of the accused?  Have we sufficiently considered the objective and reasonab le justification for his fears?

I will go no further here than to raise questions.  They do not have to be settled in the instant case, but further serious thought will have to be given to them.

16.   The position of a judge who has taken a decision to charge, to commit for trial or not to bring charges is very similar to that of a judge who has taken a decision concerning pre-trial detention.

It raises the same questions and these must probabl y be answered in the same way.

17.   The questions raised under 15 and 16 above cannot be answered differently according as the decisions in question were taken by a judge specifically responsible for the preliminary investigation, as in the De Cubber case, or by the trial judge himself as such, as in the Padovani and Saraiva de Carvalho cases.

18.   There remains the case of a judge who has carried out what I would call purely preparatory or preliminary steps, such as questioning an accused or witnesses, gathering information, seizing objects connected with the offence or ordering an expert opinion.  Such steps [35] are neutral in themselves and, as such, certainly do not suffice for it to be assumed a priori that the judge who carries them out will consequently be prejudiced, one way or the other, when the case comes to trial.  The more detailed knowledge thus acquired by the judge concerned is more an advantage than a drawback; it is no bad thing if justice is done in full knowledge of the facts .

Purely preparatory or preliminary steps of this kind were what was carried out in the Fey case by Mrs Kohlegger and also in the instant case by Mr Schaumburger , who had merely questioned two witnesses [36] .

That is why I ultimately think that the principle of impartiality was not infringed in the present case.

II.   No adversarial h earing before the Supreme Court

19.   The applicant's appeal on grounds of nullity raised not only issues of law but also issues of fact - whether he had really waived his right to rely on Article 68 para . 2 of the Code of Criminal Procedure and the questions he had raised as to the credibility of the witnesses and the alleged incompleteness and contradictoriness of the examination and determination of the facts by the court of first instance [37] .

In my view, that made an adversarial hearing necessary [38] .

20.   I also consider that Austria 's reservation in respect of Article 6 (art. 6) of the Convention cannot be relied on in this case; as I have already pointed out in another case, Article 64 (art. 64) of the Convention does not allow situations that are incompatible with the fundamental rights guaranteed in the Convention to continue indefinitely [39]

III.   The observations of the Attorn ey-General at the Supreme Court

21.   On this point I have no difficulty in agreeing with the Court's conclusion.  A single sentence would have been enough to justify it.

It is manifestly unacceptable that observations may be filed with a court by the prosecution withou t the knowledge of the defence.

This is certainly not a matter of "appearances" but of r eal and rather shocking fact.