PARTLY DISSENTIN G OPINION OF JUDGE MORENILLA

(T ranslation)

1.   My disagreement with the majority relates solely to their finding that there has been no breach of Article 6 para . 1 (art. 6-1) of the Convention in respect of Judge Schaumburger's participation in the trial proceedings although he had "acted as investigating judge for part of the preliminary proceedings" (paragraph 10 of the judgment) including "the questioning of two witnesses during the preliminary investigation" (paragraph 9 of the judgment).

2.   In my opinion, that fact amounted to a breach of Mr Bulut's right to have the criminal charge against him heard by an impartial tribunal in accordance with Article 6 para . 1 (art. 6-1).  In the De Cubber v. Belgium judgment of 26 October 1984 (Series A no. 86, pp. 15-16) the Court explained at length the reasons why investigation functions are incompatible with those of trying a case where, "through the various means of inquiry which he will have utilised at the investigation stage," a judge, "unlike his colleagues, [has] already ... acquired well before the hearing a particularly detailed knowledge of the - sometimes voluminous - file or files which he has assembled.  Consequently, it is quite conceivable that he might, in the eyes of the accused, appear, firstly, to be in a position enabling him to play a crucial role in the trial court and, secondly, even to have a pre-formed opinion which is liable to weigh heavily in the balance at the moment of the decision" (loc. cit., p. 16, para . 29).  In the same judgment (p. 16, para . 30) the Court held: "... a restrictive interpretation of Article 6 para . 1 (art. 6-1) - notably in regard to observance of the fundamental principle of the impartiality of the courts - would not be consonant with the object and purpose of the provision (art. 6-1), bearing in mind the prominent place which the right to a fair trial holds in a democratic society within the meaning of the Convention (see the Delcourt v. Belgium judgment of 17 January 1970, Series A no. 11, pp. 14-15, para . 25 in fine)."

3.   The clarity and the very tone of this doctrine - which has led to changes in legislation and in the judicial system in States parties to the Convention, such as Spain - have been attenuated, however, by later judgments of the Court, beginning with the Hauschildt v. Denmark judgment of 24 May 1989 (Series A no. 154).  Under this new case-law, each case is to be examined to ascertain whether there were guarantees "sufficient" to exclude any legitimate doubt in this respect on the part of the accused.  In my dissenting opinion in the Diennet v. France case (judgment of 26 September 1995, Series A no. 325-A) I criticised this approach of the Court's to the problem of a tribunal's impartiality on account o f the uncertainty it entailed.

4.   The present judgment, to my regret, continues this trend and departs even further from the earlier case-law, not only in finding no breach of Article 6 (art. 6) but also in the reasoning adopted by the majority in order to reach that finding.  The majority hold that in the "limited" context of the case, the applicant's fear as to the impartiality of the court which tried and convicted him cannot be regarded as objectively justified. The reasons set out by the majority in paragraph 34 to support their finding do not seem to me to be persuasive, however.  On the contrary, their analysis strengthens my opinion that the circumstances of the case should not be seen as justifying an exception to the principle laid down in the De Cubber judgment.

5.   To begin with, the right to an impartial tribunal is a "fundamental" right relating to jurisdiction, that is to say the power to judge.  The right is an absolute one, which cannot lawfully be waived; the constitution of a criminal court is a matter of public policy and cannot be left to the wishes of the accused.  Certainly, there are procedural rights which can be waived where the waiver has been established in an unequivocal manner (see, among other authorities, the Colozza v. Italy judgment of 12 February 1985, Series A no. 89, p. 14, para . 28, and the Barberà , Messegué and Jabardo v. Spain judgment of 6 December 1988, Series A no. 146, p. 35, para . 82), but where the right at issue is a fundamental one, like the right to an impartial tribunal, su ch a waiver is not permissible.

In the Pfeifer and Plankl v. Austria case (judgment of 25 February 1992, Series A no. 227, pp. 16-17, paras . 35-39) the Court, without explanation, left this question open, however. The instant case gave the Court an opportunity to decide the issue.  Yet it has not considered it appropriate to do so, despite both parties' allegations.  The Government alleged that Mr Bulut had not exercised his right to challenge Judge Schaumburger (paragraph 27) and the applicant expressly stated that such a waiver would be impossible in law (paragraph 26); the national courts had interpreted Austrian law (paragraphs 18-20) as meaning that a waiver could lawfully be made.  The majority have confined themselves to stating that they see "no reason to call into question the resolution of this issue by the Austrian courts" and similarly they regard the applicant's failure to challenge the composition of the court as showing that he did not have legitimate reasons to doubt the impartiality of the court which tried him.

6.   To reach their conclusion, the majority firstly take into consideration that in the instant case "it has not been suggested that Judge Schaumburger was responsible for preparing the case for trial" and that "in fact, it has not been established that he had to take any procedural decisions at all".  I cannot concur in this reasoning.  Mr Bulut , a 21-year-old waiter of Turkish nationality, was not under an onus to prove what role had been played by Judge Schaumburger in the investigation of the case. The onus lay exclusively on the Austrian Government to show that the steps carried out by Judge Schaumburger were of no significance in the proceedings, and the failure to discharge it should not in any way benefit the Government; on the contrary, they should suffer the consequences of that fa ilure.

7.   The majority go on to say that Judge Schaumburger's role "consisted of questioning two witnesses.  It did not entail any assessment of the evidence by him nor did it require him to reach any kind of conclusion as to the applicant's involvement".  Since the extent of Judge Schaumburger's intervention in the preliminary investigation is not known, I cannot concur in the majority's reasoning here either.  But it is clear that for the investigating judge to be able to question witnesses, he must have a knowledge of the case and take an active role which inevitably entails an assessment of the evidence and of the witnesses that could lead him to prejudge the accused's guilt or innocence.  It is precisely for this reason that a judge who has taken part in the investigation by carrying out such steps must never try the case.  The trial judge's view must be formed exclusively by evidence produced "in the presence of the accused at a public hearing with a view to adversarial argument" ( Barberà , Messegué and Jabardo judgment prev iously cited, p. 34, para . 78).

8.   As indicated above, I am likewise unable to accept the final argument - "in any event" - that it is not open to the applicant to complain that he had legitimate reasons to doubt the impartiality of the court.  In my opinion, the fact that an accused has not challenged a judge or court cannot found an argument to show that the accused could not have any legitimate doubt as to their impartiality.  In the instant case, for example, having regard to Mr Bulut's personal circumstances and the offence with which he was charged (paragraph 8), this omission could also have been explained by a fear that making such a challenge might be prejudicial to him.  At all events, the objectiveness of his doubts and Article 68 para . 2 of the Austrian Code of Criminal Procedure (paragraph 18) required that Judge Schaumburger withdraw of his own motion in accordance with our Court's case-law (see the following judgments: Piersack v. Belgium, 1 October 1982, Series A no. 53, pp. 14-15, para . 30; De Cubber , previously cited, p. 14, para . 26; and Hauschildt , previously cited, p. 21, para . 48): "... any judge in respect of whom there is a legitimate reason to fear a lack of impartiality must withdraw.  What is at stake is the confidence which the courts in a democratic society must inspire in the public and above all, as far as criminal proceedings are concerned, in the accused."

[1] .  The case is numbered 59/1994/506/588.  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 of Court B, which came into force on 2 October 1994, apply to all cases concerning the States bound by Protocol No. 9 (P9).

[3] For practical reasons this annex will appear only with the printed version of the judgment (in Reports of Judgments and Decisions - 1996), but a copy of the Commission's report is obtainable from the registry.

[4] Paragraphs 18 and 19 of this judgment

[5] Paragraphs 9-11 of this judgment

[6] Paragraphs 15 and 29 of this judgment

[7] Piersack v. Belgium judgment of 1 October 1982, Series A no. 53, p. 6, paras . 9-11, p. 7, para . 15, and p. 16, para . 31

[8] De Cubber v. Belgium judgment of 26 October 1984, Series A no. 86, p. 8, paras . 8-10, and pp. 15 and 16, paras . 29 and 30

[9] Ben Yaacoub v. Belgium judgment of 27 November 1987, Series A no. 127-A, p. 7, paras . 9 and 10, p. 8, para . 14, and pp. 11-16.  7.

[10] Ibid., p. 9, para . 15

[11] Oberschlick v. Austria judgment of 23 May 1991, Series A no. 204, p. 13, para . 16, pp. 15 and 16, paras . 22 and 23, and pp. 23 and 24, paras . 50 and 51

[12] Pfeifer and Plankl v. Austria judgment of 25 February 1992, Series A no. 227, pp. 8 and 9, paras . 7-9

[13] Ibid., p. 16, para . 36. Oberschlick judgment previously cited, p. 23, para . 50

[14] Hauschildt v. Denmark judgment of 24 May 1989, Series A no. 154, p. 22, paras . 50 and 51

[15] Ibid., pp. 22 and 23, para . 52.

[16] Nortier v. the Netherlands judgment of 24 August 1993, Series A no. 267, pp. 7 and 8, paras . 9-12 and 15, and pp. 15 and 16, paras . 34 and 35

[17] Ibid., pp. 18 and 19

[18] Sainte-Marie v. France judgment of 16 December 1992, Series A no. 253-A, pp. 9-11, paras . 15-18, pp. 12 and 13, paras . 21 and 22, and p. 16, para . 33

[19] Fey v. Austria judgment of 24 February 1993, Series A no. 255-A, pp. 7-9, paras . 9-14

[20] Padovani v. Italy judgment of 26 February 1993, Series A no. 257-B, pp. 16 and 17, paras . 10-12

[21] Saraiva de Carvalho v. Portugal judgment of 22 April 1994, Series A no. 286-B, p. 32, paras . 11 and 12

[22] Ringeisen v. Austria judgment of 16 July 1971, Series A no. 13, p. 40, para . 97

[23] Diennet v. France judgment of 26 September 1995, Series A no. 325-A, p. 8, paras . 7-12, and p. 16, para . 38

[24] See the dissenting opinion of Mr Morenilla in the Diennet case, ibid., pp. 19-20

[25] Hauschildt judgment previously cited, p. 22, para . 50 ("the nature", "la nature").  Fey judgment previously cited, p. 12, para . 30 ("the extent and nature", "l'étendue et la nature"). Nortier judgment previously cited , p. 15, para. 33 ("the scope and nature", "la portée et la nature"). Saraiva de Carvalho judgment previously cited , p. 38, para. 35 ("the scope and nature", "l'étendue et la nature")

[26] Hauschildt judgment previously cited, loc. cit

[27] Ibid.,loc . cit

[28] Sainte-Marie judgment previously cited, p. 16, para . 33.

[29] Hauschildt judgment previously cited, p. 22, para . 52.

[30] Padovani judgment previously cited, p. 17, para . 11

[31] Saraiva de Carvalho judgment previously cited, p. 32, para . 12

[32] Ibid., p. 39, para . 38.

[33] De Cubber judgment previously cited, p. 16, para . 29.

[34] Fey judgment previously cited, p. 15

[35] It is of little importance whether the judge who carries them out is described as an "investigating judge" or not

[36] Paragraphs 9, 33 and 34 of this judgment

[37] Paragraphs 13 and 19 of this judgment

[38] See the Ekbatani v. Sweden judgment of 26 May 1988, Series A no. 134, p. 14, para . 32, and the Helmers v. Sweden judgment of 29 October 1991, Series A no. 212-A, p. 17, para . 35, and also the dissenting opinions annexed to the Jan- Ã…ke Andersson v. Sweden and Fejde v. Sweden judgments of the same date, Series A no. 212-B, pp. 48 and 49, and Series A no. 212-C, pp. 71 and 72

[39] Belilos v. Switzerland judgment of 29 April 1988, Series A no. 132, p. 36