DISSENTING OPINION OF JUDGE SPIELMANN

(Translation)

1. I have been unable to vote with the majority for a finding of non-violation, since in my opinion there has quite evidently been a breach of Article 6 para. 1 (art. 6-1) of the European Convention on Human Rights.

2. I entirely adopt the majority opinion of the Commission (sixteen votes to three) in particular paragraph 56 of its report, which reads as follows:

"In the Commission ’ s opinion, at a stage preceding the trial, Judge Kohlegger in fact undertook typical acts of an investigating judge. The investigat ions aimed at establishing whether the applicant had fraudulently obtained money from the landlady. Yet these issues were precisely those which she had to deal with at the trial when deciding on the applicant ’ s guilt."

The majority of the Commission accordingly concluded, rightly in my opinion, that the applicant could legitimately fear that Judge Kohlegger, when acting as the sole trial judge, had a preconceived opinion as to his guilt, and therefore have doubts as to her impartiality (see paragraph 58 of the Commission ’ s report).

3. While I agree with the Court ’ s finding that there is no indication that at the time when the landlady was questioned under a warrant issued by an investigating judge there was any prospect of Judge Kohlegger later trying the case (see paragraph 31 of the judgment), I consider, however, that that judge should have stood down and not tried the case.

If the composition of District Courts in Austria might indeed on certain occasions pose organisational problems, that is not a factor which can have any influence on the decisions of the Strasbourg institutions.

4. Finally, I do not share the opinion of the majority of the Court that the present case is clearly distinguishable from the De Cubber v. Belgium case (see paragraph 35 of the judgment). In my opinion, no distinction should be drawn between extensive investigations and less extensive investigations.

This is a question of principle.

CONCURRING OPINION OF JUDGE MARTENS

1. The procedure followed by Judge Kohlegger of the Zell am Ziller District Court, which in the applicant ’ s view violated Article 6 para. 1 (art. 6-1), was in every respect in conformity with Articles 451 and 452 of the Austrian Code of Criminal Procedure. Consequently, in assessing whether the application of those provisions in fact gave rise to a violation, the first step should be to review whether they are in conformity with the Convention.

This approach is not only required by logic and truthfulness (see my dissenting opinion in the Brogan and Others v. the United Kingdom case, judgment of 29 November 1988, Series A no. 145-B, p. 50, para. 7), but also by the Court ’ s present position within the legal community instituted by the Convention and gradually elaborated by the Court ’ s case-law. That position implies that, where possible, the Court should not base its decision (solely) on the particular circumstances of the individual case, but should endeavour (also) to give reasons that afford clear guidance to national courts and authorities for the category of cases under consideration.

2. When assessing whether Articles 451 and 452 of the Austrian Code of Criminal Procedure are compatible with the Convention, a first point to be made is that a District Court judge who is conducting a preliminary inquiry must be deemed to be carrying out the functions of an investigating judge. His inquiries are of an inquisitorial nature, they are secret and are not in principle conducted in the presence of both parties. When undertaking such inquiries, the District Court judge is not exercising the typical functions of a judge presiding over the hearing of the parties, but those of a judicial officer preparing the case for trial. Significantly Article 452 requires him to observe the provisions pertaining to an investigating judge [*] .

I am not persuaded by the Government ’ s argument that there is a fundamental difference between the preliminary investigations ( Voruntersuchungen ) conducted by an investigating judge under Articles 91 et seq. and the preliminary inquiries ( Vorerhebungen ) carried out by a District Court ju dge under Articles 451 and 452 [*]  . From the point of view of increasing the chances that the judge, as a result of his pre-trial fact-finding activities, will start the trial with a pre-formed opinion, there is no difference at all.

3. Since a District Court judge who is conducting a preliminary inquiry must be deemed to be carrying out the functions of an investigating judge, Articles 451 and 452 do, in principle, violate Article 6 para. 1 (art. 6-1) as that provision has to be interpreted under the De Cubber doctrine.

It is intentionally that I have referred to the De Cubber doctrine. Both the considerations set out in paragraph 1 above and the arguments used in the Court ’ s De Cubber v. Belgium judgment of 26 October 1984 (Series A no. 86, pp. 15-16, paras . 29-30) - which latter centre around an abstract analysis of the legal position of the investigating judge within the national legal system - warrant the conclusion that in that judgment the Court laid down a rule that the functions of an investigating judge are incompatible with those of a trial judge.

This interpretation finds further support in paragraph 50 of the Hauschildt v. Denmark judgment of 24 May 1989, Series A no. 154, p. 22: there the Court, evidently in order to distinguish that case from the De Cubber case, analysed "[t]he judge ’ s functions on the exercise of which the applicant ’ s fear of lack of impartiality [was] based, and which relate[d] to the pre-trial stage". It found that they were those of "an independent judge who [was] not responsible for preparing the case for trial or deciding whether the accused should be brought to trial" and concluded by saying:

"Indeed, as to the nature of the functions which the judges involved in this case exercised before taking part in its determination, this case is distinguishable from the Piersack and the De Cubber cases." (emphasis added)

The De Cubber doctrine may be compared with that enunciated in the Huber v. Switzerland judgment of 23 October 1990, Series A no. 188, where the Court laid down the rule that membership of the prosecution disqualifies a person from being a trial judge (compare the Brincat v. Italy judgment of 26 November 1992, Series A no. 249-A, p. 11, para. 20).

These rules should, in principle, apply irrespective of differences of detail between the relevant national provisions. It is therefore unnecessary to examine whether the Austrian District Court judge - when making preliminary inquiries - displays all the features which have been held to be decisive in respect of the Belgian investigating judge. It suffices that when making these inquiries he belongs to the same category of judicial officers, namely officers whose function it is to prepare the case for trial by actively conducting an inquisitorial inquiry. By the same token the extent of the inquiries made is also immaterial: what is at issue is a functional lack of impartiality.

4. However, the conclusion that Articles 451 and 452 are incompatible with Article 6 para. 1 (art. 6-1) of the Convention can only be a preliminary one. The fact that a District Court judge who has made preliminary inquiries carried out the functions of an investigating judge admittedly shows that the circumstances are such that the possibility of his being prejudiced cannot be excluded. Nevertheless, as I stated in paragraphs 3.4 and 3.5 of my dissenting opinion in the Borgers v. Belgium case (judgment of 30 October 1991 , Series A no. 214-B, pp. 45-46), for a final conclusion a second test is required. Indeed, determining whether fears as to impartiality are "objectively justified" implies also a weighing of interests, since what is at stake is not only the confidence which the courts must inspire, but also the public interest in having a rational and smoothly operating judicial system. Consequently, it remains to be seen whether, in cases like the present one, the latter interests should prevail.

In my opinion, this question has to be answered in the affirmative. Many Contracting States have a District Court system which is essentially similar to the Austrian one. Its main features are a close network of often small courts where both civil and criminal cases of lesser importance are dealt with locally (i.e. where those concerned are domiciled), in proceedings characterised by a minimum of formalities. This makes it possible for those who so wish to defend themselves and to settle cases within a short time and with a minimum of costs and expenses. Extension of the De Cubber doctrine to criminal proceedings before District Courts would undoubtedly upset this valuable system, if only because it may be supposed that the situation will not infrequently be like that described by the Government which alleged [*]   that "in Austria ’ s rural areas many District Courts have only one judge or one judge may be in charge of several district courts". To require in such situations that a case not be tried by a judge who has made preliminary inquiries would result in the trial having to be held before another District Court to which the accused would have to travel. Seeing also that a professional judge who has already had to deal with a case at an earlier stage of the proceedings must be deemed to be able to put this out of his mind when sitting as a trial judge (this being the rationale of paragraphs 49 and 50 of the above-mentioned Hauschildt judgment of 24 May 1989), I feel that to oblige Contracting States to change the District Court system by extending the De Cubber doctrine would amount to setting too much store by appearances.

5. For these reasons I have voted for non-violation of Article 6 para. 1 (art. 6-1).