DISSENTING OPINION OF JUDGE LOIZOU

I regret that I cannot share the Court ’ s opinion in its conclusion that there has been no violation of Article 6 para. 1 (art. 6-1) of the Convention.

The salient facts appear sufficiently in the judgment of the Court, and in particular in paragraphs 9 to 12, but I wish to stress for the purposes of this opinion that Judge Kohlegger, inter alia, questioned the landlady, Mrs Rosa Kröll, as a witness and then tried to secure further evidence by telephoning later to the bank in Mayrhofen to establish whether money had been paid into the bank account opened by the applicant. The bank replied by letter on the same day that so far there had been no receipts from the applicant. Furthermore, she telephoned the two German insurance companies to establish whether the applicant had applied for, or received, a pension payment on 18 March 1988 . Their reply over the telephone was that the applicant had not received a pension. She was thus collating all the essential material with which the elements of the offence with which the applicant was charged would be established.

The very fact that the judge was collecting evidence and ascertaining facts could not but create reasonable doubt in the mind of the accused as to the impartiality of the judge who to the knowledge of the accused had full knowledge of the file which she herself had compiled. His fears could not but be, in the circumstances of this case, objectively justified.

These circumstances have led me to the conclusion like the Commission that the applicant could have a legitimate fear that this judge, when acting as the sole trial court judge, could have a preconceived opinion as to the applicant ’ s guilt, and that her impartiality accordingly could appear to be open to doubt.

In my view, the applicant at his trial was not heard by an impartial tribunal within the meaning of Article 6 para. 1 (art. 6-1) of the Convention. Needless to say that the rights enshrined in it are equally applicable to all categories of cases, whether serious or not.

[*]  The case is numbered 93/1991/345/418.  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.

[*]   As amended by Article 11 of Protocol No. 8 (P8-11), which came into force on 1 January 1990 .

[*]  Note by the Registrar: for practical reasons this annex will appear only with the printed version of the judgment (volume 255-A of Series A of the Publications of the Court), but a copy of the Commission's report is available from the registry.

[*]  The provision clearly implies that a District Court judge who is conducting a preliminary inquiry has - save for the exception specified therein - the samer powers as an investigating judge.

[*]   The Government have sought to reinforce their argument by comparing preliminary inquiries conducted by a District Court judge with those provided for in Article 224 para. 1 which, according to the Government, empowers the presiding judge in Regional Court proceedings to make further investigations during the period after the accused has been committed for trial, in which the judge is preparing for the trial. This comparison, however, in fact undermines their argument, in that one reads in Mayerhofer/Rieder , Das österreichische Strafrecht , II, Strafprozessordnung (3rd ed. 1991), 1, p. 563, Anm . 4 ad Article 224, that the presiding judge should not make such further investigations himself but should request the investigating judge to do so, since making them himself would preclude him from presiding at the trial.

[*]    At the hearing the applicant's lawyer contested this allegation; he told the Court that in 1988 it was already exceptional for Austrian District Courts to have only one judge.  In the context of my reasoning this factual dispute is immaterial: what is material, is that it cannot be excluded that, in those Contracting States where the District Court system exists, it is not exceptional for there to be only one judge.