DISSENTING OPINION OF JUDGE WALSH

1. The Court has many times held that Article 6 para. 1 (art. 6-1) of the Convention requires that a tribunal should be structurally impartial. That is the question raised in the present case. There has been no claim that a judge has failed to be subjectively impartial.

2. The claim of absence of structural impartiality of the trial court which convicted the applicant rests upon the participation, as trial judges, of two judges who had previously heard and refused a request for provisional liberty made by the applicant before his trial.

3. In principle a trial judge is not disqualified by reason only of his having dealt with interim or interlocutory applications by the accused before the trial. Such applications may include one concerned with pre-trial liberty or remands in custody. But whether that is always so must necessarily depend upon the issues which fall to be decided, and the manner of their proof, in the particular pre-trial application.

4. here under national law an application for pre-trial provisional liberty requires or permits the judge to assess the probability or otherwise of the guilt of the applicant or where he speculates on that issue in course of arriving at, or for the purpose of, his decision, he has already reached at least a provisional view on the question of the strength of the case or even of the guilt of the applicant. Ordinarily the function of a judge hearing a pre-trial application for provisional liberty is to decide, on appropriate evidence, whether he is satisfied that the accused, if at liberty, will abscond or seek to defeat justice by tampering with or destroying evidence or intimidating witnesses. If the judge is not so satisfied he should grant the application subject to such reasonable guarantees or restrictive conditions as he thinks necessary and prudent. That applies equally to the innocent and the guilty. If liberty is refused simply because of the strong suspicion of guilt it violates the concept of the presumption of innocence enshrined in Article 6 (art. 6). If however the national legal system requires, or permits, consideration of the probability of guilt as a factor in the decision on provisional liberty, the judge who so decides clearly disqualifies himself from participation as a judge at the trial of the substantive issue of guilt or innocence.

[*]  The case is numbered 78/1991/330/403.  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 253-A of Series A of the Publications of the Court), but a copy of the Commission's report is available from the registry.