CEDH · CASELAW;REPORTS;ENG — 11 octobre 1990

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }    Application No. 10802/84   Heinrich PFEIFER and Margit PLANKL   against   AUSTRIA   REPORT OF THE COMMISSION   (adopted on 11 October 1990)                             TABLE OF CONTENTS                                                                     Page   I.       INTRODUCTION         (paras. 1 - 23) ........................................     1           A.       The application                 (paras. 2 - 8) .................................     1           B.       The proceedings                 (paras. 9 - 18) ................................     2           C.       The present Report                 (paras. 19 - 23) ...............................     3   II.      ESTABLISHMENT OF THE FACTS         (paras. 24 - 57) .......................................     4           A.       The criminal proceedings against the first                 applicant                 (paras. 24 - 43) ...............................     4                   1.   The investigation                     (paras. 24 - 31) ...........................     4                 2.   The trial                     (paras. 32 - 39) ...........................     5                 3.   The appeal proceedings                     (paras. 40 - 43) ...........................     6           B.       Censorship of correspondence between the                 two applicants (paras. 44 - 57) ................     6                   1.   The measure taken by the investigating judge                     (paras. 44 - 45) ...........................     6                 2.   The complaints procedure before the Review                     Chamber                     (paras. 46 - 48) ...........................     7                 3.   The Attorney General's plea of nullity for                     safeguarding the law                     (paras. 49 - 51) ...........................     8                 4.   The Supreme Court's decision on the plea of                     nullity                     (paras. 52 - 57) ...........................     8   III.     OPINION OF THE COMMISSION         (paras. 58 - 114) ......................................    10           A.       Complaints declared admissible (para. 58) ......    10           B.       Points at issue (para. 59) .....................    10           C.       As to the alleged violation of Article 6 para. 1                 of the Convention in the first applicant's case                 (paras. 60 - 88) ...............................    10                   1.   "Tribunal established by law"                     (paras. 62 - 80) ...........................    10                 2.   "Impartial tribunal"                     (paras. 81 - 87) ...........................    13                       Conclusion                     (para. 88) .................................    14           D.       As to the alleged violation of Article 8 of the                 Convention by the censorship of the applicants'                 correspondence                 (paras. 89 - 112) ..............................    14                   1.   Scope of the interference                     (Article 8 para. 1)                     (paras. 91 - 93) ...........................    14                 2.   Justification of the interference                     (Article 8 para. 2)                     (paras. 94 - 111) ..........................    15                     a)   "In accordance with the law"                         (paras. 95 - 100) ......................    15                     b)   Legitimate purpose                         (paras. 101 - 103) .....................    16                     c)   "Necessary in a democratic society"                         (paras. 104 - 111) .....................    17                       Conclusion                     (para. 112) ................................    18           E.       Recapitulation                 (paras. 113 - 114) .............................    18   APPENDIX I       :   HISTORY OF THE PROCEEDINGS ..................    19   APPENDIX II      :   FIRST PARTIAL DECISION ON ADMISSIBILITY                    (14 May 1987) ...............................    20   APPENDIX III     :   SECOND PARTIAL DECISION ON ADMISSIBILITY                    (15 December 1988) ..........................    31   APPENDIX IV      :   FINAL DECISION ON ADMISSIBILITY                    (8 May 1989) ................................    50   I.     INTRODUCTION   1.       The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.   A.       The application   2.       The applicants are Austrian citizens born in 1945 and 1952 respectively.   Both are represented by Mr.   Reinhard Peters, a German citizen residing in Munich, Federal Republic of Germany.   3.       The application is directed against Austria.   The Austrian Government are represented by their Agent, Ambassador Dr.   Helmut Türk, Legal Adviser of the Federal Ministry of Foreign Affairs.   4.       The case concerns criminal proceedings against the first applicant and censorship of correspondence between the second and the first applicant.   5.       The first applicant was tried by the Regional Court of Klagenfurt in 1983.   He claims that the Court was neither "impartial" nor "established by law", as required by Article 6 para. 1 of the Convention.   Two judges had acted as investigating judges in the same case.   They were therefore disqualified under Austrian law.   The applicant's waiver of a remedy was invalid.   6.       The first applicant further submits that he should not have been tried until his challenge of all judges of the Regional Court had been determined in a case concerning accusations by the applicant against a third investigating judge who had acted in his case.   The judges trying the present case had declared themselves biased in the parallel case, the investigating judge accused in that case being their colleague.   The applicant submits that they must therefore have been biased in the present case, too.   He invokes Article 6 para. 1 of the Convention also in this respect.   7.       Both applicants complain of censorship by the investigating judge of a letter which the second applicant addressed to the first applicant when both were detained in the remand prison of the Regional Court of Klagenfurt.   The investigating judge made certain passages of the letter illegible on the ground that they contained "jokes of an insulting nature against prison officers" and thus defamed officials on duty.   In subsequent proceedings the contents of the deleted passages were established on the basis of a report by the investigating judge.   The Supreme Court held that the method of censorship had been unlawful, but that censorship had as such been justified as the second applicant could rightly be suspected of having committed the offence of insulting officials on duty.   It observed that in the forwarding procedure for the submission of the letter to the investigating judge its contents would necessarily become known to several prison or court officers on duty.   8.       The applicants complain that, having regard to its contents, the censorship of the letter was not necessary in a democratic society and thus could not be justified under Article 8 of the Convention. They see a further violation of Article 8 in the forwarding procedure, as described by the Supreme Court, in that it allowed the mail of remand prisoners to be read by prison officers.   B.       The proceedings   9.       The application was introduced on 23 September 1983 and registered on 31 January 1984.   10.      On 13 May 1987 the Commission rejected certain complaints of the first applicant by a partial decision.   As to his remaining complaints, the Commission decided to give notice of the application to the respondent Government and to invite them, in accordance with Rule 42 para. 2 (b) of the Rules of Procedure, to submit observations in writing, inter alia, on the first applicant's complaint that two professional judges had taken part in his trial who previously had acted as investigating judges and on the complaint of both applicants relating to the censorship of their correspondence.   11.      The Government submitted their observations on 27 July 1987. The applicants submitted observations in reply on 23 September 1987.   12.      On 16 December 1987 the Government submitted further information concerning the Supreme Court's decision of 20 October 1987 on the Attorney General's plea of nullity for safeguarding the law. On 3 February 1988 the applicant submitted comments on this decision.   13.      On 15 December 1988 the Commission rejected certain further complaints of both applicants by a partial decision while reserving the decision concerning the first applicant's complaints relating to the criminal proceedings against him and his subsequent detention, and the complaints of both applicants concerning the censorship of a letter. In this respect the Commission decided to invite the parties, in accordance with Rule 42 para. 3 (b) of its Rules of Procedure, to submit further observations orally at a hearing.   14.      At the hearing on 8 May 1989 the Government were represented by their Agent, Ambassador Helmut Türk, assisted by Mr.   Wolf Okresek, Federal Chancellery, and Ms.   Irene Gartner, Federal Ministry of Justice, Advisers.   The applicants were represented by Mr.   Reinhard Peters, assisted by Ms.   Anne Marie Schwarz, Adviser.   15.      At the close of the hearing, the Commission declared the complaints summarised in paragraphs 5 - 8 above admissible while rejecting the remaining complaints.   16.      The text of the final decision on admissibility was approved by the Commission on 13 July 1989 and communicated to the parties on 29 August 1989.   They were invited to submit supplementary observations on the merits before 16 October 1989.   17.      The Government submitted such observations on 16 October 1989 and the applicants on 7 November 1989.   18.      After declaring the case admissible, the Commission, acting in accordance with Article 28 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement.   Negotiations were conducted on this issue between August 1989 and April 1990.   In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.   C.       The present Report   19.      The present Report has been drawn up by the Commission in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:                MM.   S. TRECHSEL, Acting President                   F. ERMACORA                   E. BUSUTTIL                   J. C. SOYER                   H. G. SCHERMERS                   H. DANELIUS              Mrs.   G. H. THUNE              Sir   Basil HALL              Mr.   C.L. ROZAKIS              Mrs.   J. LIDDY              Mr.   L. LOUCAIDES   20.      The text of this Report was adopted on 11 October 1990 and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.   21.      The purpose of the Report, pursuant to Article 31 of the Convention, is:   (1)      to establish the facts, and (2)      to state an opinion as to whether the facts found         disclose a breach by the State concerned of its         obligations under the Convention.   22.      A schedule setting out the history of the proceedings before the Commission is attached hereto as Appendix I and the Commission's decisions on the admissibility of the application are attached as Appendices II - IV.   23.      The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.   II.    ESTABLISHMENT OF THE FACTS   A.       The criminal proceedings against the first applicant           1.   The investigation   24.      On the basis of a warrant of arrest issued by the Regional Court (Landesgericht) of Klagenfurt on 12 November 1982, the first applicant was arrested in Klagenfurt on 20 November 1982.   The warrant was based on the suspicion of his having committed various criminal offences (aggravated fraud, professional burglary, forgery and suppression of documents, professional receiving of stolen goods, and illegal possession of firearms) and it referred to a danger of absconding, of collusion and of repetition under Section 175 para. 1, sub-paras. 2-4 of the Code of Criminal Procedure (Strafprozessordnung).   25.      On 21 November 1982 the first applicant was brought before an investigating judge in accordance with Section 179 para. 1 of the Code of Criminal Procedure, i.e. the judge on duty (Journalrichter) Dr.   A. He informed the first applicant of the reasons for the arrest.   The first applicant denied having committed the above criminal offences, except the offence of illegal possession of firearms.   The merits of the case were not discussed.   26.      Also on 21 November 1982 the investigating judge competent for the first applicant's case, Dr.   K., ordered the transfer of the first applicant to the Vienna Regional Court for Criminal Affairs (Landesgericht für Strafsachen) which had issued a warrant of arrest against this applicant on 20 November 1982, on the suspicion of his having participated in an armed robbery in Vienna.    The Klagenfurt proceedings were joined to those of the Regional Court of Vienna. However, on 20 January 1983 they were severed again and referred back to the Regional Court of Klagenfurt.   The first applicant was detained in the remand prison of the Vienna Regional Court from 22 November 1982 until 24 February 1983.   27.      On 25 February 1983 the investigating judge of the Regional Court of Klagenfurt who was now competent, Dr.   St., opened a judicial investigation (Voruntersuchung) against the first applicant and ordered his detention on remand.   The warrant of arrest based on Section 180 para. 1 and para. 2 sub-paras. 1 - 3 (danger of absconding, collusion and repetition) was notified to the applicant by judge Dr.   St. on the same day.   28.      On 23 May 1983 the first applicant challenged judge Dr.   St. on the ground of bias.   On 26 May 1983 the President of the Regional Court of Klagenfurt rejected this challenge as being unsubstantiated.   29.      On 10 June 1983 the investigating judge made a request under Section 193 para. 2 of the Code of Criminal Procedure for the prolongation of the first applicant's detention on remand beyond the statutory time-limit of six months.   On 16 June 1983 the Graz Court of Appeal (Oberlandesgericht) acceded to the request, authorising detention for a maximum period of nine months, having regard to the volume and complexity of the judicial investigation.   On 7 July 1983 the Review Chamber (Ratskammer) of the Regional Court of Klagenfurt ordered the first applicant's continued detention, on the grounds of danger of absconding and repetition.   The first applicant lodged an appeal against this decision.   30.      On 19 July 1983 the competent public prosecutor submitted an indictment charging the first applicant with the offences of receiving stolen goods and illegal possession of firearms.   He requested that the remaining charges be severed for further investigation (two of those charges - suppression of documents and one case of fraud - were subsequently not pursued).   The first applicant raised an objection (Einspruch) against the indictment.   31.      Pending the decision on this objection, the investigating judge requested a further prolongation of the first applicant's detention on remand.   The Graz Court of Appeal decided on 18 August 1983 to authorise the applicant's detention on remand for a maximum period of ten months and to reject his appeal against his continued detention and his objection against the indictment.           2.   The trial   32.      The trial opened on 14 September 1983 before the Regional Court of Klagenfurt, sitting with two professional judges (Drs.   K. and A.) and two lay assessors (Schöffengericht).   33.      The presiding judge, Dr.   K., had previously, on 31 August and 1 September 1983, raised with the first applicant the fact that the two professional judges had acted as investigating judges (Dr.   K. had been the competent investigating judge until 31 December 1982, Dr.   A. had been the judge on duty at the applicant's first hearing on 21 November 1982).   Dr.   K. informed the first applicant that the two judges were disqualified from participating in the trial by virtue of Section 68 para. 2 under sanction of nullity as provided for in Section 281 para. 1 No. 1 of the Code of Criminal Procedure.   34.      Following Dr.   K.'s suggestion the first applicant declared that he would not lodge a plea of nullity on this account; he further observed that he did not consider it necessary to consult his defence counsel on this question.   35.      The trial was held with the participation of the above two professional judges on 14 September and 7 October 1983.   36.      The defence did not object to the composition of the Court. In particular, it did not invoke Section 68 para. 2 of the Code of Criminal Procedure on the ground that the judges, Drs.   K. and A., had previously acted as investigating judges.   37.      Nor did the defence draw the Court's attention to the fact that the first applicant had in the meantime requested the institution of criminal proceedings against the third investigating judge Dr.   St., accusing him of abuse of public power in connection with the investigation of his case.   In those proceedings the applicant had, on 23 September 1983, challenged all judges of the Regional Court as being biased.   At the trial on 7 October 1983 the defence did not mention that the challenge, which also concerned Drs.   K. and A., had not yet been determined.   38.      A decision on that challenge was only taken on 10 November 1983 by the Graz Court of Appeal.   As all judges of the Regional Court of Klagenfurt, being colleagues of Dr.   St., had declared themselves to be biased in the proceedings against the latter judge, the challenge was allowed and the case referred to the Regional Court of Leoben.   The Review Chamber of that Court later refused the opening of criminal proceedings against Dr.   St.   39.      On 7 October 1983, the Regional Court of Klagenfurt convicted the first applicant of qualified receiving of stolen goods under Section 164 para. 3 of the Penal Code (Strafgesetzbuch) and of illegal possession of firearms under Section 36 of the Firearms Act (Waffengesetz).   It sentenced him to three years' imprisonment.           3.   The appeal proceedings   40.      The first applicant lodged a plea of nullity (Nichtigkeits- beschwerde) against his conviction and appealed from the sentence (Berufung).   These remedies were rejected by the Supreme Court (Oberster Gerichtshof) on 29 February 1984.   41.      The Supreme Court, dismissing the plea of nullity, held that the judgment was not attended with nullity because of the participation of biased judges.   Insofar as the first applicant had referred to his undetermined challenge of all judges of the Regional Court prior to the trial, the Supreme Court observed that he had not requested a decision at the trial in which case the Regional Court would have been obliged to take an interim decision.   The fact that the challenge of the whole Regional Court of Klagenfurt was subsequently allowed in the criminal proceedings against the third investigating judge, Dr.   St., did not justify the conclusion that the judges of the Regional Court were also biased in the criminal proceedings against the applicant.   42.      In the Supreme Court's view the first applicant could not invoke the fact that the two professional judges, Drs.   K. and A., should, in principle, have been excluded from the trial by virtue of Section 68 para. 2 of the Code of Criminal Procedure because they had been involved in the investigation, since he had prior to the trial expressly renounced challenging these judges.   43.      The Supreme Court further rejected the first applicant's complaints concerning alleged inconsistencies of the judgment.   It also confirmed the first applicant's sentence, rejecting his appeal (Berufung).   B.       Censorship of correspondence between the two applicants           1.   The measure taken by the investigating judge   44.      During their detention on remand the applicants corresponded with each other.   At some time in the early summer of 1983 the investigating judge censored a letter addressed by the second applicant to the first applicant by crossing out and making illegible certain passages.   45.      These passages were not reconstructed in the subsequent proceedings, but according to the applicants they contained critical remarks on prison officers in the following terms:   (German)           "Ich frage mich, ob in diesem Affenhaus noch jemand         normal ist ....   Im Leben sind es Würstchen, hier sind         sie, glauben sie, Götter.   Einige von den Beamten sind         ja Gäste wie wir.   Dauernd wird hier spioniert bei den         Frauen, züchtige Spanner, dieses Affenpack!   Ich hasse         es so!"   (Translation)           "I ask myself whether there is anybody left in this         ape house who is still normal ...   In normal life they         are miserable creatures, here they think they are gods.         Some of the officers are guests like us.   They are for         ever spying on the women, these apes are proper peeping         toms!   I hate it!"           2.   The complaints procedure before the Review Chamber   46.      The second applicant complained to the Review Chamber of the Regional Court.   She claimed that the form of censorship was unlawful as Section 187 para. 2 of the Code of Criminal Procedure provided only for the stopping of letters but not for making them illegible.   She further submitted that censorship was permissible only in respect of letters likely to endanger the aim of the detention, or letters suspected of involving a criminal offence except an offence liable to prosecution only at the request of the injured person.   In the applicant's view the relevant passages in the letter neither endangered the aim of her detention nor did they constitute a public prosecution offence.   47.      The Review Chamber, after having heard the prosecution and having obtained a report of the investigating judge, rejected the second applicant's complaint on 26 July 1983.   The second applicant did not participate in these proceedings which were conducted in camera.   48.      In its decision, the Review Chamber observed that the crossing out of certain passages in the letter was a less severe measure than its stopping to which the investigating judge was entitled by virtue of Section 187 para. 2 of the Code of Criminal Procedure.   This measure was therefore implied in the investigating judge's powers and did not infringe the second applicant's rights. The censorship had been justified as the passages in question, being described by the investigating judge in her report on the incident as "jokes of an insulting nature against prison officers", had constituted the offence of defamation (üble Nachrede) of officials on duty (Section 111 para. 1 in conjunction with Section 117 para. 2 of the Penal Code), an offence which could be taken as the basis for a measure under Section 187 para. 2 of the Code of Criminal Procedure.           3.   The Attorney General's plea of nullity for            safeguarding the law   49.      Following the communication of the present application to the respondent Government, the Attorney General's office (Generalprokuratur) lodged a plea of nullity for safeguarding the law (Nichtigkeits- beschwerde zur Wahrung des Gesetzes) in respect of the above decision of the Review Chamber of the Regional Court of Klagenfurt.   50.      It was claimed that the decision was unlawful because the applicant's remarks could not possibly have constituted an offence against the honour of prison officers "on duty" ("während der Ausübung seines Amtes oder Dienstes"), i.e. a public prosecution offence to be prosecuted with the consent of the officials concerned (Section 117 para. 2 of the Code of Criminal Procedure), because such an offence could only be committed "from person to person" and not in a letter. If there was an offence against the honour of prison officers, it was liable to prosecution only at the request of the injured persons and thus did not justify a measure of censorship under Section 187 para. 2 of the Code of Criminal Procedure.   51.      Unlawfulness of the measure was further claimed on the ground that the latter provision merely authorised the stopping of a letter, but not the crossing out of certain passages therein.           4.   The Supreme Court's decision on the plea of nullity   52.      On 20 October 1987 the Supreme Court, after having held a public hearing in the presence of a representative of the Attorney General's office, but in the absence of the second applicant, rejected the argument that there was no public prosecution offence, but found a violation of the law as to the form of censorship.   53.      Assuming that the crossed-out passages actually contained "jokes of an insulting nature against prison officers" as stated by the investigating judge, the Supreme Court found it justified to suspect the second applicant of an offence, namely the offence of insult (Beleidigung) under Section 115 of the Penal Code (rather than defamation under Section 111).   If committed against an official on duty this offence was to be prosecuted ex officio (with the consent of the official in question) under Section 117 para. 2 of the Penal Code.   54.      In the present case the possible offence would have been committed against prison officers "on duty" because the offence would have been completed by handing the letter to a prison officer for the purpose of submitting it to the investigating judge and this forwarding procedure would necessarily have created the possibility of the insulting contents of the letter becoming known to several prison or court officers on duty.   This implied that Section 117 para. 2 of the Penal Code was applicable and the measure therefore was covered by Section 187 para. 2 of the Code of Criminal Procedure.   55.      However, this provision only authorised the investigating judge to stop a letter, but not to cross out passages.   In this latter respect the investigating judge and the Review Chamber had acted against the ratio legis.   56.      The investigating judge had not taken a "less severe measure" implied in her powers under Section 187 para. 2, but a different measure which interfered with the interests of the prosecution authorities and of the officials concerned to have criminal proceedings instituted against the second applicant on account of her remarks in the letter.   57.      The Supreme Court concluded that it was therefore sufficient to state that the law had been violated.   The second applicant was not aggrieved and therefore could not complain of the rejection of her appeal by the Review Chamber.   III.   OPINION OF THE COMMISSION   A.       Complaints declared admissible   58.      The following complaints were declared admissible:           a) the complaint of the first applicant that the Regional            Court which tried his case was not an "impartial tribunal            established by law";           b) the complaint of both applicants that the censorship of the            letter addressed by the second applicant to the first            applicant and its reading by prison officers were unjustified.   B.       Points at issue   59.      The Commission must therefore examine:           a) whether there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention in that at the first applicant's trial the Regional Court was not "established by law" and not "impartial";           b) whether there has been a violation of Article 8 (Art. 8) of the Convention in that there was an unjustified interference with the    applicants' right to respect for their correspondence by the censorship of the second applicant's letter to the first applicant and the absence of safeguards against its being read by other persons than the investigating judge.   C.       As to the alleged violation of Article 6 para. 1 (Art. 6-1)         of the Convention in the first applicant's case   60.      The first sentence of Article 6 para. 1 (Art. 6-1) reads as         follows:   "    In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law."   61.      The first applicant claims that at his trial before the Regional Court of Klagenfurt this provision was violated on essentially three grounds: the tribunal was not "established by law" because the two professional judges, having acted as investigating judges, were disqualified by virtue of Section 68 para. 2 of the Austrian Code of Criminal Procedure; for the same reason the tribunal furthermore was not "impartial"; in addition, it was not "impartial" because the professional judges had been challenged in a criminal case brought by the first applicant against the third investigating judge and had declared themselves biased in that case, which, in the first applicant's submission, meant that they were also biased in his own case.           1. "Tribunal established by law"   62.      The Commission must first deal with the applicant's claim that at his trial the Regional Court was not "established by law".   63.      The words "established by law" primarily refer back to the national law on the organisation of the courts of justice.   In principle, a court cannot be regarded as being "established by law" if in a particular case the provisions as to its lawful composition have not been complied with.   64.      Section 68 para. 2 of the Austrian Code of Criminal Procedure stipulates inter alia that a judge who has acted as an investigating judge in the same case shall be disqualified from participating in the trial and judgment.   65.      It is not disputed that, by virtue of this provision, two judges, including the presiding judge, should not have participated in the first applicant's trial because they had previously acted as investigating judges in this case.   Under Austrian law, the scope of their actual involvement in the preliminary investigation was irrelevant.   The simple fact of their having been entrusted with the function of investigating judges at some stage of the proceedings disqualified them.   This, in principle, entailed the sanction of nullity of the proceedings under Section 281 para. 1 (1) of the Code of Criminal Procedure.   66.      Under this provision a plea of nullity may be filed, inter alia, if a disqualified judge has participated in the trial;   however, in cases where the disqualification has become known to the party before or at the trial, this circumstance must have been raised immediately at the trial.   67.      The first applicant had been informed before the trial by the presiding judge that both the presiding judge and another judge were disqualified.   On the suggestion of the presiding judge he waived his right to lodge a plea of nullity on this account.   He did not raise this issue of disqualification at the trial nor subsequently in his plea of nullity.   The Supreme Court noted that it could not deal with the matter in view of the above waiver.   68.      The Government argue that in these circumstances the wrongful composition of the Regional Court must be regarded as remedied under Austrian law.   They claim that the Regional Court was "established by law", the applicant having accepted its composition.   69.      The first applicant claims that he can still invoke the unlawful composition of the Court as the waiver of his right to lodge a plea of nullity was obtained in an unlawful and unfair procedure.   70.      The first applicant regards the procedure followed by the presiding judge of the Regional Court as unlawful because he should primarily have recognised his disqualification of his own motion in the procedure under Section 70 of the Code of Criminal Procedure, informing the president of the Regional Court thereof, and refraining from any further acts in the case by virtue of Section 71.   A further unlawfulness is seen in the fact that the presiding judge discussed the matter with the first applicant in person, in the absence of the latter's defence counsel.   71.      The first applicant also considers the procedure followed by the presiding judge as unfair.   The suggestion that a plea of nullity be waived on the ground of disqualification was allegedly made to the applicant in a situation where he could hardly contradict the presiding judge.   Moreover, undue pressure was allegedly exercised on the applicant by his being told that the trial would have to be postponed (and his detention on remand prolonged) if he did not accept the Court's composition.   Finally, he claims that he was misled about the available remedies by not being told that it would still have been open to him to raise the disqualification of the judges at the trial and, having done so, subsequently in a plea of nullity.   72.      In its final decision on admissibility (Appendix IV, at p. 58), the Commission recalled that a person may validly waive invoking the guarantees under Article 6 of the Convention, but reserved its position concerning the validity of the waiver in the present case.   73.      It now notes that the Supreme Court had no doubts concerning the validity of this waiver under Austrian law.   However, it dealt with this issue only by way of an obiter dictum and did not examine in detail the procedure followed by the Regional Court's presiding judge on 31 August and 1 September 1983 (cf. paras. 33 - 34 above).   It also appears that before the Supreme Court the applicant was not heard on this question.   It therefore remains open to doubt whether the Supreme Court's decision can be seen as a full confirmation of the lawfulness under Austrian law of the presiding judge's procedure.   74.      In any event the Commission considers that insofar as the waiver also affected the first applicant's right under Article 6 para. 1 (Art. 6-1) of the Convention to a "tribunal established by law", it cannot be judged exclusively by reference to the legal situation in Austria.   In order to be effective for Convention purposes, a waiver of procedural rights requires minimum guarantees commensurate to its importance.   75.      In the present case, the presiding judge, when discussing his own and another judge's disqualification with the first applicant, disregarded important procedural principles which are also reflected in Austrian law.   76.      First, he acted himself although he was, according to his own admission, in principle disqualified from doing so.   Under Section 71 of the Code of Criminal Procedure he should have refrained from any acts except acts of such urgency that they could not be postponed and carried out by a different judge.   It has not been shown that in the present case there existed such an urgency.   77.      Secondly, the presiding judge failed to inform the president of the Court immediately of his disqualification as required under Section 70 of the above Code.   Instead of taking measures aimed at giving effect to his and his colleague's disqualification, he took the opposite course with a view to ensuring their participation in the trial despite their disqualification.   78.      Thirdly, in order to achieve this aim, the presiding judge incited the applicant to waive his right to a remedy which would otherwise have been available to him.   It may be left open whether in this context undue pressure was exerted on the first applicant or whether he was led into error about the legal situation.   It suffices to note that the applicant was put into a difficult psychological situation when he was called to appear before the presiding judge without the assistance of his legal defence counsel, and required to give a reply immediately.   In order to preserve his rights, he would have had to tell the presiding judge that he did not agree with him that the disqualification was merely a formal matter and did not justify a fear of substantive bias.   79.      It may well be that a waiver declared by the applicant in the presence of his lawyer before a judge who was not himself disqualified would have to be regarded as binding also for the purposes of the Convention law.   The Commission considers, however, that having regard to the particular circumstances in which the applicant declared his waiver, it cannot be held to be effective for the purposes of the Convention.   80.      Since the composition of the Regional Court at the trial was uncontestedly unlawful, and as the applicant's waiver of his right to contest this unlawfulness was ineffective for the above-mentioned reasons, it follows that he did not enjoy the guarantee of a "tribunal established by law" provided for by Article 6 para. 1 (Art. 6-1) of the Convention.           2. "Impartial tribunal"   81.      The first applicant further claims that because of the participation of the disqualified judges the Regional Court was not "impartial".   82.      The Government contest this, claiming that the impartiality of the judges in question could not be impaired having regard to the very limited functions which they exercised as investigating judges in the first applicant's case.   They could not have given the applicant the impression that they had "a pre-form