CEDH · CASELAW;REPORTS;ENG — 15 octobre 1991

.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. 14396/88   Hans Jürgen FEY   against   AUSTRIA   REPORT OF THE COMMISSION   (adopted on 15 October 1991)   TABLE OF CONTENTS                                                 PAGE   I.       INTRODUCTION       (paras. 1 - 14) ........................................     1         A.       The application            (paras. 2 - 4) .................................     1         B.       The proceedings            (paras. 5 - 9) .................................     1         C.       The present Report            (paras. 10 - 14) ...............................     2     II.      ESTABLISHMENT OF THE FACTS       (paras. 15 - 40) .......................................     3           A.       The particular circumstances of the case            (paras. 15 - 32) ...............................     3         B.       Relevant domestic law and practice            (paras. 33   - 40) ..............................     6     III.     OPINION OF THE COMMISSION       (paras. 41 - 61) .......................................     7         A.       Complaint declared admissible            (para. 41) .....................................     7         B.       Point at issue            (para. 42) .....................................     7         C.       Compliance with Article 6 para. 1            of the Convention            (paras. 43 - 60) ...............................     7         D.       Conclusion            (para. 61) .....................................    10     DISSENTING OPINION OF MM. F. ERMACORA, F. MARTINEZ AND B. MARXER ..................................................    11   APPENDIX I       :   HISTORY OF THE PROCEEDINGS ..................    12     APPENDIX II      :   DECISION ON THE ADMISSIBILITY ...............    13   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 applicant, a German citizen born in 1922, is a pensioner residing at Geeste in the Federal Republic of Germany.   Before the Commission he has been represented by Mr.   M. Orgler, a lawyer practising at Innsbruck in Austria.   3.       The application is directed against the Republic of Austria. The Government are represented by their Agent, Ambassador Helmut Türk, Head of the International Law Department at the Federal Ministry of Foreign Affairs.   4.       The case concerns the applicant's complaint under Article 6 para. 1 of the Convention of the lack of impartiality of a District Court judge who first undertook preliminary investigations and later acted as trial judge.     B.       The proceedings   5.       The application was introduced on 10 November 1988 and registered on 24 November 1988.   6.       On 2 October 1989 the Commission decided to give notice of the application to the respondent Government and to invite them to present their observations on the application limited to issues under Article 6 para. 1 of the Convention.   7.       The Government's observations were submitted on 22 October 1989. The applicant submitted his observations in reply on 14 February 1990.   8.       On 9 October 1990 the Commission declared the application admissible with regard to the applicant's complaint under Article 6 para. 1 of the Convention concerning the position of the District Court judge.   It also decided not to refer the case to a Chamber.   9.       After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, placed itself at the disposal of the parties with a view to securing a friendly settlement of the case.   Consultations with the parties took place between 15 October 1990 and 3 April 1991.   The Commission now finds that there is no basis on which such a settlement can be effected.     C.       The present Report   10.      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.   C.A. NØRGAARD, President              J.A. FROWEIN              S. TRECHSEL              F. ERMACORA              G. SPERDUTI              E. BUSUTTIL              G. JÖRUNDSSON              A. WEITZEL              J.C. SOYER              H.G. SCHERMERS              H. DANELIUS            Mrs.   G.H. THUNE            Sir   Basil HALL            Mr.   F. MARTINEZ            Mrs.   J. LIDDY            MM.   L. LOUCAIDES              J.-C. GEUS              M.P. PELLONPÄÄ              B. MARXER   11.      The text of this Report was adopted on 15 October 1991 and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.   12.      The purpose of the Report, pursuant to Article 31 of the Convention, is:   i)       to establish the facts, and   ii)      to state an opinion as to whether the facts found disclose       a breach by the State concerned of its obligations under       under the Convention.   13.      A schedule setting out the history of the proceedings before the Commission is attached hereto as Appendix I and the Commission's decision on the admissibility of the Application as Appendix II.   14.      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 particular circumstances of the case   15.      According to the subsequent judgment of the Zell am Ziller District Court (Bezirksgericht) of 24 March 1988, the applicant rented a room in Mayrhofen in Austria from a certain Mrs R.K. from 17 to 27 January 1988.   He told Mrs R.K. that his wife was very ill and in an Innsbruck hospital, and that he was expecting a pension payment from Germany.   Mrs R.K. handed him the amount of 2,500 AS and waived the rent amounting to 1,500 AS.   16.      On 19 January 1988 the applicant opened for the prospective pension payments an account at a Mayrhofen bank.   On 22 January 1988 Mrs R.K. handed the applicant further 600 AS.   17.      On 27 January 1988 Mrs R.K. reported the applicant to the police.   On 28 January 1988 the District Attorney (Bezirksanwalt) at the Zell District Court filed an application with the District Court requesting the applicant's punishment on account of fraud.   18.      On 4 February 1988 the applicant was detained at Innsbruck awaiting extradition to the Federal Republic of Germany with regard to another offence.   19.      On 8 February 1988 the Innsbruck Public Prosecutor's Office (Staatsanwaltschaft) asked the investigating judge of the Innsbruck Regional Court (Landesgericht) to institute preliminary investigations against the applicant on suspicion of fraud and to order his detention on remand on the ground of a danger of his absconding.   20.      Detention on remand was imposed on the applicant on 10 February 1988.   The criminal proceedings were then conducted by the Innsbruck Regional Court in view of a second charge of fraud brought against the applicant.   21.      On 12 February 1988 the Innsbruck Regional Court filed a letter rogatory (Rechtshilfeersuchen) with the Zell District Court for the questioning of Mrs R.K. as a witness.   Thereupon, Mrs.   A.K., a judge at the Zell District Court, questioned Mrs R.K. on 25 February 1988.   22.      On 1 March 1988 the Innsbruck Public Prosecutor's Office terminated the investigations in respect of the second charge of fraud, and requested the transfer of the proceedings to the Zell District Court.   The latter had jurisdiction in respect of the charge of fraud concerning Mrs R.K.   On 4 March 1988 the Zell District Court received the case-file.   23.      On 6 March 1988 the applicant, who was in a prison in Innsbruck, requested to be released from detention on remand.   Two further requests were filed on 12 and 15 March 1988.   24.      During the ensuing period judge A.K. wrote to a court in Osnabrück in the Federal Republic of Germany as to the reasons why part of a prison sentence concerning the applicant had been suspended. Judge A.K. also transmitted the case-file to the Innsbruck District Court which was asked further to question the applicant, in particular as to the expected payment of pension in January 1988, and as to the details of his pension.   25.      On 17 March 1988 judge A.K. telephoned the bank in Mayrhofen to establish whether money had been paid into the bank account opened by the applicant on 19 January 1988.   By letter of 17 March 1988 the bank replied that, while the applicant had opened an account at their bank, "we could not since this account was opened register any receipts until today" ("wir konnten aber seit der Eröffnung dieses Kontos bis heute keine Eingänge verbuchen").         Judge A.K. furthermore telephoned the two German insurance companies to establish whether the applicant had applied for, or received, a pension payment.   According to a note in the case-file prepared by judge A.K. on 18 March 1988, a person at one insurance company replied by telephone that, under the reference number mentioned by the applicant, "a pension was never requested and also was never paid out" ("nie eine Rente beantragt wurde und auch nie eine ausbezahlt wurde").   A person at the other insurance company replied by telephone that, while the applicant did have an account, he had "until today not received a pension" ("bis heute keine Rente bezogen").   26.      On 18 March 1988 judge A.K. fixed the trial for 24 March 1988.   27.      The trial took place before the Zell District Court on 24 March 1988, Mrs A.K. sitting as single judge.   According to the minutes of the trial, a District Prosecutor (Bezirksanwalt) was present as Prosecutor (Ankläger).   The applicant spoke first, claiming that he was innocent.   Thereafter, the witness R.K. spoke as well as a police officer as a substitute for the police officer who had visited R.K.'s house after the applicant's arrest.   Various documents were presented (dargetan) namely the criminal report and the result of the police investigations; the applicant's entry in the criminal record (Strafregisterauskunft); the case-file of the Innsbruck Regional Court; the information provided by the two German insurance companies and the Mayrhofen bank; and a letter of a further German insurance company. After evidence had been taken the Prosecutor requested the applicant's punishment.   The applicant requested the Court to establish that on 9 April 1987 he had applied to one German insurance company for a pension.   The Court rejected this request as the facts were sufficiently clear (da die Sachlage hinreichend geklärt ist).   28.      On 24 March 1988 the Zell District Court convicted the applicant of fraud, namely for having induced Mrs R.K. to hand him 2,500 AS and to waive the rent of 1,500 AS, and sentenced him to three months' imprisonment.   The period of detention awaiting extradition and of detention on remand was deducted from the applicant's prison sentence.   The applicant was also ordered to pay Mrs R.K. 4,000 AS. The judgment was signed by judge A.K.   29.      The judgment relied inter alia on the testimony of Mrs R.K. and the information submitted by the Mayrhofen bank and German insurance companies.   30.      The applicant appealed against the judgment to the Innsbruck Regional Court, complaining in particular that trial judge A.K. had previously undertaken investigations.   He also complained about the sentence.   31.      On 20 April 1988 the Review Chamber (Ratskammer) at the Innsbruck Regional Court dismissed the applicant's complaints about his detention on remand of 6, 12 and 15 March 1988.   32.      On 13 May 1988 the Innsbruck Regional Court, composed of judges F., P. and W., dismissed the applicant's appeal.   As to the applicant's complaint that the trial judge had previously undertaken investigations the judgment stated:   <Translation>   "As a reply thereto, reference may be made to the legal view derived from SS. 451 and 452 of the Code of Criminal Procedure, according to which in the District Court proceedings the trial judge may also undertake preliminary inquiries, and the preliminary inquiries judge will nevertheless not be excluded from the trial...   Equally, if a judge participates in a penal case as a judge in proceedings under letters rogatory, this will not exclude him from participating at the trial...   A detailed examination as to the extent to which this legal view, which is generally applied, corresponds to Article 6 of the Convention on Human Rights ... is unnecessary in the present case for the Appeal Court, since the accused, who became aware of the [alleged] ground of nullity at the latest at the beginning of the trial, did not ... immediately raise this ground before the Zell am Ziller District Court."   <German>   "Dem ist die aus den Bestimmungen der §§ 451 und 452 StPO abgeleitete herrschende Rechtsansicht entgegenzuhalten, wonach im bezirksgerichtlichen Verfahren der Erkenntnisrichter auch Vorerhebungen pflegen kann und der Vorerhebungsrichter daher nicht von der Hauptverhandlung ausgeschlossen ist ...   Ebenso schließt auch die Beteiligung eines Richters als Rechtshilfe- richter an einer Strafsache diesen nicht von der Teilnahme an der Hauptverhandlung aus ...   Eine eingehende Prüfung dahin, inwieweit diese allgemeine geübte Rechtsauffassung mit Artikel 6 der Konvention zum Schutze der Menschenrechte und Grundfreiheiten   ... im Einklang steht, erübrigt sich im vorliegenden Fall für das Berufungsgericht deshalb, weil der Angeklagte den ihm spätestens bei Beginn der Hauptverhandlung bekannt gewordenen [angeblichen] Nichtigkeitsgrund ... nicht sofort vor dem Bezirksgericht Zell am Ziller geltend gemacht hat."   B.       Relevant domestic law and practice   33.      Section 9 of the Austrian Code of Criminal Procedure (Strafprozessordnung) provides for the jurisdiction of the District Court in respect of all offences the threatened punishment of which does not exceed six months.   34.      Proceedings before the District Court are instituted on the basis of an informal request for prosecution by the District Prosecutor.   35.      According to Section 451 para. 1, in District Court proceedings there are no formal preliminary investigations (Voruntersuchung). Preliminary inquiries (Vorerhebungen) are possible, though these do not correspond to the preliminary inquiries before the other first instance courts.   36.      According to legal practice, the trial judge himself will in District Court proceedings conduct the preliminary inquiries.   In particular, Section 68 para. 2 of the Code of Criminal Procedure, which excludes the investigating judge from participating at the trial, does not apply (see E. Foregger/E. Serini, Die österreichische Strafprozessordnung, Vienna 1982, 3rd ed., p. 534).   37.      Paragraph 1 of Section 452 of the Code of Criminal Procedure which concerns "Rights of the judge during preliminary inquiries" ("Befugnisse des Richters bei Vorerhebungen") states that the District Court judge has in principle to comply with all provisions applying to the investigating judge though a number of exceptions are mentioned. For instance, according to Section 452 para. 3, detention on remand may only be imposed on the grounds of a danger of absconding and of collusion.   38.      Under Section 194 para. 1 of the Code of Criminal Procedure, the District Court judge may order a person's release from detention on remand if the judge and the District Prosecutor agree that the grounds for detention no longer exist.   39.      According to Section 451 paras. 1 and 4, there is no special procedure for the committal to trial (Versetzung in den Anklagestand). Once the preliminary inquiries deemed necessary have been undertaken, the trial must be fixed.   The evidence previously collected is presented at the trial, and the accused can comment thereupon.   40.      Section 12 of the Code of Criminal Procedure provides that the Review Chamber will supervise all preliminary inquiries and investigations in its district.   It consists of a chamber of three judges of the Regional Court.   The Review Chamber is the appeal body against orders or delays on the part of the investigating judge (Section 113).   In District Court proceedings the Review Chamber of the Regional Court will also examine complaints about detention on remand.   III.   OPINION OF THE COMMISSION     A.       Complaint declared admissible   41.      The Commission has declared admissible the applicant's complaint under Article 6 para. 1 (Art. 6-1) of the Convention concerning the position of the District Court judge.     B.       Point at issue   42.     Accordingly, the issue to be determined is whether there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention.     C.       Compliance with Article 6 para. 1 (Art. 6-1) of the Convention   43.      The applicant complains under Article 6 para. 1 (Art. 6-1) of the Convention of the lack of impartiality of a District Court judge who first undertook preliminary investigations and later acted as trial judge.   44.      Article 6 para. 1 (Art. 6-1) of the Convention provides, insofar as relevant:         "In the determination ... of any criminal charge against       him, everyone is entitled to a fair ... hearing by an       ... impartial tribunal."   45.      In the applicant's view, while there are certain formal differences between the District Court proceedings and those before other first instance courts the District Court judge nevertheless exercises in the preliminary proceedings largely the same functions as those of an investigating judge.   Contrary to the first instance court proceedings, where the Public Prosecutor's Office applies for preliminary inquiries, the District Court judge undertakes these inquiries on his own authority.   Judge A.K.'s investigations in fact corresponded to those of an investigating judge.   46.      The Government submit that for organisational reasons District Court proceedings are less complex.   Often, the courts are widely dispersed and comprise only one or two judges.   It would hardly be possible to conduct proceedings consisting of sharply separated stages.   47.      The Government contend that the preliminary proceedings before District Courts differ from those before other courts where the preliminary inquiries provide the foundation for the decision to commit an accused for trial.   In District Court Proceedings, the District Prosecutor orally or in writing requests punishment; the subsequent preliminary inquiries of the District Court judge, which he undertakes on his own initiative, serve the purpose of preparing the trial.   These preliminary inquiries correspond to the stage of proceedings before a first instance court when the accused has been committed for trial and the judge is preparing the trial.   48.      The Government further recall that in the present case judge A.K. undertook only a limited number of investigations.   She did not order the applicant's detention on remand and she did not see him before the trial.   The applicant could not assume that she had such a considerable knowledge of his case as to have a predetermined view on his guilt.   Rather, the basis for the applicant's conviction was the trial hearing which is of overriding importance for District Court proceedings.   The Government conclude that the impartiality of judge A.K. could not be called in question.   49.      The Commission recalls that the existence of impartiality must be determined according to a subjective test, that is on the basis of the personal conviction of a particular judge in a given case, and also according to an objective test, that is by ascertaining whether the judge offered guarantees sufficient to exclude any legitimate doubts in this respect (see, among other authorities, Eur.   Court H.R., De Cubber judgment of 26 October 1984, Series A no. 86, pp. 13-14, para. 24).   50.      As to the subjective test, the personal impartiality of a judge must be presumed until there is a proof to the contrary.   In the present case, no issue arises in this respect.   51.      Under the objective test, it must be determined whether, apart from the judge's personal conduct, there are ascertainable facts which may raise doubts as to his impartiality.   In this respect even appearances may be of a certain importance.   What is at stake is the confidence which the courts in a democratic society must inspire in the public and above all in the parties to the proceedings. Accordingly, any judge in respect of whom there is a legitimate reason to fear lack of impartiality must withdraw (see De Cubber judgment, loc. cit., p. 14, para. 26).   52.      In the present case, the fear of lack of impartiality was based on the fact that Mrs.   A.K., the District Court judge, first undertook investigations concerning the applicant and later as trial judge convicted him of the offences concerned.   53.      According to the Government, the preliminary inquiries undertaken by a District Court judge correspond to the proceedings before a first instance court when the accused has been committed for trial and the judge is preparing the trial (see above, para. 47).   In this respect, the Commission notes that on 27 January 1988 the applicant's landlady, Mrs R.K., reported the applicant to the police. On 28 January 1988 the District Attorney at the Zell District Court filed an application with the District Court requesting the applicant's punishment.   On 18 March 1988 judge A.K. fixed the trial for 24 March 1988.   On that day the District Court held the trial and gave its judgment in which it convicted the applicant of fraud.   54.      The Commission finds that these proceedings can be separated into two distinct parts.   The second part was the actual trial before the District Court on 24 March 1988, with Mrs A.K. sitting as single judge, at which the applicant and the District Attorney were present. In the first period preceding the trial, judge A.K. acted alone, or at least in the absence of the applicant, who was then detained on remand at Innsbruck prison.   55.      The Commission has considered judge A.K.'s activities in the period preceding the trial.   In this respect, it notes the following: On 25 February 1988, upon a letter rogatory, judge A.K. questioned the landlady Mrs R.K. as a witness (see above, para. 21).   Moreover, on 17 March 1988 judge A.K. telephoned 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.   Judge A.K. furthermore telephoned the two German insurance companies to establish whether the applicant had applied for, or received, a pension payment.   According to a note in the case-file prepared by judge A.K. on 18 March 1988, the insurance companies each replied by telephone that the applicant had not received a pension (see above, para. 25).   56.      In the Commission's opinion, at a stage preceding the trial, judge A.K. in fact undertook typical acts of an investigating judge. The investigations 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.   57.      The applicant might therefore have felt some unease by knowing that the judge called upon to determine the charges against him at the trial was the same judge who had previously undertaken the investigations and therefore now had a particularly detailed knowledge of the file (see mutatis mutandis Eur.   Court H.R., De Cubber judgment, loc. cit., pp. 15-16, para. 29).   58.      In the Commission's opinion these considerations lead to the conclusion that the applicant could have a legitimate fear that judge A.K., when acting as the sole trial court judge, had a preconceived opinion as to the applicant's guilt, and that her impartiality accordingly appeared open to doubt.   59.      The Commission has had due regard to the difficulties concerning the organisation of District Courts in Austria, often situated in rural surroundings.   It notes that the less complex structure of these courts corresponds to the nature of offences they are confronted with, i.e. offences the threatened punishment of which does not exceed six months (see above, para. 33).   However, the Commission considers the principle of the impartiality of the judiciary to be of paramount importance which outweighs such organisational difficulties.   60.      The Commission finds therefore that, at his trial, the applicant was not heard by an impartial tribunal within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.   D.       Conclusion   61.      The Commission concludes, by 16 votes to 3, that there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention.     Secretary to the Commission              President of the Commission            (H.C. KRÜGER)                  (C.A. NØRGAARD)     DISSENTING OPINION OF MM. F. ERMACORA, F. MARTINEZ AND B. MARXER           We find ourselves unable to agree with the opinion of the majority of the Commission that there has been a violation of Article 6 para. 1 of the Convention.         We have first considered the acts of investigation which judge A.K. undertook in the proceedings leading up to the trial.   We observe that she questioned the person who had reported the applicant to the police; she also wrote to the court in the Federal Republic of Germany and she telephoned the two German insurance companies as well as an Austrian bank (see above, paras. 24-25).         In our opinion, these acts of investigation cannot warrant the conclusion that judge A.K. had a particularly detailed knowledge of the case-file which in itself would have justified fears as to her impartiality.         Moreover, we note that judge A.K. never actually spoke with the applicant and did not therefore gather a personal opinion of him. Above all, she did not take a decision to remand the applicant in custody which may have implied considerations as to his guilt.   In any event, "the mere fact that a trial judge ... has made pre-trial decisions in the case, including those concerning detention on remand, cannot be held as in itself justifying fears as to his impartiality" (see Eur. Court H.R., Hauschildt judgment of 24 May 1989, Series A no. 154, p. 22, para. 50).         Finally, in the District Court proceedings in Austria there is no formal procedure concerning an accused's committal for trial in respect of which, for instance, substantial evidence of guilt must be adduced and which would call in question the judge's subsequent participation in the trial court (see Ben Yaacoub v.   Belgium, Comm. Report 7.5.85, Eur.   Court H.R., Series A no. 127, pp. 14-15, para. 109).         Thus, it can again not be said that the applicant was justified in fearing that at the trial judge A.K. had formed an unfavourable preconceived opinion as to his guilt.         We furthermore note that the less complex structure of District Courts in Austria corresponds to the nature of offences they are confronted with, i.e. offences the threatened punishment of which does not exceed six months (see above, para. 33).         As a result, we find no basis for the conclusion that the impartiality of District Court judge A.K., when acting as a trial judge, was capable of appearing open to doubt.   APPENDIX   I     HISTORY OF THE PROCEEDINGS     Date                  Item ______________________________________________________________________   10 November 1988             Introduction of the application   24 November 1988             Registration of the application     Examination of the Admissibility   2 October 1989         Commission's decision to invite                       the Government to submit                       observations on the admissibility                       and merits of the application,                       limited to issues under Article 6                       para. 1 of the Convention   22 October 1989        Government's observations   14 February 1990       Applicant's observations in reply   9 October 1990         Commission's decision to declare                       admissible the applicant's complaint                       under Article 6 para. 1 of the                       Convention concerning the position                       of the District Court judge.   It                       also decided not to refer the case                       to a Chamber.     Examination of the Merits   12 January,      )      Commission's consideration of the 2 March 1991                 )      state of proceedings   8 October 1991         Commission's deliberations on the                       merits and final vote   15 October 1991        Adoption of the Report