CEDH · CASELAW;REPORTS;ENG — 8 septembre 1994

.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 }                    EUROPEAN COMMISSION OF HUMAN RIGHTS                      Application No. 17358/90                                M. B.                               against                               Austria                      REPORT OF THE COMMISSION                    (adopted on 8 September 1994)                          TABLE OF CONTENTS                                                             Page   I.    INTRODUCTION      (paras. 1-16). . . . . . . . . . . . . . . . . . . . . .1        A.    The application           (paras. 2-4). . . . . . . . . . . . . . . . . . . .1        B.    The proceedings           (paras. 5-11) . . . . . . . . . . . . . . . . . . .1        C.    The present Report           (paras. 12-16). . . . . . . . . . . . . . . . . . .2   II.   ESTABLISHMENT OF THE FACTS      (paras. 17-25) . . . . . . . . . . . . . . . . . . . . .3        A.    The particular circumstances of the case           (paras. 17-22). . . . . . . . . . . . . . . . . . .3        B.    Relevant domestic law           (paras. 23-25). . . . . . . . . . . . . . . . . . .4   III. OPINION OF THE COMMISSION      (paras. 26-64) . . . . . . . . . . . . . . . . . . . . .5        A.    Complaints declared admissible           (para. 26). . . . . . . . . . . . . . . . . . . . .5        B.    Points at issue           (para. 27). . . . . . . . . . . . . . . . . . . . .5        C.    As to compliance with Article 6 para. 1           (para. 28). . . . . . . . . . . . . . . . . . . . .5        (i) As to the participation of Judge Schaumburger           (paras. 29-40). . . . . . . . . . . . . . . . . . .5        CONCLUSION (para. 41). . . . . . . . . . . . . . . . . .7        (ii) As to the absence of a hearing before           the Supreme Court (paras. 42-50). . . . . . . . . .7        CONCLUSION (para. 51). . . . . . . . . . . . . . . . . .8        (iii)As to the passing of a statement to the           Supreme Court (paras. 52-57). . . . . . . . . . . .9        CONCLUSION (para. 58). . . . . . . . . . . . . . . . . .9        (iv) As to the divulging of the judge rapporteur's           name (para. 59) . . . . . . . . . . . . . . . . . 10        CONCLUSION (para. 60). . . . . . . . . . . . . . . . . 10        D.    Recapitulation           (paras. 60-64). . . . . . . . . . . . . . . . . . 10   PARTIALLY CONCURRING AND PARTIALLY DISSENTING OPINION OF MRS LIDDY. . . . . . . . . . . . . . . . . . . . 11   APPENDIX I    : HISTORY OF THE PROCEEDINGS . . . . . . . . . 13   APPENDIX II   : DECISION OF THE COMMISSION AS TO THE                ADMISSIBILITY OF THE APPLICATION . . . . . . 14   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 is a Turkish citizen, born in 1969.   He lives in Innsbruck.   He was represented before the Commission by Mr. W.L. Weh, a lawyer practising in Bregenz.   3.    The application is directed against the Republic of Austria whose Government were represented by their agent, Ambassador F. Cede, Head of the International Law Department of the Federal Ministry for Foreign Affairs.   4.    The case concerns criminal proceedings against the applicant in which he was convicted of attempting to bribe civil servants. The applicant complains that he did not have a fair hearing before an impartial tribunal.   He invokes Article 6 para. 1 of the Convention.   B.    The proceedings   5.    The application was introduced on 5 October 1990 and registered on 25 October 1990.   6.    On 11 May 1992 the Commission decided, pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the application to the respondent Government and to invite the parties to submit written observations on its admissibility and merits.   7.    The Government's observations were submitted on 11 September 1992.   The applicant replied on 26 November 1992.   8.    On 2 April 1993 the Commission declared the application admissible.   9.    On 8 April 1993 the parties were invited to submit such further information or observations on the merits as they wished.   The Government submitted observations on 19 May 1993, and the applicant submitted comments on 22 June 1993 to which the respondent Government replied on 17 September 1993.   The applicant submitted a further statement on 13 October 1993.   10.   On 9 February 1994, the President of the Commission granted the applicant legal aid for the representation of his case.   11.   After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement.   In the light of the parties' reaction, including the result of negotiations in Strasbourg and Vienna between June 1993 and February 1994, the Commission now finds that there is no basis on which such a settlement can be effected.   C.    The present Report   12.   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           S. TRECHSEL           A. WEITZEL           F. ERMACORA           E. BUSUTTIL           G. JÖRUNDSSON           A.S. GÖZÜBÜYÜK           J.-C. SOYER           H.G. SCHERMERS           H. DANELIUS      Mrs. G.H. THUNE      MM.   F. MARTINEZ           C.L. ROZAKIS      Mrs. J. LIDDY      MM.   L. LOUCAIDES           J.-C. GEUS           M.P. PELLONPÄÄ           B. MARXER           M.A. NOWICKI           I. CABRAL BARRETO           B. CONFORTI           N. BRATZA           I. BÉKÉS           J. MUCHA           E. KONSTANTINOV           D. SVÁBY   13.   The text of this Report was adopted on 8 September 1994 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.   14.   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           the Convention.   15.   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.   16.   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   17.   On 23 March 1990, the applicant was convicted by the Innsbruck Regional Court (Landesgericht) of attempting to bribe civil servants. He was fined AS 25,200, suspended for three years.   On 6 March 1990, before the trial had begun, the presiding judge had sent a note to Mr. Heiss, the applicant's lawyer during those proceedings, that one of the judges, Judge Schaumburger, had taken part in the preliminary proceedings at the questioning of witnesses.   The lawyer was asked to inform the court by 16 March 1990 whether he challenged the judge on this ground.   The lawyer received the note on 12 March and did not reply.   At the beginning of the trial on 23 March, the presiding judge again stated that Judge Schaumburger had officiated as investigating judge for part of the preliminary proceedings.   The trial record states that the parties waived the right to raise this point as a ground of nullity ("Auf Geltendmachung dieses Umstandes als Nichtigkeitsgrund wird allseits verzichtet").   Mr. Heiss, in a document of 2 June 1993 which was submitted in the course of the proceedings before the Commission, states that he answered the question whether he was prepared to waive the right to raise the point in his nullity appeal by stating that, in his view, it was not possible to waive the possibility of raising questions of the exclusion of a judge. He considered that it was only possible to waive a challenge to a judge on grounds of partiality.   The presiding judge at the trial, in a document of 11 August 1993 which was also submitted in the course of the proceedings before the Commission, states that the waiver which is included in the trial record did take place as recorded.   He adds that he remembers Mr. Heiss adding words to the effect that he did not consider the waiver to be valid.   18.   The applicant filed a plea of nullity and an appeal against sentence to the Supreme Court (Oberster Gerichtshof).   In his plea of nullity under Article 281 para. 1(1) of the Code of Criminal Procedure (Strafprozeßordnung) he alleged that he had been heard by a judge who was excluded by operation of law from participation.   He also alleged violations of Article 281 para. 1(4), (5) and (9)(a) of the Code of Criminal Procedure.   In particular, in connection with Article 281 para. 1 (5), the applicant complained that the trial court had found two witnesses completely credible, and had found that contradictions in their stories were easily explained as mistakes of memory.   He alleged that the contradictions were fundamental.   He also stated that there should have been a confrontation between two witnesses and the applicant's brother, who had for a certain time been suspected of the offences.   The prosecution also appealed against the sentence.   19.   On 29 June 1990, the Procurator General's office (Generalprokuratur) sent the following note to the Supreme Court:        "In the view of the Procurator General's office, the plea of      nullity brought by the accused, [M. B.], meets the criteria for      a decision pursuant to Article 285 (d) of the Code of Criminal      Procedure.   The transmission of a copy of the decision is      requested."        The statement was not submitted to the defence.   20.   On 7 August 1990 the Supreme Court rejected the applicant's plea of nullity under Article 285 (d) para. 1   of the Code of Criminal Procedure.   After confirming that a disqualified judge had taken part in the trial, the Supreme Court referred to the waiver contained in the record of the trial proceedings, and noted that Article 281 para. 1 (1) of the Code of Criminal Procedure required a ground of nullity relating to Articles 67 and 68 of the Code of Criminal Procedure first to have been raised at the trial itself.   In connection with the applicant's plea of nullity under Article 281 para. 1 (5) of the Code of Criminal Procedure, the Supreme Court found that the complaints were an attempt to challenge the assessment of the evidence made by the judges of fact, and as such were inadmissible and insufficient to constitute a ground of nullity under Article 281 para. 1 (5) of the Code of Criminal Procedure.   The Supreme Court also found that there had, in fact, been a confrontation between the two witnesses and the applicant's brother, notwithstanding the applicant's allegation that there had been none. The plea of nullity was rejected.   The Supreme Court remitted the question of the applicant's appeal against sentence to the Innsbruck Court of Appeal (Oberlandesgericht).   21.   The applicant's lawyer received the Supreme Court's decision on 6 September 1990.   22.   On 3 October 1990 the Innsbruck Court of Appeal, after an oral hearing, increased the applicant's sentence to nine months' imprisonment, suspended for three years.   The applicant's lawyer received this decision on 16 October 1990.   B.    Relevant domestic law   23.   Article 68 para. 2 of the Code of Criminal Procedure (Straf- prozeßordnung) provides that "a person shall be disqualified (ausgeschlossen) from participating or deciding in the trial proceedings if he has acted as investigating judge in the same case ...".   24.   Article 281 para. 1 of the Code of Criminal Procedure provides for the specific grounds on which a plea of nullity may be made.   These include:        "1.   if the court was not properly constituted, ... or if a judge      took part in the decision who is excluded (under Articles 67 and      68), unless the cause of the plea of nullity was known to the      applicant before or during the trial, and was not raised by him      at the beginning of the trial or as soon as he became aware of      it,      ...      5.   if the judgment of the trial court in respect of decisive      facts is unclear, incomplete or self-contradictory ..."   25.   Article 285 (d) para. 1 of the Code of Criminal Procedure provides:        "A plea of nullity may be rejected immediately after deliberation      in private:        1.   if it should already have been rejected by the court at first      instance, pursuant to Article 285 (a) ...,        2.   if the plea of nullity is based on the grounds of nullity      enumerated in Article 281 para. 1 (1-8 and 11) and if the Supreme      Court unanimously finds that the complaint should be dismissed      as manifestly ill-founded without any need for further      deliberation."   III. OPINION OF THE COMMISSION   A.    Complaints declared admissible   26.   The Commission has declared admissible the applicant's complaints that he did not have a fair hearing before an impartial tribunal.   B.    Points at issue   27.   The issues to be determined are whether there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention by virtue of:   -     the participation of Judge Schaumburger at the applicant's trial;   -     the absence of an oral hearing before the Supreme Court;   -     the passing of a statement to the Supreme Court by the Procurator      General's office of which the applicant was not aware; and/or   -     the fact that the name of the judge rapporteur in the case was      divulged to the Procurator General in violation of Section 20 of      the Supreme Court Act.   C.    As to compliance with Article 6 para. 1 (Art. 6-1)   28.   Article 6 para. 1 (Art. 6-1) of the Convention provides, so far as relevant, 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."   (i)   As to the participation of Judge Schaumburger   29.   The applicant points to a distinction in Austrian law between matters which give rise to the exclusion of a judge and those which give rise to the possibility of challenge:   in cases such as the present, exclusion is effected by operation of law without the parties' raising it.   The applicant considers that it cannot be possible to waive objection to participation by a judge who is excluded by operation of law, as the very wording of the provision precludes acceptance by a defendant.   He considers therefore that the court was neither "independent and impartial" nor a tribunal "established by law".   30.   The Government point out that the applicant was twice given the opportunity to challenge the judge, but did not avail himself of either opportunity.   They consider that the applicant has validly waived his right to challenge the judge.   They point out that Judge Schaumburger refrained from any procedural action until the waiver was declared, and that it was the presiding judge (who was not excluded) who invited the applicant's lawyer on each occasion to state whether he objected to the participation of Judge Schaumburger.   The Government consider that it is unrealistic to allege that a refusal to waive would have entailed extra costs and delay as, had the applicant chosen to reject Judge Schaumburger's participation before the trial, the presiding judge would simply have nominated the next judge on the schedule of business to take part in the trial.   31.   The Commission first finds that the complaint of the lack of an "impartial" tribunal in the present case is, in substance, the same as that of the absence of a tribunal "established by law" (cf. Eur. Court H.R., Pfeifer and Plankl judgment of 25 February 1992, Series A no. 227, p. 16, para. 36).   32.   The Commission next recalls that where it is permissible, the waiver of a right guaranteed by the Convention must be established in an unequivocal manner, and in the case of procedural rights, a waiver must be accompanied by minimum guarantees commensurate to its importance (above-mentioned Pfeifer and Plankl judgment, p. 16, para. 37).   32.   In the case of Pfeifer and Plankl, the Court found that the waiver had not been made unequivocally because the judge concerned had approached the applicant in person rather than his lawyer, who had not been summoned.   33.   The present case is similar to the above mentioned case of Pfeifer and Plankl in that it relates to the participation in a trial by a judge who was formally, under Austrian law, precluded from involvement by Article 68 para. 2 of the Code of Criminal procedure. Although the Court in Pfeifer and Plankl indicated that it was not necessarily permissible to waive all Convention rights, the Commission finds nothing in the judgment in that case which precludes the operation of a waiver in the circumstances of the present case.   The question did not have to be decided in Pfeifer and Plankl because the Court found the waiver in any event not to have been valid.   34.     The participation of an investigating judge as a judge of the trial court is not per se a violation of Article 6 para. 1 (Art. 6-1). It is in the nature of things that the degree to which an investigating judge has been involved in a case varies according to the circumstances of the case (see, for example, Eur. Court H.R., Fey judgment of 24 February 1993, Series A no. 255, pp. 12-14, paras. 30-35 with further references).   Whilst the Commission finds the stringency with which Austrian law precludes the investigating judge from participating at trial before the Regional Court to be in line with Article 6 (Art. 6) of the Convention, it does not follow that the presence of the investigating judge at trial is so undesirable that an individual should not be permitted to accept that judge's participation - provided always that the individual is able to consent on the basis of all relevant information and without undue pressure.   35.   The present case is thus not one in which waiver of the Convention right at issue is not permissible.   36.   In connection with the applicant's contention that Judge Schaumburger was excluded by operation of law, such that no waiver was possible, the Commission would comment Article 281 para. 1 (1) of the Code of Criminal Procedure provides for such disqualification to be a ground of nullity, so that although Article 68 para. 2 sets out the disqualification, the mechanism by which it can be raised is in Article 281 para. 1 (1).   The applicant has not pointed to any provision of Austrian law which would indicate that proceedings are invalid where a disqualified judge participates and the matter is not raised on a plea of nullity.   37.   The Commission next notes that the applicant's lawyer was twice given the opportunity to object to Judge Schaumburger's participation. The first occasion was before the trial when, on 12 March 1990, the lawyer received the presiding judge's note that Judge Schaumburger was technically excluded by operation of law.   The lawyer was asked to inform the Court by 16 March 1990 if he objected to the judge's participation, and he did not do so.   The second occasion was at the beginning of the trial, when the lawyer was expressly asked whether he objected to Judge Schaumburger's participation.   38.   The Commission considers that the lawyer's silence following the request from the Court cannot be regarded, in the present case, as an unequivocal acceptance of the judge in question.   On the second occasion, however, the applicant and his lawyer were both present in court, and the Commission finds it established that the lawyer agreed to Judge Schaumburger taking part in the trial.   The lawyer may have regarded the waiver he made as not valid, but it has not been contended that he did not make it.   No request was made for the trial record to be amended.   39.   Moreover, the Commission notes, as the Government submit, that Judge Schaumburger took no procedural steps after he realised that he was technically precluded from acting in the case, and it was the presiding judge (not Judge Schaumburger) who asked the applicant's lawyer whether he agreed to Judge Schaumburger continuing to participate.   The Commission further notes that, although the applicant's representative before the Commission has alleged that the waiver was accepted with a view not to losing time and money, there is no indication of any pressure being put on the trial lawyer and, as the Government have submitted, if Judge Schaumburger had been objected to, his place would simply have been taken by the next judge on the list. Finally, the Commission notes that, although it is true "there is no provision of Austrian law which allows for a defendant expressly to waive his right to be tried by a court whose composition is in accordance with the law" (above-mentioned Pfeifer and Plankl judgment, p. 17, para. 38), Article 281 para. 1 (1) of the Code of Criminal Procedure envisages the possibility that a defendant may be tried by a court which was not properly constituted and that the defendant cannot complain of that lack of proper constitution on his plea of nullity because he failed to raise the matter "at the beginning of the trial or as soon as he became aware of it".   40.   The Commission finds thus that the applicant was able to and did validly waive his right to challenge Judge Schaumburger.        CONCLUSION   41.   The Commission concludes, by 25 votes to 1, that there has been no violation of Article 6 para. 1 (Art. 6-1) of the Convention by virtue of the participation of Judge Schaumburger at the applicant's trial.   (ii) As to the absence of a hearing before the Supreme Court   42.   As to the question of the absence of a hearing before the Supreme Court, the Commission notes the Austrian reservation to Article 6 (Art. 6) of the Convention which provides as follows:        "The provisions of Article 6 (Art. 6) of the Convention shall be      so applied that there shall be no prejudice to the principles      governing public court hearings laid down in Article 90 of the      1929 version of the Federal Constitutional Law."   43.   The applicant considers that this reservation does not comply with the criteria of Article 64 (Art. 64) of the Convention, that the plea of nullity raised under Article 281 para. 1 (5) of the Code of Criminal Procedure related exclusively to questions of fact, and that he should therefore have been entitled to a public hearing before the Supreme Court.   44.   The Government consider that the complaint is covered by the reservation. They accept that a request by the applicant to the Supreme Court to conduct an oral hearing would have had no prospects of success, but they argue that the applicant's complaint under Article 281 para. 1 (5) of the Code of Criminal Procedure was rejected by the Supreme Court for legal reasons and without regard to the merits.   45.   The Commission recalls that even where an appeal court has jurisdiction to review a case both as to the facts and as to the law, and provided a public hearing has been held at first instance, Article 6 (Art. 6) does not always require a right to a public hearing irrespective of the issues to be decided.   In particular, leave to appeal proceedings and proceedings involving only questions of law may be in conformity with Article 6 (Art. 6) of the Convention even in the absence of a hearing (cf. Eur. Court H.R., Jan-Åke Andersson judgment of 29 October 1991, Series A no. 212-B, p. 27, p. 45).   46.   The Commission notes that a hearing was held at first instance.   47.   The applicant's plea of nullity (that is, his appeal in the case) was rejected by the Supreme Court under Article 285 (d) para. 1 of the Code of Criminal Procedure.   That provision does not formally constitute a leave to appeal procedure as referred to by the Court in the above-mentioned case of Jan-Åke Andersson, but its effect is similar in that it enables the courts to consider whether an appeal has sufficient merits to warrant further consideration.   The Supreme Court rejected the applicant's plea of nullity unanimously and expeditiously.   48.   Whilst it is true that the applicant claims that his plea of nullity, which alleged nullity inter alia under Article 281 para. 1 (5), raised questions of fact as well as questions of law, the Commission notes that the Supreme Court regarded the ground of nullity as an inadmissible attempt to challenge the first instance court's assessment of the evidence.   It answered his complaint concerning a confrontation between two witnesses and the applicant's brother by pointing out that there had in fact been such a confrontation.   The Commission is not satisfied that the applicant's plea of nullity raised questions of fact which could have called for a hearing.   49.   In the circumstances of the present case, the Commission thus finds that Article 6 para. 1 (Art. 6-1) of the Convention did not require the Supreme Court to hold a hearing on the applicant's plea of nullity.   50.   The Commission is therefore not required to determine questions concerning the validity and applicability of the Austrian reservation to Article 6 (Art. 6) of the Convention.        CONCLUSION   51.   The Commission concludes, unanimously, that there has been no violation of Article 6 para. 1 (Art. 6-1) of the Convention by virtue of the absence of an oral hearing before the Supreme Court.   (iii)   As to the passing of a statement to the Supreme Court   52.   The applicant complains that the Procurator General submitted a statement to the Supreme Court which was not made available to the defence.   He underlines that the Procurator General is a prosecution authority, and he considers that the fact that the "submissions" did not deal with the merits of the case is irrelevant.   53.   The Government accept that the statement by the Procurator General's office was not served on the applicant.   They consider, however, that the "submissions" did not amount to comments on the facts of the case, nor did they amount to factual arguments, and concludes that the principle of "equality of arms" was not violated.   54.   The Commission has dealt with the question of the absence of an oral hearing before the Supreme Court on the basis that the Supreme Court did not need a full examination of the appeal, and was therefore not required to hold an oral hearing.   Article 6 (Art. 6) remains applicable, however, and in particular the principle of equality of arms, inherent in the notion of fairness under Article 6 para. 1 (Art. 6-1) of the Convention, must always be respected (cf., in the context of actual leave to appeal proceedings, Eur. Court H.R., Monnell and Morris judgment of 2 March 1987, Series A no. 115, pp. 23-24, para. 62).   55.   The Commission recalls that the European Court of Human Rights has found a violation of the Convention where the Senior Public Prosecutor (Oberstaatsanwalt) filed submissions with the Court of Appeal of which the defence knew nothing (Eur. Court H.R., Brandstetter judgment of 28 August 1991, Series A no. 211, pp. 27-28, paras. 64-69). On the other hand, where the defence obtain a copy of the submissions of the Procurator General in advance of a hearing before the Supreme Court, there may well be no violation of Article 6 (Art. 6) of the Convention (Eur. Court H.R., Kremzow judgment of 21 September 1993, Series A no. 268-B, p. 42, paras. 48-50).   56.   In the present case the applicant did not receive the Procurator General's submissions to the Supreme Court at all.   He was only aware that the Procurator General had made submissions because of the phrase "after consideration of the Procurator General's office's submissions" ("nach Anhörung der Generalprokuratur") in the Supreme Court's judgment.   It is true, as the Government submit, that the observations were not, in the event, very detailed, as they merely considered that the case could be considered under the Article 285 (d) procedure (as it was).   The principle of equality of arms does not, however, depend on further, quantifiable unfairness flowing from a procedural inequality: it is inherently unfair for the prosecution to make submissions to a court of which the defence is unaware and on which the defence has no opportunity to comment.   57.   The Commission therefore finds that the passing of submissions by the prosecution to the Supreme Court in the present case was not compatible with the principle of equality of arms.        CONCLUSION   58.   The Commission concludes, by 25 votes to 1, that there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention by virtue of the passing of a statement to the Supreme Court by the Procurator General's office of which the applicant was not aware.   (iv) As to the divulging of the judge rapporteur's name   59.   As to the complaint that the Supreme Court divulged the name of the judge rapporteur to the Procurator General in violation of Section 20 of the Supreme Court Act, the Commission finds that, even if true, this cannot in itself render the proceedings unfair (Eur. Court H.R., above-mentioned Kremzow judgment, p. 46, para. 75).   CONCLUSION   60.   The Commission concludes, unanimously, that there has been no violation of Article 6 para. 1 (Art. 6-1) of the Convention by virtue of the fact that the name of the judge rapporteur in the case was divulged to the Procurator General in violation of Section 20 of the Supreme Court Act.   D.    Recapitulation   61.   The Commission concludes, by 25 votes to 1, that there has been no violation of Article 6 para. 1 (Art. 6-1) of the Convention by virtue of the participation of Judge Schaumburger at the applicant's trial (para. 41).   62.   The Commission concludes, unanimously, that there has been no violation of Article 6 para. 1 (Art. 6-1) of the Convention by virtue of the   absence of an oral hearing before the Supreme Court (para. 51).   63.   The Commission concludes, by 25 votes to 1, that there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention by virtue of the passing of a statement to the Supreme Court by the Procurator General's office of which the applicant was not aware (para. 58).   64.   The Commission concludes, unanimously, that there has been no violation of Article 6 para. 1 (Art. 6-1) of the Convention by virtue of the fact that the name of the judge rapporteur in the case was divulged to the Procurator General in violation of Section 20 of the Supreme Court Act (para. 60).   Secretary to the Commission           President of the Commission          (H.C. KRÜGER)                        (C.A. NØRGAARD)                                                   (Or. English )            PARTIALLY CONCURRING AND PARTIALLY DISSENTING                      OPINION OF MRS. LIDDY        With respect, I disagree with the conclusions of the majority on the first of the points at issue, that is, as to the participation of Judge Schaumburger at the applicant's trial.        The Government consider that the applicant has waived his right to be tried by "an independent and impartial tribunal established by law" as required by Article 6 para.1.   The record states that the parties waived the right to raise as a ground of nullity the fact that Judge Schaumburger was disqualified from participating (by operation of Article 68 (2) of the Code of Criminal Procedure).   In fact, the evidence before the Commission is to the effect that defence counsel expressly added that he did not regard any waiver as valid, because Dr. Schaumburger was already legally disqualified.   However, he refrained from making a formal declaration challenging the judge.        Even supposing that the above-quoted rights under Article 6 para. 1 of the Convention can be waived, do these facts meet the two criteria set by the Court in Pfeifer and Plankl (Series A, No. 227)?   First, is the waiver established in an unequivocal manner? Second, was the waiver accompanied by minimum guarantees commensurate to its importance?        As to the first question, it seems to me that defence counsel's protest to the effect that no waiver could be valid casts doubt on whether the waiver could be regarded as unequivocal.        As to the second question, there is no provision of Austrian law which allows for a defendant expressly to waive his right to be tried by a court whose composition is in accordance with law.   It is true, as noted by the majority, that the failure of a defendant to query the proper constitution of a trial court as soon as he becomes aware of the defect may be a barrier to a plea of nullity pursuant to Article 281 (1) of the Code of Criminal Procedure.   However, in the present case there was no need for defence counsel to draw the matter to the trial court's attention (the trial court having noted the problem already) and there was no law, with commensurate guarantees, providing for an express waiver of the right to a properly constituted court.   Moreover, in its judgment in the Pfeifer and Plankl case, the Court noted (at para. 24) the substance of Article 281(1).   The Court nonetheless (at para. 38) noted the absence of any law providing for waiver of the right to be tried by a court whose composition is in accordance with the law and the consequent absence of the procedure to be followed for this purpose.   It added,   "But such a right is of essential importance and cannot depend on the parties alone."        In these circumstances, while I have difficulty in fully appreciating why, on the one hand, defence Counsel refrained from formally objecting, and why, on the other hand, the trial court refrained from deeming his statements as amounting in substance to an objection,   rather than as waiver of a ground of plea of nullity (and therefore refrained from replacing Judge Schaumburger), it does seem to me that there was neither a clear-cut law providing for valid waiver of the right to be tried by a court composed in accordance with the law, nor an unequivocal waiver of a right of such essential importance.        Therefore, even supposing that this right can be waived, there has, in my opinion, been a violation of Article 6 para. 1.                             APPENDIX I                     HISTORY OF THE PROCEEDINGS   Date                      Item _________________________________________________________________     5 October 1990           Introduction of application   25 October 1990           Registration of application   Examination of admissibility   11 May 1992               Commission's decision to communicate the                          case to the respondent Government and to                          invite the parties to submit observations                          on admissibility and merits   11 September 1992         Government's observations   26 November 1992          Applicant's observations in reply     2 April 1993             Commission's decision to declare                          application admissible                            Commission's adoption of text of decision                          on admissibility   Examination of the merits     8 April 1993             Decision on admissibility transmitted to                          parties. Invitation to parties to submit                          further observations on the merits   19 May 1993               Government's observations on the merits   22 June 1993              Applicant's observations on the merits     4 September 1993         Commission's consideration of state of                          proceedings   17 September 1993         Government's further observations on the                          merits   13 October 1993           Applicant's further observations on the                          merits     9 February 1994          President's grant of legal aid   14 May 1994               Commission's consideration of state of                          proceedings   30 August 1994            Commission's deliberations on the merits,                          final vote and consideration of text of                          the Report     8 September 1994         Adoption of Report