CEDH · CASELAW;REPORTS;ENG — 2 mars 1995

.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. 17602/91                           Martin Thomann                               against                             Switzerland                      REPORT OF THE COMMISSION                      (adopted on 2 March 1995)                          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. 17-53) . . . . . . . . . . . . . . . . . . . . .3        A.    The particular circumstances of the case           (paras. 17-39). . . . . . . . . . . . . . . . . . .3        B.    The relevant domestic law           (paras. 40-53). . . . . . . . . . . . . . . . . . .6   III. OPINION OF THE COMMISSION      (paras. 54-75) . . . . . . . . . . . . . . . . . . . . .8        A.    Complaint declared admissible           (para. 54). . . . . . . . . . . . . . . . . . . . .8          B.    Point at issue           (para. 55). . . . . . . . . . . . . . . . . . . . .8        C.    Article 6 of the Convention           (paras. 56-74). . . . . . . . . . . . . . . . . . .8             CONCLUSION           (para. 75). . . . . . . . . . . . . . . . . . . . 11   DISSENTING OPINION OF Mr. DANELIUS, Mrs. THUNE and Mr. LOUCAIDES . . . . . . . . . . . . . . . . . . . . . . . 12   DISSENTING OPINION OF Mrs. LIDDY . . . . . . . . . . . . . . . 14   APPENDIX I    : HISTORY OF THE PROCEEDINGS . . . . . . . . . 15   APPENDIX II   : DECISION OF THE COMMISSION AS TO THE                ADMISSIBILITY OF THE APPLICATION . . . . . . 16   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 Swiss citizen, born in 1949 and resident in Zurich.   He was represented before the Commission by Mr. P. Joset, a lawyer practising in Binningen.   3.    The application is directed against Switzerland.   The respondent Government were represented by Mr. P. Boillat, Head of the European Law and International Affairs Section, Federal Office of Justice.   4.    The applicant complains of the partiality of trial judges who, after having convicted him in absentia, subsequently decided upon his request for a rehearing and sat at the new trial against him.   The applicant invokes Article 6 paras. 1 and 2 of the Convention.   B.    The proceedings   5.    The application was introduced on 5 December 1990 and registered on 7 January 1991.   6.    On 13 October 1993 the Commission (First Chamber) 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 7 January 1994. The applicant replied on 8 March 1994.   8.    On 17 May 1994 the Commission refused the applicant's request for legal aid.   9.    On 30 August 1994 the plenary Commission ordered the transfer to it of the present application.   On 5 September 1994 the application was declared admissible.   10.   The text of the Commission's decision on admissibility was sent to the parties on 12 September 1994 and they were invited to submit further observations on the merits.   The applicant submitted further observations on 28 October 1994 and the Government on 31 October 1994.   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, 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                H. DANELIUS                C.L. ROZAKIS                G. JÖRUNDSSON                S. TRECHSEL                A.S. GÖZÜBÜYÜK                A. WEITZEL                J.-C. SOYER                H.G. SCHERMERS           Mrs. G.H. THUNE           Mr.   F. MARTINEZ           Mrs. J. LIDDY           MM.   L. LOUCAIDES                J.-C. GEUS                M.P. PELLONPÄÄ                B. MARXER                M.A. NOWICKI                I. CABRAL BARRETO                B. CONFORTI                I. BÉKÉS                J. MUCHA                D. SVÁBY                E. KONSTANTINOV                G. RESS   13.   The text of this Report was adopted on 2 March 1995 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 13 December 1988 the Basel-Stadt Public Prosecutor's Office (Staatsanwaltschaft) preferred an indictment (Anklageerhebung) against the applicant on charges of professional fraud, simple bankruptcy (leichtsinniger Konkurs), and violation of his obligation to keep books (Unterlassung der Buchführung).   18.   The Basel-Stadt Criminal Court (Strafdreiergericht) fixed the period between 10 and 17 May 1989 as dates for the trial against the applicant.   The applicant could not be summoned to the trial on the ground that he had given notice of departure from his last place of residence without indicating his new place of residence.   A warrant of arrest was issued, which referred to the possibility that the trial could, at any time, be conducted in the applicant's absence (Kontumazialverhandlung).   19.   Between 10 and 17 May 1989 the Criminal Court, sitting with Judges Metzener, Becht-Gutmann and Memminger, conducted the trial in the applicant's absence, pursuant to S. 263 of the Basel-Stadt Code of Criminal Procedure (Strafprozessordnung).   20.   On 16 May 1989 the applicant was arrested.   He was brought before the Criminal Court on 17 May 1989 for the pronouncement of the judgment.   21.   On 17 May 1989 the Criminal Court convicted the applicant of professional, completed and attempted fraud, simple bankruptcy and violation of his obligation to keep books, and sentenced him to two and a half years' imprisonment.   22.   Thereupon, the applicant requested a rehearing of his case (Revision) under S. 267 para. 2 of the Basel-Stadt Code of Criminal Procedure, which was granted immediately by the three judges mentioned above.   23.   Subsequently, in normal trial proceedings, the Criminal Court fixed 30 October 1989 as the date for the new trial, to be conducted by Judges Metzener, Becht-Gutmann and Memminger.   24.   On 29 June 1989 the applicant challenged Judges Metzener, Becht-Gutmann and Memminger for bias, referring to their participation in the trial proceedings leading to his conviction on 17 May 1989.   25.   On 27 August 1989 the Basel-Stadt Criminal Court, sitting with the said judges, dismissed the applicant's motion of challenge.   26.   On 5 October 1989 the Basel-Stadt Court of Appeal (Appellations- gericht), upon the applicant's appeal (Beschwerde), quashed the decision of 27 August 1989 and ordered the Criminal Court to decide upon the applicant's motion of 29 June 1989 in the absence of the three judges concerned.   27.   The trial fixed for 30 October 1989 was postponed.   28.   On 25 October 1989 the Basel-Stadt Criminal Court, sitting with Judges Kunz, Stephenson and Stamm, dismissed the applicant's motion of challenge.   29.   On 14 November 1989 the Basel-Stadt Court of Appeal dismissed the applicant's appeal against the decision of 25 October 1989.   The Court of Appeal considered in particular that the request under S. 267 para. 2 of the Basel-Stadt Code of Criminal Procedure was not an ordinary remedy, but, under given circumstances, resulted in a reversal of the conviction passed in the accused's absence (Kontumazurteil), the holding of a normal trial and passing of a new judgment (S. 267 para. 4).   There was no legal rule of competence regarding the decision on whether the request would be granted and regarding the new trial, but, according to practice, the court in the composition which had conducted the trial in the accused's absence was also competent for the proceedings following a request for rehearing of the case.   The Court of Appeal observed that the new trial was supposed to amend the proceedings conducted in the accused's absence and that the judges conducting a trial in the accused's absence were aware of the provisional nature of their judgment and the possibility of a repetition of the trial in normal proceedings.   As the trial was completely repeated, its outcome was open.   There were no objective reasons to doubt the impartiality of the judges who had first participated in the trial in the accused's absence and then again participated in the trial in his presence.   30.   On 2 May 1990 the Federal Court (Bundesgericht) dismissed the applicant's public law appeal (staatsrechtliche Beschwerde).   31.   The Federal Court, referring to its case-law on the question of impartiality of judges, considered that the participation of judges, who had passed a conviction in the accused's absence, in the proceedings on the request of the person concerned for a rehearing of his case and the subsequent new trial against him, could not be challenged if the outcome of the normal trial appeared to be open and there was no appearance of predetermination.   32.   The Federal Court found that the main difference between a normal trial and a trial in the accused's absence was that the accused could not make use of his rights of defence under SS. 181, 185 and 186 of the Code of Criminal Procedure, and could not be questioned by the court. Thus, in proceedings in the accused's absence, the basis for the court's judgment was incomplete so far as those procedural elements were concerned which presupposed the accused's presence.   The accused's statements at the trial and the personal impression made upon the court were of great importance for the finding of the truth and the fixing of the sentence.   In order to make up for the disadvantages possibly suffered by the accused due to his absence, the different Swiss Codes of Criminal Procedure providing for a conviction in the accused's absence also entitled the convicted person to request a rehearing of his case in normal proceedings.   The purpose of the request for a rehearing under S. 267 of the Basel-Stadt Code of Criminal Procedure was not to review the judgment passed in the accused's absence, but to restore the case to the stage of the main proceedings in order for the case to be freshly examined at a new trial in the accused's presence.   33.   The Federal Court considered that, taking into account the importance of the accused's statements and the impression he makes at the trial, it appeared quite possible that the judges, when reexamining the case in normal trial proceedings, could come to a result different from that which had been reached in the proceedings in the accused's absence.   Thus the result of the normal trial proceedings appeared open although the judges had already participated in the proceedings in the accused's absence, and there was objectively no indication of predetermination.   34.   The Federal Court also observed that the present case could not be compared to the case where a judge initially acted as investigating judge, as judge deciding on the committal for trial or as judge issuing a penalty order (Strafmandat), and then subsequently as trial judge. If, in cases of a conviction in the applicant's absence, the further participation of the judges concerned in the review proceedings and the possible new trial amounted to a breach of the Constitution and of Article 6 para. 1 of the Convention, there would be a risk of abuse. In this respect, the Federal Court noted that, in those Swiss Cantons where the Code of Criminal Procedure did not subject the request for a rehearing to any conditions, the accused could avoid judges whom he disliked by not appearing in court.   Moreover, new judges would have to make themselves acquainted with the files, and thereby the workload of the courts would be further increased and criminal proceedings be delayed.        The judgment was sent to the applicant on 6 June 1990.   35.   The new trial against the applicant who was assisted by an official defence counsel was held before the Basel-Stadt Criminal Court, sitting with Judges Metzener, Becht-Gutmann and Memminger, between 26 September and 3 October 1990.   On 26 and 27 September as well as on 1 October 1990 the Criminal Court heard in particular the applicant and several witnesses, and several documents were read out.   36.   On 3 October 1990 the Basel-Stadt Criminal Court convicted the applicant again of professional, completed and attempted fraud, simple bankruptcy and breach of his obligation to keep books and sentenced him to two years and three months' imprisonment.   37.   The applicant filed an appeal (Rekurs) against his conviction with the Basel-Stadt Court of Appeal (Appellationsgericht).   38.   On 11 July 1991, the Basel-Stadt Court of Appeal, following a hearing in the presence of the applicant and his defence counsel, convicted the applicant of fraud, simple bankruptcy and breach of his obligation to keep books and sentenced him to two years' imprisonment and imposed a fine of SFR 500.   The applicant was acquitted of the charge of fraud on some counts.   39.   On 9 December 1992 the Federal Court dismissed the public law appeal by the applicant against the judgment of 11 July 1991.     B.    The relevant domestic law   a.    Proceedings in the presence of the accused   40.   In the course of a trial conducted in the presence of the accused, the President of the court (Gerichtspräsident) questions the accused about his personal situation.   Subsequently, the accused has the opportunity to make a brief statement on the indictment.   The President then questions him in detail on the charges against him (S. 178 of the Basel-Stadt Code of Criminal Procedure - Straf- prozessordnung).   41.   According to S. 179, the accused can be confronted with witnesses.   42.   S. 181 provides that the accused can request the further taking of evidence.   43.   Under SS. 185 and 186, he is entitled to put forward his defence following the statements of the public prosecutor and, possibly, the victim of the offence, and he has the last word following the public prosecutor's reply.   44.   According to S. 236, second sentence, the parties to criminal proceedings, with the exception of the public prosecutor's office, can lodge an appeal against the first instance judgment to the extent that they have a legal interest.   A full hearing of the case will take place before the appellate court.   b.    Proceedings in the absence of the accused   45.   SS. 260 to 267 of the Basel-Stadt Code of Criminal Procedure regulate the conduct of criminal proceedings against suspect persons and accused who are absent.   46.   According to S. 260 preliminary investigations against a suspect who is absent are to be conducted, so far as possible and feasible, as completely as if he were present; in particular the relevant evidence is to be taken.   47.   S. 261 para. 1 provides that the indictment may only be preferred (öffentliche Anklage erheben) against an absentee, who has been heard on the charges against him or who has himself rendered such hearing impossible, and if a reliable result of the trial appears secured despite the accused's absence.   48.   Pursuant to S. 262 para. 1, the president of the criminal court (Strafgerichtspräsident) orders that the trial be conducted in the accused's absence (Kontumazialverhandlung), if an indictment has been preferred against an absentee or if the accused absents himself without sufficient excuse after having been committed for trial.   This order is included in the publications relating to search and investigation into the person's whereabouts.   49.   S. 263 para. 1 provides that, if the accused cannot be brought before the court, the relevant parts of the investigation files are brought to the court's notice in that they are circulated or read out. Judgment is passed on the basis of the files after the parties present have been heard.   Under S. 263 para. 2, the president may, ex officio, or upon request of a party, order the hearing of witnesses or experts. The court may also order the further taking of evidence.   50.   S. 264 relates to the judgment passed in the accused's absence (Kontumazurteil).   The proceedings are provisionally suspended, if the evidence does not suffice to convict the accused (S. 264 para. 1).   In case of the accused's conviction, the court decides upon the measures to be taken upon his apprehension.   The judgment shall, if possible, immediately be executed (S. 264 para. 2).   51.   S. 266 concerns the remedies open to the parties present at the trial.   52.   S. 267 regulates the accused's remedy against his conviction in absentia.   53.   Pursuant to S. 267 para. 1 the accused convicted in his absence is notified of his conviction as soon as he is brought before or surrenders to the court; the notification is made in the presence of the public prosecutor's office, if the conviction followed an indictment (öffentliche Klage).   According to S. 267 para. 2, the convicted person is entitled to request a rehearing of his case (Revision des Verfahrens) within ten days after notification; the public prosecutor's office has the same right in case of judgments following an indictment.   The request of a convicted person who was summoned to the trial may only be granted if he shows that he did not receive the summons or was, through no fault of his, prevented from appearing in court (S. 267 para. 3).   If the request for a rehearing is granted, normal trial proceedings are instituted against the convicted person and a new judgment is passed (S. 267 para. 4).   In the absence of a request for rehearing or dismissal of such a request, the judgment passed in the accused's absence becomes final (S. 267 para. 5).   III. OPINION OF THE COMMISSION   A.    Complaint declared admissible   54.   The Commission has declared admissible the applicant's complaint that, in the proceedings resulting in his conviction by the Basel-Stadt Criminal Court of 3 October 1990, he did not have a hearing by an impartial tribunal.   B.    Point at issue   55.   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.    Article 6   (Art. 6) of the Convention   56.   The applicant relied on Article 6 paras. 1 and 2 (Art. 6-1,2) of the Convention.   The Commission has considered the application under Article 6 para. 1 (Art. 6-1) which is the relevant provision in the instant case.   57.   Article 6 para. 1 (Art. 6-1), in so far as relevant, provides as follows:        "In the determination of ... any criminal charge against him,      everyone is entitled to a ... hearing ... by an ... impartial      tribunal ... "   58.   The applicant considers that the outcome of the proceedings upon the rehearing in the accused's presence should be fully open.   However, judges, who had passed a conviction in the accused's absence, but in full knowledge of all material, could not be regarded as impartial when sitting on the rehearing of the same case.   He submits that the main question in the criminal proceedings against him was the legal qualification of the facts which he had admitted, a question already determined by the judges at the trial in his absence.   59.   The respondent Government, referring to the case-law of the Convention organs, compare the present case with the Ringeisen case in particular (Eur. Court H.R., Ringeisen judgment of 16 July 1971, Series A no. 13).   They submit that the Basel-Stadt Criminal Court, following the applicant's request for a rehearing of his case, was merely called upon to hold the hearing in the presence of the applicant in order fully to secure his rights of defence.   The Government maintain that the criminal court, when passing a conviction in the accused's absence, has a view of the case different from the view it has when conviction is passed in his presence.   In this respect, they refer to the record of the applicant's trial before the Basel-Stadt Criminal Court between 26 September and 3 October 1990.   They consider that there was nothing to indicate that the judges, who had first convicted the applicant in his absence, had lost their impartiality when they decided again on the charges against him.   Rather, in such cases, the trial starts again from the very beginning and the accused's presence at the hearing can show new aspects.   60.   The Commission recalls that impartiality for the purposes of Article 6 para. 1 (Art. 6-1) 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 ascertaining whether the judge offered guarantees sufficient to exclude any legitimate doubt in this respect (cf. Eur. Court H.R., De Cubber judgment of 26 October 1984, Series A no. 86, p. 14, paras. 25, 26; Hauschildt judgment of 24 May 1989, Series A no. 154, p. 21, para. 46; Thorgeir Thorgeirsson judgment of 25 June 1992, Series A no. 239, p. 23, para. 49; Fey judgment of 24 February 1993, Series A no. 255-A, p. 12, para. 28; Padovani judgment of 26 February 1993, Series A no. 257-B, p. 20, para. 25).   61.   As to the subjective test, the personal impartiality of a judge must be presumed until there is proof to the contrary (Padovani judgment, loc. cit., para. 26).   The applicant has not alleged that there was any personal bias on the part of the judges in question.   62.   Under the objective test, it must be determined whether, quite 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, as far as criminal proceedings are concerned, in the accused.   It follows that in deciding whether in a given case there is a legitimate reason to fear that a particular judge lacks impartiality, the opinion of the accused is important, but not decisive.   What is decisive is whether his fear can be regarded as objectively justified (cf. Hauschildt judgment, loc. cit., para. 48; Thorgeir Thorgeirsson judgment, loc. cit., para. 51, Fey judgment, loc. cit., para. 30; Padovani judgment, loc. cit., para. 27; Nortier judgment of 24 August 1993, Series A no. 267, p. 15, para. 33).   63.   According to the case-law on this question, there is no general rule resulting from the obligation to be impartial that a superior court which sets aside an administrative or judicial decision is bound to send the case back to a different jurisdictional authority or to a differently composed branch of that authority (Ringeisen judgment, loc. cit., p. 40, para. 97; Diennet v. France, Comm. Report 5.4.94, para. 49, to be published).   64.   Moreover, the mere fact that a judge has already taken some pre-trial measures, which only require a summary assessment of the available data in order to consider reasons of suspicion, does not justify fears as to his impartiality (Hauschildt judgment, loc. cit., p. 22, para. 50; Sainte-Marie judgment of 16 December 1992, Series A no. 253-A, p. 16, paras. 32-34; Fey judgment, loc. cit., paras. 31-33; Padovani judgment, loc. cit., pp. 20-21, para. 28; Nortier judgment, loc. cit., pp. 15-16, paras. 33-35).   65.   The fear of an accused was regarded objectively justified where a trial judge had previously held in the public prosecutor's department an office whose nature was such that he may have had to deal with the case (Eur. Court H.R., Piersack judgment of 1 October 1982, Series A no 53, p. 15, para. 31), or exercised the functions of an investigating judge with extensive powers and particularly detailed knowledge of the files (Eur. Court H.R., De Cubber judgment of 26 October 1984, Series A no. 86, pp. 15-16, paras. 29-30), or taken pre-trial decisions on the basis of legal provisions requiring a particularly confirmed suspicion (Hauschildt judgment, loc. cit., pp. 22-23, paras. 51).   66.   In the present case, the Basel-Stadt Criminal Court convicted the applicant of fraud, bankruptcy and book-keeping offences following a trial in his absence, which extended, according to the relevant provisions of the Basel-Stadt Code of Criminal Procedure, in particular to an examination of the file.   This judgment did not become final as the applicant successfully applied for a rehearing of his case with the effect that his conviction was set aside.   In the new proceedings in his presence, the same judges as in the proceedings in his absence were sitting again.   The Swiss courts dismissed his motion of challenge on the ground that, having regard to the particular features of these proceedings, the outcome of the second trial in his presence appeared open and there was thus no objectively justified suspicion of lack of impartiality.   The Federal Court, confirming this reasoning, also referred to a risk of abuse in that the accused could avoid judges whom he disliked by not appearing in court.   67.   When conducting the new trial against the applicant, Judges Metzener, Becht-Gutmann and Memminger were acquainted with his case, in particular with the investigation files, the evidence and the legal questions involved, and had, in his absence, come to a formal finding of guilt.   This kind of situation may have occasioned misgivings on the part of the applicant, which cannot, however, necessarily be treated as objectively justified.   68.   The Commission observes that, under the relevant provisions of the Basel-Stadt Code of Criminal Procedure and of other Swiss Codes of Criminal Procedure, if an accused cannot be brought before the court, the trial may be conducted against him in his absence, and a conviction be passed on the basis of the investigation files and after having heard the parties present, if the evidence is sufficient.   In order to make up for the disadvantages possibly suffered by the accused due to his absence, the convicted person is entitled to request a rehearing of his case in normal trial proceedings where he can then exercise his defence rights.   When the rehearing is granted, the accused's case is restored to the stage of the main proceedings in order to be freshly examined at a new trial in his presence.   69.   This legislation does not provide that the criminal court should not be composed of the judges who have previously dealt with it in the accused's absence.   Thus, as confirmed by the Federal Court in its detailed judgment of 2 May 1990, the impartiality of Judges Metzener, Becht-Gutmann and Memminger of the Basel-Stadt Criminal Court was not open to doubt under domestic law (cf., mutatis mutandis, Eur. Court H.R., Oberschlick judgment of 23 May 1991, Series A no. 204, p. 23, para. 50; Diennet, Comm. Report, loc. cit.).   70.   The Commission also recalls that the Contracting States enjoy a wide discretion as regards the choice of means calculated to ensure that their legal systems are in compliance with the requirements of Article 6 para. 1 (Art. 6-1) that a person who has been tried in his or her absence should be able to obtain a fresh determination of the merits of the charge (cf. Eur. Court H.R., Colozza judgment of 12 February 1985, Series A no. 89, pp. 15-16, paras. 29-30).   71.   The Basel-Stadt Code of Criminal Procedure, providing for the same judges to conduct the trial proceedings against an accused following a first conviction in his absence, pursues considerations of efficiency and also seeks to avoid that an accused has an undue influence on the determination of the judges competent in his case. The professional training and experience of the judges ensures that their findings in the context of the proceedings in the accused's absence would not predetermine their taking and evaluation of the evidence and appreciation of all relevant circumstances in the ensuing new examination of the charges in the accused's presence.   72.   In the present case, Judges Metzener, Becht-Gutmann and Memminger of the Basel-Stadt Criminal Court, when conducting the new trial in autumn 1990 in order to respect the applicant's right to take part in the hearing and to achieve a complete establishment of the relevant facts and debate of the underlying legal issues, were aware that their judgment of 17 May 1989 had had an incomplete basis.   In this context, the Commission notes the summary nature of the proceedings under S. 263 para. 1 of the Basel-Stadt Code of Criminal Procedure.   The course of the new trial and the judgment of 3 October 1990 do not confirm the apprehensions of the applicant that the judges concerned had not conscientiously started a fresh determination of the charges against him, in accordance with the principle of presumption of innocence under paragraph 2 of Article 6 (Art. 6-2).     73.   The Commission further observes that the applicant was assisted by an official defence counsel in the proceedings on the rehearing of his case, and he availed himself of the right to lodge an appeal against the judgment of 3 October 1990 with the Basel-Stadt Court of Appeal, which proceeded to a full hearing of his case (cf., mutatis mutandis, Eur. Court H.R., Nortier judgment, loc. cit., p. 16, para. 36; Belilos judgment of 29 April 1988, Series A no. 132, pp. 30-32, paras. 68-72 with further reference; Zumtobel judgment of 21 September 1993, Series A no. 268-A, pp. 13-14, paras. 29-32 with further reference).   74.   In these circumstances the applicant's fear that Judges Metzener, Becht-Gutmann and Memminger lacked impartiality cannot be regarded as objectively justified.        CONCLUSION   75.   The Commission concludes, by 20 votes to 4, that there has been no 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)                                                    (Or. English)       DISSENTING OPINION OF Mr. H. DANELIUS, Mrs. G.H. THUNE                      and Mr. L. LOUCAIDES        In our opinion, Article 6 para. 1 of the Convention has been violated in the present case for the following reasons.        The impartiality required by Article 6 para. 1 of the Convention implies that judges who decide in a criminal case must not have a preconceived view on the guilt of the accused.   A further requirement must be that the judges have not had such previous impressions or information about the matters in regard to which they are to adjudicate as to create a risk that they will be influenced, in the determination of the charges against the accused, by elements which should be irrelevant to that determination.   Moreover, since the condition of impartiality also has an objective side, Article 6 para. 1 must be considered to require that the circumstances should not be such as to give the accused a legitimate fear of such elements affecting the judgment in his case.        In the present case, it appears that the three judges who convicted the applicant on 3 October 1990 of professional, completed and attempted fraud, simple bankruptcy and breach of book-keeping obligations had already found him guilty of the same offences in a previous judgment of 17 May 1989.   This latter conviction had been preceded by a trial which had been held in the applicant's absence, whereas the second trial was held in his presence and with his participation.        We accept that the applicant's presence at the second trial changed the procedural situation considerably and that, after rehearing the case, the judges could well have been prepared to change their original opinions.   Nevertheless, it cannot be disregarded that the three judges had already evaluated the charges against the applicant in previous proceedings and had then found him guilty of certain offences and had sentenced him to a term of imprisonment.   We consider that, when the same judges again had to consider the same case against the applicant, there must have been at least a risk that they would be to some extent influenced by their impressions from the previous proceedings or by the deliberations which had taken place on that occasion.   The fear that the applicant had in this regard would thus seem to have been objectively justified.        Our opinion that in this respect there was a lack of impartiality within the meaning of Article 6 para. 1 of the Convention is supported by the position taken by the Court in the Hauschildt case where a judge who had taken pretrial decisions on detention on remand, based on the finding that there was a "particularly confirmed suspicion" against the accused person, was found not to be impartial when, subsequently, he conducted the trial against the accused (Eur. Court H.R., Hauschildt judgment of 24 May 1989, Series A no. 154).   Here too, the decision which the judge had taken was based on a much less complete material than that which was made available at the trial, but the Court nevertheless considered that the position taken by the judge in regard to the existence of the particular ground of detention was sufficient to create a legitimate doubt about his impartiality.        The further question arises whether the lack of impartiality at first instance was remedied by the fact that there was a full review of the applicant's conviction and sentence in the subsequent appeal proceedings.        We consider, however, that where criminal justice, as is often the case, is administered at two levels - at first instance and on appeal - it is not sufficient that the requirement of impartiality is satisfied at the appeal stage.   While various minor procedural deficiencies may well be remedied in appeal proceedings, the requirement of an impartial tribunal is of such a fundamental character that it should be satisfied already during the trial at first instance, this being in general an essential - and perhaps even the most important - part of the criminal proceedings against an accused person, in particular where - as would seem to have been the situation in the present case - the evidence in the case was not heard again by the court of appeal.   We also refer in this regard to the Court's finding in the De Cubber case (Eur. Court H.R., De Cubber judgment of 26 October 1984, Series A no. 86, p. 19, para. 33).        It follows that, in our view, the applicant did not have a hearing by an impartial tribunal.                                                    (Or. English)                DISSENTING OPINION OF Mrs. J. LIDDY        I agree generally with the opinion of Mr. Danelius, Mrs. Thune and Mr. Loucaides to the effect that Article 6 para. 1 has been violated, but wish to add a slight qualification to the statement that a requirement of Article 6 para. 1 "must be that the judges have not had such previous impressions or information about the matters in regard to which they are to adjudicate as to create a risk that they will be influenced, in the determination of the charges against the accused, by elements which should be irrelevant to that determination".        I would qualify that requirement by the words "to the extent feasible".   It appears to me that unavoidable circumstances may arise where a judge has had some impression of the personalities, issues or events involved.   This could arise, for example, where the highest court in the land is seized of a private dispute to which a judicial colleague or well-known counsel is party, or where the resolution of the dispute between any parties may have financial repercussions or implications for judges' own salary or pension rights, or where there has been massive daily press, television and radio coverage of the events, personalities or issues involved which no court could be expected to remain ignorant of.   It seems to me that the reality is that both in big countries and in small countries unavoidable circumstances may arise whereby, unless the parties are to be deprived of their right to a determination of the issue, confidence must be placed in the discipline of judges to set aside extraneous and unproved information or comment to which they have been exposed.        No such insurmountable difficulties or outside influences arose in the present case.   Here, the judges who convicted the applicant on 3 October 1990 had already been called upon to formulate and express their own professional opinions - indeed, formal findings - on the question of the innocence or guilt of the applicant, a situation to be distinguished from one of unavoidable exposure to others' opinions. The applicant could objectively fear that the judges were not impartial.   Accordingly, I voted for a violation of Article 6 para. 1.                             APPENDIX I                     HISTORY OF THE PROCEEDINGS   Date                      Item _________________________________________________________________   5 December 1990           Introduction of application   7 January 1991            Registration of application   Examination of admissibility   13 October 1993           Commission's decision (First Chamber) to                          communicate the case to the respondent                          Government and to invite the parties to                          submit observations on admissibility and                          merits   7 January 1994            Government's observations   8 March 1994              Applicant's observations in reply   17 May 1994               Commission's decision not to grant legal                          aid   30 August 1994            Transfer of the case to plenary Commission   5 September 1994          Commission's decision to declare                          application admissible   Examination of the merits   12 September 1994         Decision on admissibility transmitted to                          parties. Invitation to parties to submit                          further observations on the merits   28 October 1994           Applicant's observations   31 October 1994           Government's observations   14 January 1995           Commission's consideration of state of                          proceedings   21 February 1995          Commission's deliberations on the merits,                          final vote and consideration of text of                          the Report   2 March 1995              Adoption of Report