CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 6 décembre 1993

.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 }                          AS TO THE ADMISSIBILITY OF                         Application No. 20577/92                       by G.S.                       against Austria         The European Commission of Human Rights sitting in private on 6 December 1993, the following members being present:              MM.    C.A. NØRGAARD, President                  S. TRECHSEL                  A. WEITZEL                  E. BUSUTTIL                  G. JÖRUNDSSON                  A.S. GÖZÜBÜYÜK                  J.-C. SOYER                  H.G. SCHERMERS                  H. DANELIUS            Mrs.   G.H. THUNE            MM.    F. MARTINEZ            Mrs.   J. LIDDY            MM.    L. LOUCAIDES                  M.P. PELLONPÄÄ                  B. MARXER                  G.B. REFFI                  M.A. NOWICKI                  I. CABRAL BARRETO                  B. CONFORTI                  N. BRATZA         Mr.   H.C. KRÜGER, Secretary to the Commission         Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;         Having regard to the application introduced on 28 August 1993 by G.S. against Austria and registered on 3 September 1993 under file No. 20577/92;         Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;         Having regard to :   -      the Commission's decision of 8 January 1993 to communicate the       application;   -      the observations submitted by the respondent Government on 27       April 1993 and the observations in reply submitted by the       applicant on 18 May 1993;         Having deliberated;         Decides as follows:   THE FACTS         The applicant is an Austrian citizen born in 1949 and living in St. Pölten.   He is represented by Mr. S. T. Gloß, a lawyer practising in St. Pölten.         It follows from the applicant's statements and the documents submitted that the applicant was indicted before the Regional Court (Landesgericht) of St. Pölten for having inflicted on 6 September 1990 grievous bodily harm upon his wife.   The trial was presided over by Judge B.   At a hearing on 11 January 1991 the applicant pleaded not guilty.   His wife invoked her right not to give evidence.   Dr. F. who had examined her at the relevant time was heard as witness.   Judge B. decided at the request of defense counsel that medical expert opinion should be obtained to determine the seriousness of the injury.   The expert opinion was submitted on 3 May 1991.   It follows from the expert opinion that the expert had not only been asked to comment on the scale of seriousness of the applicant's wife's injury but also on its possible causes.         According to the expert the injury in question was of a trifling nature and had been caused by another person who slapped the victim with the flat of his hand on her ear.         Subsequently the case was at the request of the Public Prosecution referred to the District Court (Bezirksgericht), because the injuries caused to the applicant's wife were considered, in the light of the expert opinion, not to be serious enough to constitute grievous bodily harm.         On 13 August 1991 the applicant was acquitted by the District Court which found the applicant's wife had to be treated until 13 September 1990 in a hospital; according to the medical report her eardrum had been perforated and she showed signs of strangulation as well as bruises on her chest.   However, as the wife refused to give evidence, the court considered that there was insufficient proof to show that the applicant had caused his wife's injuries, given that he himself denied the facts.         On appeal by the public prosecution the applicant was convicted on 2 March 1992 by the Regional Court of St. Pölten of having caused bodily harm.   A fine of 40 day rates in the amount of AS 450 per day was imposed on the applicant.   The Regional Court considered that it followed from a medical expert opinion that the perforation of the applicant's wife's eardrum had been caused by a slap on the ear. Furthermore the court considered the evidence given by two medical doctors who had examined the applicant's wife after the events and whom the wife had told that she had been beaten by her husband. Furthermore there were no circumstances indicating that the applicant's wife could have been beaten by another person.   In the court's opinion it was unlikely that the applicant's wife had lied to the medical doctors and slandered her husband considering that later she made use of her right not to give evidence against him.         The applicant unsuccessfully tried to challenge Judge B. who acted as Rapporteur in the appeal proceedings.   COMPLAINTS         The applicant complains that Judge B. who had already presided over his first trial before the Regional Court also participated as judge in the appeal proceedings which led to his conviction.   Even though the charges were not eventually determined in the first trial before the Regional Court, evidence had been taken and the applicant therefore considers that Judge B. was biased when he participated in the appeal proceedings.   PROCEEDINGS         The application was introduced on 25 August 1992 and registered on 3 September 1992.         On 8 January 1993 the Commission decided to communicate the application to the respondent Government and invite them to submit written observations on the admissibility and merits of the application.         The Government's observations were received by letter dated 27 April 1993 and the applicant's observations were dated 18 May 1993.   THE LAW         The applicant has complained that his appeal against conviction and sentence was decided by a panel of judges of the Regional Court in which Judge B. participated.   He considers that Judge B. was biased because he had initially presided over his trial which was first opened before the Regional Court.   After certain evidence had been taken his case was referred to the District Court, as a medical expert opinion had shown that the bodily harm which the applicant was accused of having inflicted on his wife was not sufficiently serious to require a trial before the Regional Court.         The existence of impartiality for the purposes of Article 6 para. 1 (Art. 6-1) of the Convention 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 (Eur. Court H.R., Fey judgment of 24 February 1993, Series A no. 255, para. 28).         As to the subjective test, the applicant did not dispute the personal impartiality of Judge B.         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 are of 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.   This implies that in deciding whether in a given case there is a legitimate reason to fear that a particular judge lacks impartiality, the standpoint of the accused is important but not decisive.   What remains to be determined is whether this fear can be held to be objectively justified (ibid., para. 30).         In this regard, the Court has continuously held that the mere fact that a judge has also made pre-trial decisions in the case cannot be taken as in itself justifying fears as to his impartiality (see Hauschildt judgment of 24 May 1989, Series A no. 154, p. 22, para. 50).         Contrary to the facts of the present case the judgments referred to related to pre-trial decisions taken by a judge who later decided on the merits. However, the principles established in these judgments also apply, mutatis mutandis, to any kind of decision taken by a judge in the course of criminal proceedings prior to his being called upon to determine whether the charges in question are well founded or not.         The applicant points out that Judge B. when initially presiding over the trial took evidence by hearing the applicant himself, the applicant's wife (who refused to give evidence) and Dr. F. who had examined the alleged victim after the events.         The applicant argues that by ordering an expert opinion on the degree of seriousness of the victim's injuries, Judge B. must have proceeded on the basis that in any event the applicant was guilty of having caused bodily harm to his wife because if he had not already formed an opinion he would have had to acquit him immediately after the hearing of the witness.         The Commission notes that it follows from the medical expert opinion submitted on 3 May 1991 that the expert was asked to comment not only on the seriousness of the injuries to the applicant's wife but also on their possible causes.         It can in these circumstances not be found that Judge B. took, at the initial phase of the trial, any action or decision that could imply, from an objective point of view, the supposition that he had already made up his mind about the applicant's guilt.   Rather, the judge in question seemed to have doubts as to the causes of the victim's injuries and these doubts were part of the reasons why he ordered an expert opinion to be established.   After the expert opinion had been submitted he abandoned jurisdiction before determining the criminal charge laid against the applicant.   In the light of the foregoing the Commission does not find that the applicant's fears as to Judge B.'s impartiality can be held to be effectively justified.         It follows that there is no appearance of a violation of Article 6 (Art. 6) of the Convention and the application therefore has to be rejected in accordance with Article 27 para. 2 (Art. 27-2) of the Convention as being manifestly ill-founded.         For these reasons, the Commission, by a majority         DECLARES THE APPLICATION INADMISSIBLE.   Secretary to the Commission          President of the Commission         (H.C. KRÜGER)                       (C.A. NØRGAARD)