CEDH · CASELAW;CLIN;ENG — 25 février 1992

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Austria - 10802/84 Judgment 25.2.1992 Article 6 Article 6-1 Impartial tribunal Two Regional Court judges exercising investigative and judicial functions in turn in same criminal proceedings: violation Article 8 Article 8-1 Respect for correspondence violation [This summary is extracted from the Court’s official reports (Series A or Reports of Judgments and Decisions). Its formatting and structure may therefore differ from the Case-Law Information Note summaries.] I.   ARTICLE 6 § 1 OF THE CONVENTION A.   Government’s preliminary objection Objection of failure to exhaust domestic remedies, in respect of first applicant’s complaint under Article   6. Whether Court had jurisdiction: yes (eight votes to one) – well established case-law and no estoppel. Merits of objection: objection joined to merits of case (unanimously), because linked to validity of applicant’s waiver of his right to challenge judges. B.   Merits of the complaint Composition of Regional Court – complaints that tribunal not “impartial” and not “established by law” coincided in substance in this case – rule of national law disqualifying judge from sitting if previously involved with case as investigating judge – non-observance here and hence doubt as to impartiality of tribunal from point of view of national law itself – no need to determine precise role played by two judges in question during investigative stage. Applicant’s waiver: in so far as permissible, waiver of a right guaranteed by the convention must be established in a non-equivocal manner and requires minimum guarantees – no provision of Austrian law allowing for express waiver of right to be tried by a court whose composition is in accordance with the laws, or regulating procedure to be followed for this purpose – waiver in issue not effective, given the surrounding circumstances. Conclusion : objection dismissed and violation (unanimously). II.   ARTICLE 8 OF THE CONVENTION A.   Government’s preliminary objection Objection of failure to exhaust domestic remedies with respect to first applicant only – measure in issue affecting both applicants at the same time – second applicant having undeniably exhausted domestic remedies without success: pointless to enquire whether first applicant also did so. Conclusion : no need to examine objection (unanimously). B.   Merits of the complaint Deletion of certain passages in letter: undisputed interference with both applicants’ right to respect for their correspondence. Measure in accordance with the law and pursuing legitimate aims: protection of rights of others and prevention of crime. Whether interference necessary – some measure of control over prisoners’ correspondence compatible with Convention but must not exceed what is required by legitimate aims pursued – private letter containing strong expressions, but which only addressee and investigating judge should have read – interference in question less serious than stopping of letter but still disproportionate in the circumstances. Conclusion : violation (unanimously). III.   ARTICLE 50 OF THE CONVENTION A.   Non-pecuniary damage: no causal link between violations of Articles   6 and 8 and conditions of detention – both applicants’ claims dismissed. B.   Costs and expenses Reimbursement on equitable basis of costs incurred before national courts and Convention institutions. Conclusion : respondent State to pay specified sums to applicants for costs and expenses (unanimously).   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. 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