HAUSCHILDT v. DENMARK

European Commission of Human Rights

 

Application No. 10486/83

 

Mogens HAUSCHILDT

 

against

 

DENMARK

 

REPORT OF THE COMMISSION

 

(adopted on 16 July 1987)

 

TABLE OF CONTENTS

 

                                                         Page

I.              INTRODUCTION

                (paras. 1-17)..........................   1

 

        A.      The application

                (paras. 2-4) ..........................   1

 

        B.      The proceedings

                (paras. 5-12) .........................   1

 

        C.      The present report

                (paras. 13-17) ........................   2

 

 

II.             ESTABLISHMENT OF THE FACTS

                (paras. 18-42) ........................   4

 

        A.      The particular facts of the case

                (paras. 18-38) ........................   4

 

        B.      Relevant domestic law

                (paras. 39-42).........................   9

 

 

III.            SUBMISSIONS OF THE PARTIES

                (paras. 43-89) ........................  12

 

        A.      The applicant

                (paras. 44-70) ........................  12

 

        B.      The Government

                (paras. 71-89) ........................  17

 

IV.             OPINION OF THE COMMISSION

                (paras. 90-115) .......................  21

 

        A.      Point at issue

                (para. 90) ............................  21

 

        B.      Article 6 of the Convention

                (paras. 91-115) .......................  21

 

Dissenting opinion of Mr.  Vandenberghe, joined by

MM. Ermacora, Tenekides, Kiernan,

Gözübüyük, Weitzel and Batliner........................  26

 

APPENDIX I      History of the proceedings before

                the Commission ........................  30

 

APPENDIX II     Decision on the admissibility of

                the application .......................  31

 

 

 

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, Mogens Hauschildt, is a Danish citizen born in

1941.  He resides in  Switzerland.  Before the Commission he is

represented by Mr.  Geoffrey Robertson, a lawyer practising in London.

 

3.      The Government of Denmark are represented by their Agent,

Mr.  Tyge Lehmann, Ministry of Foreign Affairs.

 

4.      The case concerns the proceedings relating to criminal charges

for economic offences brought against the applicant.  The applicant

was arrested on 31 January 1980 and detained on remand.  His detention

on remand was prolonged at regular intervals and he remained in

detention on remand until his release after the judgment of the High

Court for Eastern Denmark (Østre Landsret) on 2 March 1984.  The

applicant complained to the Commission that before convicting him the

presiding judge of the Copenhagen City Court (Københavns Byret) and

the judges of the High Court had taken numerous decisions as to his

continued detention on remand, both before and during the trial before

the City Court and the appeal proceedings in the High Court, as well as

a number of other decisions regarding the evidence to be collected

during the investigation of the case (commissions rogatory).  The

applicant contends therefore that these courts could not be considered

to be impartial within the meaning of Article 6 of the Convention when

deciding on his guilt.

 

B.      The proceedings

 

5.      As far as the complaint relating to Article 6 of the

Convention is concerned, the application was introduced on 27 October

1982 and it was registered on 18 July 1983.  The Commission considered

the application on 7 December 1983 and on 7 March 1985 and decided on

the latter date to give notice of the application to the respondent

Government in accordance with Rule 42 para. 2 (b) of its Rules of

Procedure and to invite them to present before 24 May 1985 their

observations in writing on the admissibility and merits of the

application.

 

6.      On 11 May 1985 the Commission extended the time-limit for

the submission of the Government's observations until 24 July 1985.

The Government's observations were submitted on 24 July 1985.

 

7.      The applicant was invited to submit his observations in reply

before 11 October 1985.  Having been granted an extension of the

time-limit until 18 November 1985 the applicant submitted his

observations on 17 November 1985.

 

8.      On 4 March 1986 the Commission decided to invite the parties

to appear before it at a hearing on the admissibility and merits of

the application.

 

9.      The hearing took place on 9 October 1986.  The applicant, who

was present himself, was represented by Mr.  Geoffrey Robertson,

barrister, as counsel, by Mr.  Folmer Reindel, advocate, as adviser,

and by his wife Mary Hauschildt as assistant.  The Government were

represented by Mr.  Tyge Lehmann of the Ministry for Foreign Affairs

as agent, Mr.  John Bernhard of the Ministry of Foreign Affairs as

adviser, Mr.  Bo Vesterdorf of the Ministry of Justice as counsel,

Mr.  Michael Elmer of the Ministry of Justice as adviser and

Ms.  Charlotte Schydt of the Ministry of Justice as adviser.

 

10.     Following the hearing, the Commission declared admissible the

applicant's complaint under Article 6 para. 1 of the Convention

that his case was not heard by an impartial tribunal.  The remainder of

the applicant's complaints was declared inadmissible.

 

11.     The parties were then invited to submit any additional

observations on the merits of the case which they wished to make.

No further observations on the merits of the case were received

from the Government.  The applicant submitted additional observations

on 9 March 1987, a copy of which was transmitted to the Government.

 

12.     After declaring the case admissible the Commission, acting

in accordance with Article 28 (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 13 October 1986 and 28 January 1987.  In the light of the

parties' reactions, the Commission now finds that there is no basis

upon which such a settlement can be effected.

 

C.      The present Report

 

13.     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.G. SPERDUTI Acting President

                  C. A. NØRGAARD

                  J. A. FROWEIN

                  F. ERMACORA

                  G. JÖRUNDSSON

                  G. TENEKIDES

                  S. TRECHSEL

                  B. KIERNAN

                  A. S. GÖZÜBÜYÜK

                  A. WEITZEL

                  H. G. SCHERMERS

                  H. DANELIUS

                  G. BATLINER

                  H. VANDENBERGHE

             Mrs.  G. H. THUNE

             M.   F. MARTINEZ

 

 

14.     The text of this Report was adopted on 16 July 1987 and is now

transmitted to the Committee of Ministers of the Council of Europe in

accordance with Article 31 para. 2 of the Convention.

 

15.     The purpose of this report, pursuant to Article 31 para. 1 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.

 

16.     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.

 

17.     The full text of the pleadings of the parties, together with

the documents lodged as exhibits, are held in the archives of the

Commission.

 

 

II.   ESTABLISHMENT OF THE FACTS

 

 

A.      The particular facts of the case

 

18.     In 1974 the applicant established a company, Scandinavian

Capital Exchange APS (SCE), which acted as bullion dealer and

furthermore provided various financial services.  SCE became the

largest bullion dealer in Scandinavia with associated companies in

Sweden, Norway, the Netherlands, England and Switzerland.

 

19.     Over the years, until the end of 1979, difficulties arose

between SCE and the applicant, who was the managing director, and the

Danish National Bank, the Revenue Service and the Ministry of Trade

concerning the flow of money to and from SCE and its associated

companies abroad.

 

20.     On 30 January 1980 the Internal Revenue Service forwarded a

complaint to the police in which it was stated that the activities of

the applicant and SCE seemed to involve violations of the Danish Tax

Laws and the Penal Code.  After obtaining a court order the police

then arrested the applicant on 31 January 1980, seized all available

documents in SCE and closed the company.

 

21.     The applicant's arrest on 31 January 1980 was based in

particular on a report of the Internal Revenue Service of 13 January

1980 indicating possible violations of the Danish Tax Laws and the

Penal Code.  Besides arresting the applicant and closing SCE the

police also seized a substantial number of documents, not only from

SCE's offices, but also from various persons involved.  During the

period of the investigation, the police seized further documents and

property and also carried out investigations in England, the

Netherlands, Belgium, Switzerland, Liechtenstein and the USA.  From

30 January 1980 until the trial started on 27 April 1981 the judge

of the Copenhagen City Court (Københavns Byret) decided on several

occasions to request the co-operation of other countries in securing

documents as well as in other matters.  Insofar as the co-operation

concerned European countries, the requests were made in accordance

with the European Convention on Mutual Assistance in Criminal Matters

of 20 April 1959.

 

22.     The indictment was served upon the applicant on 4 February

1981.  He was charged with fraud and embezzlement on eight counts

involving approximately 45 million Danish crowns.  The trial commenced

before the Copenhagen City Court sitting with one professional judge

and two lay judges on 27 April 1981.  After approximately 130 court

sessions the City Court gave judgment in the case on 1 November 1982,

finding the applicant guilty on all counts.  He was sentenced to a

total of seven years' imprisonment.

 

23.     The applicant appealed against the judgment to the High Court

of Eastern Denmark (Østre Landsret).  The appeal would be heard at a

full hearing during which the Court sitting with three professional

judges and three lay judges would consider both points of fact and

law.  The hearing of the appeal was scheduled to commence on

9 May 1983 but at the request of the defence it was postponed until

15 August 1983.  After approximately 60 court sessions the High

Court found the applicant guilty on six of the eight counts in

question on 2 March 1984.  As a reason for the five year prison

sentence imposed, the Court considered as an aggravating circumstance

the extensive character of the fraud committed.  On the other hand the

Court found extenuating circumstances in the fact that the applicant

had been detained on remand since 31 January 1980, a detention that

was considered harsher than regular imprisonment.  The applicant was

released on the same day.

 

24.     The applicant's subsequent application for leave to appeal

to the Supreme Court (Højesteret) was rejected by the Ministry of

Justice on 4 May 1984.

 

25.     With regard to the applicant's detention on remand he was, as

mentioned above, arrested on 31 January 1980.  On the following day,

1 February 1980, the applicant was brought before a judge of the

Copenhagen City Court and charged with fraud and tax evasion.  It was

decided to keep the applicant under arrest for 3 x 24 hours.  There

were no objections.

 

26.     The applicant was kept in detention on remand without

interruption until his trial and during the trial which started before

the City Court on 27 April 1981.

 

27.     On 2 February 1980 the City Court judge heard the prosecution

and the defence concerning the question of continued detention on

remand.  In pursuance of Section 762 sub-section 1 Nos. 1 and 3 of the

Administration of Justice Act (retsplejeloven) the City Court judge

decided to detain the applicant on remand since he found reason to

believe that the applicant, if at large, would abscond or impede the

investigation.  In his decision the City Court judge indicated

the following elements as a justification for the detention:

 

1.      The fact that the applicant had lived outside Denmark

        until 1976 and that by the time of his arrest he had

        plans to move to Sweden.

 

2.      The applicant's economic interests abroad.

 

3.      The importance of the case.

 

4.      The risks of his obstructing the investigation by

        influencing persons in Denmark and abroad.

 

28.     The above elements remained, until 10 April 1980, the reasons

for the applicant's continued detention which according to Section 767

of the Administration of Justice Act was under constant judicial control

with maximum intervals of four weeks.  During the period of the

applicant's arrest until 10 April 1980 the applicant secretly

communicated with his wife and asked her to remove money from certain

bank accounts as well as certain personal property.  For that reason,

the judge Claus Larsen sitting in the Copenhagen City Court, in his

decision of 10 April 1980, also invoked Section 762 sub-section 1 No. 2

as a reason for the continued detention of the applicant.  Deciding

on an appeal against detention the High Court finally, on

5 September 1980, also referred to Section 762 sub-section 2 since the

investigations carried out by the police at that time indicated a

possible loss for the injured parties of approximately 19.5 million

Danish crowns.  The applicant's detention on remand continued on the

basis of the said provisions until his conviction by the City Court on

1 November 1982.  On 17 August 1982, however, Section 762 sub-section

1 No. 3 was no longer invoked.

 

29.     As from the day of the applicant's arrest on 31 January 1980

and until the trial started in the Copenhagen City Court on 27 April

1981 the continuing police investigations as well as the continuing

detention on remand of the applicant on several occasions required

decisions to be taken by the City Court sitting with one professional

judge.  In addition to the initial court session on 30 January 1980,

which preceded the applicant's arrest, a total of approximately 40

court sessions were held in the Copenhagen City Court during the

period before the trial started.  On a total of 20 occasions the City

Court judge was requested to decide on the question of prolongation of

the detention on remand.  During the above period (31 January 1980 to

27 April 1981) the applicant was placed in solitary confinement from

his arrest until 27 August 1980, and the decisions as to the detention

on remand therefore also concerned the question of solitary

confinement.  Out of the 20 decisions on detention on remand, 15

decisions were taken by judge Claus Larsen who later became the

presiding judge in the applicant's trial before the Copenhagen City

Court.  These 15 decisions were taken on the following dates:

 

10 April, 30 April, 28 May, 25 June, 20 August, 27 August,

24 September, 15 October, 12 November, 3 December and 10 December 1980

and 4 February, 25 February, 11 March and 8 April 1981.

 

In five of these decisions (10 April, 30 April, 28 May, 25 June and

20 August) judge Claus Larsen also decided to prolong the applicant's

solitary confinement.  On one further occasion (27 August 1980) judge

Larsen decided to terminate the applicant's solitary confinement.

 

30.     On three occasions (5 March, 16 June and 13 August 1980) the

City Court decided, upon applications by the investigating police, to

request the co-operation of other countries in securing documents and

in other matters.  As mentioned above several of these requests were

made in accordance with the European Convention on Mutual Assistance

in Criminal Matters of 20 April 1959.  Two of these decisions to

request the co-operation of other countries were taken by judge Claus

Larsen (16 June and 13 August 1980).

 

31.    During the above investigation period before the commencement

of the applicant's trial the City Court judge was furthermore

requested to decide on a number of other procedural matters such as

the seizure of the applicant's property and documents, his contacts

with the press, access to police reports, visits in prison, payments

of defence counsel fees and the applicant's possibilities of

corresponding with the outside world.  In this respect judge Claus

Larsen, in connection with a decision of 30 April 1980 to detain the

applicant's wife on remand, also decided to stop a letter written by

the applicant.  On 28 May 1980 he stopped another letter written by

the applicant.  On 12 November 1980 judge Claus Larsen decided to

seize a certain amount of money which allegedly belonged to the

applicant.  On 4 February 1981 he decided on a change of defence

counsel and finally on 11 March 1981 he decided about the applicant's

access to certain parts of the police files.  All decisions were taken

either at the request of the prosecutor or the applicant's defence

counsel.

 

32.     On several occasions before the commencement of the trial the

applicant brought the decisions taken by the City Court judge before

the High Court sitting as an appeal court with three professional

judges.  On five occasions the High Court was called upon to examine

such appeals regarding the applicant's continued detention on remand.

Altogether 13 different judges participated in these five decisions and

none of these judges did subsequently participate in the applicant's

appeal proceedings regarding conviction and sentence before the High

Court.  On appeal the High Court was likewise requested to decide on

other procedural matters such as the applicant's contact with the

press and visits by his family.  A total of six different judges

participated in these decisions and none of them participated at a

later stage in the hearing of the applicant's appeal against

conviction and sentence before the High Court.

 

33.     During the applicant's trial, which commenced on 27 April

1981 and ended on 1 November 1982, the Copenhagen City Court, sitting

with one professional judge, judge Claus Larsen, and two lay judges,

was also requested to decide on a number of procedural matters.

During approximately 130 court sessions the City Court decided 23

times to prolong the applicant's detention on remand.  Except on two

occasions, all these decisions were taken by the presiding judge, judge

Claus Larsen, and on four occasions he was joined by the two lay

judges.  On five occasions the presiding judge decided to request the

co-operation of other countries in securing documents and in other

matters, and decisions as to the seizure of documents, payment of

defence counsel fees, travel expenses, submission of evidence and the

hearing of witnesses were also taken by the City Court.

 

34.     While the trial was going on before the City Court, a number

of appeals against decisions taken by that Court were brought before the

High Court.  As a result of such appeals, decisions on the

applicant's continued detention on remand, as well as on other

procedural matters, were taken by the High Court sitting as an appeal

court with three professional judges in a total of 19 decisions.  On

12 occasions the High Court upheld the decision concerning the

continued detention on remand and 14 different judges participated in

these decisions.  None of these judges subsequently participated in

the hearing of the applicant's appeal against conviction and sentence

before the High Court.  Furthermore the High Court was requested to

decide on a number of other procedural matters such as the appointment

of defence counsel, the hearing of further witnesses, the issue of

search warrants, the question of solitary confinement and travel

expenses for the defence counsel.  A total of 12 different High Court

judges participated in these decisions.  On one occasion, on 14 July

1981, the question of the continuation of the applicant's solitary

confinement was decided by the judges Stürup, Hvidberg and

Brydensholt.  Judge Brydensholt later participated in the hearing in

the High Court of the applicant's appeal against the judgment.

 

35.     After the applicant had appealed against the judgment to the

High Court, he was under Danish law still considered to be detained on

remand and the High Court accordingly had to decide on the detention

question at least every four weeks.  By the time judgment was

pronounced the High Court had taken 19 decisions to that effect.  Ten

of these decisions were taken before the hearing of the applicant's

appeal in the High Court started whereas the remaining nine were taken

during that hearing which ended on 2 March 1984.  Except on a few

occasions all decisions concerning detention on remand were taken by

the same judges as decided on the appeal.  Insofar as the decisions

were taken during the appeal hearing the professional judges were

joined by three lay judges.  As from 25 August 1983 and until

8 February 1984 the decisions concerning the continued detention on

remand were taken by a vote of five to one.  As from 9 February 1984

and until the applicant's release on 2 March 1984 the decisions were

taken by a vote of four to two.

 

36.     As a reason for detaining the applicant during the appeal

proceedings, the High Court referred to Section 762 sub-section 1 No.

1 and sub-section 2 of the Administration of Justice Act.  The Court

attached particular importance to the severity of the charges and to

the fact that the applicant had lived abroad and still had substantial

economic interests abroad.  The applicant obtained permission from the

Ministry of Justice to bring the question of his continued detention

on remand before the Supreme Court.  On 26 January 1983 the Supreme

Court upheld the decision of the High Court while considering that the

detention should also be based on Section 762 sub-section 1 No. 2

since some of the offences for which the applicant had been convicted

by the City Court had been committed during the applicant's detention

on remand.  After the applicant had again been allowed by the Ministry

of Justice to bring the matter of his detention on remand before the

Supreme Court, that Court decided, on 9 December 1983, that the

detention should continue but be based only on Section 762

sub-section 1 Nos. 1 and 2 of the Administration of Justice Act, since

the majority of the Supreme Court no longer found that the public

interest would require that the applicant remained in detention.

 

37.     During a total of approximately 60 court sessions in the High

Court, the Court had to deal with a number of other procedural matters

such as the impartiality of the presiding judge, the hearing of

witnesses and defence counsel fees.  All decisions were taken by the

judges who decided on the appeal.

 

38.     On appeal from the High Court, the Supreme Court upheld, as

mentioned above, the decisions concerning detention on remand on two

occasions and four appeals were declared inadmissible since leave to

appeal had not been granted by the Ministry of Justice.

 

B.      Relevant domestic law

 

39.     The Administration of Justice Act

 

 

"§742.  Anmeldelser om strafbare forhold indgives til

politiet.

Stk. 2.  Politiet iværksætter efter anmeldelse eller

af egen drift efterforskning, når der er rimelig formodning

om, at et strafbart forhold, som forfølges af det

offentlige, er begået.

 

§743.  Efterforskningen har til formål at klarlægge, om

betingelserne for at pålægge strafansvar eller anden

strafferetlig retsfølge er til stede, og at tilvejebringe

oplysninger til brug for sagens afgørelse samt forberede

sagens behandling ved retten."

 

Translation:

 

"Section 742.  Information about criminal offences shall be

submitted to the police.

(2) The police shall start an investigation either on the basis

of such information or on its own initiative where there is a

reasonable ground for believing that a criminal offence which

is subject to public prosecution has been committed.

 

Section 743.  The aim of the investigation is to clarify whether

the requirements for establishing criminal responsibility or for

imposing any other sanction under criminal law are fulfilled and

to produce information to be used in the determination of the

case as well as to prepare the case for trial."

 

***

 

40.     "§746.  Retten afgør tvistigheder om lovligheden af

politiets efterforskningsskridt samt om sigtedes og

forsvarerens beføjelser, herunder om begæringer fra

forsvareren eller sigtede om foretagelsen af yderligere

efterforskningsskridt.  Afgørelsen træffes på begæring ved

kendelse."

 

Translation:

 

"Section 746.  The court settles disputes concerning the

lawfulness of measures of investigation taken by the police as

well as concerning the rights of the suspect and the defence

counsel, including requests from the defence counsel or the

suspect concerning the carrying out of further investigation

measures.  The decision shall be taken on request by order of

the court."

***

 

41.     "§760.  Enhver, der anholdes, skal løslades, så snart

begrundelsen for anholdelse ikke længere er til stede.

Tidspunktet for løsladelsen skal fremgå af rapporten.

 

Stk. 2.  Inden 24 timer efter anholdelsen skal den

anholdte, der ikke forinden er løsladt, fremstilles for en

dommer.  Tidspunktet for anholdelsen og for fremstillingen i

retten anføres i retsbogen."

 

Translation:

 

"Section 760.  Any person who is taken into custody

shall be released as soon as the reason for the arrest is no

longer present.  The time of his release shall appear in the

report.

 

(2)  Where the person taken into custody has not been

released at an earlier stage he shall be brought before a

judge within 24 hours after his arrest.  The time of his

arrest and of his appearance in court shall appear in the

court transcript."

 

***

 

 

42.     "§762.  En sigtet kan varetægtsfængsles, når der er

begrundet mistanke om, at han har begået en lovovertrædelse,

som er undergivet offentlig påtale, såfremt

lovovertrædelsen efter loven kan medføre fængsel i 1 år og

6 måneder eller derover, og

 

1) der efter det om sigtedes forhold oplyste er bestemte

   grunde til at antage, at han vil unddrage sig

   forfølgningen eller fuldbyrdelsen, eller

 

2) der efter det om sigtedes forhold oplyste er bestemte

   grunde til at frygte, at han på fri fod vil begå ny

   lovovertrædelse af den foran nævnte beskaffenhed, eller

 

3) der efter sagens omstændigheder er bestemte grunde til

   at antage, at sigtede vil vanskeliggøre forfølgningen i

   sagen, navnlig ved at fjerne spor eller advare eller

   påvirke andre.

 

Stk. 2.  En sigtet kan endvidere varetægtsfængsles, når der

foreligger en særlig bestyrket mistanke om, at han har

begået en lovovertrædelse, som er undergivet offentlig

påtale, og som efter loven kan medføre fængsel i 6 år eller

derover, og hensynet til retshåndhævelsen efter

oplysningerne om forholdets grovhed skønnes at kræve, at

sigtede ikke er på fri fod.

 

Stk. 3.  Varetægtsfængsling kan ikke anvendes, hvis

lovovertrædelsen kan ventes at ville medføre straf af bøde

eller hæfte, eller hvis frihedsberøvelsen vil stå i

misforhold til den herved forvoldte forstyrrelse af sigtedes

forhold, sagens betydning og den retsfølge, som kan ventes,

hvis sigtede findes skyldig."

 

Translation:

 

"A suspect may be detained on remand when there is a

justified reason to believe that he has committed an offence

which is subject to public prosecution provided the offence

under the law may result in imprisonment for 1 year and 6

months or more and if

 

1) according to information received concerning the

   suspect's situation there is specific reason to believe

   that he will evade prosecution or execution of judgment

   or,

 

2) according to information received concerning the

   suspect's situation there is specific reason to fear that,

   if at large, he will commit a new offence of the nature

   described above or,

 

3) in  view of the circumstances of the case there is

   specific reason to believe that the suspect will impede

   the investigation in particular by removing evidence or by

   warning or influencing others.

 

(2) A suspect may furthermore be detained on remand when

there is a particular confirmed suspicion that he has

committed an offence which is subject to public prosecution

and which under the law may result in imprisonment for 6

years or more and when respect for the public interest

according to the information received about the gravity of

the case is assessed to require that the suspect is not at

liberty.

 

(3) Detention on remand may not be imposed if the offence can

be expected to result in a fine or in light imprisonment or

if the deprivation of liberty will be disproportionate to

the interference with the suspect's situation, the

importance of the case and the outcome expected if the

suspect is found guilty."

 

III.  SUBMISSIONS OF THE PARTIES

 

43.     The following is a summary of the parties' main arguments

submitted on the merits at the admissibility stage and during the

examination of the merits.

 

A.      The applicant

 

44.     In regard to the question whether the involvement of the trial

judges in deciding certain preliminary issues affected their

impartiality, when participating in the trial itself, the facts of the

present case show that the presiding judge at the applicant's trial

in the City Court decided on a substantial number of occasions both

prior to the trial and during the trial to prolong the applicant's

detention on remand.  In addition he decided on the question of

solitary confinement, on issues concerning co-operation with a

number of other countries in obtaining material alleged to help

the Government of Denmark prove the guilt of the applicant.

Furthermore he made orders before the trial began stopping

correspondence by the applicant, approving the censorship of his

letters, ordering his wife to be taken into custody and ordering the

seizure of papers and documents.  It is contended by the applicant that

these prior judicial involvements affected the fairness of the

proceedings and the impartiality of the City Court and subsequently of

the High Court.

 

45.     Article 6 para. 1 of the Convention provides that everyone

shall be entitled to a fair and public hearing by an independent and

impartial tribunal.  From the case-law of the European Court of Human

Rights it is clear that the guarantee of an impartial and unbiased

tribunal is absolutely basic.  It is not to be whittled down or avoided

by technical arguments.

 

46.     The test for determining the impartiality of the tribunal was

laid down by the Court of Human Rights in the case of Piersack v.

Belgium (Eur.  Court H.R., Piersack judgment of 1 October 1982, Series

A No. 53).  The Court stated that impartiality under Article 6 could be

tested in two ways.  One way was the subjective approach, i.e.whether

the particular judge was, in fact, really biased.  Secondly, by the

objective approach, namely whether there was any appearance of bias or

any possible doubt as to whether bias existed.  This approach has

subsequently been adopted by the Court in the case of De Cubber v.

Belgium (Eur.  Court H.R., De Cubber judgment of 26 October 1984,

Series A No. 86) and by the majority of the Commission in the case of

Ben Yaacoub v.  Belgium (Commission Report 7.5.85).  The question to be

asked, therefore, is not simply whether the tribunal was in fact

biased but whether there were any factors present which could

legitimately give rise to a suspicion that the tribunal was biased.

 

47.     There is no doubt that in this case the applicant did in fact

fear that the presiding judge at the City Court was biased against him

and that the appeal judges were biased.  The record shows that he made

his fears known at the time and he made them known to the Commission

very early in his application.  The question is not whether his fears

were entirely justified.  The question is whether they may have had

some basis.  The test in this respect is whether the applicant's fears

were comprehensible.

 

48.     The reasonableness of the fears is related to the part which

the judge plays in the trial according to domestic law.  In the present

case it is a very important factor that the presiding judge of the

City Court was the person who had the largest influence on the

verdict.  He did not sum up the case and leave it to a jury to decide

on the question of guilt.  Nor was he one of a number of judges in the

Court.  He was the chairman of the tribunal with only two lay assessors

neither of whom had any legal or financial experience.

 

49.     It is also important to focus on the implications of the

decisions to deny bail and to grant the commissions rogatory.  The

decisions to deny a man liberty for 16 months before trial and for

over another year during the trial is a very serious judicial step and

one which requires weighty justification in view of both the

Convention's guarantee in Article 6 para. 2 and the general record of

liberality shown by the Danish courts towards the applications for

bail.

 

50.     According to Section 762 of the Danish Administration of

Justice Act custody pending trial may be ordered only if there is

reasonable suspicion that the person concerned has committed the

alleged offence and if there are substantial reasons for believing

that there is either a danger of his absconding, or of his interfering

with the course of justice, or committing a serious offence.  It can

only be justified in regard to exceptionally serious offences.

 

51.     In considering whether custody should be ordered, the judicial

authority shall have regard to the circumstances, in particular the

nature and seriousness of the offence, the strength of the evidence,

the penalty likely, the character and personal and social

circumstances of the person concerned as well as his conduct.  All

these matters were raised in the course of the many bail applications.

 

52.     It is recalled that the applicant's contention is

that he reasonably feared that both trial and appeal courts were

biased against him by virtue, inter alia, of the presence of judges

who had made adverse findings againt him on the question of his

pre-trial detention.  Some nine months after his initial detention,

the trial and appeal courts invoked sub-section 2 of Section 762 of the

Administration of Justice Act, and this paragraph was applied at every

bail hearing prior to his conviction.  Quite apart from the

prejudicial nature and consequences of the application of sub-section 1

it is felt that the sub-section 2 requirement that the court find a

"particular and confirmed suspicion" of guilt is overwhelming proof of

the applicant's claim that the respondent State was in breach of

its Article 6 duty to provide him with an impartial tribunal.

 

53.     In particular in regard to Section 762 sub-section 2 it is

pointed out that originally the Danish Administration of Justice Act

provided for custody of the suspect during investigations only if

there were a risk of evasion, new crimes or destruction of evidence.

This is still the main rule of Danish law, cf.  Section 762,

sub-section 1.

 

54.     In 1935, the provision contained in Section 762 sub-section 2

was inserted in the Act following an aggravated rape case which

received much publicity.  In the preparatory documents for the Act,

reference is made to the above case and it is then stated that:

 

 

"When everyone assumes the accused guilty and therefore

anticipates serious criminal prosecution against him, it may

under the circumstances be very objectionable when people,

in their business and social lives, still have to observe and

endure that he moves around freely.  Even though his guilt and its

consquences have not yet been established by final judgment,

the impression may be given of lacking seriousness and

consistency in the enforcement of law, which may be likely

to confuse the concept of justice."

 

55.     Thus the provision, which is neither necessary for the

completion of court proceedings nor for the prevention of new crimes,

contradicts fundamental principles of the administration of justice

which may be formulated as being "no punishment without trial" and

"anyone must be considered innocent until proved guilty".

 

56.     The preparatory documents also make it clear that the required

strength of the suspicion in Section 762 sub-section 2 is greater than

in relation to the ordinary remand reasons.  It is equally clear that

to some extent it is the same concrete matters the judge has to

evaluate when assessing the strength of the suspicion at the time of

remand and when deciding the question of guilt at the trial.

 

57.     In order to assess whether the legal requirements for

"particular and confirmed suspicion" are fulfilled, the judge has to

take a decision with regard to one, or possibly more pieces of

evidence or circumstantial evidence which later will be part of the

ultimate judgment.  It is, therefore, very difficult to deny that the

judge has taken a position on elements of the ultimate judgment

- though this does not necessarily mean that he has made his

final assessment of these elements.

 

58.     It must be remembered, however, that the purpose of the

particular and confirmed suspicion requirement is that of making

certain that as far as possible no innocent person is imprisoned and a

judge, therefore, would act in contravention of the law if he did not

think, when remanding someone in custody under Section 762 sub-section

2, that there were good reasons to believe that the accused was guilty.

 

59.     This interpretation is supported by the Danish Minister of

Justice who, on 30 December 1986, in connection with the discussions

of a new Bill which was supposed to extend the sphere of application

of Section 762 sub-section 2 to certain crimes of violence which were

expected to entail a minimum of 60 days' imprisonment, wrote as

follows:

 

"When it ... has been pointed out that the Bill opens

possibilities for the imprisonment of innocent persons I find

reason to stress that my proposed Bill makes it a condition

that there is a particular and confirmed suspicion (the

minister's emphasis) that the accused has committed the

crime before the person in question can be remanded in

custody.  Thus there has to be a very high degree of clarity

with regard to the question of guilt before the provision

can be applied and this is the very means of ascertaining

that innocent persons are not imprisoned."

 

60.     The particular and confirmed suspicion requirement has

accordingly the purpose of ensuring that innocent people are not

imprisoned and this the judge will, of course, keep in mind when

assessing whether imprisonment can take place pursuant to Section 762

sub-section 2.

 

61.     Common human experience and psychological research show that

it is difficult to rid oneself of a certain attitude regardless of the

basis on which it was taken.  New material is assessed in the light of

the thoughts one has already had.  Repetition of arguments may make

them more convincing and a judge who imposes custodial detention

many times will constantly be confronted by the same evidence.

 

62.     Furthermore, for the individual judge - regardless of the

Administration of Justice Act provisions - it may be taken as

reflecting insufficient firmness and consequence if he passes judgment

of acquittal on what seems to be the same material which formed the

basis for the custodial detention.

 

63.     A judge making a remand order pursuant to Section 762

sub-section 2 in a case where the accused pleads not guilty,

has taken a position on one very significant point:  the

question of the trustworthiness of the accused.  It seems

understandable if an accused person cannot have full confidence in a

judge who has already indicated that he has no confidence in the

explanation of the accused.  Regardless of all attempts to explain the

role of the judge during investigations and trial, it will always seem

to the accused and his family to be unfair that a judge who has made

the committal order pursuant to Section 762 sub-section 2 now has to

take a decision with regard to the question of guilt.

 

64.     From this it follows that the right of an accused to an

impartial judgment in his case is so fundamental to the guarantee of

law and order that not even a small risk of prejudicing the question

of guilt should be ignored.  This consideration as well as

consideration for the confidence of the accused in the judge presiding

over his case supports the view that in cases in which the accused

has been in custody a new judge should be appointed for the ultimate

trial.

 

65.     In general, the same principle should be applied also in

appeal cases concerning the assessment of evidence if the court of

appeal in the past has decided on the custodial imprisonment of the

accused.

 

66.     When applying the above general considerations to the applicant's

case it is recalled that the presiding judge of the City Court

repeatedly decided that the applicant should be detained in custody

because of the danger of his committing further criminal offences, the

substantial weight of the evidence against him, the likelihood that he

would run away and the danger of his interfering with the witnesses.

The judge was in effect concluding, long before his trial, that the

applicant was a person of deep dyed criminal proclivities, a character

of unreliable and irresponsible behaviour, and a person against whom

the evidence of guilt was, in the words of Section 762, "particular" and

"confirmed".

 

67.     The decisions taken together made it clear to the reasonable

observer that the presiding judge could no longer begin the trial with

an open mind because he believed that the applicant was likely to be

guilty, that the applicant was a person who would commit other crimes,

that the applicant was a person of dreadful criminal propensity.

 

68.     Turning to the questions concerning rogatory commissions the

judge does not merely rubberstamp a police request but considers the

weight and the validity of the reasons for that request and may be

apprised of information which is not relevant or admissible at the

criminal trial.  The decision to issue the commission is a significant

step in the investigative process insofar as it involves a formal

request to another sovereign state for assistance, and it implies a

determination both that the prosecution's case is weighty and that

there is every reason to believe that further evidence of the

defendant's guilt is to be found abroad.

 

69.     The presiding judge's decision to make the request inevitably

brings him into the prosecution and the investigative process and

detracts him from approaching the case at trial with an unprejudiced

mind.  On the basis of the above mentioned facts it is clear that the

applicant had legitimate grounds to apprehend judicial bias.  The

applicant had reason to suspect that the judge would be biased in

considering the verdict at the trial, and that the bias would

influence the inexperienced lay persons who were the other members of

the tribunal.  It gave him understandable misgivings as to whether the

judge could discard from his mind those devastatingly serious

allegations he had already found to be proved, and approach the

question of guilt or innocence with an entirely open mind.

 

70.     Regarding the question of impartiality in the High Court the

applicant points out that the professional judges taking part in the

High Court proceedings made a number of decisions on detention prior

to the hearing of the appeal and during that hearing in 1982/83.  After

the commencement of the appeal hearing these judges made several

decisions on detention together with the three lay judges.  The basis

upon which the High Court judges should take their decisions as to the

detention on remand was, as in the City Court, Section 762 of the

Administration of Justice Act, and accordingly for similar reasons as

above, their decisions did indicate prejudice and, by holding the

applicant incarcerated, the judges showed that the High Court also

found the applicant guilty prior to the verdict.

 

B.      The Government

 

71.     As a result of tradition, Danish courts of first instance

operate in relatively small jurisdictions.  This helps to create

confidence between the court and the local population.  Another result

of tradition is that the local court is empowered to deal with all

kinds of cases, criminal and civil.  This judicial system means that

normally the judge in charge is one and the same person both during

the preliminary stage and during the concluding trial.  However, the

division found in a number of European countries into so-called

investigating judges and so-called trial judges is unknown in Denmark.

In small rural jurisdictions the fact that one and the same judge

handles the case at the initial stage as well as during the trial is

the inevitable consequence of having only one judge in the respective

jurisdiction.  However, this set-up for the courts in Denmark should be

seen in connection with the function of Danish courts in the criminal

procedure.

 

72.     The preliminary investigations conducted in Denmark serve a

dual purpose, that is to provide all the information required to

determine whether the accused should be indicted, and, if so, to

collect material to clarify the choice of penalty.  The investigation

in criminal cases is conducted by the police under the supervision of

the prosecuting authorities.  Ordinarily, courts do not enter a

criminal case in the investigative phase.

 

73.     If, however, in the course of the investigations, a dispute

arises between police and counsel over the powers etc. of the police

or counsel, the matter shall be taken to court for its decision.  The

services of the court may also be needed in the investigative phase if

either the prosecuting authority or the defence requests that evidence

should be taken in camera at the initial stage because it is feared

that the evidence will otherwise be lost before the trial.

 

74.     Furthermore certain investigative measures are deemed to

involve such severe interference with citizens' rights that they can

only be taken by court order.  This means that, as a general rule,

measures such as search, telephone tapping, seizure and detention on

remand can only be imposed if a court, after hearing the arguments and

counter-arguments of the parties, finds the contemplated measure

justifiable.  Also decisions concerning commissions rogatory under the

European Convention on Mutual Assistance in Criminal Matters are

usually taken by the court at the request of the police.

 

75.     Reference to court of such questions is motivated by the wish

to have an impartial authority appraise whether the police should be

permitted to take enforcement measures as suggested.  In this manner

the court ensures that the relevant provisions of the Administration

of Justice Act are observed.

 

76.     While investigations are under way the court plays a

completely neutral, supervisory role.  It takes no initiatives on its

own and acts only at the request of the police or counsel, and only if

there is disagreement between the two or if the police contemplates

applying such onerous measures as mentioned above.

 

77.     It is in particular on this point that the Danish system

differs from other well-known systems of law under which the

investigations are conducted by an examining judge.  A fairly similar

system was found in Denmark up to 1978.  According to that system the

procedure, usually applied prior to institution of criminal

proceedings, was a combination of police investigations and

preliminary investigations in court.  The aim of the change of system

introduced in 1978 was precisely to establish that investigations by

an examining judge, while police investigations were being carried out,

were at variance with the position of a judge in the administration of

justice.  For that reason, the functions of the judge are now confined

to acting as supervisor.

 

78.     In this context it should be emphasised that the questions on

which the court takes decisions in the course of investigations differ

essentially from the theme before the judge during trial.  In the

investigation phase the judge's sole task is to take a decision on

questions in dispute between police and counsel and to ascertain

whether legal conditions exist for applying certain serious

enforcement measures.  Hence, it is not up to the judge to take a

decision on the question of guilt in connection with the deliberations

of the police as to what line of approach should be adopted with

regard to the investigation.  Neither shall the judge take a decision

on whether or not the accused should be indicted, or in any way be

involved in deliberations thereon.

 

79.     Regarding the question of detention on remand the judge must

naturally take account of any information available at the current

stage of the proceedings which may suggest the guilt of the defendant

when determining whether the requisite suspicion for detention on

remand is at hand.  However, a judge's deliberation prior to a

decision on remand in custody is of a nature very different from his

deliberation prior to the sentencing in a trial.  To sentence a person

for a crime requires certainty of the defendant's guilt.  Hence, there

has to be proof of guilt.  To remand in custody, on the other hand, it

is sufficient that there is a well-founded suspicion.  It is

consistent with this line of thought that it has not been written into

the Danish rules governing compensation from the State for unwarranted

remand in custody that compensation shall be given only if the

authorities have committed an error by remanding in custody.  If the

defendant is acquitted, he is entitled to compensation no matter how

well founded his imprisonment was according to the information

available at that time.

 

80.     Furthermore the Government point out that the knowledge of the

case which the judge acquires during the investigation of bulky and

lengthy cases may assist in a more efficient planning of

proceedings to the advantage of both defendant and prosecution.  This

is both appropriate and desirable and may best be likened to those

situations in which a judge prior to the proceedings prepares himself

carefully for a case.

 

81.     Once the investigation is completed the second stage of the

trial is the preferment of charges.  In Denmark the decision to bring

charges is that of the prosecuting authority alone.  In no way are the

courts involved.

 

82.     When charges have been preferred the trial itself is held

before the sentencing court, usually with the assistance of lay

judges.  The trial may run into procedural difficulties and disputes

requiring a decision, for instance, with respect to the production of

evidence.  It goes without saying that such questions must be settled

by the sentencing court.  It may also become necessary to decide

whether to proceed with the remand in custody.  It would indeed be

wholly unacceptable if another court, while the case is pending before

the sentencing court, were to have rivalling competence to rule on a

question of remand in custody.  It cannot be assumed that the

sentencing court, by ruling on the question of remand in custody while

the trial is in process, disqualifies itself from passing sentence in

that case.

 

83.     In the Government's view there is accordingly under the

present system, during investigation as well as during trial, a clear

line of distinction between, on the one hand, the functions of the

police and the prosecuting authority and, on the other hand, the

functions of the court.  This distinction entails that throughout the

investigation process the court exercises only supervisory functions.

Furthermore it plays an entirely neutral role.  That the same judge

sits in matters before the court during the investigation phase and

during the trial should therefore not, in the Government's opinion,

give rise to any problems of competence.

 

84.     In the questions raised by the Commission reference is made to

the judgments of the European Court of Human Rights in the Piersack

case (Eur.  Court H.R., Piersack judgment of 1 October 1982, Series A

No. 53) and the De Cubber case (Eur.  Court H.R., De Cubber judgment of

26 October 1984, Series A No. 86).  Furthermore reference is made to

the Commission's Report in the case of Ben Yaacoub v.  Belgium (Comm.

Report 7.5.85).  The instant case differs, on decisive points, from

those cases.

 

85.     First, as mentioned above, there is in Denmark no concurrence

of the functions of the prosecuting authority and the judge.  Pursuant

to the Constitution and the Administration of Justice Act as well as

in practice, the judge who makes the order for detention on remand and

the judge who delivers judgment are independent of the prosecuting

authority and of any other authorities.

 

86.     Second, the judge who makes decisions on legal steps to be

taken in the course of the investigation plays an unobtrusive and

neutral role.  He acts only on request of either the prosecuting

authority or the accused and his counsel.  He does not take part in the

deliberations of the prosecuting authority as to whether or not the

accused should be indicted.  The judge's tasks are only to take a

decision on questions in dispute between police and counsel and to

ensure that the conditions laid down in the Administration of Justice

Act have been satisfied.  Hence, the judge's role is solely to

guarantee that the accused is protected by the rule of law.  In

particular regarding the Ben Yaacoub case and the powers of the

Belgian court in chambers the Government stress the significant

difference that a Danish court has no comparable powers in the

preliminary stages of a trial, nor should it be ignored that the

proceedings before the court in chambers were secret, whereas hearings

before Danish courts are, in principle, always public.

 

87.     Against this background, the Government are of the opinion

that the fact that the judges who made decisions during the

investigation process were the same as those who delivered judgment

was not in violation of the applicant's right under Article 6 of the

Convention to have a fair hearing.  The system applied in Denmark is

furthermore applied by a number of other Contracting States.  According

to the information available to the Government, there is nothing in

the systems of law of those States which prevents a judge who takes

part in trial and adjudication from having sat on previous occasions

when the prosecuting authority demanded detention on remand or

requested permission to carry out investigation measures involving

severe interference with the accused's rights.

 

88.     Regarding the commissions rogatory the Government point out

that in no instance did the trial judge take any part in those

proceedings abroad.  The involvement of the judge in that respect

comprised the function of controlling the gathering of comprehensive

and well-founded information on all relevant aspects of the case in

question.  The letters rogatory first of all have the aim of providing

the necessary factual basis for the legal proceedings.  Furthermore,

it is difficult to maintain that generally the decision to send

letters rogatory is in itself a potential harm to the legal position

of the applicant.  This is also corroborated by the fact that the

prosecuting authority, as well as the defence, have access to the

judge in matters of sending out letters rogatory.  The court's

assistance in letters rogatory was due to the fact that the

international conventions providing for legal assistance prescribe

that the petition must be issued by a judicial authority.  So, even

though in Denmark it is not a court but rather the police and the

prosecuting authority who are charged with gathering information

during the investigation, Denmark has opted to submit letters rogatory

to the courts in their capacity of judicial authorities in order to

comply with the formalities prescribed by the international

conventions.

 

89.     Normally, however, the courts will not examine the substance

of such letters rogatory from the prosecuting authority.  For this

reason alone it is obvious that one cannot question the fairness of

the proceedings at the City Court and the impartiality of the Court on

the ground that the Court had taken a number of decisions requesting

the co-operation of other countries in obtaining material relevant to

the case.

 

IV.   OPINION OF THE COMMISSION

 

A.      Point at issue

 

90.     The only point at issue which according to the Commission's

decision on the admissibility remains to be determined is whether the

Copenhagen City Court, when convicting and sentencing the applicant on

1 November 1982, and the High Court for Eastern Denmark, when deciding

on 2 March 1984 on his appeal against the judgment, were "impartial tribunals"

as required by Article 6 para. 1 (Art. 6-1) of the Convention, having regard to

the fact that the judges participating in these judgments had previously taken

decisions on the applicant's detention on remand as well as a number of

procedural decisions in his case, including decisions to ask for additional

evidence abroad (commissions rogatory).

 

B.      Article 6 (Art. 6) of the Convention

 

91.     The relevant part of Article 6 para. 1 (Art. 6-1) of the Convention

reads as follows:

 

 

"In the determination ... of any criminal charge against

him, everyone is entitled to a fair ... hearing by an ...

impartial tribunal ...".

 

92.     It has not been disputed in this case that this provision

applies both to the proceedings before the Copenhagen City Court and

to the proceedings before the High Court.  From its case-law and that

of the European Court of Human Rights, the Commission furthermore

recalls that the fundamental guarantees of Article 6 para. 1 (Art. 6-1),

including impartiality, must also be provided by any courts of appeal

which a Contracting State may have chosen to set up (cf. for example

Eur.  Court H.R., Monnell and Morris judgment of 2 March 1987, Series A

No. 115, para. 54).

 

93.     The Commission is accordingly called upon to consider not only

the proceedings in the City Court but also the proceedings in the High

Court.

 

94.     The European Court of Human Rights has stated that the

guarantee of impartiality required by Article 6 (Art. 6) of the Convention

implies a double guarantee:  first the subjective requirement that the

judge shall be unbiased, and secondly, an objective requirement that

the situation must be such as to exclude any legitimate doubts about

his impartiality (Eur.  Court H.R., Piersack judgment of 1 October

1982, Series A No. 53, p. 14, para. 30).

 

95.     As regards the subjective requirement, the Commission finds

that no evidence has been adduced which could raise any doubts on this

point.  In this context the Commission also recalls that the personal

impartiality of a judge must be presumed until the contrary is

established (Eur.  Court H.R., Le Compte, Van Leuven and De Meyere

judgment of 23 June 1981, Series A No. 43, p. 25, para. 58).

 

96.     As regards the objective requirement, it is recalled that the

Commission and the Court have previously had the opportunity to

examine cases where the composition of a court was such that it could

be considered to affect its impartiality.

 

97.     In finding a violation of Article 6 para. 1 (Art. 6-1) in the case of

Piersack v.  Belgium (mentioned above) the Court considered that if "an

individual, after holding in the public prosecutor's department an

office whose nature is such that he may have to deal with a given

matter in the course of his duties, subsequently sits in the same case

as a judge, the public are entitled to fear that he does not offer

sufficient guarantees of impartiality" (p. 15, para. 30(d)).  The

impartiality of the tribunal which had to determine the merits of the

charge was in such circumstances capable of appearing open to doubt.

 

98.     In the case of De Cubber v.  Belgium (Eur.  Court H.R., De Cubber

judgment of 26 October 1984, Series A No. 86) the Court also found a

violation of Article 6 para. 1 (Art. 6-1) of the Convention.  It was noted that

the Belgian investigating judge was independent, did not have the

status of a party to criminal proceedings, should assemble evidence in

favour of as well as against the accused, was not empowered to commit

for trial and, in his report to the chambre du conseil, expressed

no opinion on the accused's guilt.

 

99.     However, the investigating judge was placed under the

supervision of the procureur général and, where the suspected

offender had been caught in the act, could take any action which the

procureur du Roi was empowered to take.  He enjoyed very wide-

ranging powers throughout an investigation which was inquisitorial in

nature, secret and not conducted in the presence of both parties.  He

had the advantage over his colleagues on the trial court of having,

well before the hearing, a particularly detailed knowledge of the

files he had assembled.  In these circumstances his presence on the

bench provided grounds for some legitimate misgivings on the part of

the accused.

 

100.    In the Ben Yaacoub case (Ben Yaacoub v.  Belgium, Comm.  Report

7.5.85) the Commission found that the applicant's case was not heard

by an impartial tribunal within the meaning of Article 6 (Art. 6) of the

Convention in that the same person had dealt with the case in

question, first in the chambre du conseil and subsequently as a

member of the trial court.  The Commission noted that the chambre du

conseil had a number of functions and that, in particular, it had to

ensure that the investigation was complete and to commit the accused

for trial, where there existed sufficient indications of guilt.

Moreover, the chambre du conseil decided periodically on the

detention on remand of the accused.  The case has subsequently been

referred to the European Court of Human Rights.

 

101.    Turning to the facts of the present case, the Commission first

recalls some basic features of the system operating in Denmark where a

criminal case is investigated and brought before the court by the

police and the prosecutor.  Depending on the particular circumstances

of the case the prosecutor may request the court to detain the

applicant on remand and the court may decide to do so when the

requirements set out in Section 762 of the Administration of Justice

Act are fulfilled.  The period of detention is under constant judicial

control in that it may never exceed four weeks without a new court

decision.  When, as in the present case, the trial lasts for more than

four weeks the trial court also determines, at the request of the

public prosecutor, whether it is necessary to keep the accused in

detention during the trial.  When deciding on the question of

detention the court must be satisfied under Section 762 sub-section 1

that there is a justified reason to believe that the suspect has

committed the offence and that there is specific reason to believe

that the suspect, if at large, will abscond or commit new offences or

impede the ongoing investigation.  Under sub-section 2 of the same

Section, detention may furthermore be imposed if the public interest

so requires, and if there is a particularly strong suspicion

indicating that the suspect has committed the offence.  It is clear,

therefore, that in considering the necessity of detention on remand

the judge does not take any position on the applicant's guilt, the

power to do so resting exclusively with the trial court.

 

102.    In the present case the Commission recalls that the judge

Claus Larsen, who presided over the applicant's trial before the City

Court, had, on 15 different occasions before the trial started, taken

decisions to prolong the applicant's detention on remand and that he

had also, in some of these decisions, prolonged the applicant's

solitary confinement.  In the period preceding the trial he had taken

a number of procedural decisions regarding the applicant's case,

including two decisions to obtain evidence abroad (commissions

rogatory) as well as decisions on seizure of property, his right to

correspondence etc.

 

103.    Moreover, during the trial judge Larsen took over 20 decisions

to prolong the applicant's detention on remand, on four occasions

together with two lay judges who participated in the trial.  During

the trial, judge Larsen took a number of other procedural decisions,

including those requesting further evidence from abroad.

 

104.    Before the appeal proceedings started in the High Court, one

of the judges participating in those proceedings had participated

in a decision on the applicant's solitary confinement, and after the

case had been brought on appeal to the High Court, the judges who

later decided on the appeal took a number of decisions to prolong

the applicant's detention on remand.

 

105.    The question which the Commission has to consider is therefore

whether the fact that the judges in the City Court and the High Court,

who decided on the applicant's guilt and on the punishment which was

to be imposed on him, had previously on numerous occasions prolonged

his detention on remand and taken various procedural decisions regarding

his case, could be held to make the City Court and the High Court lack

impartiality when deciding on his guilt and his punishment.

 

106.    When looking at the present case against the background of the

Court's and the Commission's previous case-law, the Commission first

notes certain differences in respect of the institutional framework

forming the background of the different cases.  The Commission

considers that if different functions are attributed to different

organs by the rules of criminal procedure applicable in a given

country, it may generally be assumed that the legislator, by

separating the functions and attributing them to different persons,

intended to protect the impartiality of the courts.  Doubts as to

impartiality may therefore arise where a judge has earlier fulfilled

functions attributed to a different organ.  On the other hand, a

similar presumption does not arise where a judge exercised different

functions all of which have been attributed to the court under the

institutional framework of the legal system concerned.

 

107.    From this point of view, the present case can be clearly

distinguished from the Piersack and De Cubber cases.  In those two

cases there was an incompatibility of functions in the sense that a

judge, who had to determine impartially whether an accused person was

guilty, had previously exercised certain other functions in connection

with the investigation or the prosecution of the offences concerned.

Such was not the situation in the present case.

 

108.    However, there are more similarities between the present case

and the Ben Yaacoub case.  In both cases the judges decided to detain

the person concerned on remand and, in dealing with the case before

the trial, acquired a certain knowledge of it before deciding on the

question of guilt.

 

109.    As regards the question of detention on remand, the Commission

notes that under the Danish legal system the task of detaining a

suspected criminal on remand has been entrusted to a court in order to

ensure that a matter affecting a person's personal freedom is examined

neutrally and impartially.  In countries which, like Denmark, do not

have the system of an investigating judge, the preliminary

investigation is usually in the hands of the police or the public

prosecutor, but certain decisions, for instance on detention on

remand, must be taken by a court.  The fact that judicial decisions

are required on such matters is an important safeguard for the

individual.

 

110.    In countries where the court, and not an investigating judge,

decides on questions of detention on remand, it may happen that a

judge who takes such a decision is subsequently called upon to preside

over, or participate in, the trial against the detained person.  The

decision to detain on remand and the decision to convict or acquit and

to determine punishment are both of a judicial character.  It is a

well-known distinction to all judges, and it must also be clear to the

general public, that whereas a reasonable suspicion is usually

sufficient to detain on remand, much stronger evidence is required in

order that the accused shall be found guilty.  In fact, the Convention

itself recognises this difference by distinguishing between detention after

conviction by a court (Article 5 para. 1 (a)) (Art. 5-1-a) and detention of a

person on reasonable suspicion of having committed an offence (Article 5 para.

1 (c)) (Art. 5-1-c).

 

111.    As regards the fact that in the present case the judges who

had taken decisions on the applicant's detention on remand and on

various procedural matters must necessarily have acquired a certain

knowledge of the case before the trial, the Commission considers that

the mere fact of having knowledge about a case cannot be considered to

make the court prejudiced in regard to the issue of the applicant's

guilt.  In many European systems it is normal for any trial court

judge to acquire such knowledge by studying the case-file before the

trial.  Such a system cannot, in the Commission's opinion, in itself

be considered to give a well founded reason for questioning the court's

impartiality.

 

112.    The main points on which the present case differs from the Ben

Yaacoub case are that in the present case, unlike in the case of an

investigating judge, the judges took no initiative of their own

during the investigation, but they acted only at the request of the

public prosecutor or of the applicant's counsel, e.g. on questions of

detention or in order to resolve disagreements between them.  Their

decisions were normally taken in the presence of the applicant and in

open court, except where they decided to exclude the public, and after

both parties had been given the opportunity of presenting their views.

The judges were independent of the prosecution and they did not have

an investigating judge's task of eliciting and assembling the

necessary information.  Neither did they make any assessment of the

result of the investigation and, unlike in the Ben Yaacoub case, they

did not decide, on the basis of the strength of the evidence against

the accused person, to commit him for trial.

 

113.    Consequently, the Commission finds it established that the

present case can be distinguished from the above-mentioned cases

previously examined by the Court and the Commission.  Moreover, the

Commission notes that a similar practice is known from a number of

other countries which are parties to the Convention.

 

114.    For these reasons the Commission finds that lack of

impartiality cannot reasonably be found in the mere fact that a judge

who participates in a trial or in appeal proceedings regarding

conviction and sentence has previously decided to detain the accused

on remand, or taken various procedural decisions in his regard.  In

the present case, no other ground has been found, which could give

reason to doubt the impartiality of the City Court or the High Court.

The Commission is therefore of the opinion that the applicant was

heard by impartial tribunals within the meaning of Article 6 para. 1

(Art. 6-1) of the Convention.

 

        Conclusion

 

115.    The Commission concludes, by nine votes to seven, that there

has been no violation of Article 6 para. 1 (Art. 6-1) of the Convention.

 

Secretary to the Commission      Acting President of the Commission

 

 

 

 

 

    (H. C. KRÜGER)                       (G. SPERDUTI)

 

 

 

 

OPINION DISSIDENTE DE M. VANDENBERGHE

A LAQUELLE SE RALLIENT MM. ERMACORA, TENEKIDES, KIERNAN,

GÖZÜBÜYÜK, WEITZEL ET BATLINER

 

 

 

 

1.      Je regrette de ne pouvoir me rallier à l'opinion de la

majorité de la Commission dans la présente affaire.  J'estime en effet

que la notion d'impartialité, telle qu'elle a été développée par la

Commission et par la Cour, et son application aux faits de la présente

affaire devrait conduire plutôt à la conclusion que M. Hauschildt n'a

pas été jugé par un "tribunal impartial", comme l'exige l'article 6

par. 1 de la Convention.

 

2.      Je limiterai mon propos à l'impartialité de la juridiction de

première instance ("City Court") car la cour d'appel ("High Court") ne

s'est nullement prononcée sur la composition du siège du tribunal de

première instance.  Il n'est donc pas indispensable d'analyser la

question de l'impartialité de la juridiction supérieure (v. mutatis

mutandis, Cour Eur.  D.H., arrêt De Cubber du 26 octobre 1984, par. 33).

 

 

        A. Sur les traits essentiels de la notion de "tribunal

           impartial", au sens de l'article 6 par. 1 de la Convention

 

3.      A cet égard, il y a lieu de se référer aux paragraphes 94 à

100 du rapport de la Commission.  Il convient toutefois, à mon avis,

de compléter ces références par d'autres considérations émises par la

Cour, en particulier lorsqu'elle a été amenée à donner un contenu

concret à ladite notion d'impartialité.

 

4.      Ainsi, lorsqu'il s'agit du principe fondamental de

l'impartialité du juge, la Cour a souligné qu'une interprétation

restrictive de l'article 6 par. 1 de la Convention ne cadrait pas avec

l'objet et le but de cette disposition eu égard à la place éminente

qu'occupe dans une société démocratique, au sens de la Convention,

le droit à un procès équitable (Cour Eur.  D.H., arrêt Delcourt du

17 janvier 1970, par. 25 et arrêt De Cubber précité, par. 30).

 

5.      Pour déterminer si une juridiction est ou non impartiale, il

faut adopter une démarche objective et prendre en compte des

considérations de caractère fonctionnel et organique (Cour Eur.  D.H.,

arrêt De Cubber précité, par. 26).

 

6.      A cet égard, même les apparences peuvent revêtir de

l'importance et comme l'énonce l'adage anglais : "justice must not

only be done, it must also be seen to be done"; ceci implique que doit

se récuser tout juge dont on peut légitimement craindre un manque

d'impartialité.  Il y va de la confiance que les tribunaux d'une

société démocratique se doivent d'inspirer aux justiciables, à

commencer, au pénal, par les prévenus (Cour Eur.  D.H., arrêt Piersack

du 1 octobre 1982, par. 30 et arrêt De Cubber précité, par. 26 in

fine).  Il suffit dès lors que l'impartialité d'un tribunal puisse

légitimement sembler au prévenu sujette à caution pour qu'un problème

se pose sous l'angle de l'article 6 par. 1 (arrêt De Cubber précité,

loc. cit.).

 

 

7.      Par ailleurs, la notion de "tribunal impartial" ne doit pas

être interprétée "in abstracto".  La Cour ne saurait se limiter à des

considérations d'ordre général en la matière.  Une telle notion exige

logiquement une interprétation prétorienne lui donnant une définition

matérielle plutôt que formelle (v. par analogie Cour Eur.  D.H., arrêt

Le Compte, van Leuven et De Meyere, par. 45).  En effet, la Cour a

pour souci dominant, dans cette matière comme dans d'autres, de

"regarder au-delà des apparences et d'analyser les réalités de la

situation litigieuse" (v.  Cour Eur.  D.H., arrêt van Droogenbroeck du

24 juin 1982, par. 38 et arrêt Sporrong et Lönnroth du 23 septembre

1982, par. 63).

 

8.      Le cadre jurisprudentiel de la notion de "tribunal impartial"

ainsi préliminairement complété, je tâcherai à présent d'y insérer les

faits de la cause avant de conclure.

 

 

        B. Sur l'application de la notion de "tribunal impartial"

           à la présente affaire

 

9.      Il me semble clair que cette affaire présente certaines

similitudes avec l'affaire Piersack, mais surtout avec les affaires De

Cubber et Ben Yaacoub (cette dernière encore pendante devant la Cour).

Il est vrai que ces trois affaires concernaient le système juridique

belge, lequel connaît deux phases de la procédure pénale, à savoir la

phase d'instruction et la phase de jugement, à chacune correspondant

une juridiction qui lui est spéciale et qui est indépendante de

l'autre.  En principe, la juridiction de jugement statue d'après une

instruction orale, publique et contradictoire qui se fait devant elle.

 

10.     Il est constant que l'organisation judiciaire danoise comme

d'autres systèmes judiciaires de certains Etats parties à la

Convention, ne connaît pas l'existence d'un juge d'instruction, ni

logiquement la répartition de fonctions susindiquée.  La majorité de

la Commission n'a pas manqué de le noter, à juste titre (v. par. 106

du rapport).  Au Danemark, l'instruction préparatoire est assurée par

la police ou par le ministère public, mais les questions concernant la

détention préventive ainsi qu'un certain nombre d'actes d'instruction

doivent être décidés par une juridiction (v. par. 109 du rapport).

 

11.     Toutefois, la question n'est pas là : la Convention n'astreint

sûrement pas les Etats membres à créer un système doté d'un juge

d'instruction.  Ils sont libres de se doter d'une organisation

judiciaire, avec ses particularités propres, pourvu que les

justiciables jouissent pleinement des garanties fondamentales prévues

dans la Convention, en particulier dans son article 6.

 

12.     Il n'est donc pas pertinent dans ce contexte d'affirmer qu'en

Belgique le problème de l'impartialité se posait dans les affaires

susmentionnées, en particulier parce que le législateur prévoit que

différentes fonctions doivent être exercées par des magistrats

distincts (cf. par. 106 du rapport).  Ainsi posée, la question

s'enferme dans un certain formalisme.  Ce qui est essentiel en

l'occurrence est d'analyser le contenu matériel des actes accomplis

avant le procès par M. Larsen, qui a présidé le tribunal qui a

condamné le requérant, afin de déterminer si, aux yeux de ce dernier,

l'impartialité dudit tribunal pouvait ou non légitimement paraître

sujette à caution.

 

13.     Or, à cet égard, il convient de mettre en exergue les éléments

suivants du cas d'espèce :

 

      - M. Hauschildt a été arrêté et détenu pour avoir été impliqué

        dans une affaire de fraude et de détournement de fonds d'une

        considérable complexité (le tribunal de première instance a

        tenu plus de 130 audiences et a condamné le requérant à sept

        ans d'emprisonnement).

 

      - Avant l'audience de jugement, M. Larsen a décidé à quinze

        reprises de refuser la mise en liberté provisoire du

        requérant.  En outre, à cinq occasions le même magistrat a

        prolongé l'isolement cellulaire du requérant et a pris

        d'autres mesures concernant la saisie de biens et de documents

        appartenant au requérant et sa correspondance.

 

      - A partir du 5 septembre 1980 (le requérant fut condamné en

        première instance le 1er novembre 1982) le maintien en

        détention provisoire du requérant a été motivé notamment par

        le fait qu'il y avait des soupçons bien étayés que le requérant

        avait commis l'infraction en question ("particular confirmed

        suspicion"), au sens de l'article 762 par. 2 de la loi sur

        l'administration de la justice ("Administration of Justice

        Act") (v. rapport de la Commission par. 42).

 

      - M. Larsen a présidé ensuite le tribunal de première instance

        qui, assisté par deux juges laïques, a condamné le requérant.

 

      - Pendant le procès, le tribunal a encore refusé à vingt

        reprises la mise en liberté provisoire du requérant, en

        invoquant notamment la disposition susmentionnée de la loi

        sur l'administration de la justice.

 

14.     Ces éléments suffisent amplement, à mon avis, pour que l'on

puisse estimer que M. Hauschildt dut éprouver de l'inquiétude

lorsqu'il a retrouvé, en tant que président du tribunal appelé à

statuer sur le bien-fondé de l'accusation, le même magistrat qui avait

accompli auparavant les actes énumérés ci-avant.

 

15.     Cela d'autant plus que ce magistrat, à la différence de ses

collègues (laïques), connaissait déjà de manière particulièrement

approfondie le dossier, ainsi que la personnalité de l'accusé.  Aussi

conçoit-on qu'il puisse, aux yeux de l'intéressé, paraître occuper une

situation lui permettant de jouer un rôle capital dans la juridiction

de jugement, voire s'être formé par avance une opinion qui risque de

peser lourd dans la balance au moment de la décision (v. mutatis

mutandis, arrêt De Cubber précité, par. 30).  Cette connaissance

approfondie du dossier par M. Larsen ne saurait être confondue avec

l'étude préalable d'un dossier pénal par un magistrat afin de préparer

l'audience de jugement, comme semble croire la majorité de la

Commission (cf. par. 111 du rapport de la Commission).  En effet, dans

la présente affaire, cette connaissance a été acquise par des

décisions qu'il a été amené à prendre, en tant que juge, avant

l'audience : il a considéré publiquement et à maintes reprises que les

infractions reprochées étaient graves et qu'il y avait des soupçons

particulièrement solides que le requérant les eût commises.

 

 

16.     De ce fait, aux yeux du justiciable, il existait un risque

trop important que M. Larsen fût empreint des éléments connus avant le

procès et qu'au moment du jugement il ne disposât pas du recul

nécessaire pour ne fonder sa conviction sur la culpabilité du

requérant que sur les preuves apportées au cours des débats et

contradictoirement discutées devant lui.  Il n'est pas exclu enfin que

ce risque s'aggravât avec le temps, vu le nombre de décisions

judiciaires prises, rendant par là même de plus en plus théorique la

présomption d'innocence dont le requérant devait pouvoir se prévaloir.

 

17.     Il va sans dire en effet que, dans les affaires pénales, la

sauvegarde des droits de la défense constitue un élément essentiel

dans un Etat de Droit.  Les droits de la défense doivent être exercés

d'une manière effective (Cour Eur.  D.H. arrêt Artico du 13.5.1980,

par. 33) et cet exercice est par nature indissociablement lié au

principe même de l'impartialité de la juridiction de jugement.  Devant

celle-ci, l'accusé est présumé innocent et doit disposer d'un certain

"supplément d'âme" pour présenter sa défense.  Si l'accusé se trouve,

comme en l'espèce, devant un magistrat qui, avant l'audience de

jugement a pris pendant des mois toute une série de décisions

d'importance considérable pour la défense, celle-ci se heurte

inévitablement à une "barrière psychologique" l'empêchant de présenter

efficacement devant lui sa version des faits.

 

18.     En conclusion, j'estime qu'au vu des circonstances propres

de l'affaire, M. Hauschildt était en droit d'avoir des appréhensions

légitimes sur la présence de M. Larsen comme président de la

juridiction de première instance.  L'impartialité de cette dernière

pouvait dès lors paraître sujette à caution.

 

 

 

 

A P P E N D I X  I

 

History of Proceedings

 

Date                    Item

 

26 August 1980          Introduction of the application.

 

27 October 1982         Introduction of the issue examined in the

                        present Report.

 

18 July 1983            Registration of the application

 

Examination of admissibility

 

7 December 1983         Commission's deliberations and decision to

                        adjourn the examination of the case.

 

7 March 1985            Commission's deliberations and decision to

                        invite the Government to submit observations

                        on the admissibility and merits of the

                        application.

 

24 July 1985            Submission of Government's observations.

 

17 November 1985        Submission of applicant's observations.

 

9 October 1986          Hearing on the admissibility and merits of the

                        application, the Commission's deliberations

                        and decision to declare the application partly

                        admissible, partly inadmissible.

 

                        The applicant

 

                        MM.  Robertson

                             Reindel

                        Mrs.  Hauschildt

 

                        The Government

 

                        MM. Lehmann

                            Bernhard

                            Vesterdorf

                            Elmer

                        Ms.  Schydt

 

Examination on the merits

 

7 March 1987            Consideration of the state of proceedings.

 

9 March 1987            Submission of applicant's additional

                        observations on the merits.

 

7 July 1987             Commission's deliberations on the merits

                        and final votes.

 

16 July 1987            Adoption of the Report.

 

 

 

 

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