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European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> HAUSCHILDT v. DENMARK - 10486/83 [1989] ECHR 7 (24 May 1989)
URL: http://www.bailii.org/eu/cases/ECHR/1989/7.html
Cite as: [1989] ECHR 7, (1990) 12 EHRR 266, (1989) 12 EHRR 266, 12 EHRR 266, [1989] 12 EHRR 266
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In the Hauschildt case*,
_______________
* Note by the registry: The case is numbered 11/1987/134/188.
The second figure indicates the year in which the case was referred to
the Court and the first figure its place on the list of cases referred
in that year; the last two figures indicate, respectively, the case's
order on the list of cases and of originating applications (to the
Commission) referred to the Court since its creation.
_______________
The European Court of Human Rights, taking its decision in plenary
session in pursuance of Rule 50 of the Rules of Court, and composed of
the following judges:
Mr R. Ryssdal, President,
Mr J. Cremona,
Mr Thór Vilhjálmsson,
Mr F. Gölcüklü,
Mr F. Matscher,
Mr L.-E. Pettiti,
Mr B. Walsh,
Sir Vincent Evans,
Mr R. Macdonald,
Mr C. Russo,
Mr R. Bernhardt,
Mr A. Spielmann,
Mr J. De Meyer,
Mr N. Valticos,
Mr S.K. Martens,
Mrs E. Palm,
Mr B. Gomard, ad hoc judge,
and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold,
Deputy Registrar,
Having deliberated in private on 28 September 1988, 27 January,
22 February and 29 April 1989,
Delivers the following judgment, which was adopted on the
last-mentioned date:
PROCEDURE
1. The case was referred to the Court by the European Commission
of Human Rights ("the Commission") on 16 October 1987, within the
three-month period laid down by Article 32 para. 1 and Article 47
(art. 32-1, art. 47) of the Convention for the Protection of Human
Rights and Fundamental Freedoms ("the Convention"). The case
originated in an application (no. 10486/83) against Kingdom of
Denmark lodged with the Commission on 27 October 1982 under
Article 25 (art. 25) by a Danish citizen, Mr Mogens Hauschildt.
The Commission's request referred to Articles 44 and 48 (art. 44,
art. 48) and to the declaration whereby Denmark recognised the
compulsory jurisdiction of the Court (Article 46) (art. 46). The
purpose of the request was to obtain a decision as to whether or not
the facts of the case disclosed a breach by the respondent State of
its obligations under Article 6 para. 1 (art. 6-1).
2. In response to the enquiry made in accordance with
Rule 33 para. 3 (d) of the Rules of Court, the applicant stated that he
wished to take part in the proceedings pending before the Court and
designated the lawyer who would represent him (Rule 30).
3. The Chamber to be constituted included, as ex officio members,
Mr J. Gersing, the elected judge of Danish nationality (Article 43 of
the Convention) (art. 43), and Mr R. Ryssdal, the President of the
Court (Rule 21 para. 3 (b)). On 30 November 1987, the President drew by
lot, in the presence of the Registrar, the names of the five other
members, namely Mr J. Pinheiro Farinha, Mr R. Macdonald,
Mr R. Bernhardt, Mr A. Spielmann and Mr J. De Meyer (Article 43 in
fine of the Convention and Rule 21 para. 4) (art. 43). Subsequently,
Professor B. Gomard was appointed by the Government of Denmark ("the
Government") on 1 August 1988 to sit as an ad hoc judge in place of
Mr Gersing, who had died, and Mr C. Russo replaced
Mr Pinheiro Farinha, who was prevented from taking part in the
consideration of the case (Rules 22 para. 1, 23 para. 1 and 24 para. 1).
4. Mr Ryssdal assumed the office of President of the Chamber
(Rule 21 para. 5) and, through the Registrar, consulted the Agent of the
Government, the Delegate of the Commission and the applicant's lawyer
on the need for a written procedure (Rule 37 para. 1). Thereafter, in
accordance with the President's orders and directions, the registry
received on 29 April 1988 the applicant's memorial and on 16 May 1988
the Government's memorial.
By letter of 4 August 1988, the Secretary to the Commission informed
the Registrar that the Delegate would submit his observations at
the hearing.
5. Having consulted, through the Registrar, the representatives
who would be appearing before the Court, the President directed on
4 August 1988 that the oral proceedings should open on
26 September 1988 (Rule 38).
6. The hearing took place in public at the Human Rights Building,
Strasbourg, on the appointed day. Immediately before it opened, the
Chamber held a preparatory meeting, in the course of which it decided
to relinquish jurisdiction forthwith in favour of the plenary Court
(Rule 50).
There appeared before the Court:
(a) for the Government
Mr T. Lehmann, Ministry of Foreign Affairs, Agent,
Mr I. Foighel, Professor of Law, Counsel,
Mr J. Bernhard, Ministry of Foreign Affairs,
Mr K. Hagel-Sørensen, Ministry of Justice,
Mr J. Hald, Ministry of Justice,
Mrs N. Holst-Christensen, Ministry of Justice, Advisers;
(b) for the Commission
Mr H. Danelius, Delegate;
(c) for the applicant
Mr G. Robertson, Barrister-at-Law, Counsel,
Mr F. Reindel,
Mr K. Starmer, Advisers.
The Court heard addresses by Mr Lehmann and Mr Foighel for the
Government, by Mr Danelius for the Commission and by Mr Robertson
and Mr Reindel for the applicant, as well as their replies to its
questions. The Agent of the Government and counsel for the applicant
filed several documents during the hearing.
7. On various dates between 26 September 1988 and
27 January 1989, the registry received the applicant's claims under
Article 50 (art. 50) of the Convention and the observations of the
Government and the Commission thereon.
AS TO THE FACTS
I. The particular facts of the case
8. The applicant, Mr Mogens Hauschildt, who is a Danish citizen
born in 1941, currently resides in Switzerland.
In 1974, he established a company, Scandinavian Capital Exchange PLC
("SCE"), which traded as a bullion dealer and also provided financial
services. SCE became the largest bullion dealer in Scandinavia, with
associated companies in Sweden, Norway, the Netherlands, the United
Kingdom and Switzerland. The applicant was appointed its managing
director.
9. Over the years and until the end of 1979, difficulties arose
between SCE and the Danish National Bank, the Internal Revenue Service
and the Ministry of Trade. They concerned the flow of money to and
from SCE and its associated companies abroad.
A. Criminal proceedings against the applicant
1. Investigation stage
10. On 30 January 1980 the Internal Revenue Service forwarded a
complaint to the police in which it 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 warrant from a court, the police arrested the
applicant, seized all available documents at the seat of the company
and closed its business on 31 January 1980.
11. The applicant was brought before the Copenhagen City Court
(Københavns byret) the following day and charged with fraud and tax
evasion. The court directed that he should be kept under arrest for
three consecutive periods of twenty-four hours; no objection was
raised.
On 2 February 1980, after hearing the prosecution and the defence,
the City Court held that the charges were not ill-founded and remanded
the applicant in custody in solitary confinement under sections 762
and 770(3) of the Administration of Justice Act (Retsplejeloven -
"the Act"; see paragraphs 33 and 36 below).
As a result of successive decisions, a number of which were taken
by Judge Claus Larsen, Mr Hauschildt was held in detention on remand
until the public trial began before the City Court on 27 April 1981
(see paragraphs 19-21 below). He also spent some time in solitary
confinement (31 January to 27 August 1980).
12. During the investigation stage, the police seized further
documents and property. Inquiries were also carried out in the
United Kingdom, the Netherlands, Belgium, Switzerland, Liechtenstein
and the United States of America. In accordance with the European
Convention of 20 April 1959 on Mutual Assistance in Criminal Matters,
the judge of the City Court on several occasions authorised the
prosecution to seek co-operation from other European countries in
securing documents as well as in other matters (see paragraph 22
below).
On 4 February 1981 the indictment, which ran to 86 pages, was
served on Mr Hauschildt. He was charged with fraud and embezzlement
on eight counts involving approximately 45 million Danish crowns.
2. First-instance proceedings
13. The trial at first instance began before the City Court,
sitting with one professional judge, Judge Larsen, and two lay judges,
on 27 April 1981. According to the applicant, he had complained
about the presiding judge before the trial, but no formal request was
made on the matter. At the trial he was advised by his lawyers that
section 60(2) of the Act debarred any challenge of the judge on the
basis of the pre-trial decisions that he had made
(see paragraphs 20-22 and 28 below).
14. In the course of over 130 court sittings at the trial the City
Court heard some 150 witnesses as well as the applicant and examined
a substantial number of documents. Furthermore, opinions from
appointed experts, in particular accountants, were taken into
consideration. The court also issued numerous orders concerning the
remand in custody and solitary confinement of the applicant, the
sending of commissions rogatory and other procedural matters
(see paragraph 24 below).
15. The City Court, with Judge Larsen presiding, gave judgment on
1 November 1982. It found Mr Hauschildt guilty on all counts and
sentenced him to seven years' imprisonment.
3. Appeal proceedings
16. The applicant appealed to the High Court of Eastern Denmark
(Østre Landsret). This court sat with three professional judges and
three lay judges. Its jurisdiction extended to both the law and
the facts, and involved a trial de novo.
The hearing of the appeal began on 15 August 1983. Before the
appeal hearing, the applicant had raised with the presiding judge an
objection against one of the judges on the ground of his involvement
in a City Court decision to seize the applicant's correspondence and
assets. However, counsel for the defence refused to argue this point
on the basis of section 60(2) of the Act, and Mr Hauschildt withdrew
the objection.
17. On 2 March 1984 the High Court found the applicant guilty on
six of the eight counts and sentenced him to five years' imprisonment.
The extensive character of the fraud was treated as an aggravating
factor. On the other hand, the court took into account the fact that
the applicant had been held in custody on remand since
31 January 1980, and considered this detention harsher than
regular imprisonment. Mr Hauschildt was released on the same day.
18. 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.
B. Mr Hauschildt's detention on remand and other procedural
matters
1. At the investigation stage
19. As already mentioned (see paragraph 11 above), the City Court
judge had decided on 2 February 1980 to remand Mr Hauschildt in
custody in solitary confinement. In the judge's opinion, there were
reasons to believe that the applicant, if at large, would abscond or
impede the investigation (section 762(1) nos. 1 and 3 and section
770(3) of the Act; see paragraphs 33 and 36 below). As justification
for the detention he listed the following elements:
(1) the circumstance that the applicant had lived outside
Denmark until 1976 and at the time of his arrest was planning to
move to Sweden;
(2) his economic interests abroad;
(3) the importance of the case;
(4) the risk of his obstructing the investigation by exerting
influence on persons in Denmark and abroad.
20. In accordance with section 767 of the Act, the applicant's
continued detention on remand was subject to regular judicial control
carried out at maximum intervals of four weeks. The elements set out
in the initial decision of 2 February 1980, which had been taken by
Judge Rasmussen, were the basis for the applicant's detention until
10 April 1980.
On 10 April the City Court judge, Mr Larsen, who was subsequently to
preside over the trial court that heard the applicant's case (see
paragraph 13 above), also relied on section 762(1) no. 2 as a ground
for his remand in custody (danger of his committing new crimes; see
paragraph 33 below). The reason prompting that decision was the fact
that the applicant had, whilst in custody, secretly communicated with
his wife and asked her to remove money from certain bank accounts as
well as certain personal property. Subsequently, on 30 April, the
same judge ordered her detention on remand and the stopping of a
letter written by the applicant.
At a later stage, when ruling on 5 September 1980 on an appeal
against an order of further remand in custody, the High Court referred
in addition to sub-section 2 of section 762 (see paragraph 33
below), since the investigations carried out by the police at that
time indicated a possible loss by the injured parties of
approximately 19,5 million Danish crowns. From 24 September on,
Judge Larsen also relied additionally on this sub-section.
The applicant's detention on remand continued to be based on each
of the three paragraphs of sub-section (1) and on sub-section (2) of
section 762 (see paragraph 33 below) until 17 August 1982 when
paragraph 3 of sub-section (1) was no longer relied on.
21. As from the applicant's arrest on 31 January 1980 and until
the trial started on 27 April 1981, police investigations and his
continuing detention on remand necessitated decisions to be taken by
the City Court sitting with one professional judge. A total of
approximately forty court sittings were held in connection with the
case during this period, twenty of which were concerned with remand in
custody and, from 31 January to 27 August 1980, also with the question
of solitary confinement. Fifteen of these decisions were taken by
Judge Larsen (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). On five of these occasions he ordered prolongation of
the applicant's solitary confinement (10 April, 30 April, 28 May,
25 June and 20 August 1980). On 27 August 1980, however, he
terminated the solitary confinement.
22. During this period, the City Court decided on three occasions
(5 March, 16 June and 13 August), on application by the police, to
request the co-operation of other countries in securing documents
and in other matters (see paragraph 12 above). Two of these
decisions were taken by Judge Larsen (16 June and 13 August 1980).
The City Court judge was furthermore called on to rule 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, payment of defence counsel fees and
correspondence. Besides the order of 30 April 1980 to detain
Mr Hauschildt's wife on remand (see paragraph 20 above), Judge Larsen
gave directions on 28 May 1980 as to the stopping of another of the
applicant's letters, on 12 November 1980 as to the seizure of a
certain amount of money which allegedly belonged to the applicant, on
4 February 1981 as to a change of defence counsel, and finally on
11 March 1981 as to the applicant's access to certain parts of the
police files. These rulings were delivered at the request either of
the prosecutor or of the defence counsel.
23. Mr Hauschildt brought various decisions taken by the City
Court judge before the High Court sitting on appeal with three
professional judges. On five occasions the High Court was called upon
to inquire into the applicant's continued remand in custody.
Altogether thirteen different judges participated in these decisions,
none of whom was subsequently involved in the appeal proceedings
regarding conviction and sentence. The same applied to the six judges
who heard appeals on other procedural matters.
2. During the trial at first instance
24. During Mr Hauschildt's trial, from 27 April 1981 to
1 November 1982 (see paragraphs 13-15 above), the City Court, sitting
with Judge Larsen as presiding judge and two lay judges, was also
required to give rulings on a number of procedural matters. In
particular, the court prolonged the applicant's detention on remand
twenty-three times on the basis of section 762(1) and (2). Except on
two occasions, these orders were made by Judge Larsen and, on four, he
was joined by the two lay judges. Furthermore, from 2 July
to 7 October 1981, the applicant was kept in solitary confinement at
the request of the prosecuting authorities. Although the first order
to this effect was made by another judge, Judge Larsen on two
occasions prolonged the solitary confinement. In addition, on five
occasions, he authorised the seeking of the co-operation of other
countries.
25. The applicant entered nineteen appeals against these various
rulings to the High Court. On twelve occasions, the High Court upheld
the decision of the City Court concerning remand in custody. Fourteen
judges participated in these judgments, none of whom was subsequently
involved in the hearing of the applicant's appeal against conviction
and sentence. The applicant's other appeals related to matters such
as the appointment of defence counsel, the hearing of further
witnesses, the issue of search warrants, custody in solitary
confinement and travel expenses for defence counsel. Twelve different
judges took part in these decisions. On 14 July 1981 three High Court
judges upheld the order continuing the applicant's solitary
confinement, one of whom also sat on the court for the hearing of the
applicant's appeal against judgment.
3. During the appeal proceedings
26. According to Danish law, the applicant was still considered as
being in custody on remand during the appeal proceedings (see
paragraphs 16-17 above). The High Court had accordingly to review the
detention at least every four weeks. Out of the nineteen renewals
ordered, ten were ordered before the hearing opened, whereas the
remaining nine were ordered during the sittings. With a few
exceptions all decisions concerning detention on remand were adopted
by the same judges as took part in the proceedings on appeal. During
the hearing (15 August 1983 to 2 March 1984), the professional judges
were joined by three lay judges.
The above-mentioned rulings of the High Court were based on
section 762(1) no. 1 and 762(2) of the Act (see paragraph 33 below).
The court attached particular importance to the gravity of the charges
and to the fact that the applicant had lived abroad and still had
substantial economic interests abroad.
27. The applicant twice obtained leave from the Ministry of
Justice to bring the issue 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(1) no. 2 (see paragraph 33 below).
In fact, some of the offences for which the applicant had been
convicted by the City Court had been committed whilst he had been in
custody on remand. On 9 December 1983 the Supreme Court directed that
the detention should continue but be based solely on section 762(1)
nos. 1 and 2 (see paragraph 33 below). The majority of the court
found that the public interest no longer required the applicant to be
kept in custody under section 762(2).
II. Relevant domestic law
28. The challenge of a judge is governed by sections 60 to 63 of
the Act:
Section 60
"(1) No one may act as a judge in a case where he,
1. is himself a party to the case, or has an interest in its outcome,
or, if it is a criminal case, has suffered injury as a result of the
criminal offence;
2. is related by blood or marriage to one of the parties in a civil
case or with the accused in a criminal case, whether in lineal ascent
or descent or collaterally up to and including first cousins, or is
the spouse, guardian, adoptive or foster parent or adoptive or foster
child of one of the parties or of the accused;
3. is married, or related by blood or marriage in lineal ascent or
descent or collaterally up to and including first cousins, to a lawyer
or other person representing one of the parties in a civil case or,
in a criminal case, to the injured party or his representative or to
any public prosecutor or police officer appearing in such a case or to
the accused's defence counsel;
4. has appeared as a witness or as an expert (syn- og skønsmand) in
the case, or, if the case is a civil one, has acted in it as a lawyer
or otherwise as representative of one of the parties, or, if the case
is a criminal one, as a police officer, public prosecutor, defence
counsel or other representative of the injured party;
5. has dealt with the case as a judge in the lower instance, or, if
it is a criminal case, as member of the jury or as lay judge.
(2) The fact that the judge may previously have had to deal with
a case as a result of his holding several official functions shall
not disqualify him, when there is no ground, in the circumstances
of the case, to presume that he has any special interest in the
outcome of the case."
Section 61
"In the situations mentioned in the preceding section, the judge
shall, if he sits as a single judge, withdraw from sitting on the
court by a decision pronounced by himself. If he sits on the
court together with other judges, he shall inform the court of the
circumstances which according to the preceding section may
disqualify him. Likewise, the other judges on the court, whenever
aware of such circumstances, are entitled and have the duty to
raise the question of disqualification, whereafter the question is
decided by the court, without the judge in question being
excluded from taking part in the decision."
Section 62
"(1) The parties can not only demand that a judge withdraw from
sitting in the instances referred to in section 60 but may also
object to a judge hearing a case when other circumstances are
capable of raising doubt about his complete impartiality. In such
instances the judge, too, if he fears that the parties cannot trust
him fully, may withdraw from sitting even when no objection is
lodged against him. Where a case is heard by several judges, any
one of them may raise the question whether any of the judges on the
bench should step down on account of the circumstances described
above.
(2) The questions which might arise under this section shall
be decided in the same manner as is laid down in section 61 in
regard to the situations enumerated in section 60."
Section 63
"The question whether or not a judge should remain on the bench,
which when raised by one of the parties in civil matters is treated
as other procedural objections, should as far as possible be raised
before the beginning of the oral hearing. This question may be
decided without the parties having been given the opportunity to
submit comments."
29. According to the Government, no case-law on section 60(2) had
been established by the Supreme Court at the time when the applicant's
case was pending before the Danish courts. However, by a ruling
of 12 March 1987, the Supreme Court held that if a judge has directed
the remand in custody of a person charged with a criminal offence,
this shall not in itself be deemed to disqualify the judge from taking
part in the subsequent trial and delivery of judgment.
30. In connection with an amendment extending the application of
section 762(2) (see paragraph 35 below), section 60 was amended on
10 June 1987 by the Danish Parliament. Sub-section (2) as amended now
provides that "no one shall act as a judge in the trial if, at an
earlier stage of the proceedings, he has ordered the person concerned
to be remanded into custody solely under section 762(2), unless the
case is tried as a case in which the accused pleads guilty."
This amendment came into force on 1 July 1987.
31. In Denmark, the investigation is carried out by the
prosecuting authorities, with the assistance of the police, and not by
a judge. The functions of the police at the investigation stage are
regulated by sections 742 and 743 of the Act, which provide:
Section 742
"(1) Information about criminal offences shall be submitted to the
police.
(2) The police shall set in motion an investigation either on the
basis of such information or on their 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."
32. Section 746 of the Act governs the role of the court:
"The court shall settle disputes concerning the lawfulness of
measures of investigation taken by the police as well as those
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."
33. Arrest and detention on remand are dealt with in sections 760
and 762 of the Act:
Section 760
"(1) 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."
Section 762
"(1) 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 may under the law result
in imprisonment for one year and six 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
'particularly confirmed suspicion' [translation supplied by the
Government of the Danish phrase saerlig bestyrket mistanke] that he
has committed an offence which is subject to public prosecution and
which may under the law result in imprisonment for six years or more
and when respect for the public interest according to the information
received about the gravity of the case is judged to require that the
suspect should not be 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 (haefte)
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."
34. Sub-section 2 of section 762 is applicable even in the absence
of any of the conditions set out in sub-section 1. Section 762(2) was
first inserted in the Act in 1935, following an aggravated rape case.
In the Parliamentary record concerning this amendment
(Rigsdagstidende, 1934-35 Part B, col. 2159), it is stated:
"When everyone assumes that the accused is guilty and therefore
anticipates serious criminal prosecution against him, it may in the
circumstances be highly objectionable that people, in their
business and social lives, still have to observe and endure his
moving around freely. Even though his guilt and its consequences
have not yet been established by final judgment, the impression may
be given of a lack of seriousness and consistency in the
enforcement of the law, which may be likely to confuse the concept
of justice."
35. Section 762(2) was amended in 1987 in order to extend its
application to certain crimes of violence which were expected to entail
a minimum of sixty days' imprisonment. In reply to a criticism in an
editorial in the newspaper Politiken, the Danish Minister of Justice
wrote on 30 December 1986:
"In so far as it ... has been suggested 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 particularly confirmed suspicion [the Minister's
emphasis] that the accused has committed the crime before he 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 ensuring that innocent
persons are not imprisoned."
36. Solitary confinement is governed by section 770(3) of the Act,
which at the relevant time read as follows:
"On application by the police the court may decide that the
detainee shall be totally or partially isolated if the purpose of
the detention on remand so requires."
This provision was amended on 6 June 1984.
PROCEEDINGS BEFORE THE COMMISSION
37. Mr Hauschildt first wrote to the Commission on 26 August 1980. In
this and further communications registered as application no. 10486/83, he
referred to Articles 3, 5, 6, 7 and 10 (art. 3, art. 5, art. 6, art. 7,
art. 10) of the Convention and Article 1 of Protocol No. 4 (P4-1).
As regards Article 6 (art. 6), he claimed that he did not receive a
fair trial by an impartial tribunal within a reasonable time; in support of
this contention, he pointed out, inter alia, that the presiding judge
of the City Court and the High Court judges, who had respectively convicted
him and examined his appeal, had taken before and during his trials
numerous decisions regarding his detention on remand and other procedural
matters.
38. On 9 October 1986 the Commission declared the application
admissible as regards this last complaint but inadmissible in all other
respects.
In its report adopted on 16 July 1987, the Commission expressed the
opinion that there had been no violation of Article 6 para. 1 (art. 6-1)
of the Convention (nine votes to seven). The full text of the
Commission's opinion and of the collective dissenting opinion
contained in the report is reproduced as an annex to this judgment.
AS TO THE LAW
I. PRELIMINARY OBJECTION OF NON-EXHAUSTION OF DOMESTIC REMEDIES
39. The Government pleaded before the Court - as they had already
unsuccessfully done before the Commission - that the application was
inadmissible for failure to exhaust domestic remedies (Article 26 of
the Convention) (art. 26). In support of this preliminary objection,
they argued that, in so far as Mr Hauschildt feared that Judge Larsen
and the judges of the High Court lacked impartiality as a consequence
of having made several pre-trial decisions in his case, he could have
challenged them under sections 60(2) and 62 of the Act
(see paragraph 28 above), but never did so.
40. The applicant countered by explaining that he had been advised
by counsel that the Act did not permit such a course of action. This
advice was based on reading section 62 of the Act in conjunction with
section 60(2) and inferring therefrom that challenge of a judge
relying on the fact of his having given pre-trial decisions - that is
having acted in an official function other than that of trial judge -
could be successfully made only on the ground that he had some
"special interest in the outcome of the case" (section 60(2)). This
ground, in the opinion of counsel, did not apply in the instant case.
The Government described this construction of the relevant sections of
the Act as a "quite obvious misinterpretation". On their own
interpretation, it would have been open to the applicant to challenge
both Judge Larsen and the High Court judges on the ground that their
responsibility for a number of pre-trial decisions raised doubts as to
their complete impartiality. In support of this contention, they
referred to a decision of 12 March 1987 by the Danish Supreme Court,
where it was held that the making of orders as to detention on remand
at the pre-trial stage should not per se be deemed to disqualify the
judge from sitting in the subsequent trial (see paragraph 29 above).
41. It is incumbent on the Government to satisfy the Court that
the remedy in question was available and effective at the relevant
time - that is to say, at the opening of Mr Hauschildt's trial
(27 April 1981) and at the opening of the hearing on appeal
(15 August 1983).
The Court cannot share the Government's view that the interpretation
put on sections 60(2) and 62 of the Act by counsel for the defence was
quite obviously wrong.
The Government have not alleged ascertainable facts - such as previous
case-law or doctrine - which should have caused counsel for the
defence to have doubts concerning his interpretation of the Act. On
the contrary, they did not deny that for several years nobody had ever
challenged a trial judge on the ground of his having made pre-trial
decisions in the case. The latter fact suggests general acceptance of
the system, or at least of the interpretation relied on by counsel for
the defence. The Supreme Court's decision of 12 March 1987, whatever
its relevance to the circumstances of the present case, does not alter
the position as it existed at the time of Mr Hauschildt's trial (see,
inter alia and mutatis mutandis, the Campbell and Fell judgment
of 28 June 1984, Series A no. 80, pp. 32-33, para. 61).
It is significant, moreover, that both Judge Larsen and the President
of the High Court, although aware of the apprehensions and unease
harboured by Mr Hauschildt (see paragraphs 13 and 16 above), did not
think it necessary to take any initiative themselves, notwithstanding
the wording of sections 61 and 62 (see paragraph 28 above).
In the circumstances, counsel for the defence could well at the time
reasonably believe that any objection on the basis of a particular
judge having made several pre-trial decisions was doomed to failure.
42. The Court concludes that the Government have not shown that
there was available under Danish law at the relevant time an effective
remedy to which the applicant could be expected to have resorted.
II. ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 (art. 6-1)
43. Mr Hauschildt alleged that he had not received a hearing by an
"impartial tribunal" within the meaning of Article 6 para. 1 (art. 6-1)
which, in so far as relevant, provides:
"In the determination of ... any criminal charge against him,
everyone is entitled to a fair ... hearing by an ... impartial
tribunal ...."
The applicant, while not objecting in principle to a system such as
that existing in Denmark whereby a judge is entrusted with a
supervisory role in the investigation process (see paragraphs 32-33
above), criticised it in so far as the very same judge is then
expected to conduct the trial with a mind entirely free from
prejudice. He did not claim that a judge in such a position would
conduct himself with personal bias, but argued that the kind of
decisions he would be called upon to make at the pre-trial stage would
require him, under the law, to assess the strength of the evidence and
the character of the accused, thereby inevitably colouring his
appreciation of the evidence and issues at the subsequent trial. In
the applicant's submission, a defendant was entitled to face trial
with reasonable confidence in the impartiality of the court sitting
in judgment on him. He contended that any reasonable observer
would consider that a trial judge who had performed such a supervisory
function could not but engender apprehension and unease on the part of
the defendant. The same reasoning applied in principle to
appeal-court judges responsible for decisions on detention pending
appeal or other procedural matters.
As to the facts of his own case, Mr Hauschildt pointed out above all
that the presiding judge of the City Court, Judge Larsen, had taken
numerous decisions on detention on remand and other procedural
matters, especially at the pre-trial stage. He referred in particular
to the application of section 762(2) of the Act (see paragraphs 20 and
33 above). He expressed similar objections as regards the judges of
the High Court on account of their dual role during the appeal
proceedings (see paragraph 26 above) and also, in relation to some of
them, because of their intervention at the first-instance stage (see
paragraphs 16 and 25 above).
44. The Government and the majority of the Commission considered that
the mere fact that a trial judge or an appeal-court judge had previously
ordered the accused's remand in custody or issued various procedural
directions in his regard could not reasonably be taken to affect the
judge's impartiality, and that no other ground had been established in the
present case to cast doubt on the impartiality of the City Court or the
High Court.
On the other hand, a minority of the Commission expressed the opinion
that, having regard to the circumstances of the case, Mr Hauschildt
was entitled to entertain legitimate misgivings as to the presence of
Judge Larsen on the bench of the City Court as presiding judge.
45. The Court's task is not to review the relevant law and
practice in abstracto, but to determine whether the manner in which
they were applied to or affected Mr Hauschildt gave rise to a
violation of Article 6 para. 1 (art. 6-1).
46. The existence of impartiality for the purposes of
Article 6 para. 1 (art. 6-1) must be determined according to a subjective
test, that is on the basis of the personal conviction of a particular
judge in a given case, and also according to an objective test, that
is ascertaining whether the judge offered guarantees sufficient to
exclude any legitimate doubt in this respect (see, amongst other
authorities, the De Cubber judgment of 26 October 1984, Series A
no. 86, pp. 13-14, para. 24).
47. As to the subjective test, the applicant has not alleged,
either before the Commission or before the Court, that the judges
concerned acted with personal bias. In any event, the personal
impartiality of a judge must be presumed until there is proof to the
contrary and in the present case there is no such proof.
There thus remains the application of the objective test.
48. Under the objective test, it must be determined whether, quite
apart from the judge's personal conduct, there are ascertainable facts
which may raise doubts as to his impartiality. In this respect even
appearances may be of a certain importance. What is at stake is the
confidence which the courts in a democratic society must inspire in
the public and above all, as far as criminal proceedings are
concerned, in the accused. Accordingly, any judge in respect of whom
there is a legitimate reason to fear a lack of impartiality must
withdraw (see, mutatis mutandis, the De Cubber judgment previously
cited, Series A no. 86, p. 14, para. 26).
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 (see the
Piersack judgment of 1 October 1982, Series A no. 53, p. 16, para. 31).
What is decisive is whether this fear can be held objectively
justified.
49. In the instant case the fear of lack of impartiality was based
on the fact that the City Court judge who presided over the trial and
the High Court judges who eventually took part in deciding the case on
appeal had already had to deal with the case at an earlier stage of
the proceedings and had given various decisions with regard to the
applicant at the pre-trial stage (see paragraphs 20-22 and 26 above).
This kind of situation may occasion misgivings on the part of the
accused as to the impartiality of the judge, misgivings which are
understandable, but which nevertheless cannot necessarily be treated
as objectively justified. Whether they should be so treated depends
on the circumstances of each particular case.
50. As appears from sections 742 and 743 of the Act (see
paragraph 31 above), in Denmark investigation and prosecution are
exclusively the domain of the police and the prosecution. The judge's
functions on the exercise of which the applicant's fear of lack of
impartiality is based, and which relate to the pre-trial stage, are
those of an independent judge who is not responsible for preparing the
case for trial or deciding whether the accused should be brought to
trial (sections 746, 760, 762 and 770 - see paragraphs 32, 33 and 36
above). This is in fact true of the decisions referred to by the
applicant, including those concerning the continuation of his
detention on remand and his solitary confinement. Those decisions
were all given at the request of the police, which request was or
could have been contested by the applicant, assisted by counsel (see
paragraphs 23 and 24 above). Hearings on these matters are as a rule
held in open court. Indeed, as to the nature of the functions which
the judges involved in this case exercised before taking part in its
determination, this case is distinguishable from the Piersack and the
De Cubber cases (judgments previously cited) and from the Ben Yaacoub
case (judgment of 27 November 1987, Series A no. 127-A, p.7, para. 9).
Moreover, the questions which the judge has to answer when taking
such pre-trial decisions are not the same as those which are decisive
for his final judgment. When taking a decision on detention on
remand and other pre-trial decisions of this kind the judge
summarily assesses the available data in order to ascertain whether
prima facie the police have grounds for their suspicion; when giving
judgment at the conclusion of the trial he must assess whether the
evidence that has been produced and debated in court suffices for
finding the accused guilty. Suspicion and a formal finding of guilt
are not to be treated as being the same (see, for example, the Lutz
judgment of 25 August 1987, Series A no. 123-A, pp. 25-26, para. 62).
In the Court's view, therefore, the mere fact that a trial judge or an
appeal judge, in a system like the Danish, has also made pre-trial
decisions in the case, including those concerning detention on remand,
cannot be held as in itself justifying fears as to his impartiality.
51. Nevertheless, special circumstances may in a given case be
such as to warrant a different conclusion. In the instant case, the
Court cannot but attach particular importance to the fact that in nine
of the decisions continuing Mr Hauschildt's detention on remand,
Judge Larsen relied specifically on section 762(2) of the Act (see
paragraph 20 above). Similarly, when deciding, before the opening of
the trial on appeal, to prolong the applicant's detention on remand,
the judges who eventually took part in deciding the case on appeal
relied specifically on the same provision on a number of occasions
(see paragraphs 26-27 above).
52. The application of section 762(2) of the Act requires, inter
alia, that the judge be satisfied that there is a "particularly
confirmed suspicion" that the accused has committed the crime(s) with
which he is charged. This wording has been officially explained as
meaning that the judge has to be convinced that there is "a very high
degree of clarity" as to the question of guilt (see paragraphs 34-35
above). Thus the difference between the issue the judge has to settle
when applying this section and the issue he will have to settle when
giving judgment at the trial becomes tenuous.
The Court is therefore of the view that in the circumstances of the
case the impartiality of the said tribunals was capable of appearing
to be open to doubt and that the applicant's fears in this respect can
be considered objectively justified.
53. The Court thus concludes that there has been a violation of
Article 6 para. 1 (art. 6-1) of the Convention.
III. THE APPLICATION OF ARTICLE 50 (art. 50)
54. Under Article 50 (art. 50) of the Convention,
"If the Court finds that a decision or a measure taken by a legal
authority or any other authority of a High Contracting Party is
completely or partially in conflict with the obligations arising from
the ... Convention, and if the internal law of the said Party allows
only partial reparation to be made for the consequences of this
decision or measure, the decision of the Court shall, if necessary,
afford just satisfaction to the injured party."
The applicant submitted that, should the Court find a violation of
Article 6 (art. 6), his conviction should be quashed and any
disqualifications or restrictions placed on him removed. The Court,
however, is not empowered under the Convention to provide for the
quashing of a judgment or to give any directions on the last-mentioned
matters (see, mutatis mutandis, the Gillow judgment of
14 September 1987, Series A no. 124-C, p. 26, para. 9).
The applicant also sought compensation for damage and reimbursement of
costs and expenses.
A. Damage
55. Mr Hauschildt submitted that a finding of a violation of
Article 6 (art. 6) would cast doubt on his conviction and that this,
in turn, would bring into question the lawfulness of each of his
1,492 days of detention on remand. Accordingly, he sought compensation
comparable to that to which he would have been entitled if the trial
court had found him not guilty, to be calculated on the basis of
500/1,000 Danish crowns (DKr) per day.
The applicant also contended that his health had suffered due to the
309 days he had spent in solitary confinement, that his reputation had
been seriously injured and that his lengthy detention on remand had
caused him a substantial loss of income.
56. In their observations of 10 October 1988 and 23 January 1989,
the Government pointed to the existence of a remedy at national level,
in that, under section 977(3) of the Act, Mr Hauschildt could ask the
Special Court of Revision (Den saerlige Klageret) to refer the case
back to the City Court if there were a high degree of probability that
the evidence had not been properly evaluated.
The Court notes in this respect that the violation found in the
present judgment (see paragraph 53 above) relates to the composition
of the courts concerned and not to their assessment of the evidence.
Accordingly, the remedy in question does not allow reparation for the
consequences of the violation, within the meaning of Article 50
(art. 50) (see, mutatis mutandis, the De Cubber judgment of
14 September 1987, Series A no. 124-B, pp. 17-18, para. 21).
57. It will be recalled that, with regard to the judges concerned,
the Court has excluded personal bias (see paragraph 47 above). What
it has found is that, in the circumstances of the case, the
impartiality of the relevant tribunals was capable of appearing to be
open to doubt and that the applicant's fears in this respect can be
considered to be objectively justified (see paragraph 52 above). This
finding does not entail that his conviction was not well founded. The
Court cannot speculate as to what the result of the proceedings might
have been if the violation of the Convention had not occurred (see the
above-mentioned De Cubber judgment, Series A no. 124-B, p. 18, para. 23).
Indeed the applicant has not even attempted to argue that the result
would have been more favourable to him, and moreover, given the
established lack of personal bias, the Court has nothing before it
that would justify such a conclusion.
The Court thus agrees with the Government and the Commission that no
causal link has been established between the violation found and the
alleged damage in question.
58. Mr Hauschildt also claimed compensation for non-pecuniary
damage, on the ground that he had lost the opportunity of being tried
by an impartial tribunal. The Delegate of the Commission submitted
that an amount, which he did not quantify, should be awarded under
this head.
The Court, however, is of the view that, in the particular
circumstances of the case, its finding in the present judgment will
constitute in itself adequate just satisfaction under this head.
B. Costs and expenses
59. The Delegate of the Commission viewed favourably the
applicant's claim for reimbursement of costs and expenses, although he
did not indicate any amount. The Government reserved their right,
should it prove necessary, to set up a "counterclaim".
The Court considers, however, that it has sufficient material to take
a decision on this point.
1. Proceedings outside Strasbourg
60. Mr Hauschildt sought reimbursement of the costs he had
incurred:
(a) in respect of the investigation and first-instance trial in
Denmark (3,061,960 DKr);
(b) in respect of several bankruptcy proceedings pending in Denmark
(7,100,000 DKr); and
(c) in Switzerland and other European countries in connection with
the bankruptcy of Hauschildt & Co (1,700,000 Swiss francs).
61. The Court is unable to accept these claims.
As to item (a), this rests on the erroneous assumption that the
finding of a violation in this case operates so as to erase the
applicant's conviction. As to items (b) and (c), it is not
established that there is any connection between the violation found
in the present judgment and the bankruptcy proceedings referred to.
2. Proceedings in Strasbourg
62. Mr Hauschildt also sought reimbursement of the following items
referable to the proceedings before the Convention institutions,
totalling £26,463:
(a) fees of his counsel, Mr Robertson (£11,048), and Mr Reindel
(£5,770);
(b) translation fees (£1,725);
(c) fees of Ms Eva Smith, who prepared for him a report on the
relevant Danish legislation (£420);
(d) his own personal costs and expenses (£7,500).
63. The Court has no reason to suppose that the foregoing
expenditure was not actually incurred. However, it entertains doubts
as to whether part of it - especially as regards Mr Hauschildt's
personal costs and expenses - was necessarily incurred and as to
whether all the items can be considered reasonable as to quantum.
In these circumstances, the Court is unable to award the totality of
the sums claimed. Making an assessment on an equitable basis, it
finds that the applicant should be reimbursed £20,000.
FOR THESE REASONS, THE COURT
1. Rejects by fourteen votes to three, as unfounded, the Government's
preliminary objection of non-exhaustion of domestic remedies;
2. Holds by twelve votes to five that there has been a breach of
Article 6 para. 1 (art. 6-1) of the Convention;
3. Holds unanimously that Denmark is to pay to the applicant, for
costs and expenses £20,000 (twenty thousand pounds sterling);
4. Rejects unanimously the remainder of the claim for just
satisfaction.
Done in English and in French, and delivered at a public hearing in
the Human Rights Building, Strasbourg, on 24 May 1989.
Signed: Rolv RYSSDAL
President
Signed: Marc-André EISSEN
Registrar
In accordance with Article 51 para. 2 (art. 51-2) of the Convention and
Rule 52 para. 2 of the Rules of Court, the following separate opinions are
annexed to the present judgment:
(a) concurring opinion of Mr Ryssdal;
(b) joint dissenting opinion of Mr Thór Vilhjálmsson, Mrs Palm
and Mr Gomard;
(c) joint dissenting opinion of Mr Gölcüklü and Mr Matscher;
(d) concurring opinion of Mr De Meyer.
Initialled: R.R.
Initialled: M.-A.E.
CONCURRING OPINION OF JUDGE RYSSDAL
The first sentence of section 62(1) of the Administration of Justice
Act entitles the parties to object to a judge hearing a case when
circumstances, other than those referred to in section 60, "are
capable of raising doubt about his complete impartiality". This
wording would seem to indicate that Mr Hauschildt could have
challenged Judge Larsen and the High Court judges on the ground that
they had applied section 762(2) of the Act in pre-trial decisions
concerning his detention on remand.
However, having regard to the specific provision in section 60(2) of
the Act and to the fact that it was common practice in Denmark at the
relevant time not to challenge a trial judge on the ground of his
having made pre-trial decisions in the same case, I have come to the
conclusion that Mr Hauschildt could not be expected to have objected
to the judges in question. I therefore agree that the Government's
plea of non-exhaustion of domestic remedies must be rejected.
JOINT DISSENTING OPINION OF JUDGES THÓR VILHJÁLMSSON, PALM AND GOMARD
1. Sections 60(2) and 62 of the Administration of Justice Act
("the Act"), which are cited in full in paragraph 28 of the Court's
judgment, clearly indicate - in accordance with the explanations given
on pages 21 and 22 of the original proposal, dated March 1875, that
led to the adoption of the Act - that normally a judge in a criminal
case is not disqualified because he has had to deal with the case in
another capacity before trial, but that disqualification may ensue
because of special circumstances as mentioned in those sections.
Consequently an appeal founded on the system itself, i.e. on the fact
that judges who delivered pre-trial decisions are not normally
disqualified from taking part in the trial, would undoubtedly have
been unsuccessful. The relevant questions in the present case,
however, are whether on a special appeal the Court of Appeal (the High
Court) or the Supreme Court would have found that the impartiality of
Judge Larsen or of the High Court judges was impaired because of his
or their involvement in the case before the first-instance or the
second-instance trial. Under the relevant provisions of the Act, the
result of an appeal alleging that the first-instance judge or the
second-instance judges lacked impartiality would have depended on the
circumstances of the case as it stood before the City Court or later
before the High Court. At that time - in 1981 and in 1983 - all
relevant information could have been produced to and evaluated by the
High Court or the Supreme Court. The only information available now,
years later, in the case before this Court is a simple list of the
number and contents of decisions made by various judges. It is not
possible to arrive, solely on the basis of such a list, at a
well-informed opinion on the partiality or impartiality of the trial
judges.
Mr Hauschildt and his counsel decided at the relevant time against
raising the question of impartiality. Mr Hauschildt's present
application is therefore, in our opinion, inadmissible because of
failure to exhaust domestic remedies (Article 26 of the Convention)
(art. 26).
2. If Mr Hauschildt's application is not found inadmissible for
failure to have recourse to an available and relevant domestic remedy
as required by Article 26 (art. 26) of the Convention, the objection
of partiality now raised by him has to be examined and decided in the
present case.
As stated in paragraph 50 of the Court's judgment, the mere fact that
a member of the trial court has also taken part as a judge in
preliminary decisions in the case does not in itself justify fears as
to his or her impartiality. The doubts that have been raised as to
whether this is also true where the decisions have been rendered under
section 762(2) of the Act are an indication that the wording of this
particular provision - as it appears in the translations - may not be
fortunate. This, however, does not alter the fact that the strong
traditions of the judiciary and the ability of the judges, deriving
from their education and training, provide the necessary effective and
visible guarantee of impartiality. Judicial control of the question
whether the prosecution has reasonable grounds for requesting
detention on remand, solitary confinement, searches and seizure, etc.
is a function that is different from the court's evaluation of the
evidence presented by the parties at the trial. For authorisation of
detention on remand, information is not presented in the same way as
evidence during the hearings before the trial court. The procedure is
a summary one. Court sittings at the pre-trial stage are concluded in
a matter of hours, whereas both of Mr Hauschildt's trials lasted for
months. After the City Court had passed judgment, that judgment
became an important factor for the High Court judges in determining
whether Mr Hauschildt should remain in custody during his de novo
trial on appeal.
The role of judges at the pre-trial stage is confined to ascertaining
whether the prosecution's requests satisfy the conditions set out in
the relevant section(s) of the Act. This judicial control may be
exercised by any judge or panel of judges belonging to the competent
court. In the present case the City Court's first - and important -
decision that Mr Hauschildt be detained on remand, that of 1
and 2 February 1980, was rendered not by Judge Larsen but by another
judge (Mr Dalgas Rasmussen). Where the court proceedings last for
several months, as in Mr Hauschildt's case, the rule in section 767 of
the Act that detention on remand cannot be authorised for more than
four weeks necessitates continued decisions on this matter during the
trial.
Judgment in Mr Hauschildt's case - as in other cases - was passed on
the basis of the evidence presented and commented on by both parties
at the trials, first before the City Court and later before the High
Court. There is no indication whatsoever of any lack of impartiality
on the part of the judges involved in Mr Hauschildt's case. There was
no objective or reasonable subjective ground to fear that either
Judge Larsen or the High Court judges could have had any improper motive
when passing judgment. There is no indication that any of the judges
involved in Mr Hauschildt's case was not able - as qualified,
professional judges are able - to form his opinion on the basis of the
materials presented at the trial and of nothing else. Mr Hauschildt
has not pointed to any ground for doubting the impartiality of the
judges other than their having taken part in various decisions before
and during trial, as described in paragraphs 10 et seq. of the European
Court's judgment.
For these reasons, Mr Hauschildt's complaint that his case was not
tried by an impartial tribunal must be rejected. In our opinion,
Article 6 (art. 6) of the Convention has not been violated in the
present case.
JOINT DISSENTING OPINION OF JUDGES GÖLCÜKLÜ AND MATSCHER
(Translation)
The majority of the Court rightly considered that - in a system such
as that existing in Denmark, where there is no division of
responsibilities between investigating judge and trial judge, with all
the guarantees inherent in such a division of responsibilities - the
mere fact that a trial judge or an appeal-court judge also takes
certain pre-trial decisions, in particular concerning detention on
remand, is not sufficient in itself to justify apprehensions as to the
impartiality of the judge in question.
However, the majority reached the opposite conclusion, and found a
violation of Article 6 para. 1 (art. 6-1), in this case on the ground that
the trial judge and the appeal-court judges took several decisions on
the continuation of the applicant's detention on remand and based
those decisions specifically on section 762(2) of the Danish
Administration of Justice Act, whose application requires a
"particularly confirmed suspicion".
It is our view that this fact does not justify the majority's
conclusion. In a legal system in which the function of investigating
judge does not exist (and its existence is in no way required by the
Convention), it naturally falls to the trial judge (or appeal-court
judge) to take all the pre-trial measures which call for the
intervention of a judge. Indeed it is of course the trial judge (or
appeal-court judge) who is the most familiar with the case and who
consequently is the best placed to determine the appropriateness of or
the necessity for the measures envisaged, even if this assessment
requires him to adopt a fairly clear-cut position on the case. This
does not mean however that he may be regarded as lacking sufficient
impartiality to decide the merits of the case.
Nor do we find the quantitative argument particularly convincing.
In a case involving economic offences of a wide-ranging and extremely
complicated nature, it will inevitably be necessary for the judge to
make several interventions in the investigation and, acccordingly, to
take a number of decisions concerning the extension of detention on
remand.
CONCURRING OPINION OF JUDGE DE MEYER
I fully subscribe to the operative provisions of the judgment and to
most of its reasoning. I cannot, however, agree with paragraph 50.
The "pre-trial functions" relating to detention on remand or to
solitary confinement which were exercised in the present case by
certain judges under sections 760, 762 and 770(3) of the Danish
Administration of Justice Act, as applicable at the relevant time,
were not essentially different from those which were exercised by the
investigating judge in the De Cubber case.
In my view, the mere fact that a trial judge has previously exercised
such functions in the case which he has to try, objectively justifies
legitimate fears as to his impartiality, and this applies not only to
functions exercised under section 762(2), but also to functions
exercised under the other provisions just referred to.