European Court of Human Rights - case of Hauschildt v. Denmark (1989) (excerpts)

European Court of Human Rights - case of Hauschildt v. Denmark (1989) (excerpts)


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


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.