THE FACTS

I.   The facts presented by the parties and apparently not in dispute
between them may be summarised as follows:

1.   The first applicant, Mr X was born in India in 1932 and, when
lodging this application, was detained in prison at Albany, Isle of
Wight. His nationality is not stated.

The second applicant, Mrs X is a citizen of the United Kingdom, born
in 1916 and resident at M., Cheshire.

Both applicants are represented by Mr I.A. Davies of Messrs. Kingsley,
Napley & Co., a firm of solicitors practising in London.

2.   The application concerns the applicants' trial at the Central
Criminal Court in London in 1969.

The facts as presented by the prosecution at the trial were, briefly,
that in 1965 the applicants formed a company known as T. Limited of
which they were both sole shareholders and directors. The business was
that of brokers and finance agents mainly concerned with house
mortgages. Between June 1967 and March 1969 various clients, who gave
evidence at the trial, paid a total of £18,000 by way of deposits on
houses which they wanted to buy in the hope that the rest of the money
would become available by way of mortgages arranged by the applicants.
None of these clients succeeded in getting a house and only about £800
of the money obtained by the applicants by way of deposits was
returned.

3.   On .. July 1969 Mr and Mrs X were charged respectively with 28
and 21 offenses of fraudulent conversion and theft. It became apparent
a fortnight later that original estimates as to the time needed for the
trial were over optimistic and it was anticipated (contrary to what was
believed when they started) that the proceedings might last until
November. Accordingly the jury was discharged to enable individual
members to fulfil commitments they had not anticipated would have been
prejudiced by the trial, and also to enable the handwriting of certain
documents to be examined, at the request of the defence, by a
handwriting expert. No objection was raised to this procedure by the
applicants and, pending the holding of a new trial, they were released
on bail.

4.   The trial was recommenced on .. September 1969 before a new judge
and jury, and on .. November 1969 after a trial lasting 6 weeks (1) Mrs
X was convicted on 12 counts of fraudulent conversion and 4 counts of
theft (2) and was sentenced to 18 months' imprisonment on each count,
and the sentences to run currently; Mr X was convicted on 18 counts of
fraudulent conversion and 4 counts of theft (2) and sentenced to 5
years' imprisonment on each count, the sentences to run concurrently.
He was subsequently ordered to pay compensation amounting to £5,497.
-----------------------------------------
(1)  The "Short Transcript" of the trial (184 pages) has been
submitted to the Commission.

(2)  The offenses charged as fraudulent conversion and those charged
as theft were essentially of the same nature, the change of
nomenclature in the case of the latter reflecting a different
formulation in the Theft Act 1968, which had come into operation be the
time they were alleged to have been committed.
-----------------------------------------

5.   Mr X applied to the Court of Appeal for leave to appeal against
conviction and sentence; Mrs X applied for leave to appeal against
sentence and for an extension of time in which to apply for leave to
appeal against conviction.

The grounds relied upon by the applicants may be summarised briefly as
follows. They maintained that the verdicts were against the weight of
evidence; that the judge had wrongly refused to allow two defence
witnesses to be treated as hostile to the defendants; that the judge
had alleged that they were guilty of forgery, although they had not
been charged with that offence; and that he had misdirected the jury
on the law and facts and approached the trial on the basis that they
were guilty, displayed this attitude to the jury and made too many and
too intemperate interruptions. Mrs X also alleged that pressure had
been brought upon them to plead guilty. Both complained that their
sentences were excessive.

All applications were refused by the single judge of the Court of
Appeal on .. July 1970, except that he granted an extension of time for
Mrs X to appeal against conviction. In his reasons for dismissing the
applications the single judge remarked that the evidence against both
applicants was overwhelming and that he considered the sentences were
right.

6.   The applicants ' renewed applications were examined by the full
Court of Appeal on .. October 1970. After considering the "concise
grounds of appeal" (in all 102 pages of manuscript) submitted by the
applicants and after reviewing the facts of the case the Court of
Appeal found that there was no reason to interfere with the convictions
and that the sentences were lenient. Accordingly the applications were
refused. In the case of Mr X the court ordered that 91 of the days
spent in custody awaiting his appeal should not count towards his
sentence, because he had persisted in his application despite
consideration by the single judge of his very full representation and
despite having received the judge's opinion, with the refusal of their
applications, that there was no substance in them and that the case
against them was overwhelming. A similar order was not made in the case
of Mrs X because the court assumed "in charity" that her persistence
in the application was the responsibility of Mr X.

II.  Complaints

1.   With regard to their trial at first instance, the applicants
complain that they were wrongly convicted and sentenced. They submit
in particular that the trial was unfair, in that:

- the judge demonstrated throughout the proceedings that he was biased
against them and convinced from the outset of their guilt;

- the judge interrupted defence counsel to such an extent and addressed
them in such terms that counsel were unable to conduct the defence
properly;

- the judge's summing-up weighed against the applicants;

- when sentencing them, the judge indicated that the sentence might
have been reduced had they pleaded guilty.

The applicants also maintain that the evidence against them on each of
the counts on which they were convicted was unsatisfactory and that
allegations of forgery were irrelevant and untrue.

2.   They further submit that the Court of Appeal could not have
examined their case thoroughly in the time in which it dealt with their
applications for leave to appeal.

3.   The applicants allege violations of:

- Article 6 (1), (2) and (3) (c);
- Article 7 (1); and
- Article 14 of the Convention.

III. Proceedings before the Commission

1.   The Commission decided on 11 February 1972 that the United
Kingdom Government should be invited to submit its observations on the
admissibility of the case, in particular, in respect of the question
to what extent the conduct of the trial by the trial judge, especially
in the absence of the jury, might have affected the applicants' right
under Article 6 (1) of the Convention to a fair trial.

2.   The Government's observations were submitted under cover of a
letter of 12 June 1972. The applicants' observations in reply arrived
on 28 December 1972.

IV.  Submissions of the parties

1.   The respondent Government submit that the applicants' complaints
mentioned under II, 1 above were all raised in their applications for
leave to appeal. In examining these applications the Court of Appeal
gave full and substantive consideration to the complaints and expressed
the following view:

"Having considered all the complaints and contentions and requests put
forward by the applicants, this court finds no reason whatever to
interfere with the convictions. As the applicants were informed by the
single judge (of the Court of Appeal), the case against them was
overwhelming. There is no justifiable complaint which can be made of
the summing up and the jury, who heard and saw all the witnesses,
reached the only conclusion at which a sensible jury could have
arrived."

The Court of Appeal recognised that the trial judge did at one point
express very strong views both as to the merits and conduct of the
defence, but they pointed out that these views were made in the absence
of the jury and were wholly unknown to them. Nor did it seem to the
Court of Appeal that the trial judge's observations as to the
repetitious and irrelevant cross-examination were unjustified. The
Government observe in this connection that under English criminal law
and procedure a judge has a duty to ensure that inadmissible evidence
(including irrelevant evidence) is excluded and that witnesses are not
subjected to unfair or oppressive cross-examination.

As regards the trial judge's remarks, when passing sentence, to the
effect that, if the applicants had pleaded guilty, their sentences
might have been reduced, it is clear that the judge did not for that
reason increase their sentences but rather refrained from reducing what
he deemed to be the proper sentence. It is, of course, correct that,
if the Court of Appeal consider that a trial judge had improperly
exercised pressure on a defendant to plead guilty and that such
pressure had prejudiced his case, thy may and, indeed, should in an
appropriate case allow the appeal but it is clear that in the present
proceedings, after a thorough review of the evidence and of the judge's
conduct in conducting the trial, the Court considered that the
applicants' case had not been prejudiced. They said:

"It is complained that the applicants were subjected to pressure from
the (trial) court to plead guilty and that this prevented them from
being able to put forward their defence as well as they otherwise would
have done. It may be noted that it did not prevent them putting forward
their defence in oppressive detail and with sustained energy".

The Government conclude that there has been no violation of the
applicants' right under Article 6 (1) of the Convention to a fair trial
or to a presumption of innocence laid down in Article 6 (2) of the
Convention.

2.   Without prejudice to the above conclusion the Government further
submit that, if (which they deny) the conduct of the trial judge was
such as to influence the jury against the applicants, this would have
been rectified by the decision of the Court of Appeal. In this
connection they refer to the Commission's decision on the admissibility
of application No. 3860/68 (Collection of Decisions, Vol. 30, pages 70,
74-75).

3.   Accordingly, the Government submit that the complaints relating
to the applicants' trial at first instance should be rejected as
manifestly ill-founded within the meaning of Article 27, paragraph (2),
of the Convention.

4.   In the alternative, the Government argue that these complaints
are in substance the very issue which were raised before the Court of
Appeal and which were considered by that Court to give the applicants
no ground for obtaining leave to appeal against the conviction or
sentence. The applicants are, therefore, in effect inviting the
Commission to sit, as a tribunal of further instance, on issues that
have already been fully considered by the Court of Appeal. While the
Government do not seek to contend that the Commission may not, in
appropriate cases, examine issues that have already been canvassed
before domestic courts or tribunals, nevertheless, having regard to the
facts of this particular case, it would be wholly consistent with the
settled practice and jurisprudence of the Commission for the latter to
decline to exercise its jurisdiction in this way.

Accordingly, the Government submit that the application so far as
concerns these issues should, on this ground, be rejected as
incompatible with the provisions of the Convention within the meaning
of Article 27, paragraph (2), of the Convention.

5.   In respect of the complaint of a breach of Article 6 (2), the
Government further observe that no evidence has been submitted which
discloses a breach of this provision except for the general allegations
of bias on the part of the trial judge as described above. The
applicants were presumed innocent until they were found guilty by the
jury and the burden of proving guilt remained with the prosecution.
Accordingly, it is submitted that, insofar as the above complaint is
considered to raise an issue which is separate from those allegations,
it should be rejected as being manifestly ill-founded.

6.   With regard to the applicants' complaint that the Court of Appeal
inadequately examined their application for leave to appeal the
Government refer to the judgement of the Court of Appeal, which they
submit. In their opinion, the careful and detailed consideration of the
grounds of appeal in that judgment is, by itself, sufficient refutation
of the allegation. They conclude that this complaint should be rejected
as being manifestly ill-founded.

In the alternative, it is submitted that this complaint should be
rejected as incompatible with the Convention. The Government refer in
this connection to the Commission's decision on the admissibility of
Application No. 2749/66 (Collection of Decisions, Vol. 24, pages 98,
110).

7.   The applicants submit that the right, under Article 6 (1) of the
Convention, to a fair trial includes the right to a trial which must
be seen to be fair. The Government's observation that the trial of the
applicants was reviewed by the Court of Appeal has no relevance to the
question of whether the trial was fair or not. Nor would such a review
necessarily correct an injustice resulting from an unfair trial, since
the Court of Appeal may not necessarily be reviewing the facts which
would have emerged had the trial been a fair one.

8.   The applicants consider that their complaints are largely similar
to those in the case of B. (55 Criminal Appeal Reports, page ..). The
trial judge in that case was Judge Y. who was also the trial judge in
the applicants' case.

Parker L.C.J. said in the B. case:

"Complaint is made of what can only be described as an outburst by the
trial judge in the absence of the jury halfway through the case for the
prosecution to the effect that the appellant was plainly guilty, and
that the time of the Court was being wasted."

The opinion of the Court of Appeal in that case was that the trial
judge's conduct had been wholly improper for these reasons:

(a)  "It was putting extreme pressure on the appellant to plead
guilty, whereas after advice from his counsel the choice of plea was
his. Instead, if as a result the appellant had changed his plea, the
Court could not have allowed his conviction to stand."

(b)  "It was bound to make the appellant think that the judge had
taken so adverse a view of his case that he was unlikely to obtain a
fair trial."

(c)  "Without knowing what advice counsel had in fact given to the
appellant before arraignment, the judge forcibly conveyed what that
advice should have been and should be now, thus an attempt to interfere
with the independence of counsel in his duty to give the appellant the
best advice he could."

(d)  "Resulted in counsel's feeling that he must excuse himself by
revealing what advice he had in fact given, something which should
never be revealed; indeed the revelation of this advice and counsel's
agreement with the judge's view destroyed the relationship of
confidence between client and counsel. Counsel would appear to the
appellant to be siding with the judge, and indeed the appellant
expressed a view that in all the circumstances he should defend
himself, and counsel expressed a view that it would be in the
appellant's interest that he should withdraw."

(e)  "It was wholly unreasonable in all the circumstances to refuse
the appellant's request that the case be adjourned until the next
morning in order that he might be in a position to take over the
defence, thus enforcing the appellant to continue with counsel with
whom he no longer had full confidence."

9.   The applicants submit that remarks by the trial judge in their
case can be compared to those quoted by the Court of Appeal in the B.
case. They refer in particular to the following passages in the Short
Transcript:

(a)  "JUDGE Y:  I can only judge on the evidence before me thus far,
and as I say this evidence strengthens my view, and may I put it this
way and as strongly as this, Mr. S., in my view this is an undefended
case. I put it as strongly as that."

(b)  "JUDGE Y:  Mr G., now the jury has gone I want to tell you that
I see now that we have got another seventeen or eighteen alleged
victims coupled with in some cases other witnesses and certainly we
have police evidence to come, and I am very, very concerned indeed
about the cost of this case to the Legal Aid Fund, and of course the
cost of the prosecution in any event. You cannot have failed to have
noticed that from time to time today on several occasions the jury have
been reduced to laughter and that it is not the first time in the last
few days that has been the position, and it cannot have escaped you the
moments at which they have laughed, and I think I can put it in no
other way than this, and you will understand it:  how much longer is
this farce going on ?  As I say every day, as I said the other day,
last week, I cannot remember, every day this case goes on the evidence
we hear only strengthens the view which I obviously have formed of this
case, and it is almost true to say that every document that is put in
by the defence in cross-examination strengthens it still further if it
needs any further strengthening. How much longer is this farce going
on?

MR G: I am not sure how I can answer that question of your Lordship's.
The only answer I can give, my Lord, and it is one which of course has
crossed your Lordship's mind, presumably until the case is over.

JUDGE Y:  Well, if it must, it must. But I am very disturbed about it.
I don't take kindly, nor does any judge, to hopeless cases being
contested at length at public expense. If there is even the ghost of
a possibility of a defence I am the last to stop it, and I will give
every assistance to the defence to clothe the ghost with substance.

MR G:  Your Lordship has said what your Lordship has said. It has been
noted, my Lord.

JUDGE Y:  Thank you.

MR G:  I don't think there is anything more I can say to your Lordship.

JUDGE Y:  No. You personally cannot of your own volition, of course,
give me an answer direct, obviously, but I think it is right that I
should say it and I think it is in your client's interest that I should
say it."

(c)  "JUDGE Y:  I would like you to take instructions and to consider
the position. I take a very grave view of that document, quite apart
from a mass of others, but that one - an extremely grave view and in
the light of what I said the other day I would like you to consider the
matter with your clients bearing in mind that what I am saying they may
not appreciate it but I do think it, what I am saying is in their
interests as well, you know.

MR S:  My Lord, may I say this, I was so concerned about what your
Lordship quite obviously with our interests at heart told Mr G. that
the partner dealing with it and I am not sure is the young man sitting
in front of me, Mr G., I and Mr W. came late last night and discussed
it with the clients in full, and I tell your Lordship frankly Mr X.'s
instructions are that he wants evidence to be called and he wants to
deal with each item, and he has explained things which at first light
do look very black for him, and all I can say is whatever the reality
counsel is always in the invidious position of having to do the best
they can with what they have not. I am in that position. It might be
that they have heard each time your Lordship has said that, I have
impressed on them the seriousness of it, and each time they have given
points to their solicitors, to Mr G., which convinced me that at this
moment they wish to defend the proceedings, I can only say that."

10.  The applicants submit that the consequences of these exchanges
between judge and counsel have been the same as in the B. case, namely:

(a)  extreme pressure was put on the applicants to plead guilty.
Indeed the fact that it would be in their best interests to do so was
reiterated. If that were so, then the conclusion should have followed
in the applicants' case, as it did in the case of B., that, had they
changed their plea, then the Court of Appeal would not have allowed the
conviction to stand;

(b)  it was bound to make the applicants think the judge had taken so
adverse a view of their case that they were unlikely to obtain a fair
trial. At the outset the judge was saying that the evidence
strengthened the view that he had already formed that the case was not
one in which a defence was applicable;

(c)  the judge forcibly conveyed to counsel what their advice to their
client should be;

(d)  although it did not result in counsel feeling that they must
excuse themselves, it did result in senior counsel saying that he
thought his position invidious, and that he was attempting to make do
with the material at his disposal;

(e)  the question of an adjournment obviously did not arise in the
applicants' case.

The applicants further submit that the only material difference between
their case and the B. case is that their counsel did not ask to
withdraw whereas in the B. case counsel did make that request. But the
different reactions of counsel to remarks by the judge do not affect
the issue of whether or not those remarks were proper and, if they were
improper, the further issue of whether or not the applicants received
a trial that could be described as fair.

11.  The applicants acknowledge that the remarks by the trial judge,
concerning the cost of the Legal Aid Fund when hopeless cases were
being contested, was made in the absence of the jury. However, the
judge was careful to make clear that he intended the remarks to be
understood by the applicants, and so the consequences would have been
same as in the B. case where also the jury was absent when similar
remarks were made.

12.  With regard to the Government's observation that the Court of
Appeal in the applicants' case found the evidence against them
overwhelming, the applicants point out that the Court of Appeal found
B. an "open and shut" case but still quashed the convictions because
the trial had not been seen to be fair, regardless of their view as to
the strength of the evidence.

13.  Parker L.C.J., in delivering the judgment of the Court of Appeal
in the B. case, said that neither the judge's partiality nor the
improper pressure brought to bear on the appellant was in itself a
reason for saying that the trial was unfair. He then continued:

"However, the matter does not rest there because in the result the
appellant was forced to continue with counsel with whom he had lost
confidence, and counsel who himself felt that it was in the appellant's
best interests that he should no longer continue to act. It was clear
that in those circumstances counsel would be gravely handicapped in the
defence especially before a judge who had expressed his strong views
as to the appellant's guilt, and as to the waste of time involved in
fighting the case. To present an improbable defence is difficult
enough; but if counsel has to do so in the circumstances outlined
above, this task is made almost impossible."

The applicants submit that the obvious partiality shown by the trial
judge in their case resulted in an unfair trial. In particular, counsel
were handicapped in conducting the defence and made clear what their
own view of their position was. A complaint was made during the trial
by one of the applicants to the Bar Council about the conduct of Mr.
S. and, whatever the grounds given for that complaint, it is a fact
that the applicants lost confidence in their counsel.

The Court of Appeal in the applicants case took the view that the
defence had been submitted with energy and oppressive detail. However,
the applicants consider that insufficient evidence was introduced in
their defence:  counsel pointed out at their trial on .. October 1969
that not even one-tenth of the documents bearing on the case had been
produced.

14.  The applicants also complain of many hostile interruptions by the
trial judge during the cross-examination of witnesses and of his
unwillingness to allow the defence case to be put. They submit that
these interruptions constitute a further ground for calling their trial
unfair and they refer in particular to the following passages of the
Short Transcript:

(a)  "JUDGE Y:  I am going to tell you something. I don't want to say
this, but you compel me to say it. I have been on the Bench now for
something over five years and before that I was a Recorder in various
cities for I think ten years, so I have quite considerable duties and
experiences. This is, of course, the case because I have no means of
estimating it accurately but I would think that if I were to add up all
the occasions in all the cases that I have ever tried up to this one,
the interruptions which I have found necessary to make would equal in
total those which I have found it necessary to make in this case."

(b)  A passage where the question of relevancy was given a very
restricted interpretation. Judge Y. said that the issue involved in the
case was a very simple one - it was a question of what the applicants
had done and accordingly he was reluctant to allow what the prosecution
witnesses had done to be examined. However, it was the essence of the
defence case that prosecution witnesses were lying and consequently
many of the questions put by the defence counsel seem to have been
directed at the issue of whether the prosecution witnesses were to be
considered truthful people.

(c)  A passage where the question of whether someone in fact possessed
money that he was supposed to have given the defendant was queried by
defence counsel as was the suspicious way in which it was supposed to
have been obtained. But the judge considered the questions to be
irrelevant.

(d)  A passage where the judge refused to allow a question by defence
counsel but when counsel for the prosecution intervened to say that he
would wish to put the matter to the defendant should he go into the
witness box the question was then allowed. The judge wondered what was
the relevance of the witness having received £2,500 from the defendant
which was a greater sum than the defendant was alleged to have taken
from the witness.

15.  In connection with their criticism that the judge was, by his
interruptions, not allowing the defence to be properly put, the
applicants also refer to a passage where the judge interrupted defence
counsel to tell him that it might be the case that the witnesses were
mistaken and not lying. In his summing-up the judge asked the jury to
consider whether a contradiction between two of the prosecution
witnesses might result from one of them being mistaken and not from him
lying. The applicants submit that, in view of what had already
occurred, the jury might have been more willing to accept the
possibility put forward by the judge than the suggestion that the
prosecution witnesses were lying. The defence case was that the
witnesses had, in fact, been told what to say by Detective Sergeant R.
but the judge seemed to discount such a suggestion by his reference to
that "wicked fellow, Detective Sergeant R."

16.  The applicants submit that the summing-up can be further
criticised on the ground that it showed partiality. For example, the
judge:

(a)  referred to the applicants as having a "new device adopted to
extract money from the victim";

(b)  said that Mr X. had telescoped two meetings that he had with the
police officers into one when it was X.'s contention that only one
meeting had taken place in which there would be no question of
telescoping;

(c)  seemed anxious to separate whatever evidence was favourable to
the defence in the case of one of the prosecution witnesses from the
evidence given by the other prosecution witnesses, although it had been
throughout accepted that all the evidence contained in the prosecution
case stood or fell together.

17.  In passing sentence the judge repeated what he had said earlier
with regard to time and money being wasted in a case where it was
apparent to him, even at the beginning, that there was no defence to
the charges:

"This trial has provided a most shocking example of an abuse of the
Legal Aid System in that the defence in my judgment had an absolutely
hopeless case, but nevertheless in spite of that fact it has been
contested right through to the bitter end. It is conduct like that that
helps to create the backlog of work, a heavy backlog of work, at this
Court, thus causing many people to wait weeks and sometimes months
before they can come to trial, sometimes being kept in custody.

Apart from the time taken and the waste of time taken there is, of
course, the very important matter of expense. The costs of the
prosecution and the burden upon the Legal Aid Fund will be very heavy,
and for the most part it has been spent entirely unnecessarily,
completely wasted. One might as well have thrown it down the drain. I
say that because in my view the evidence against each of you was
absolutely overwhelming. There was not even a glimmer of a ghost of a
defence, not even at the beginning of the case, and as each day went
on so even if there had been a glimmer it diminished more and more as
the days went by."

21.  The applicants conclude  that the grounds put forward disclose
a case for saying that they received an unfair trial with the result
that the rights granted to them by Article 6 (1) of the Convention have
been violated. They request the Commission to declare their application
admissible.

THE LAW

1.   The applicants complain that their trial at first instance was
unfair, in that the trial judge showed bias against them and prevented
counsel from conducting their defence properly.

The Commission has examined this complaint under Article 6 (1)
(Art. 6-1) of the Convention which provides that, in the determination
of any criminal charge against him, everyone is entitled to a fair
hearing by an impartial tribunal. It is not the task of the Commission
to consider whether the present case is comparable to that of B., which
was decided by the Court of Appeal under English law.

The tribunal which tried the applicants at first instance was composed
of a judge and a jury. The Commission notes that the applicants'
complaints concern only the conduct of the judge and that some of the
views expressed by the judge, to which the applicants object, were made
in the absence of the jury which had to decide on the applicants' guilt
or innocence.

However, it was the judge who conducted the trial and who fixed the
applicants' sentences, and the Commission has decided in previous cases
that Article 6 (1) (Art. 6-1) applies also to proceedings on sentences.
For example, the Commission stated in its final decision on the
admissibility of Application 4623/70 (X. v. the United Kingdom,
Collection of Decisions, Vol. 39, pages 66-74) at page 74 that :

"the determination of a criminal charge, within the meaning of Article
6 (1) (Art. 6-1) of the Convention, includes not only the determination
of the guilt or innocence of the accused, but also in principle the
determination of his sentence; and the expression 'everyone charged
with a criminal offence' in Article 6 (3) (Art. 6-3) includes persons
who, although already convicted, have not been sentenced.

The Commission observes that questions of sentence may be closely
related to questions of guilt and innocence, and that in the criminal
procedure of many States Parties to the Convention they cannot be
separated at this stage of the proceedings.

The Commission has also had regard to its case-law and in particular
to its decisions on the admissibility of Applications Nos. 596/59
(Pataki v. Austria), Yearbook, Vol. III, p. 356, and 789/60 (Dunshirn
v. Austria), Yearbook, Vol. IV, p. 187. In these two cases the
Commission declared admissible, and examined on the merits under
Article 6 (Art. 6) of the Convention, complaints which related solely
to proceedings on sentence before the Regional Court of Appeal
(Oberlandesgericht) in Vienna. The Commission reached the opinion that
the proceedings in these cases were not in conformity with the
Convention."

It follows from the case-law that the views expressed by the trial
judge in the absence of the jury must also be taken into account in the
determination of the applicants' complaint under Article 6 (1)
(Art. 6-1) of the Convention.

2.   The Commission further observes, however, that the question
whether a trial conforms to the standard laid down by Article 6 (1)
(Art. 6-1) of the Convention "must be decided on the basis of a
consideration of one particular aspect of the trial or one particular
incident. Admittedly, one particular incident or one particular aspect,
even if not falling within the provisions of paragraphs 2 or 3 (Art.
6-2, 6-3), may have been so prominent or may have been of such
importance as to be decisive for the general evaluation of the trial
as a whole. Nevertheless, even in this contingency, it is on the basis
of an evaluation of the trial in its entirety that the answer must be
given to the question whether or not there has been a fair trial."
(See the Commission's Report in the Nielsen case, Yearbook of the
European Convention on Human Rights, Vol. 4, pages 494 to 588, at pages
548, 550).

The Commission has accordingly evaluated the applicants' trial in its
entirety, on the basis of the parties' submissions, and, in particular,
the Short Transcript of the trial. It agrees with the finding of the
Court of Appeal that the trial judge expressed "some very strong views
both as to the merits .... and the conduct of the defence". The
Commission finds that the expression of those views was as such
objectionable, in that it has raised doubts as to his impartiality.

But the applicants' trial must be considered as a whole in order to see
whether there has finally been a fair trial or in fact a denial or
miscarriage of justice. The following elements are then also relevant:

(1)  It appears from the Short Transcript of the trial that, as the
Court of Appeal subsequently found, observations by the trial judge as
to the repetitive and irrelevant cross-examination by defence counsel
were essentially justified. In this connection the Commission
recognises that a judge has a duty to ensure that inadmissible evidence
including irrelevant evidence is excluded and that witnesses are not
subjected to unfair or oppressive cross-examination.

(b)  As regards the pressure put on the applicants to plead guilty,
it further appears from the course of the trial, as reflected in the
Short Transcript, that defence counsel were not in fact intimidated by
the trial judge. Nor does it seem that their trial was unfair, in that
defence pleas were ignored or excluded. The Commission accepts in this
respect the following statement by the Court of Appeal:  "It is
complained that the applicants were subjected to pressure from the
(trial) court to plead guilty and that this prevented them from being
able to put forward their defence as well as they would otherwise have
done. It may be noted that it did not prevent their putting forward
their defence in oppressive detail and with sustained energy".

(c)  The Commission finds that no justifiable complaint can, under
Article 6 (1) (Art. 6-1) of the Convention, be made of bias or
inadequacy in the summing-up by the trial judge (Short Transcript, Vol.
2, pages 1 to 88).

(d)  The Commission accepts the finding of the Court of Appeal that
the sentences imposed were lenient. It is true that, when sentencing
the applicants, the trial judge pointed out that a confession would
have constituted a mitigating circumstance. This, however, in no way
violated the applicants' right to a fair trial. It is clear from the
statements by the trial judge that he did not increase the applicants'
sentences on the ground that they had affirmed their innocence
throughout the trial but rather refrained from reducing what he deemed
to be the proper sentence, having regard to the gravity of the offenses
concerned.

Having considered the trial as a whole, the Commission therefore
concludes that there was finally no violation of the applicants' right
under Article 6 (1) (Art. 6-1) of the Convention, to receive a fair
hearing by an impartial tribunal.

3.   In its examination of the applicants' complaint concerning the
conduct of the trial judge, the Commission has also had regard to
Article 6 (2) (Art. 6-2) of the Convention, which provides that
everyone charged with a criminal offense shall be presumed innocent
until proved guilty according to law. The Commission, referring to its
considerations set out under 2 above, finds that this presumption has
been observed at the applicants' trial. In particular, it is clear from
the terms of the summing-up by the trial judge that the applicants were
presumed innocent until they were found guilty by the jury and that the
burden of proving guilty remained with the prosecution throughout the
trial.

4.   An examination of the remainder of the application equally does
not disclose any appearance of a violation of the rights and freedoms
set forth in the Convention.

The Commission therefore concludes that the application is manifestly
ill-founded within the meaning of Article 27, paragraph (2)
(Art. 27-2), of the Convention.

For these reasons, the Commission DECLARES THIS APPLICATION
INADMISSIBLE.