BRANDSTETTER v. AUSTRIA - 11170/84;12876/87;13468/87 [1991] ECHR 39 (28 August 1991)

judgment of 14 February 1984 (see paragraphs 15 and 18 above). 2. In the Vienna Court of Appeal (a) First set of proceedings 32. On 23 April 1985 the Vienna Court of Appeal dismissed the applicant's appeal and upheld the Regional Court's judgment in its entirety. In so far as Mr Brandstetter had claimed that the impugned statement (see paragraph 31 above) was justified in the exercise of the rights of the defence (Articles 199 and 202 of the Code of Criminal Procedure) and could not therefore constitute criminal defamation, the court referred to well-established case-law and academic opinion, according to which such rights could not extend to conduct which did not merely serve an accused's defence, but also adversely affected the rights of another person through allegations of such a nature as to amount to a new criminal offence. As the applicant had consciously aroused false suspicions in respect of the Inspector, Article of the Criminal Code was applicable. The court also took the view that the public prosecutor's office had not tacitly waived its right to institute proceedings, even though it had not acted immediately. Finally, it found no procedural defect in the way in which the Regional Court had assessed the evidence. The latter court had examined the findings of the proceedings in detail, in a logical and coherent manner in relation to the evidence, and had drawn plausible conclusions concerning the subjective element. The appeal court regarded it as decisive that the bottles, irrespective of whether they had been rinsed with water or wine, could not contain a significant quantity of liquid once they had been emptied in the way described in a credible and convincing manner by the Inspector of Cellars. (b) Second set of proceedings 33. On an application by Mr Brandstetter, the Attorney-General (Generalprokurator) lodged a plea for a declaration of nullity in the interests of the law (Nichtigkeitsbeschwerde zur Wahrung des Gesetzes) directed against the composition of the Court of Appeal. The Supreme Court (Oberster Gerichtshof) allowed the appeal on 28 January 1987 and remitted the case to the Court of Appeal. At the hearing on 24 March 1987 the defence alleged that one of the judges present had already participated in the first appeal proceedings and should therefore withdraw. The court adjourned the hearing until 28 April 1987 when it sat in a composition that was in conformity with the law; it confirmed the judgment of 23 April 1985 in its entirety (see paragraph 32 above). 34. The applicant subsequently asked the Attorney-General to lodge a further application for a declaration of nullity in the interests of the law, but unsuccessfully. At this time he discovered that the judgments of 23 April 1985 and 28 April 1987 reproduced almost word for word the observations (the "croquis") of the Vienna Senior Public Prosecutor (Oberstaatsanwalt) filed with the Court of Appeal on 29 March 1985, which had not been served on him and of which he himself had had no knowledge at the time. II. The relevant Austrian legislation 35. According to the Wine Act, a Federal Inspector of Cellars may draw samples from wine tanks of the firm inspected and send them for analysis to the Agricultural Institute. A sealed counter-sample must be left with the firm in question. Furthermore, a reserve sample must be drawn, for use should a further analysis be necessary. The tanks may subsequently be sealed (sections 27 and 28). The Agricultural Institute analyses the official samples and draws up a report setting out its findings, as well as the results of a tasting by the official wine quality control panel (section 30(3)). The panel is composed of a Chairman (the Director of the Agricultural Institute) and at least five expert tasters appointed by the Federal Ministry of Agriculture and Forestry. It decides, by a qualified majority (five out of five or six, six out of seven, etc), whether the quality of the wine corresponds to its designation. The tasting, the conditions of which are laid down in internal rules, is not conducted in public. The identity of its members - who are under a duty of confidentiality - is not disclosed (section 30(4) to (8)). If the results of the analysis provide grounds for suspecting that a criminal offence has been committed, the Agricultural Institute must report this to the competent public prosecutor or court (section 30(9)). 36. As regards expert evidence in court, section 30(10) stated at the time: "If the court has doubts concerning the findings or the opinion of the Agricultural Institute, or if it considers that the findings or the opinion require elaboration, or if reasonable objections are raised against them, it must take expert evidence from an official of the Institute who has been involved in the preparation of the analysis or the opinion in question so that he may explain or discuss in greater detail the conclusions or opinion of that Institute". In all other aspects the provisions of the Code of Criminal Procedure are applicable. In particular if any doubts persist or if the findings of an expert "are unclear, vague, contradictory", etc. (Articles 125 and 126 of the Code of Criminal Procedure), the court may call another expert. Under the terms of Article 149 of the same Code, only the prosecutor and the defence counsel or the accused are entitled to put questions to witnesses and experts. Nevertheless, the court may authorise experts to examine witnesses and the accused. Witnesses, on the contrary, do not have this possibility. PROCEEDINGS BEFORE THE COMMISSION 37. In his applications of 6 September 1984 (11170/84), 13 March (12876/87) and 21 October 1987 (13468/87), Mr Brandstetter made the following complaints: that in the proceedings concerning the quality of the wine and those relating to the charge of tampering with evidence, he had not had a fair trial as required by Article 6 para. 1 (art. 6-1), nor had he had the benefit of the right secured under Article 6 para. 3 (d) (art. 6-3-d), on account of the position which the experts of the Agricultural Institute had occupied in relation to other expert witnesses; in addition, in the first proceedings, there had been a breach of Article 6 para. 3 (c) (art. 6-3-c) by reason of the applicant's subsequent conviction for defamation on the basis of statements that he had made in his defence, during the investigation; in the second proceedings, there had been a breach of the principle of the presumption of innocence guaranteed under Article 6 para. 2 (art. 6-2); finally, in the defamation proceedings, the Court of Appeal had failed to satisfy the requirement of a fair trial by basing its decision on observations made by the prosecution which had not been communicated to the defence. 38. On 14 July 1987 the Commission declared the first application manifestly ill-founded on two points and admissible for the rest. On 10 July 1989 it declared the two other applications admissible and ordered their joinder with the remaining claims of the first application. In its report of 8 May 1990 (Article 31) (art. 31), the Commission expressed the opinion: (a) that, in the case concerning the quality of the wine, there had been a violation of Article 6 para. 1 (art. 6-1) taken in conjunction with Article 6 para. 3 (d) (art. 6-3-d) of the Convention inasmuch as the expert evidence for the prosecution and that for the defence had not been treated on an equal footing (unanimously); (b) that the same was true in the proceedings concerning the charge of tampering with evidence (unanimously); (c) that the applicant's conviction for defamation had infringed Article 6 para. 3 (c) (art. 6-3-c) (nine votes to three); (d) that no separate issue arose concerning the question whether, in the proceedings concerning the charge of tampering with evidence, there had been in other respects an infringement of the applicant's right to a fair trial (Article 6 para. 1) (art. 6-1) or a breach of the principle of the presumption of innocence (Article 6 para. 2) (art. 6-2) (unanimously); (e) that, in the defamation proceedings, there had not been, on appeal, a breach of the principle of equality of arms guaranteed in Article 6 para. 1 (art. 6-1) (eleven votes to one). The full text of the Commission's opinion and the two separate opinions contained in the report is reproduced as an annex to this judgment*. ______________ * Note by the Registrar: For practical reasons this annex will appear only with the printed version of the judgment (volume 211 of Series A of the Publications of the Court), but a copy of the Commission's report is obtainable from the registry. _______________ AS TO THE LAW I. ALLEGED VIOLATIONS OF ARTICLE 6 (art. 6) 39. Mr Brandstetter alleged that he had been the victim of breaches of paragraphs 1, 2 and 3 (c) and (d) of Article 6 (art. 6-1, art. 6-2, art. 6-3-c, art. 6-3-d) which, in so far as they are relevant, provide: "1. In the determination ... of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ... 2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law. 3. Everyone charged with a criminal offence has the following minimum rights: ... (c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; (d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; ... ." According to the applicant, these provisions were violated in three different sets of proceedings concerning, respectively, the quality of his wine, a charge of tampering with evidence and his prosecution for defamation. The Court will examine each set of proceedings in turn. A. The proceedings concerning the quality of the wine (see paragraphs 12-21 above) 40. Mr Brandstetter's complaints in respect of the proceedings concerning the quality of the wine raise three distinct issues, namely: (1) the principle of equality of arms, inherent in Article 6 para. 1 (art. 6-1) and the specific provisions of Article 6 para. 3 (d) (art. 6-3-d), with regard to expert evidence; (2) the right to a fair trial and the right to obtain the attendance and examination of witnesses (Article 6 para. 1, in conjunction with Article 6 para. 3 (d)) (art. 6-1, art. 6-3-d) in relation to the evidence resulting from a wine-tasting procedure; (3) the rights of defence set forth in Article 6 para. 3 (c) (art. 6-3-c), in connection with the applicant's subsequent conviction for defamation on account of statements made by him in his defence during these proceedings. 1. The principle of equality of arms with regard to expert evidence 41. Mr Brandstetter first complained that the Haugsdorf District Court, applying section 30(10) of the Wine Act (see paragraphs 14 and 36 above) had appointed, as official expert, Mr Bandion, a member of the staff of the Agricultural Institute which had reported the initial suspicions concerning him, and that, in breach of the principle of equality of arms, it had refused to hear any other expert, and even to call Mr Niessner, the expert commissioned by the applicant, as a witness. The Government argued that the expert in question had not been appointed in pursuance of the above-mentioned section but, under the general rules of Articles 125 and 126 of the Code of Criminal Procedure (see paragraph above), to analyse a third set of samples (the reserve samples) and to compare the results with those of the analyses of the official samples and the counter-samples. As an "expert", he was, according to Austrian law, a neutral and objective auxiliary of the court. The Commission did not find it necessary to ascertain whether the appointment of Mr Bandion was based on section 30 of Wine Act, because what, in its opinion, was decisive for this issue was the fact that he belonged to the staff of the Agricultural Institute. 42. The Court considers it appropriate to examine the applicant's complaint under the general rule of paragraph 1 of Article 6 (art. 6-1) of the Convention, whilst having due regard to the guarantees of paragraph (art. 6-3) (see, inter alia, the Bönisch judgment of 6 May 1985, Series A no. 92, pp. 14-15, para. 29). The Court notes that, read literally, sub-paragraph (d) of paragraph 3 (art. 6-3-d) relates to witnesses and not experts. It points out that in any event the guarantees contained in paragraph 3 (art. 6-3) are constituent elements, amongst others, of the concept of a fair trial set forth in paragraph 1 (art. 6-1) (ibid.). In this context, it will take into consideration the position occupied by the expert throughout the proceedings and the manner in which he performed his functions (ibid., p. 15, para. 31). 43. First of all, the Court does not find it established that the District Court, when appointing Mr Bandion did so under section 30(10) of the Wine Act. At its first hearing, on 4 October 1983, the District Court had before it two contradictory reports, one supporting the prosecution's views and the other those of the defence; as a result the defence requested the appointment of another expert (see paragraphs 12-14 above). The court allowed this request and appointed Mr Bandion who was not - as he should have been under the aforementioned provision - the "official" who either had carried out the analysis of the official samples or had drawn up the report thereon. 44. Admittedly, the fact that Mr Bandion was a member of the staff of the Agricultural Institute which had set in motion the prosecution may have given rise to apprehensions on the part of Mr Brandstetter. Such apprehensions may have a certain importance, but are not decisive. What is decisive is whether the doubts raised by appearances can be held objectively justified (see, mutatis mutandis, in respect of judges, the Hauschildt judgment of 24 May 1989, Series A no. 154, p. 21, para. 48). Such an objective justification is lacking here: in the Court's opinion, the fact that an expert is employed by the same institute or laboratory as the expert on whose opinion the indictment is based, does not in itself justify fears that he will be unable to act with proper neutrality. To hold otherwise would in many cases place unacceptable limits on the possibility for courts to obtain expert advice. The Court notes, moreover, that it does not appear from the file that the defence raised any objection, either at the first hearing of 4 October 1983 when the District Court appointed Mr Bandion, or at the second hearing of 22 November 1983 when Mr Bandion made an oral statement and was asked to draw up a report; it was not until 14 February 1984, after Mr Bandion had filed his report, which was unfavourable to Mr Brandstetter, that the latter's lawyer criticized the expert for his close links with the Agricultural Institute (see paragraphs 14-17 above). 45. The mere fact that Mr Bandion belonged to the staff of the Agricultural Institute does not justify his being regarded - as was the case with the expert in the Bönisch case (see the judgment cited above, Series A no. 92) - as a witness for the prosecution. Nor does the file disclose other grounds for so considering him. It is true that to a certain extent Mr Bandion stepped outside the duties attaching to his function by dealing in his report with matters relating to the assessment of evidence, but this does not warrant the conclusion that the position which he occupied in the proceedings under review was that of a witness for the prosecution either. Accordingly, the District Court's refusal of the defence's request to appoint other experts (see paragraph 17 above) cannot be seen as a breach of the principle of equality of arms. 46. Nor can it be said that because of this refusal or of the refusal to call Mr Niessner as a witness the proceedings were unfair. The right to a fair trial does not require that a national court should appoint, at the request of the defence, further experts when the opinion of the court- appointed expert supports the prosecution case. 47. Accordingly, there was no violation of Article 6 para. 1 (art. 6-1), read in conjunction with Article 6 para. 3 (d) (art. 6-3-d) of the Convention, under this head. 2. Right to a fair trial and right to obtain the attendance and examination of witnesses 48. Mr Brandstetter also complained that, contrary to Article 6 para. (art. 6-1), taken in conjunction with Article 6 para. 3 (d) (art. 6-3-d), the Haugsdorf District Court relied on the evidence of anonymous witnesses, the members of the wine-tasting panel, who did not give evidence in court and whose identity was not disclosed. The Government argued that the panel's evidence was only of secondary importance; the Commission observed that it had in fact been of some relevance, because it supported the argument of the official expert and provided an additional reason for refusing to call a second expert. 49. The Court notes in the first place that in the proceedings concerning the quality of the wine the applicant never sought the attendance and examination of the members of the Agricultural Institute's panel: in fact, what he requested was the examination of the minutes of their wine-tasting session (see paragraphs 17 and 19 above). Furthermore, the results of the wine-tasting procedures, for both the official samples and the counter-samples, were included in the respective reports of 9 June and 9 August 1983 by the two Institutes (see paragraphs 11 and above). They thus formed only part of the written expert opinions. In addition, the reserve samples, which were the subject of Mr Bandion's analysis and report, and indeed the main evidence before the District Court, were not tasted at all by a panel (see paragraph 16 above). The expert did indeed note in his report that the results of his chemical analysis could not be considered to be contrary to the findings of the Agricultural Institute's panel, and this view was accepted by the District Court in its judgment of 14 February 1984 (see paragraphs 16 and 18 above). However, when rejecting the defence's request to examine the minutes of the wine-tasting session, the District Court stated that these findings were not relevant, because they did not constitute conclusive evidence (see paragraphs 17 and 19 above). On appeal, the Regional Court similarly held that these findings were, at best, an indication, since the results of the analyses already amounted to conclusive evidence (see paragraph 21 above). There has thus been no violation of Article 6 para. 1 (art. 6-1), taken in conjunction with Article 6 para. 3 (d) (art. 6-3-d), under this head either. 3. Rights of the defence 50. Again in connection with the proceedings concerning the quality of the wine, Mr Brandstetter complained finally that he had been convicted of defamation in subsequent proceedings, because he had alleged that the Inspector, when drawing the first wine samples on 16 May 1983, had acted irregularly (see paragraphs 15 and 30 above). This, in his view, constituted a violation of Article 6 para. 3 (c) (art. 6-3-c), inasmuch as an accused's ability to make statements in his defence must not be limited or inhibited by a fear of facing charges at a later stage of wilfully making false allegations. 51. The Court understands the substance of this complaint to be as follows: first, that the applicant's conviction in the defamation proceedings was incompatible with the rights of the defence set forth in Article 6 para. 3 (c) (art. 6-3-c) because it was based on statements made as a defence in the proceedings concerning the quality of the wine; and secondly, that it follows from this conviction that in the latter proceedings the applicant's rights of defence were interfered with. 52. As to the first limb (which, although it concerns the defamation proceedings, for the sake of coherence will be discussed here), the Court observes in the first place that Article 6 para. 3 (c) (art. 6-3-c) does not provide for an unlimited right to use any defence arguments. Mr Brandstetter claimed in his appeal in the defamation proceedings that, since he had made the impugned statements in the exercise of his rights of defence, they could not constitute punishable defamation. According to the Vienna Court of Appeal, however, the rights of defence could not extend to an accused's conduct where it amounted to a criminal offence such as, in the present case, that of consciously arousing false suspicions concerning the Inspector (see paragraph 32 above). The Court agrees in principle with this ruling. It would be overstraining the concept of the right of defence of those charged with a criminal offence if it were to be assumed that they could not be prosecuted when, in exercising that right, they intentionally arouse false suspicions of punishable behaviour concerning a witness or any other person involved in the criminal proceedings. It is, however, not for the Court to determine whether Mr Brandstetter was rightly found guilty of having done so. According to its case-law, it is, as a rule, for the national courts to assess the evidence before them (see, mutatis mutandis, the Delta judgment of 19 December 1990, Series A no. 191-A, p. 15, para. 35). 53. As to the second limb, which is related to the proceedings concerning the quality of the wine, it follows from the above considerations that the mere possibility of an accused being subsequently prosecuted on account of allegations made in his defence cannot be deemed to infringe his rights under Article 6 para. 3 (c) (art. 6-3-c). The position might be different if it were established that, as a consequence of national law or practice in this respect being unduly severe, the risk of subsequent prosecution is such that the defendant is genuinely inhibited from freely exercising these rights. Mr Brandstetter has not, however, alleged that this is the case in Austria. Moreover, Mr Brandstetter might have been indirectly inhibited if, when he made his allegations, he had been threatened with the possibility of prosecution for defamation. It is true that the Regional Court took these statements into account as an aggravating circumstance when determining sentence (see paragraph 18 above), but it does not appear that, during the proceedings leading to this judgment, any warning was given to the applicant in this respect. In fact Mr Brandstetter made the impugned allegations first before the police on 22 July 1983, and then before the Haugsdorf District Court on 22 November 1983 (see paragraph 15 above). There is no evidence to show that, at the time, he was stopped from making them or in any way restrained from airing the views which he expressed. 54. Having regard to all these circumstances, the Court concludes that there has been no violation of Article 6 para. 3 (c) (art. 6-3-c). B. The proceedings concerning the charge of tampering with evidence (see paragraphs 22-29 above) 55. In respect of the proceedings concerning the charge of tampering with evidence, Mr Brandstetter complained that the principle of equality of arms in relation to expert evidence had been disregarded, in breach of Article 6 paras. 1 and 3 (d) (art. 6-1, art. 6-3-d). Before the Commission he had also alleged that there had been a violation of Article 6 paras. 1 and 2 (art. 6-1, art. 6-2) (right to a fair trial and right to be presumed innocent), as a result of various specific findings made by the Korneuburg Regional Court in its judgment of 12 September 1985 (see paragraph 27 above). The Commission, having regard to its conclusion that there had been a violation of the principle of equality of arms, considered that there was no need to deal with these complaints. They were not pursued before the Court which, accordingly, does not find it necessary to examine them. 1. Preliminary objection 56. The Government submitted, as they had already done before the Commission, that Mr Brandstetter had failed to exhaust domestic remedies as is required under Article 26 (art. 26) of the Convention, since he had not challenged in due time Mr Flack, the official expert appointed by the Haugsdorf District Court (see paragraph 23 above). 57. The Court observes that the applicant's complaint is not that Mr Flack was appointed as the official expert; what he is complaining about is that the Regional Court refused his request for Mr Niessner, his privately commissioned expert, to be appointed as second court expert (see paragraph 27 above). In his appeal to the Vienna Court of Appeal the applicant raised this point at least in substance, but it was rejected (see paragraph 28 above). This being so, the domestic remedies were exhausted. 2. The merits of the complaint 58. The applicant complained that the Haugsdorf District Court had designated, as official expert, Mr Flack, who had raised the initial suspicion against him and who, moreover, was on the staff of the Agricultural Institute, whose experts had been consulted in the previous proceedings (see paragraphs 11 and 14 above), while it heard the expert commissioned by the applicant to analyse the counter-samples only as a witness, and thus not "under the same conditions". He alleged that this constituted a violation of Article 6 para. 1 taken together with Article 6 para. 3 (d) (art. 6-1, art. 6-3-d). 59. In examining this complaint, the Court will adopt the same approach as it did in considering the issue of expert evidence in the previous proceedings. To determine whether the principle of equality of arms has been complied with in this case, it is necessary to take into consideration both the position occupied by the expert throughout the proceedings and the manner in which he performed his functions (see paragraph 42 above). 60. As to the first point, it should be noted that the charge of tampering with evidence originated in a report prepared by Mr Flack. In the context of the proceedings for securing evidence instituted by Mr Brandstetter, Mr Flack had been instructed to supervise the drawing of new samples from Mr Brandstetter's tanks and to analyse them (see paragraphs 22 and 23 above). When Mr Flack did so, he found differences between the results of his analysis of the new samples and the results of the analyses by the Agricultural Institute of the official samples and the reserve samples obtained on 16 May 1983. These differences could, in his opinion, only be explained by assuming that substances capable of increasing the natural extract content had been added to the wine in the tanks (see paragraph 23 above). This opinion was imparted by Mr Flack to the District Court, whereupon that court, of its own motion, instituted criminal proceedings against the applicant for tampering with evidence. The Court agrees with the Commission that, in substance, the criminal suspicion emanated from Mr Flack. Notwithstanding this fact, he was later appointed as official expert by the court in the above-mentioned proceedings (see paragraph 24 above). 61. In these circumstances the applicant's apprehensions with regard to the neutrality and objectivity of the expert in question can be held to have been justified (see paragraph 44 above), the situation here being closer to that obtaining in the Bönisch case (see the judgment cited above, Series A no. 92, p. 15, paras. 31-32) than the position in the case concerning the quality of the wine (see paragraph 45 above). This does not mean that it was contrary to the Convention to examine Mr Flack at the hearing of 4 July 1985 (see paragraph 26 above); however, under the principle of equality of arms persons who were or could be called, in whatever capacity, by the defence in order to refute the views professed by Mr Flack, should have been examined under the same conditions as he was (see, mutatis mutandis, ibid., p. 15, para. 32). 62. In this respect the Court notes first that Mr Flack was present at the hearings of 4 July and 12 September 1985, but did not play a dominant role: in particular he did not put questions to the applicant or Mr Niessner, the "expert witness" called by the applicant; nor did he comment on the evidence given by Mr Niessner. In this regard the present case differs from the Bönisch case. Furthermore, at the first hearing of the Reginal Court Mr Flack was given the opportunity to summarise his written report and to explain why, in his opinion, the only possible explanation of: (1) the differences between the results of his analyses and the results of the analyses of the official and the reserve samples and (2) the similarities between his results and those of the analysis of the counter-samples by Mr Niessner, was that, after the official samples had been taken, substances had been added both to the tanks and the counter-samples. At that first hearing the defence did not dispute the results of Mr Flack's analyses, or his opinion that the differences between these results and those of the analyses of the official and the reserve samples could not be explained as being the effect of the passing of time on the composition of the wine. The defence stressed the similarities between the results of Mr Flack and those of Mr Niessner. Taking them as its starting point, the defence followed the line of reasoning that (1) it could be proved that the seals on the bottles containing the counter-samples were untouched when Mr Niessner started their analysis; (2) accordingly, the counter-samples could not have been tampered with; and (3) it followed that Mr Niessner had analysed the same wine as the Agricultural Institute and that the analyses of that Institute must have been wrong. In order to prove these allegations the defence requested that Mr Niessner should be heard, both as a witness and as an expert (paragraph 26 above). The first request was granted but the second rejected, and, at the second hearing, Mr Niessner was heard merely as a witness (see paragraph 26 above). As such he could only answer questions put to him by the judge, the public prosecutor and the defence. The questions that were actually put to him concerned solely the question whether it could indeed be ruled out that the counter-samples had been tampered with before he started his analysis. No one, not even the defence, asked questions with regard to the methods he had employed or the results that he had obtained. It is true that Mr Niessner was not heard "under the same conditions" as Mr Flack, yet in the light of the way argument was presented it cannot be said that the refusal to appoint Mr Niessner as an expert amounted to a breach of the principle of equality of arms. The line taken by the defence implied that the results of Mr Niessner's analysis were only relevant if it could be proved that the counter-samples had not, and could not have been, tampered with. On the latter issue Mr Flack had not written or said anything, while the defence had been able to put all the questions it wished to the only witness it had called on this point. Since the court found that it had not been established that tampering with the counter-samples could be excluded, the ground for the request to appoint Mr Niessner as a second expert ceased to exist. 63. Having regard to the particular circumstances of the case concerning the charge of tampering with evidence, the Court concludes that, here also, there has been no violation of Article 6 para. 1 (art. 6-1), taken in conjunction with Article 6 para. 3 (d) (art. 6-3-d). C. The defamation proceedings (see paragraphs 30-34 above). 64. Finally, the applicant complained, in respect of the defamation proceedings, that the Vienna Court of Appeal, in its judgments of 23 April 1985 and 28 April 1987, had relied on submissions by the Senior Public Prosecutor which had not been communicated to the accused and the existence of which was not known to him (see paragraph 34 above). Here again he alleged a breach of the principle of equality of arms (Article 6 para. 1). (art. 6-1) 65. Whilst admitting that these submissions had not been served on the applicant, the Government observed that, according to a well-established practice, defence counsel could have requested access to the file and could have inspected such submissions. He had not however availed himself of this possibility. The applicant's lawyer denied that such a practice existed and referred to certain cases - without however identifying them - where access had been refused on the ground that the submissions belonged to the "Attorney-General's file". 66. The principle of equality of arms is only one feature of the wider concept of a fair trial, which also includes the fundamental right that criminal proceedings should be adversarial (see, mutatis mutandis, in respect of the examination of witnesses, the Barberà, Messegué and Jabardo judgment of 6 December 1988, Series A no. 146, pp. 33-34, para. 78). The Court will thus examine the matter in the light of the whole of paragraph 1 of Article 6 (art. 6-1) (see the Delcourt judgment of 17 January 1970, Series A no. 11, p. 15, para. 28). 67. The right to an adversarial trial means, in a criminal case, that both prosecution and defence must be given the opportunity to have knowledge of and comment on the observations filed and the evidence adduced by the other party. Various ways are conceivable in which national law may secure that this requirement is met. However, whatever method is chosen, it should ensure that the other party will be aware that observations have been filed and will get a real opportunity to comment thereon. This is henceforth the case, as far as the Vienna Court of Appeal is concerned (see paragraph 8 above). In the present case it is common ground that no copy of the submissions of the Senior Public Prosecutor was sent to the applicant and that he was not informed of their having been filed either. The Government's argument is not that these submissions are prescribed by law so that the applicant should have known that they were to be filed; their argument seems to be that the submissions - the so-called "croquis" (see paragraph 34 above) - were filed according to a standing practice which enables the Senior Public Prosecutor to file such a croquis in such cases as he deems appropriate. They suggest that this practice must have been known to the applicant's lawyer who, accordingly, could have enquired whether in the applicant's case a croquis had been filed. If so, he could have requested leave to inspect the file under section 82 of the Code of Criminal Procedure and thus could have commented on it. Section 82, as it is formulated, however, does not seem to grant an unconditional right to inspect the complete file but only the possibility to ask for leave to do so, and the parties differ as to whether, with regard to the croquis, such leave would have been granted at the relevant time. The Commission left that question unsettled and so will the Court. The Court notes that the croquis apparently has considerable importance and that the alleged practice requires vigilance and efforts on the part of the defence; against this background, the Court is not satisfied that this practice sufficiently ensures that appellants in whose cases the Senior Public Prosecutor has filed a croquis on which they should comment are aware of such filing. 68. The Commission established that, after the Court of Appeal's judgment of 23 April 1985 had been quashed by the Supreme Court on 28 January 1987 (see paragraphs 33-34 above), no new submissions were filed by the Senior Public Prosecutor. It considered therefore that, in so far as the Court of Appeal's judgment "reproduced almost literally" the text of the observations in question, the applicant had had the opportunity to deal with the arguments contained therein in the second set of proceedings. The Court does not share this view. An indirect and purely hypothetical possibility for an accused to comment on prosecution arguments included in the text of a judgment can scarcely be regarded as a proper substitute for the right to examine and reply directly to submissions made by the prosecution. Furthermore, the Supreme Court did not remedy this situation by quashing the first judgment since its decision was based on a ground entirely unrelated to the matter in issue. 69. The Court therefore concludes that, in the appeal proceedings concerning the defamation case, there was a violation of Article 6 para. (art. 6-1) of the Convention. II. APPLICATION OF ARTICLE 50 (art. 50) 70. Article 50 (art. 50) of the Convention provides: "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." Mr Brandstetter claimed compensation for pecuniary and non-pecuniary damage, as well as the reimbursement of his costs and expenses. He also sought interest at 10% per annum on the relevant amounts. 71. The Court first notes that it has found a violation of Article 6 para. 1 (art. 6-1) of the Convention only in relation to the appeal proceedings in the defamation case (see paragraph 69 above). Accordingly, in so far as the applicant's claims are related to the proceedings concerning the quality of the wine and the charge of tampering with evidence, they must be dismissed. 72. As regards the proceedings in the defamation case the applicant claimed only his costs and expenses, namely 2,000 schillings for court costs and 43,609.35 schillings for his lawyer's fees. These costs cannot, however, be considered to be a consequence of the violation found by the Court. It follows that this claim must also be dismissed. 73. With regard to the proceedings before the Convention institutions, the applicant claimed the reimbursement of his costs and expenses. The Court notes that he received legal aid for the proceedings before the Commission and the Court, but this does not exclude that he incurred additional costs. 74. For his lawyer's fees before the Commission and the Court, Mr Brandstetter sought an overall sum of 547,595.90 schillings. The Court has had regard to the fact that, of the applicant's complaints made in his three different applications, only one has been found to be justified. Taking also into account the sums already paid to him by way of legal aid and making an assessment on an equitable basis, it awards to the applicant 60,000 schillings, including interest. FOR THESE REASONS, THE COURT 1. Holds unanimously that, in the proceedings concerning the quality of the wine, there was no violation of Article 6 para. 1 (art. 6-1), taken in conjunction with Article 6 para. 3 (d) (art. 6-3-d); 2. Holds unanimously that, in the same proceedings, there was no violation of Article 6 para. 3 (c) (art. 6-3-c); 3. Rejects unanimously the preliminary objection which the Government raised as regards expert evidence in the proceedings concerning the charge of tampering with evidence; 4. Holds unanimously that, in those proceedings, there was no violation of Article 6 para. 1 (art. 6-1), taken in conjunction with Article 6 para. 3 (d) (art. 6-3-d); 5. Holds unanimously that, as regards those proceedings, it is not necessary to examine the other complaints under Article 6 paras. 1 and 2 (art. 6-1, art. 6-2); 6. Holds unanimously that, in the defamation proceedings, there was no violation of Article 6 para. 3 (c) (art. 6-3-c); 7. Holds by six votes to three that, in those proceedings, there was a violation of Article 6 para. 1 (art. 6-1) on appeal; 8. Holds unanimously that the respondent State is to pay to the applicant, for costs and expenses, 60,000 (sixty thousand) Austrian schillings; 9. Dismisses 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 28 August 1991. Signed: Rolv RYSSDAL President Signed: Marc-André EISSEN Registrar In accordance with Article 51 para. 2 (art. 51-2) of the Convention and Rule 53 para. 2 of the Rules of Court, the following separate opinions are annexed to this judgment: a) partly dissenting opinion of Mr Matscher, joined by Mr Thór Vilhjálmsson and Mrs Bindschedler-Robert. b) concurring opinion of Mr Martens. Initialled: R. R. Initialled: M.-A. E. PARTLY DISSENTING OPINION OF JUDGE MATSCHER, JOINED BY JUDGES THÓR VILHJÁLMSSON AND BINDSCHEDLER-ROBERT (Translation) Contrary to the bare assertions of counsel for the applicant, I regard it as established that Austrian lawyers are well aware of the practice on the part of the public prosecutors at the Austrian Courts of Appeal and Supreme Court of submitting written observations (croquis) which are included in the court's case-file and that, despite the no doubt unsatisfactory wording of Article 82 of the Code of Criminal Procedure, any person who can show a legitimate interest is guaranteed access to the file; it is certain that a defendant (or his lawyer) has such an interest and is consequently always allowed the right of access. This practice is in my opinion entirely in accordance with the requirements of Article 6 (art. 6) of the Convention, as the Commission moreover recognised in its decision on admissibility given in the Peschke case concerning Austria (no. 8289/78 of 5.3.80, Decisions and Reports, vol. 18, p. 160). Its conformity with the requirements of the Convention might be questionable if the public prosecutor's observations were submitted to the court at a very late date, too close to the hearing of the appeal, or if access to the file involved a substantial burden for defence counsel. None of that is the case. In particular, in the present case, the Senior Public Prosecutor's observations were submitted over three weeks before the date of the appeal hearing (see paragraph 34 of the judgment) and the applicant's lawyer could have found about them very easily, simply by telephoning the registry of the Court of Appeal and, if appropriate, asking it to supply a copy. In these circumstances, it seems clear to me that the principle of equality of arms was respected. Of course it is possible to imagine a better system than that in force in Austria at the time of the instant case (see paragraphs 8 and 67 of the judgment), but that does not mean that the Convention has thereby been violated. If the majority of the Chamber consider that a defendant must always be informed by the court of the submission of observations by the public prosecutor, or at least that the right of access to the file ought to be guaranteed more explicitly in the law itself, that in my opinion goes beyond the requirements of Article 6 (art. 6). CONCURRING OPINION OF JUDGE MARTENS I agree with the Court's reasoning in paragraph 57, sed ceterum censeo ... (see my concurring opinion in the Brozicek case, judgment of 19 December 1989, Series A no. 167, pp. 23-28). BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII