CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 3 décembre 1986

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }  The European Commission of Human Rights sitting in private on 3 December 1986, the following members being present:                      MM.     C.A. NØRGAARD, President                           J. A. FROWEIN                           E. BUSUTTIL                           G. JÖRUNDSSON                           G. TENEKIDES                           S. TRECHSEL                           B. KIERNAN                           A. WEITZEL                           J. C. SOYER                           H. G. SCHERMERS                           H. DANELIUS                           G. BATLINER                           H. VANDENBERGHE                       Mrs G. H. THUNE                       Sir Basil HALL                       Mr. F. MARTINEZ                         Mr. J. RAYMOND, Deputy Secretary to                                       the Commission   Having regard to Article 25 (Art. 25) of the Convention for the Protection of Human Rights and Fundamental Freedoms;   Having regard to the application introduced on 5 April 1985 by O. N. against Austria and registered on 31 May 1985 under file No. 11571/85;   Having regard to   - the Commission's decision of 12 December 1985 to give notice of the application to the respondent Government and invite them, in accordance with Rule 42 para. 2 (b) of the Rules of Procedure, to submit observations in writing on the admissibility and merits;   - the President's ruling of 17 March 1986 to extend the time- limit fixed for this purpose to 1 April 1986;   - the observations submitted by the respondent Government on 7 April 1986;   - the applicant's declaration of 28 May 1986 that he does not wish to submit observations in reply;   - the applicant's further declaration of 6 August 1986 that he wishes to withdraw the application;   Having deliberated;   Decides as follows:   THE FACTS   The applicant is an Austrian citizen born in 1927 who resides at Grafenwörth, Lower Austria.   He is represented by Mr. Werner Sporn, a lawyer practising in Vienna.   The applicant complained of criminal proceedings taken against him under the Wine Act 1961 (Weingesetz, Federal Law Gazette No. 187/61). These proceedings were instituted following a control carried out in his enterprise at which several samples of wine were drawn and counter-samples left behind for the firm's use.   After examination by the official wine tasting panel (amtliche Weinkostkommission) and a chemical analysis, the Federal Agricultural Chemical Control Institute (Landwirtschaftlich-chemische Bundesversuchsanstalt) in Vienna found the wine samples to be adulterated and diluted with water.   In accordance with Section 30 (9) of the Wine Act it therefore laid a criminal information (Anzeige) with the District Court of Kirchberg am Wagram expressing the suspicion of various offences.   The district prosecutor (Bezirksanwalt) requested the applicant's punishment under Section 45 (1) of the Wine Act.   The applicant's firm had in the meantime arranged for the examination of the counter-samples by the Provincial Agricultural Chemical Control Institute of Styria (Landwirtschaftlich-chemische Landes-Versuchs- und Untersuchungsanstalt) in Graz.   The tasting panel at this Institute found the counter-samples to be unsuitable for tasting (kostunfähig). Their chemical analysis did not give rise to objections.   The trial of the case by the District Court took place on 14 June 1984.   The Court heard an employee of the Vienna Institute as its official expert in conformity with Section 30 (10) of the Wine Act which reads as follows:   "If the court has doubts concerning the findings or the opinion of the Institute or if it considers that the findings or the opinion require elaboration or if reasonable objections are being raised against the findings or the opinion, it must hear as expert an employee of the Institute who has been involved in the preparation of the analysis or opinion for the purpose of explaining or elaborating on the Institute's findings or opinion."   This expert admitted that the tasting could be considerably affected by the circumstance that the wines were still in the process of fermentation.   However, he considered that it was nevertheless possible to identify with some certainty a dilution of wine with water.   These explanations were confirmed by a second expert consulted by the court who was neither employed by the Vienna nor the Graz Institute, but who had not seen the samples himself.   The defence requested the taking of additional evidence including the consultation of the records of the tasting panels and the hearing of the individual members of the Vienna panel, the examination of new samples of the wines, and the hearing of further experts, including an expert of the Graz Institute who had analysed the counter-samples. However, these requests were rejected.   The Court found the applicant guilty of the offence of keeping for sale stocks of adulterated (diluted) wine and sentenced him to a fine of AS 20,000.-.   The wine was declared forfeited.   The applicant's appeal against this judgment was rejected by the Regional Court (Kreisgericht) of Krems on 16 October 1984.   It considered that the procedure had been in accordance with Section 30 of the Wine Act.   The members of the tasting panel were not to be considered as experts, the Court was not required to hear them nor was it necessary to consult other experts as to the reliability of the tasting procedure.   The Court further considered that there had been no interference with the right to a fair trial under Article 6 (Art. 6) of the Convention.   As it had no doubts concerning the constitutionality of the tasting procedure it did not see any reason to bring this issue before the Constitutional Court.   COMPLAINTS   The applicant has complained that he was not able to put questions to the members of the wine tasting panel whose expert evidence was of crucial importance in the case.   He invokes Article 6 para 3 (d) (Art. 6-3) of the Convention in this respect.   The applicant further complained under Article 6 para. 3 (d) (Art. 6-3-d) that the Court was not free in the choice of its official expert and that his request to hear the expert who had analysed the counter- samples was rejected.   Because of the restrictions on the choice and evaluation of evidence, the applicant further considered that the court's impartiality had been infringed contrary to Article 6 para. 1 (Art. 6-1) of the Convention.   The applicant finally complained that certain statements of the Regional Court were based on an assumption of his guilt and therefore violated Article 6 para. 2 (Art. 6-2).   PROCEEDINGS   The application was introduced on 5 August 1985 and registered on 31 May 1985.   On 12 December 1985, the Commission decided to give notice of the application to the respondent Government and to invite them, in accordance with Rule 42 para. (2) (b) of the Rules of Procedure, to submit observations in writing on the admissibility and merits.   14 March 1986 was originally fixed as the time-limit for this purpose but, at the Government's request, on 17 March 1986, the President granted an extension until 1 April 1986.   The Government submitted their observations on 7 April 1986. They requested the Commission to reject the application as inadmissible for being manifestly ill-founded or, alternatively, to find no breach of the Convention.   The applicant informed the Commission on 28 May 1986 that he did not wish to submit observations in reply.   By a further letter of 6 August 1986 he declared his wish to withdraw the application.   REASONS FOR THE DECISION   The Commmission notes that the applicant wishes to withdraw the application.   The Commission finds that there are no reasons of a general character affecting the observance of the Convention which would require a further examination of the present application.   For these reasons, the Commission   DECIDES TO STRIKE THE APPLICATION OFF ITS LIST OF CASES   Deputy Secretary to the Commission           President of the                                             Commission   (J. RAYMOND)                                 (C.A. NØRGAARD)