CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 15 décembre 1987

.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 }                        AS TO THE ADMISSIBILITY OF                         Application No. 10532/83                       by Helmut ALDRIAN                       against Austria             The European Commission of Human Rights sitting in private on 15 December 1987, the following members being present:                 MM. S. TRECHSEL, Acting President                   J.A. FROWEIN                   F. ERMACORA                   E. BUSUTTIL                   A.S. GÖZÜBÜYÜK                   A. WEITZEL                   J.-C. SOYER                   H.G. SCHERMERS                   H. DANELIUS                   J. CAMPINOS              Sir   Basil HALL              MM.   F. MARTINEZ                   C.L. ROZAKIS              Mrs.   J. LIDDY                Mr.   J. RAYMOND, Deputy Secretary to the Commission           Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;           Having regard to the application introduced on 27 June 1983 by Helmut Aldrian against Austria and registered on 17 August 1983 under file No. 10532/83;           Having regard to the Government's observations submitted on 21 October 1986 and the applicant's observations in reply submitted on 29 December 1986;           Having regard to the parties' oral submissions at the hearing on 15 December 1987;           Having deliberated;           Decides as follows:   THE FACTS           The applicant is an Austrian citizen born in 1957 who is represented by Rechtsanwalt Dr.   Karl Bernhauser of Vienna.           The facts agreed between the parties may be summarised as follows:           The applicant is serving a life sentence for murder and complains of the way in which the expert evidence concerning his criminal responsibility has been administered in the relevant court proceedings.           The facts of the case go back to 1978, when the applicant did military service with an Austrian peacekeeping contingent of UNDOF (United Nations Disengagement Observer Forces).   He was stationed at a small observation post on top of Mount Hermon (Syria) when one day after consumption of a moderate quantity of alcohol he suddenly ran amuck, attacking his four fellow soldiers with his gun.   Two were shot dead and a third one was gravely injured.   The fourth managed to avoid the applicant's attack.   The applicant then attempted suicide and was himself badly injured.           After his return to Austria, the applicant was charged under Sections 75 and 15 of the Penal Code (Strafgesetzbuch) with murder on two counts and attempted murder on two further counts.   The trial took place in December 1979 before the Vienna Regional Court for Criminal Affairs (Landesgericht für Strafsachen) sitting as a Court of Assizes (Geschworenengericht).   The Court heard numerous witnesses and also three experts, two psychiatrists and a psychologist.   While all experts agreed that there were no signs of an existing or past genuine mental disease, the two psychiatric experts disagreed on whether or not the crime could be attributed to the influence of alcohol, possibly combined with other factors (taking of medicine, isolation, altitude) and whether or not certain statements which the applicant had made subsequently in a hospital in Israel could be taken into account for assessing his state of mind at the relevant time.   Both psychiatric experts admitted that they had not reached any clear results, but one tended to the view that the applicant was to be considered as criminally responsible (a view also supported by the psychological expert) whereas the other psychiatrist thought that the applicant's criminal responsibility had probably been excluded by an abnormal reaction to alcohol ("dämmriger Rauschzustand").           In these circumstances, the applicant requested the Court to obtain an opinion from a university medical faculty (Fakultätsgutachten) in accordance with Section 126 of the Code of Criminal Procedure (Straf- prozessordnung).   However, the Court refused the request.           On 21 December 1979, the jury found by a unanimous verdict of eight votes that the applicant was guilty of two killings and of two attempts to kill.   The additional question to the jury whether he had acted in a state of complete intoxication (Volltrunkenheit) remained unanswered.   The applicant was convicted as charged and was given a life sentence.           The applicant then filed a plea of nullity (Nichtigkeits- beschwerde) which was partly allowed by the Supreme Court (Oberster Gerichtshof) on 16 December 1980.   It quashed the Regional Court's judgment and referred the case back to that Court with the direction that it should hold a new trial including the taking of a medical faculty opinion on the question of the applicant's criminal responsibility.   This additional question should be answered by the jury while the above verdict on the principal question could stand.           In the renewed proceedings the Regional Court accordingly requested the opinion of the Medical Faculty of the University of Vienna on the question of the applicant's criminal responsibility having regard in particular to the possibility of a complete intoxication.   The opinion was prepared by the director of the psychiatric university clinic on behalf of the medical faculty. However, it appears from the contents that other university institutes, in particular the Institute for Forensic Medicine, had also made contributions and that the conclusions were those of a committee set up by the faculty for the purpose.   Before being transmitted to the Regional Court on 5 July 1982, the expert opinion was notified to the faculty as a whole at a meeting on 30 June 1982.           The conclusion of the faculty opinon was that the applicant had committed the crime in a pathological state of intoxication (pathologischer Rauschzustand) which had led to a grave disturbance of his consciousness (tiefgreifende Bewusstseinsstörung).   He had not been able to foresee this state of mind and the crime.   He therefore had lacked criminal responsibility (Section 11 of the Penal Code) although his state had not been one of "complete intoxication" (Section 287 of the Penal Code).           At the new trial, which took place in September 1982 before the Regional Court sitting with a different jury, the Court, after having examined numerous witnesses, heard the psychological expert who had been consulted already in the first round of the proceedings. This expert first stated his own opinion on the question of the applicant's criminal responsibility.   He concluded that the loss of memory which the applicant had pretended was unlikely in view of his subsequent behaviour, in particular the fact that he had remembered certain elements of the events.   In his view the applicant was a person of average intelligence who showed no signs of any disturbance of the central nervous system, but only some symptoms of a neurotic personality characterised by a tendency to inhibit affective emotions. The expert also referred to a slight tendency to simulation.   However, in his view the applicant showed no signs of mental disease or consequential defect resulting from such a disease.           Following these explanations of his own scientific opinion the said psychological expert turned to the faculty opinion, stating that it might be helpful to the Court if he explained certain technical terms used in that opinion.   Having done so, he replied to various questions by the Presiding Judge, the jury and the defence referring partly to the faculty opinion, partly to his own views on the matter.           The applicant had requested that the faculty opinion should be explained to the Court by an "informed representative" of the medical faculty and that the statements of the two psychiatric experts should be limited to a discussion of the faculty opinion.   However, the Court rejected both requests, holding that it was inadmissible to have the collective opinion of the faculty explained by a single person. Further it was inadmissible for the experts to discuss the faculty opinion.   Their statements on other matters could not be restricted because it had been precisely the disagreement between these experts which had led to the request of the defence to obtain a faculty opinion.   Therefore, the Court ruled that the psychiatric experts should first be heard before the faculty opinion was read out.           The two psychiatric experts then stated their opinions and replied to numerous questions of members of the court and jury, the prosecution and the defence.   Both maintained their earlier conclusions while expressing considerable doubts that a clear diagnosis could be made.   After their depositions the faculty opinion was read out and the hearing was closed immediately afterwards.           The jury then deliberated and contrary to the faculty opinion unanimously denied a lack of criminal responsibility of the applicant at the relevant time.   The applicant was accordingly convicted of murder and attempted murder, and was again given a life sentence (judgment of 22 September 1982).           The reasons for the jury's decisions were not stated in the judgment as this is excluded by Section 342 of the Code of Criminal Procedure.   However, in the memorandum (Niederschrift) on the jury's deliberations prepared according to Section 331 para. 3 of the Code the following reasons were stated:           The applicant could not be regarded as lacking criminal responsibility at the time of committing the offence on the ground of an abnormal or complicated reaction to alcohol.   There was no amnesia caused by such a reaction.   The applicant's statements recorded by a witness showed that he had a more or less complete recollection of the facts.   Certain unclarities in particular as regards the motivation for the shooting could be explained by the tendency of the applicant to justify his behaviour (Schutzbehauptungen).   The subsequent extension of the alleged amnesia spoke against an alcoholic intoxication, and this had been confirmed both by the faculty opinion and the individual expert opinions of the two psychiatrists.   Rather there was a mixture of a tendency to justify his behaviour (Schutz- behauptung) and of suppression (Verdrängung), as stated by the psychological expert.           Moreover, the applicant's behaviour was not completely incompatible with his personality structure (nicht völlig persön- lichkeitsfremd).   Statements of several witnesses showed that he had felt neglected (zurückgesetzt), that he had openly resisted his superiors, and that he had been teased by his fellow soldiers.   The faculty opinion and the psychological expert had found an increased potential for aggressiveness, the latter also a tendency for rash reactions (Kurzschlusshandlungen).   In these circumstances and having regard to the isolation, the applicant's behaviour could be explained as being due to the not very strong inhibitions of his aggressive potential having been removed by a state of slight alcoholism, but not by a complete intoxication.   The fact that he had not earlier reacted in the same way was explained by the consideration that not all relevant factors had coincided.           The criminal act had been carried out in conformity with its aim (zielstrebig) and in a logical way (folgerichtig).   It showed planning and did not reveal a disturbed conception of realities (gestörte Umweltbezüge).   This was confirmed by the description of the facts by the fellow soldier who had not been shot.   The latter's active intervention had not been foreseen by the applicant.     The applicant's subsequent attempt of suicide also showed that he had been aware of what he had done, and that he had drawn the logical conclusions.   When he had finally been found, he had given a correct account of the facts and had committed an error only by thinking that he had shot dead three of his fellow soldiers.           All experts agreed that a state of complete intoxication (physiologischer Rausch) was excluded in view of the small quantity of alcohol consumed.   The above considerations spoke against a state of pathological intoxication which was a rare phenomenon.   Insofar as the experts had come to different conclusions, they could not be followed because their assumptions contradicted the facts as established by the jury (amnesia caused by alcoholic intoxication, illogical behaviour, incompatibility of the offence with the applicant's personality structure).   Even if the statements of the applicant in the hospital had been a reaction to the behaviour of the guarding soldiers, they had in no way been invented.   In particular some of the statements had been made so long after the possible state of intoxication that their explanation in the faculty opinion did not convince the jury.           The explanation by the psychiatric expert who had denied the applicant's criminal responsibility, namely that these statements were due to an exogeneous psychosis caused by the loss of blood and a shock as well as by elements of reactive considerations (erlebnisreaktive Komponente), was possible but not logically stringent.   The statements in question were so much in the line of the offence itself that the explanation given by the other psychiatric expert was much more probable.   This expert had confirmed the applicant's criminal responsibility and established a link between the applicant's attitude at the time of the offence and at the time of these later statements, describing them as mental undressing (psychische Entkleidung).           The applicant's plea of nullity based on the Regional Court's refusal to hear an "informed representative" of the faculty and to limit the depositions of the other psychiatric experts to a discussion of the faculty opinion was rejected by the Supreme Court on 26 April 1983.           First, the Supreme Court held that although the applicant was requesting the presence of an "informed representative", in reality, due to the collegiate nature of the faculty, he was effectively asking for an independent expert to give his opinion.   There was no provision in Austrian law for the calling of such a further expert.   Secondly, because of the special nature of the medical faculty opinion, the Austrian Code of Criminal Procedure only permitted it to be read out in court as documentary evidence under Section 252 para. 2.   Thirdly, the Supreme Court underlined that medical faculty opinions could not, under Austrian law, be challenged or reviewed as to their content, although the court was entitled to ask the faculty itself for an explanation as to the meaning of such an opinion.   No request for such an explanation had been made in the present case.   As regards finally the requested limitation of the statements of the other experts, the Supreme Court did not see why the oral presentation of their full opinions should in any way have diminished the value of the faculty opinion and thereby violated fundamental principles of criminal procedure.   In fact it was the function of the faculty opinion to clarify points of disagreement between those experts whose opinions were required to be presented orally to the court.     COMPLAINTS           The applicant now complains that his rights under Article 6 paras. 1 and 3 (d) of the Convention have been violated.           He observes that his case was the first case in the judicial history of Austria where a court did not follow a faculty opinion and, as it was a Court of Assizes, it was not even required to give any reasons.   In similar cases where professional judges had not followed a faculty opinion, the Supreme Court had quashed the judgment on the ground that a court could not depart from a faculty opinion without giving reasons.           The applicant further observes that the faculty opinion concluded in his favour, and that it was not presented to the court under the same conditions as the evidence of the expert who had considered him to be criminally responsible and who therefore was to be considered as a "witness against him" for the purpose of Article 6 para. 3 (d) of the Convention.   That expert could not only submit his opinion orally to the court, but he could also be and was asked various questions.   In the applicant's view the mere reading of the faculty opinion did not leave the same lively impression with the members of the jury as the oral presentation of the above expert's opinion and accordingly the probative value of the faculty opinion was considerably diminished.   In the applicant's view, the principle of equality of arms enshrined in Article 6 para. 1 of the Convention has been violated by this way of proceeding.     PROCEEDINGS           The application was introduced on 27 June 1983 and registered on 17 August 1983.           On 7 July 1986 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 its Rules of Procedure, to submit observations in writing on the admissibility and merits of the application before 24 October 1986.   Certain questions were put to the Government in this connection.           The Government submitted their observations on 21 October 1986 and the applicant submitted observations in reply on 29 December 1986.           On 13 March 1987, the Commission decided to grant free legal aid to the applicant under the Addendum to its Rules of Procedure.           On 13 May 1987 the Commission decided, pursuant to Rule 40 para. 3 (b) of the Rules of Procedure, to invite the parties to submit further observations orally at a hearing on the admissibility and merits of the application.           The hearing took place on 15 December 1987.   The parties were represented as follows:           - the Government by their Agent, Ambassador Dr.   Helmut TÜRK, Head of the International Law Department of the Federal Ministry of Foreign Affairs, who was assisted by Dr.   Wolf OKRESEK, of the Constitutional Law Department of the Federal Chancellery, and by Dr.   Irene GARTNER, of the Federal Ministry of Justice, Advisers;           - the applicant by Dr.   Richard SOYER, criminal defence counsel, acting as substitute for the applicant's legal representative, Dr.   Karl BERNHAUSER, barrister in Vienna.     SUBMISSIONS OF THE PARTIES     A.       The Government   1.       The Government do not contest that the formal conditions of admissibility are fulfilled.   They submit, however, that the application is manifestly ill-founded or, alternatively, that there has been no breach of the Convention as claimed by the applicant.   2.       The Government observe that the Austrian Code of Criminal Procedure provides for two kinds of expert evidence:   the normal expert (Sections 118 et seq.) and in particularly difficult cases the faculty opinion (Section 126).   In the Government's view, differences in dealing with these two kinds of evidence follow from the fact that a faculty opinion is attributable not to a physical person but to a collegial body.   In either case the expert evidence in question does not bind the court which must retain its freedom to evaluate the evidence, including a faculty opinion, according to its judicial discretion.   3.       The so-called faculty opinion under Section 126 of the Code of Criminal Procedure is the opinion of a medical faculty college of an Austrian university.   It may be obtained by the Court in cases where individual expert opinions contain contradictions or logical inconsistencies which cannot be removed by questioning the expert or experts concerned.   The basis of a faculty opinion is the (possibly divergent) technical knowledge of all its members.   A faculty opinion, then, is not the opinion of an expert (Sachverständiger) within the meaning of Section 2 of the Experts and Interpreters Act (Sachverständigen- und Dolmetschergesetz), i.e. not the opinion of an individual person, but the opinion of several experts.   An opinion of this kind requires reports by a rapporteur and a co-rapporteur, detailed debates and deliberations, and finally a resolution passed by the members of the faculty in accordance with Sections 15, 63 and 64 of the University Organisation Act (Universitätsorganisationsgesetz). Since the faculty opinion is submitted to the Court in writing, the rule that applies to it by virtue of Section 252 para. 2 of the Code of Criminal Procedure is that it must be read out as a whole.   4.       It is not in itself inconsistent with the requirements of Article 6 of the Convention that a court obtains a written collective expert opinion from a highly qualified body such as a medical faculty of a university.   Expert evidence is not as such mentioned in the Convention and cannot simply be equated to witnesses' evidence. Experts and witnesses have fundamentally different functions. Witnesses are persons able to report from their own direct experiences about important facts concerning a case, whereas experts are called by the court on account of their special knowledge in a certain field to submit a well-founded opinion on relevant facts without any regard to their personal experiences.   Experts are required to be neutral and objective and can be challenged and replaced if they are not, whereas such considerations do not apply to witnesses.   Questions to the latter, therefore, have a corrective function which does not exist to the same degree in the case of experts.   In these circumstances it is not justified to apply the rules of the Convention law concerning witnesses automatically also to experts.   The Government refer in this respect to their submissions made in the Bönisch case and the fact that the question of classifying experts as witnesses has not been entirely clarified in the Court's judgment in that case (cf.   Eur. Court H.R., judgment of 6 May 1985, Series A no. 92).   5.       Further differences exist between normal expert evidence and a faculty opinion such as the one at issue in the present case.   By virtue of its nature as a written expert opinion of a collective body the latter can even less be equated to the deposition of a witness, let alone a witness "on behalf" of the accused.   Despite the fact that in the present case the faculty opinion was requested by the defence and that it was favourable to the applicant, it must - like other expert evidence - in principle be regarded as a neutral and objective piece of evidence.   The specific reasons which led the Commission in the Bönisch case to consider an expert opinion as evidence "against" the accused - namely the fact that the expert in question had himself reported the case to the prosecution authorities - do not exist in the present case.   6.       As the faculty opinion represents the expert knowledge of a whole faculty as applied to a specific case, it does not in principle require any special oral explanation, given its high scientific quality.   This is not expressly laid down in the law, but constitutes the general practice based on the case-law of the Supreme Court.   It is not excluded that this practice might be reconsidered by the Supreme Court.   The practice has been criticised by legal writers, some of whom consider that a court must be able to summon one of the faculty members involved in the preparation of the faculty opinion or some other expert, if it considers this to be relevant to its decision.   However, due to its character as a genuine "collective opinion" it seems to be problematical to ask one person to explain or defend the faculty opinion in court.   Such a person could only state his own views and would therefore have to be considered as a further individual expert.   A collective appearance of all members of the faculty to explain and discuss the faculty opinion in court is not only impossible for practical reasons, but also because it would be inappropriate to disclose the internal opinion-forming process of the faculty in court.   7.       This does not mean, however, that a faculty opinion can never be further clarified or explained in court.   There are two different situations in this respect:           a) Where a faculty opinion is such that it is open to several different interpretations or where a new constellation emerges at the trial, it may in fact happen in the individual case that a review or complementation of the faculty opinion becomes indispensable.   Such review or complementation must then again be entrusted to the whole faculty college.           b) There may be a need for an explanation in the sense of an interpretation of the technical terms and scientific concepts used in the faculty opinion for a medical layman or a reassuring clarification of the facts.   In such a case it is admissible according to the Supreme Court to call on an individual expert involved in the proceedings to give the necessary explanations at the trial.   8.       As regards the possibility of obtaining a review or complementation of the faculty opinion by the faculty itself, the applicant did not make any request to this effect.   The conclusions of the faculty opinion were such a clear statement in favour of the applicant that there was apparently no need for such a review or complementation.   If, however, the defence had been of the view that the faculty opinion was based on facts which were at variance with the evidence before the Court, it could have requested a complementary faculty opinion.   9.       In the present case, the preparation of the faculty opinion had not been limited to members of the medical faculty itself.   The faculty apparently considered it to be of such importance for its work to be supplemented by certain psychological tests that it decided to consult a psychological expert outside the medical faculty who then contributed a partial report (Teilgutachten) to the faculty opinion. It was this psychological expert who was later called as an official expert of the Court and was entrusted with the task of explaining the technical terms and scientific concepts of the faculty opinion to the Court.   10.      The expert in question essentially limited his statements to technical explanations of the faculty opinion without expressing his own views on this opinion.   The fact that he had reached different results from those of the faculty could not impair his objectivity and was irrelevant for the specific task of providing technical explanations.   In view of the neutral status of experts in court proceedings their objectivity must be presumed as long as there are no indications of bias.   In the present case there is no such indication.   Before the Court the expert emphasised that it was not his intention to state his own views on the faculty opinion, and that it was entirely the jury's task to evaluate the evidence.   This particular behaviour underlines his sense for objectivity and neutrality.   11.      The Court's way of proceeding in this respect again is not in conflict with the requirements of a fair trial.   There is no reason why an expert consulted earlier by the Court should not be entrusted with the task of providing technical explanations.   In any event the applicant could have challenged the choice of this particular expert under Section 120 of the Code of Criminal Procedure.   If there had been reasonable grounds of objection, the Court would have been required to appoint another expert for the purpose.   However, the applicant did not raise any objections against this expert at the relevant time.     12.      The defence asked for a discussion of the faculty opinion by summoning an "informed representative" of the faculty, and for a limitation of the individual psychiatric experts' statements to a discussion of the faculty opinion.   However, these motions had to be rejected for the above reasons.   Insofar as a clarification of technical terms of the faculty opinion was admissible, it was entrusted to the above psychological expert.   The discussion of the faculty opinion by the individual experts, whose disagreement had given rise to the request for a faculty opinion, was excluded because it was the very purpose of a faculty opinion to put an end to the dispute between those individual experts by obtaining a sort of "superior" scientific opinion of high authority.   In view of this particular function of the faculty opinion it was also necessary that the individual experts state their full opinions.   According to the applicable rules of the Code of Criminal Procedure they were required to do so orally at the trial whereas the faculty opinion, as a written document within the meaning of Section 252 para. 2 of the Code of Criminal Procedure, could only be read out in court.   13.      The different treatment of individual expert opinions on the one hand and the faculty opinion on the other was only due to the different nature of these two types of expert evidence, but it did not encroach on the weighty position which appertains in Austrian criminal procedure to a faculty opinion.   Such an opinion has always been regarded as particularly crucial to the court's decision.   The lack of oral presentation does not diminish its value but, on the contrary, may contribute to its authority.   In the present case the importance of the faculty opinion was also underlined by the fact that it was read out at the end of the trial and that technical explanations were previously obtained from an expert.   In the Government's view the reading of the whole faculty opinion in court, especially where it comes to such clear conclusions as in the present case, is entirely equivalent to the oral hearing of an individual expert.   The perfectly clear conclusions of the faculty opinion could not have been made more persuasive by the oral interrogation of one of its authors who could only have expressed his individual opinion.   In view of the clear conclusions there was further no need to put questions to a member of the faculty.   As a result of the procedure chosen, the faculty opinion stood firm on its pedestal without being exposed to criticism, an effect surely favourable to the applicant.   14.      In any event the faculty opinion went along with another individual expert opinion favourable to the applicant which counterbalanced the unfavourable opinion of the other individual psychiatric expert.   It could even be said that, including the faculty opinion, there was more favourable than unfavourable expert evidence before the Court.   In these circumstances it cannot be maintained that the faculty opinion was not presented to the Court under the "same conditions" as the unfavourable expert evidence.   15.      The fact that the faculty opinion was only read out in court and not presented orally did not involve any disadvantage for the defence or an advantage for the prosecution.   Both parties were treated in exactly the same way as neither could put any questions directly concerning the faculty opinion.   If there had been a possibility to put such questions, they might have strengthened the position of the prosecution.   In any event the defence did have the opportunity of underlining the importance of the faculty opinion in the final submissions immediately after it had been read out.   The principle of equality of arms has therefore been respected.   16.      The Government finally observe in this context that even regarding witnesses the right to put questions under Article 6 para. 3 (d) of the Convention is not an absolute right.   The Commission has clearly recognised in its case-law that the right to put questions to witnesses may be subjected to restrictions (cf. e.g.   No. 9000/80, Dec. 11.3.1982, D.R. 28 p. 127, and No. 7987/77, Dec. 13.12.1979, D.R. 18 p. 31).   If restrictions are possible in relation to witnesses, they must be all the more acceptable in relation to the particular type of written expert evidence in question here.   There was accordingly no violation of Article 6 para. 3 (d) in this respect.   17.      In the present case ample scope was allowed to permit evaluation of the faculty opinion by the jury whose memorandum shows that it thoroughly examined the faculty opinion when assessing the evidence.   However, the jury was required to consider all evidence before it.   The fact that the conclusions of the faculty opinion did not convince the jury is a matter of their freedom to evaluate the evidence.   It would be inconsistent with the principle of the judicial freedom of evaluating evidence to bind the court to a specific piece of evidence, including a faculty opinion.   18.      As regards the absence of any reasoning in the court's judgment, the Government point out that this is typical for trial by jury.   The participation of laymen in the administration of justice is an expression of democracy and is considered to be of fundamental importance in the Austrian legal system.   The incorporation of this democratic element in the administration of justice is not as such incompatible with the Convention and accordingly it must be allowed that the proceedings are being organised in a manner which is appropriate to the participation of laymen.   The provisions of the Austrian Code of Criminal Procedure ensure that the jury can demand the taking of evidence with a view to clearing up the relevant facts and the members of the jury are also entitled to question the accused, the witnesses and the experts.   The evaluation of the evidence and the passing of the verdict is the exclusive task of the jury.   The bench of professional judges is therefore required to put the questions to the jury in such a manner that their freedom of evaluating the evidence is fully respected.   They have to answer these questions by "yes" or "no".   However, being laymen the members of the jury cannot be expected to give a formal reasoning of their decisions which would be challengeable on appeal.   19.      The fact that the judgment does not contain reasons does not mean that the jury can take arbitrary decisions.   The jury is required to set out the reasons for its verdict in a memorandum annexed to the trial record (cf.   Sections 331 para. 3 and 332 para. 6 of the Code of Criminal Procedure).   As part of the court file this memorandum is accessible to the accused and will also be submitted to the Supreme Court in the context of any appeal proceedings.   However, the lack of adequate reasoning which otherwise constitutes a ground of nullity (Section 281 para. 1 (5) of the Code of Criminal Procedure) is not applicable in assize court proceedings.   The function of the said memorandum is primarily to remind the members of the jury of their duty to take a decision in conformity with the applicable legal requirements.   It may also be used as a basis of a monitoring procedure by which the bench of professional judges can set aside the jury's verdict if it is convinced that the verdict is unlawful.   20.      The memorandum drawn up by the jury in the present case shows that the whole evidence was thoroughly evaluated and that the faculty opinion was in no way disregarded.   It contained the substantive reasons why the jury unanimously came to the conclusion that it should not follow the faculty opinion and confirm the applicant's criminal reponsibility despite the result of that opinion.   It is true that under the Supreme Court's case-law, due to the special weight of a faculty opinion, a court cannot depart from the results of such an opinion without good reasons, which normally have to be stated in the judgment.   This is only the expression of a general rule according to which no evidence and, in particular, no expert evidence can be disregarded by a court without good reasons.   The fact that in the case of assize court proceedings the reasons are not required to be given in the judgment but only in the jury's memorandum cannot be regarded as being contrary to the "fair hearing" requirement of Article 6 para. 1 of the Convention.   In this type of trial, specifically characterised by the participation of laymen, the explanation of the jury's evaluation of the evidence in the memorandum should be sufficient to meet the terms of this provision (cf. No. 8769/79, D.R. 25 p. 240 and No. 9523/81, Dec. 4.5.1982).   21.      The Government finally contest the applicant's submission that he would have left the Court as a free man if the jury had followed the faculty opinion and had denied his criminal responsibility at the relevant time.   The Court then would have been required to consider the imposition of a measure under Section 21 of the Penal Code (detention in an institution for mentally deranged offenders).   The applicant's submissions to the contrary are based on mere speculation.     B.       The Applicant   1.       In the applicant's view the rights guaranteed in Article 6 para. 3 (d) are applicable not only in relation to witnesses but also in relation to experts and that means any kind of expert evidence.   A faculty opinion is expert evidence par excellence and cannot be treated differently from other expert evidence in this respect.   It is nowhere provided that a faculty opinion must be treated exclusively as a written piece of evidence and cannot be discussed in court in the same way as other collective expert evidence such as e.g. the report of a food control institute under Section 48 of the Food Act 1975 (former version).   No argument can be drawn in this respect from the provisions of the Experts and Interpreters Act which only concern the general approval of court-certified experts.   It is true that the practice based on the Supreme Court's case-law classifies faculty opinions as written evidence within the meaning of Section 252 para. 2 of the Code of Criminal Procedure, but this interpretation is, in the applicant's view, contrary to the requirements of the Convention.   2.       In the present case, there is a special reason to assimilate the faculty opinion to witnesses' evidence because it not only contained scientific conclusions but also a comprehensive factual part which, contrary to the Government assertions, was not exclusively based on the applicant's own statements, but on the whole contents of the court file.   The factual findings involved observations made by members of the faculty on the basis of their scientific knowledge which can be described as observations of expert witnesses ("sach- verständiger Zeugenbeweis").   In view of the fact that the faculty opinion had been obtained at the request of the applicant and that it reached a result in his favour, it must be regarded as witnesses' evidence on his behalf.   3.       It is not contested that the applicant's request to hear an informed representative of the medical faculty for the purpose of explaining the faculty opinion was rejected by the Regional Court.   By this decision the applicant was prevented from putting questions which would have elucidated the faculty opinion for the lay judges in an understandable and convincing manner.   By the same decision the authors of the faculty opinion were prevented from putting questions to witnesses and to the defence in the same way as the individual experts.   In this way it could not be explained to the court on which premises the faculty opinion had been based and what relations existed between the faculty opinion and the individual expert opinions.   Also it was not possible to explain how the faculty had evaluated the facts and whether the allegedly different facts established by the court were capable of leading to other results.   The applicant observes in this context that it was part of the scientific task of the faculty to identify and evaluate the facts which could be of relevance for the applicant's criminal responsibility and that, in view of this scientific dimension of the issue, only a representative of the faculty could have validly answered the question whether other facts warranted different conclusions from a scientific point of view.   4.       The applicant does not contest that the right to put questions under Article 6 para. 3 (d) of the Convention is not an absolute right and that the court has the power to control any questions put by the parties as to their relevance for the proceedings.   However, he considers that the total exclusion of questions concerning a faculty opinion amounts to a prohibition to defend the accused in this respect.   He observes that in the present case, unlike Application No. 7130/75, there was no possibility of putting questions prior to the trial.   Also there was no real chance at the trial to obtain a complementary faculty opinion in view of the clear results of that opinion and the fact that the alleged discrepency of the facts underlying the faculty opinion with the facts established by the court was not brought to the attention of the defence.   Finally, there was no possibility of raising any questions in this respect after the verdict of the jury because the verdict did not depart from the memorandum.   In the circumstances the defence had no possibility to request a monitoring procedure by the bench of professional judges or to obtain an extraordinary revision (ausserordentliche Wiederaufnahme) by the Supreme Court.   5.       The failure to call on one or more representatives of the faculty to explain the faculty opinion cannot be justified by the argument that this is not appropriate and not provided for by law. The Government indeed admit that the case-law to this effect is not accepted by legal writers.   However, they do not explain in a convincing manner why it should not be appropriate to hear members of the faculty.   The way in which the faculty opinion is being prepared is in the applicant's view irrelevant for its presentation in court and the possibility to put questions to one or more members of the faculty for the purpose of clarifying or discussing that opinion.   6.       The applicant contests the Government's assertion that one of the experts in fact discussed the faculty opinion.   The expert in question was not a psychiatrist, but a psychologist, and he expressly stated that he would not comment on the faculty opinion but merely explain certain statements of his colleagues who had carried out similar examinations as himself in the framework of this faculty opinion.   The expert then discussed certain methods of examination which had also been at the basis of the faculty opinion, but with a different result from the faculty opinion.   This expert therefore could in no way be regarded as an expert witness for the defence. On the contrary, it is a particularly serious violation of the right guaranteed in Article 6 para. 3 (d) to obtain the attendance and examination of witnesses "on his behalf" if only an expert witness "against" the accused is ordered by the court to explain an expert opinion which has concluded in the applicant's favour.   7.       Contrary to the Government's submission, the above psychological expert could not have been challenged under Section 120 of the Code of Criminal Procedure.   He started by setting out his own expert opinion which was unfavourable to the applicant. He then went on to give some technical explanations on the faculty opinion although this had not been expressly ordered by the court when it appointed this expert.   In doing so, the expert clearly showed a critical undertone concerning the faculty's result and he did not distinguish between his own views and those of the faculty. Favourable and unfavourable expert evidence was thus mixed up in an indistinguishable manner.   The jury could only be confused by this way of presenting the evidence.   They were prevented from perceiving the faculty opinion in its own right as a separate piece of evidence in the applicant's favour.   8.       Finally, the function of the faculty opinion as a particularly important piece of evidence was completely undermined by the fact that it was merely read out in court in a monotonous way.   The members of the jury, who had not previously received a copy of the faculty opinion, could not possibly have gained any proper understanding of this voluminous and complex document of twenty-nine pages which in itself was not easily understandable.   The proper weight was not given to this important piece of evidence by presenting it to the court in this way.   The applicant further observes that under Section 252 para. 2 of the C