CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 10 juillet 1989

.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. 12876/87                       by B.                       against Austria             The European Commission of Human Rights sitting in private on 10 July 1989, the following members being present:                 MM. C.A. NØRGAARD, President                   J.A. FROWEIN                   S. TRECHSEL                   F. ERMACORA                   G. SPERDUTI                   E. BUSUTTIL                   G. JÖRUNDSSON                   A.S. GÖZÜBÜYÜK                   A. WEITZEL                   J.-C. SOYER                   H.G. SCHERMERS                   H. DANELIUS                   G. BATLINER                   J. CAMPINOS                   H. VANDENBERGHE              Mrs.   G.H. THUNE              Sir   Basil HALL              MM.   F. MARTINEZ                   C.L. ROZAKIS              Mrs.   J. LIDDY              Mr.   L. LOUCAIDES                Mr.   H.C. KRÜGER, 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 13 March 1987 by B. against Austria and registered on 21 April 1987 under file No. 12876/87;           Having regard to the report provided for in Rule 40 of the Rules of Procedure of the Commission;           Having regard to:         - the Commission's decision of 15 July 1988 to bring the         application to the notice of the respondent Goverment and         invite them to submit written observations on its         admissibility and merits;         - the observations submitted by the respondent Government         on 17 November 1988 and the observations in reply submitted         by the applicant on 19 April 1989;           Having deliberated;           Decides as follows:   THE FACTS           The applicant is an Austrian citizen born in 1939 who resides at Hadres, Lower Austria.   He is represented by Dr.   Werner Sporn, a lawyer practising in Vienna.           The facts as submitted by the parties may be summarised as follows:           The applicant has introduced a previous application concerning criminal proceedings (No.11170/84) which the Commission declared admissible on 14 July 1987.   In that application he complained of a conviction of adulteration (Verfälschung) of wine by dilution with water under Section 45 para. 1 a) of the Wine Act 1961.   The judgment pronounced by the District Court (Bezirksgericht) of Haugsdorf on 14 February 1984 was confirmed on appeal by a judgment of the Regional Court (Kreisgericht) of Korneuburg on 7 May 1984.           Two further criminal proceedings were subsequently instituted against the applicant.   One of these proceedings concerned a charge under Section 293 of the Penal Code (Strafgesetzbuch), namely that he had manipulated certain pieces of evidence (Fälschung von Beweismitteln), i.e. officially seized wine in two tanks and counter-samples (Gegenproben) left to him when the wine in these tanks was inspected on 16 May 1983 in connection with the above criminal proceedings under the Wine Act.           On that date, three types of samples had been taken from the applicant's wine tanks which had then been officially seized (beschlagnahmt) and sealed:   -        first samples whose subsequent analysis by the         Federal Agricultural Chemical Control Institute         (Landwirtschaftlich - chemische Bundesanstalt) led         to the above criminal proceedings under the Wine Act         (Anzeigeproben);   -        counter-samples (Gegenproben) left to the applicant         who later had two of them analysed by an expert N. of         the Federal Institute for Food Control and Research         (Bundesanstalt für Lebensmitteluntersuchung und -forschung);   -        control-samples (Reserveproben) kept for the purpose of         a possible second official analysis which was actually         carried out by the Federal Agricultural Chemical Control         Institute under the authority of an expert B. who in         the above criminal proceedings under the Wine Act had         been appointed as the Court's official expert.   The applicant         submits that this was done in conformity with Section 30         para. 10 of the Wine Act, while the Government deny that         this provision was applied.           The three analyses produced different results but the expert, B., of the Federal Agricultural Chemical Control Institute came to the conclusion that those relating to the control-samples in essence confirmed the unfavourable results of the analysis of the first samples by the same institute, while the analysis of the counter-samples by the other institute must have been wrong.   The courts dealing with the case under the Wine Act refused the taking of new samples from the sealed tanks as requested by the applicant, and also his request to hear the expert of the latter institute.           After the applicant's conviction on the basis of the above expert opinion, he intended to bring an official liability action (Amtshaftungsklage) against the expert B. of the Federal Agricultural Chemical Control Institute on the ground that he had submitted a wrong expert opinion.   In connection with these proceedings he made an application under Section 384 of the Code of Civil Procedure (Zivilprozessordnung) for securing evidence (Beweissicherungsantrag) by the taking of new samples from the sealed wine tanks.   This application was first rejected by the District Court of Haugsdorf on 22 May 1984, but subsequently allowed, on the applicant's appeal (Rekurs), by the Regional Court (Kreisgericht) of Korneuburg on 12 June 1984.   The District Court then appointed another employee F. of the Federal Agricultural Chemical Control Institute, who had not been involved in the proceedings under the Wine Act, as its official expert in the proceedings for securing evidence.   The expert was entrusted with the supervision of the taking of new samples from the sealed tanks, which took place on 16 August 1984, and with the preparation of a report based on the analysis of these new samples, which he submitted on 27 September 1984.   The Government claim that this was merely a report on factual findings (Befund); the applicant claims that it was in fact an expert opinion (Gutachten).           In this report F. found that the new samples were not identical with those taken on 16 May 1983 and analysed by the Federal Agricultural Chemical Control Institute, even taking into account the changes in the composition of the wine which had to be expected in view of the lapse of time and of judicially authorised conservation measures which had in the meantime been carried out.   In his opinion the difference could only be explained by the addition of substances likely to increase the extract content.           F. informed the District Court of these findings on 25 September 1984, two days before the official submission of his report.   The applicant claims that this constituted the laying of criminal information by the expert.   On the same day the District Court ex officio opened criminal proceedings against the applicant on the suspicion of his having manipulated a piece of evidence (Section 293 of the Penal Code) by the addition of substances to the wine samples in question.   In these criminal proceedings it appointed the same expert F. who had been consulted in the civil proceedings for securing evidence.   In his expert opinion of 23 October 1984 F. confirmed his earlier finding that the differences of analysis between, on the one hand, the initial samples and the control-samples taken on 16 May 1983 and, on the other, the new samples taken on 16 April 1984 could only be explained by the addition of substances (alcohol, glycerine, and mineral substances).   He further stated that the composition of the new samples was similar to that of the counter-samples taken on 16 May 1983 which had been analysed by the Federal Institute for Food Control and Research.           On the basis of this expert opinion the prosecution requested the conviction of the applicant under Section 293 para. 2 of the Penal Code, on the ground that he had manipulated evidence by adding substances to the wine in the sealed tanks and to the counter-samples in the time between 16 May 1983 and 16 August 1984 and by using this evidence in the proceedings for securing evidence.   The case was tried by the Regional Court of Korneuburg on 4 July and 12 September 1985.           The applicant submitted in his defence   -        that in the time between 16 May 1983 and 3 July 1983, i.e. the day before the counter-samples were sent to the Federal Institute for Food Control and Research, he had been absent from his enterprise and therefore unable to manipulate the counter-samples as alleged;   -        that the counter-samples which he had intended to send to the Provincial Agricultural Chemical Control Institute (Landwirtschaftlich- chemische Landes-Versuchs- und Untersuchungsanstalt) in Graz had been broken during the transport, but that the bottle neck of one had been preserved and showed that the seal had not been broken;   -        that the expert N. of the Federal Institute for Food Control and Research who had examined two of the counter-samples could confirm that the seals of those counter-samples had been intact.   (The applicant also requested the appointment of N. as a further expert in the current proceedings, but this request was rejected and N. was only heard as a witness.   In this capacity he confirmed that the seals of the counter-samples submitted to him had not been broken according to the findings made at the relevant time, but that the possibility of manipulations could not be entirely excluded as it was not the practice to carry out a criminalistic examination.);   -        that the measures taken for the conservation of the wine in the sealed tanks had been carried out in the presence and under the supervision of the Federal Cellar Inspector who had drawn the initial samples, and that therefore a manipulation of the wine in these tanks was excluded.           By judgment of 12 September 1985 the Regional Court found the applicant guilty as charged and fixed an unconditional sentence of 3 months' imprisonment.   The Court followed the opinion of expert F. according to which the striking differences of analysis could only be explained by the use of additives.   It found this expert opinion unobjectionable, logical and convincing and did not doubt its correctness, in particular as it confirmed the finding of expert B., arrived at in the earlier proceedings under the Wine Act.   As regards the applicant's argument that the addition of substances to the counter-samples was impossible in the circumstances the Court referred to "notorious methods" (gerichtsbekannte Methoden) by which the contents of sealed bottles could be replaced (heating the bottle and careful removal of the seal and cork, injection of substances through the cork with a syringe).   The fact that one bottle of the counter-samples had been broken could be due to an attempt to carry out such manipulations.           The applicant's appeal (Berufung) against this judgment was rejected by the Vienna Court of Appeal (Oberlandesgericht) on 24 September 1986.   It considered that the Regional Court had not disregarded the evidence submitted by the applicant, namely the broken bottle-neck of one counter-sample whose seal was intact.   The Court of Appeal inspected the broken bottle-neck and made findings, observing that the counter-sample in question had not been analysed and therefore could not provide any proof.   The result of the analysis of the counter-samples which had been examined by the Federal Institute for Food Control and Research was contradicted by the analysis of the official samples by the Federal Agricultural Chemical Control Institute, and according to the convincing expert opinion of F. this contradiction could only be explained by the addition of substances to the counter-samples.   The Regional Court had also had regard to the identical results arrived at by expert B. in the earlier proceedings and to the statements of witness N. (the applicant's private expert) according to which a manipulation of a sealed bottle was possible. The Regional Court further had explained the notorious method by which this could be effected.   Likewise, the Regional Court had given sufficient reasons for its finding that the applicant had manipulated the wine tanks.   The Court of Appeal considered that the consultation of a further expert, as requested by the applicant, was not necessary since the conditions of Section 126 of the Code of Criminal Procedure were not met.   The Court of Appeal finally confirmed the sentence pronounced by the Regional Court.           The applicant subsequently served 31 days of the prison sentence imposed on him.   The remainder was conditionally suspended by an amnesty of the Federal President.   COMPLAINTS           The applicant now complains that the requirements of "fair trial" (Article 6 para. 1 of the Convention) were disregarded: the Regional Court failed to deal with his submission that, having been absent from his enterprise at the relevant time, he could not manipulate the counter-samples as alleged; concerning the argument that the seals of the counter-samples had not been broken, the Regional Court relied on "notorious methods" of manipulation which the defence was given no opportunity to discuss; finally the Regional Court admitted no further expert evidence to control the reliability of the results of the Federal Agricultural Chemical Control Institute whose experts had been the only ones to be called in all proceedings.           The applicant further complains that the presumption of innocence (Article 6 para. 2) was violated in that the Regional Court, without further evidence, assumed the applicant's guilt exclusively on the basis of the expert opinion according to which substances must have been added to the wine.   PROCEEDINGS           The application was introduced on 13 March and registered on 21 August 1987.           On 15 July 1988 the Commission decided, pursuant to Rule 42 para. 2 (b) of its Rules of Procedure, to give notice of the application to the respondent Government and to invite them to submit before 4 November 1988 observations in writing on its admissibility and merits.   At the Government's request, the time-limit was subsequently extended until 15 November 1988.           The Government submitted their observations on 17 November 1988 and the applicant was invited to submit observations in reply before 2 January 1989.   On 30 December 1988 he requested an extension of this time-limit until 31 March 1989.   On 6 January 1989 the President of the Commission ruled that the extension should only be granted until 6 March 1989.   On 3 March 1989 the applicant again applied for an extension until 31 March 1989, however this was refused by a ruling of the President on 8 March 1989.   The applicant submitted observations in reply to the Government's observations after the expiration of the time-limit, on 19 April 1989.           On 16 December 1988 the Commission decided to grant free legal aid to the applicant.   THE LAW           The applicant complains that in the criminal proceedings at issue Article 6 (Art. 6) of the Convention has been violated in several respects.   The relevant parts of this Article read as follows:           "1.    In the determination of ... any criminal charge against         him, everyone is entitled to a fair ... hearing ...           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:         ...           (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 ..."           The applicant's principal complaint is that it was unfair to appoint only an expert from the Federal Agricultural Chemical Institute, whose experts had already been consulted in the previous proceedings, and to admit no other expert evidence.   The Government submit that the applicant did not object to the appointment of expert F. from the above Institute, and that therefore he has failed to exhaust the domestic remedies in conformity with the requirements of Article 26 (Art. 26) of the Convention.   The Commission notes, however, that the applicant claims to have learnt of the fact that the expert belonged to the same Institute only on 1 October 1984, long after his appointment, when F. had almost completed his expert opinion.   At this moment it was practically impossible to challenge the expert.   The applicant does not only complain of the appointment of this expert but also of the refusal of his request to hear other experts after experts from the same Institute had been consulted in the earlier proceedings and although the suspicion of the offence at issue in the new proceedings was based on F.'s findings who allegedly dominated the proceedings.   In this latter respect the applicant has exhausted the domestic remedies by including relevant arguments in his appeal.   His above complaint therefore cannot be rejected under Article 27 para. 3 (Art. 27-3) of the Convention for non-exhaustion of domestic remedies.   The possibility of raising objections against expert F. will be considered in connection with the examination of the substance of the applicant's above complaint.           In this respect the Government have submitted that F. belonged to another department of the Institute, separated from the department of the experts consulted in the previous proceedings.   He had not been appointed through the Institute but in his personal capacity and without there being a legal requirement for the Regional Court to appoint an expert precisely from this Institute.   Furthermore, he had not initiated the new criminal proceedings against the applicant which were instituted ex officio on the basis of a report submitted by F. in civil proceedings.   In the subsequent criminal proceedings the expert had been charged with the preparation of an opinion on a subject different from that discussed by the Institute's experts in the earlier criminal proceedings against the applicant.   He had done so in full independence and had submitted a conclusive report so that the legal conditions for the appointment of further experts were not met. F. had not dominated the trial and no further expert was therefore required.   The applicant's private expert had also been heard as a witness, and his position in this capacity had not been fundamentally different from that of F., the Court's official expert. The Government consider that the case differs from the Bönisch case (Eur. Court H.R., judgment of 6 May 1985, Series A no. 92) and that there has been no violation of Article 6 para. 1 (Art. 6-1) of the Convention.           The Commission has considered these arguments but finds that the applicant's complaint cannot be rejected as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   It raises complex issues of law and fact under Article 6 para. 1, read in conjunction with para. 3 (d), (Art. 6-1+6-3-d) of the Convention, which require a determination on the merits.           The applicant's further complaints under Article 6 paras. 1 and 2 (Art. 6-1, 6-2) of the Convention are so closely related to the above issue that they cannot be separated.   It follows that they must also be examined on their merits.           The Commission finally notes the close link between the present case and Application No. 11170/84 pending before the Commission.   The Commission considers it appropriate to join the present case to Application No. 11170/84.           For these reasons, the Commission   1.       DECLARES THE APPLICATION ADMISSIBLE,         without prejudging the merits of the case;   2.       Decides to join the present application to         Application No. 11170/84.         Secretary to the Commission             President of the Commission                  (H.C. KRÜGER)                          (C.A. NØRGAARD)