CEDH · CASELAW;REPORTS;ENG — 8 mai 1990

.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 }  Applications Nos. 11170/84, 12876/87 and 13468/87   Karl BRANDSTETTER   against   AUSTRIA   REPORT OF THE COMMISSION   (adopted on 8 May 1990)   TABLE OF CONTENTS                                                                  Page I.       INTRODUCTION         (paras. 1 - 31) ......................................     1           A.       The applications                 (paras. 2 - 7) ...............................     1           B.       The proceedings                 (paras. 8 - 26)...............................     2           C.       The present Report                 (paras. 27 - 31) .............................     3     II.      ESTABLISHMENT OF THE FACTS         (paras. 32 - 92) .....................................     5           A.       The wine case                 (paras. 32 - 62) .............................     5           B.       The proceedings concerning the tampering with                 evidence (paras. 63 - 82) ....................     9           C.       The calumny case                 (paras. 83 - 104) ............................    12     III.     OPINION OF THE COMMISSION         (paras. 105 - 167) ...................................    16           A.       Points at issue                 (para. 105) ..................................    16           B.       The complaints concerning the wine case                   1.   The administration of the expert evidence                 (paras. 106 - 124) ...........................    16                   Conclusion (para. 125) .......................    19                   2.   The respect of the applicant's right of                 defence (paras. 126 - 140) ...................    20                   Conclusion (para. 141) .......................    23           C.       The complaints concerning the case of                 tampering with evidence                   1.   The administration of the expert evidence                 (paras. 142 - 151) ...........................    23                   Conclusion (para. 152) .......................    24                   2.   Fair trial and presumption of innocence                 (paras. 153 - 154) ...........................    25                   Conclusion (para. 155) .......................    25           D.       The complaint concerning the appeal                 proceedings in the calumny case                 (paras. 156 - 161) ...........................    25                   Conclusion (para. 162) .......................    26           E.       Recapitulation                 (paras. 163 - 167) ...........................    26     Partly dissenting opinion of Mr.   S. Trechsel, joined by MM. F. Ermacora and G. Jörundsson ..................    28   Partly dissenting opinion of Mrs.   G.H. Thune .................    29     APPENDIX I   :   HISTORY OF THE PROCEEDINGS ....................    30   APPENDIX II :   DECISION ON THE ADMISSIBILITY (No. 11170/84) ..    32   APPENDIX III:   DECISION ON THE ADMISSIBILITY (No. 12876/87) ..    46   APPENDIX IV :   DECISION ON THE ADMISSIBILITY (No. 13468/87) ..    54     I.     INTRODUCTION   1.       The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.   A.       The applications   2.       The applicant is an Austrian citizen, born in 1939, who resides at Hadres, Lower Austria, where he is a vintner.   In the proceedings before the Commission he has been represented by Rechtsanwalt Dr.   Werner Sporn of Vienna.   3.       The application is directed against Austria.   The Austrian Government have been represented by their Agent, Ambassador Dr.   Helmut Türk of the Federal Ministry of Foreign Affairs.   4.       The applicant's complaints relate to three consecutive criminal proceedings which were taken against him.   In the first, he was convicted of the offence of adulteration of wine under the 1961 Wine Act; in the second, of tampering with evidence relevant to the wine case; in the third, of calumny by insinuating incorrect behaviour of a cellar inspector in the wine case.   5.       As regards the wine case, the applicant complains that there has been a violation of Article 6 paras. 1 and 3 (d) of the Convention in that only an expert of the institute which had reported the suspicion was heard, while the hearing of any other experts (including a private expert who had come to different results and members of a wine-tasting panel who had examined the wine concerned) was refused. He further complains that there has been a violation of his right to defend himself (Article 6 para. 3 (c)) in that he was subsequently prosecuted and convicted of calumny because of statements which he had made in his defence.   6.       As regards the proceedings for tampering with evidence, the applicant complains that there has been a violation of Article 6 paras. 1 and 3 (d) in that he was convicted on the basis of expert evidence from the person who had reported the suspicion, and who was a member of the institute which had provided evidence in the wine case, while the hearing of other experts was refused.   He further complains that the principle of fair trial (Article 6 para. 1) was disregarded also in other respects and that there has been a violation of the presumption of innocence (Article 6 para. 2).   7.       As regards the calumny case, the applicant, apart from complaining that his prosecution violated his rights of defence in the wine case, also alleges a violation of Article 6 para. 1 in the appeal proceedings because the Court of Appeal relied on submissions by the prosecution which had not before been communicated to the defence.   B.       The proceedings   1.   Application No. 11170/84 (wine case)   8.       Application No. 11170/84 was introduced on 6 September and registered on 29 September 1984.   9.       On 12 December 1985 the Commission decided in accordance with 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 present before 14 March 1986 their observations in writing on the admissibility and merits of the application.   At the Government's request the time-limit was subsequently extended until 1 April 1986.   10.      The Government submitted their observations on 10 April 1986 and the applicant replied on 25 June 1986, following an extension of the time-limit for his reply.   11.      On 14 July 1987 the Commission declared the application in part admissible.   On 17 July 1987 it granted legal aid to the applicant.   12.      On 17 December 1987 the Commission decided to hold a hearing on the merits.   13.      At the hearing on 12 April 1988 the Government were represented by their Agent, Ambassador Dr.   Helmut Türk, and by Dr.   Sabine Bernegger of the Federal Chancellery's Constitutional Law Department, and Dr.   Irene Gartner of the Federal Ministry of Justice, Advisers.   The applicant was represented by his lawyer, Rechtsanwalt Dr.   Werner Sporn.   14.      On 11 March 1989 the Commission decided to adjourn the proceedings on Application No. 11170/84 pending the outcome of the applicant's further Applications No. 12876/87 and No. 13468/87.   2.   Applications No. 12876/87 (tampering with evidence)    and No. 13468/87 (calumny case)   15.      Application No. 12876/87 was introduced on 13 March and registered on 21 April 1987.   16.      Application No. 13468/87 was introduced on 21 October and registered on 9 December 1987.   17.      On 15 July 1988 the Commission decided to give notice of both applications to the respondent Government and to invite them to present before 4 and 10 November 1988 respectively observations in writing on those applications.   18.      Following an extension of the time-limit, the Government submitted their observations in both cases on 17 November 1988.   19.      On 16 December 1988 the applicant was granted legal aid also in these cases.   20.      The applicant was invited to reply to the Government's observations before 2 January 1989.   He requested an extension until 31 March 1989, which was granted only until 6 March 1989.   A second request for an extension until 31 March 1989 was refused by the Commission's President on 8 March 1989.   The applicant submitted his observations after the expiration of the time-limit, on 19 April 1989.   21.      On 10 July 1989 the Commission decided nevertheless to take these observations into account, to declare Applications No. 12876/87 and No. 13468/87 admissible, and to join them to Application No. 11170/84.   22.      The parties were invited to submit observations on the merits of Applications No. 12876/87 and No. 13468/87 before 16 October 1989.   23.      The applicant replied on 8 September 1989 that he did not consider it necessary to submit observations in writing.   He requested an oral hearing.   24.      The Government submitted written observations on 18 October 1989.   25.      On 9 December 1989 the Commission decided to deal with the merits of Applications No. 12876/87 and No. 13468/87 without an oral hearing.   3.   Friendly settlement   26.      After declaring the cases admissible, the Commission, acting in accordance with Article 28 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement.   In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.   C.       The present Report   27.      The present Report has been drawn up by the Commission in pursuance of Article 31 of the Convention and after deliberations and votes on 2 April and 8 May 1990, the following members being present:                MM.   S. TRECHSEL, Acting President                   F. ERMACORA                   G. SPERDUTI                   E. BUSUTTIL                   G. JÖRUNDSSON                   A. S. GÖZÜBÜYÜK                   A. WEITZEL                   J. C. SOYER                   H. G. SCHERMERS *                   H. VANDENBERGHE              Mrs.   G. H. THUNE              Sir   Basil HALL              Mr.   C.L. ROZAKIS     ------------- * Mr.   Schermers was not present for the votes taken on 8 May 1990   (paras. 141, 152, 155 and 162 below) _____________   28.      The text of this Report was adopted on 8 May 1990 and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.   29.      The purpose of the Report, pursuant to Article 31 of the Convention is:   i)       to establish the facts, and   ii)      to state an opinion as to whether the facts found         disclose a breach by the State concerned of its         obligations under the Convention.   30.      A schedule setting out the history of the proceedings before the Commission is attached hereto as Appendix I and the Commission's decisions on the admissibility of the applications are attached as Appendices II - IV.   31.      The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.   II.    ESTABLISHMENT OF THE FACTS   A.       The wine case   32.      Criminal proceedings under the Wine Act 1961 (Weingesetz, Federal Law Gazette No. 187/61 as amended by Federal Law Gazette Nos. 446/80, 577/80 and 391/83) were instituted against the applicant following a control carried out in his enterprise under Section 27 of the Wine Act by a Federal Inspector of Cellars (Bundeskellereiinspektor) on 16 May 1983.   33.      The inspector drew samples from two tanks of 1982 white wine, leaving behind counter-samples for the applicant's use (Gegenproben). A second control sample (Reserveprobe) was also taken from each of the tanks in case a further official analysis should become necessary. The tanks were sealed and officially seized (beschlagnahmt) according to Section 28 of the Act.   34.      The inspector then sent the official samples to the Federal Agricultural Chemical Control Institute (landwirtschaftlich- chemische Bundesversuchsanstalt) in Vienna for examination in accordance with Section 30 of the Wine Act.   35.      Section 30 (3) stipulates that the Institute shall draw up a full report including a chemical analysis and the results of the tasting by an official panel (amtliche Weinkostkommission).   36.      According to Section 30 paras. 4-8 this panel is composed of a President (i.e. the Director of the above Institute) and the required number (at least five) of wine-tasting experts appointed by the Federal Ministry of Agriculture and Forestry who have to decide by qualified majority votes (five out of five or six, six out of seven, etc.) whether or not the quality of a wine corresponds to its description.   The tasting takes place under certain technical conditions laid down by administrative regulations.   The tasting procedure is not public and the members of the panel, whose identity is not disclosed, are bound by confidentiality.   37.      In the present case, the tasting panel examined the samples of the applicant's wines on 25 May 1983.   It found in both samples that water and residual products from the wine manufacturing process had been added.   38.      The Institute's report of 9 June 1983 further contained a chemical analysis which showed an abnormally low value of extract substances and minerals in both samples, and as these values were below those admissible under the Wine Ordinance (Weinverordnung, Federal Law Gazette No. 321/61 as amended) the applicant was suspected of having violated criminal provisions of the Wine Act (in particular offering "imitation wine" to the public, Section 45 (1)(a) and (b) read in conjunction with Section 44 (1)(f) and Section 43 (3) of the Wine Act).   39.      Section 30 (9) of the Wine Act provides that if the results of an examination lead to the suspicion of a criminal act, the Institute must report the case to the competent public prosecutor or court.   In accordance with this provision, the Institute reported its suspicion to the District Court (Bezirksgericht) of Haugsdorf on 8 June 1983.   40.      The district prosecutor (Bezirksanwalt) requested the applicant's punishment under Section 45 of the Wine Act, and the Court opened the proceedings on this basis.   41.      In preparation of his defence, the applicant had the counter- samples analysed by Mr.   N. of the Federal Food Control and Research Institute (Bundesanstalt für Lebensmitteluntersuchung und -forschung) in Vienna who in his reports of 9 August 1983 found that the value of extract substances and minerals was not below the minimum prescribed by the Wine Ordinance, although the examination of these counter-samples by the official wine-tasting panel on 14 July 1983 had confirmed the addition of water in one case (six out of seven members) whereas such addition could not be established with sufficient certainty in the case of the second counter-sample (only five out of seven members considered that water had been added).   42.      The first hearing before the District Court took place on 4 October 1983.   The applicant pleaded not guilty and asked for the taking of expert evidence to the effect that his wine had not been imitated or adulterated.   43.      The Court appointed Mr.   B. of the Agricultural Chemical Institute as its official expert.   As Mr.   B. had not been involved in the earlier analysis of the applicant's wine samples by his Institute, it is in dispute between the parties whether his appointment was made 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 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."   44.      At the next court hearing on 22 November 1983, Mr.   B. stated that the results of his Institute's first analysis were so different from those obtained by the Food Control Institute concerning the counter-samples, that an error of analysis must have occurred at one of the institutes.   45.      The applicant declared that the different results of the analysis could also be due to the fact that, as he had already stated before the police on 22 July 1983, the Cellar Inspector had used a dirty bucket for drawing the samples from the wine tanks, and that some water had been in the bottles into which the samples had been filled.   Only after objections by the applicant, the Cellar Inspector had emptied the remaining bottles.   These statements were confirmed by the applicant's wife and his two sons who were heard as witnesses.   46.      The Cellar Inspector and his assistent, who were also heard as witnesses, denied those allegations.   They stated that the bucket used by them for drawing the samples had not been dirty, and that the residue of liquid in the bottles was wine which had been used for rinsing them.   This had been explained to the applicant when he objected to the use of these bottles.   In any event the bottles had then been emptied as requested by the applicant.   47.      In the view of expert B. a clarification could only be brought about by an analysis of the second control samples.   The Court asked him to prepare a written opinion.   48.      On 21 December 1983 the Agricultural Chemical Institute analysed the second control samples under the supervision of Mr.   B. and reached results similar to those concerning the first samples analysed by it.   A new examination by the tasting panel did not take place.   49.      In his written report of 17 January 1984, Mr.   B. concluded that the new analysis confirmed the first one carried out by his Institute, and that there were serious doubts as to the correctness of the Food Control Institute's analysis of the counter-samples.   He stated that the chemical results were also confirmed by the tasting panel which in all but one samples had identified the addition of water.   The sample where no such addition had been found by the required majority could be ignored.   50.      The correct assessment of the chemical and tasting results showed that there had been an impermissible addition of water and sugar, and that the minimum concentration of extract substances required by the Wine Ordinance had not been reached.   However, the description of the applicant's product as "imitation wine" (produced from residual substances of the wine manufacturing process) could not be maintained.   51.      The expert finally observed that certain statements of the applicant and his relatives in the proceedings must have been wrong in view of the results of the chemical analysis.   In particular he stated that the chemical analysis had not revealed the presence of any solid particles in the samples which would have been the case if a dirty bucket had been used for drawing the samples.   In this case the samples would have been contaminated and the content of sugar would have been reduced in the counter-samples and in the second control samples due to their having been stored for some time before being analysed.   He further denied that it was possible to judge from the outside whether a residue of liquid in green bottles was water or wine.   52.      At the hearing of 14 February 1984, the applicant's lawyer criticised this opinion.   He argued that the expert's close link with the Agricultural Chemical Institute deprived him of the necessary objectivity concerning that Institute's first analysis and might have prompted him to defend the results of that analysis against the different results of the Food Control Institute; moreover, the expert had exceeded his powers by discussing various questions of fact and law instead of limiting himself to a chemical analysis.   53.      The defence requested the taking of additional evidence including new samples from the applicant's wine tanks, the hearing of several further experts including Mr.   N. of the Food Control Institute who had analysed the counter-samples, and the consultation of the records of the tasting panel.   It was alleged that the wine had still been in fermentation when the original samples had been drawn by the Federal Cellar Inspector, that it had not therefore been suitable for tasting (kostfähig), and that the rules for the tasting procedure had not been complied with.   Moreover, the different results of the Agricultural Chemical Institute and of the Food Control Institute had not been explained by the Court's expert who had only concluded that those of the Food Control Institute must be wrong because he considered the results of his own Institute as being correct.   54.      The District Court rejected these requests for additional evidence and, on 14 February 1984, convicted the applicant of an adulteration offence under Section 45 (1)(a) of the Wine Act imposing a fine of AS 5,600.--.   In conformity with Section 46 (1) of the Act it further declared the wine in the two tanks (12,000 L and 15,000 L, respectively) to be forfeited.   Finally, the Court ordered the publication of the judgment in accordance with Section 45 (3) of the Act.   55.      In the judgment the Court relied essentially on the expert's opinion from which long verbatim passages were quoted.   In the Court's view this opinion was conclusive, dealing in particular with the differences of analysis by the two Institutes in a convincing, detailed, precise and comprehensive manner.   However, some statements in the expert opinion, which dealt in an inadmissible manner with questions of law and the evaluation of the evidence, could not be taken into account.   56.      The Court considered that the applicant's requests for additional evidence had to be rejected.   Insofar as they concerned the tasting procedure, they were irrelevant because the results of this procedure provided insufficient evidence.   The taking of new samples was superfluous and it could not be excluded that tampering with the tanks had taken place in the meantime because of the impossibility of sealing the seized tanks completely.   The hearing of further experts was not necessary because there could be no doubt as to the correctness of the results of the Agricultural Chemical Institute which in part had been confirmed by those of the Food Control Institute.   There was no doubt concerning the objectivity of the Court's expert despite his link with the Agricultural Chemical Institute.   57.      The Court finally stated that the applicant had made false allegations against the Federal Cellar Inspector concerning the manner in which he had drawn the samples from the applicant's tanks, and it took this into account as an aggravating circumstance in fixing the sentence.   58.      The applicant appealed, repeating his requests for further evidence and claiming that by their rejection the District Court had violated his rights of defence.   59.      The Regional Court (Kreisgericht) of Korneuburg rejected the appeal on 7 May 1984.   60.      It noted that objections against the expert had only been raised after he had submitted his opinion and not when he was first appointed.   There were no doubts as to his objectivity as he was known as particularly experienced and thorough, had not participated in the analysis of the first samples, and had criticised not only the results of the Food Control Institute, but also those of his own Institute in several respects.   He had given detailed explanations concerning the differences of analysis between the two Institutes.   The applicant's submission that the Court should have had doubts as to his guilt because of the mere existence of those differences of analysis was not accepted.   61.      The Regional Court further had no objection to quotations by the District Court from the expert's opinion.   It found the opinion conclusive and further evidence, such as hearing the expert of the Food Control Institute or a third expert, not necessary.   Nor was it necessary to take further samples as they would in any event show a different composition and as tampering could not be ruled out.   62.      Finally, the Regional Court found the applicant's criticism of the tasting procedure equivocal because he had, on the one hand, challenged its reliability, and on the other hand alleged violations of the rules.   In reality, this procedure was capable of providing evidence of an indicative nature, but subsidiary to the chemical analysis.   In view of the summary of the tasting procedure contained in the Food Control Institute's report it was not necessary to consult the relevant record of the tasting panel.   B.       The proceedings concerning the tampering with evidence   63.      After the applicant's above conviction under the Wine Act had become final, he prepared an official liability action (Amtshaftungs- klage) against the expert B. of the Federal Agricultural Chemical Control Institute for having submitted a wrong expert opinion.   In this connection 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.   64.      This application was rejected by the District Court of Haugsdorf on 22 May 1984, but, on the applicant's appeal (Rekurs), allowed by the Regional Court of Korneuburg on 12 June 1984.   65.      In the proceedings for securing evidence the District Court appointed as expert Mr.   F. of the Federal Agricultural Chemical Control Institute.   He had not been involved in the proceedings under the Wine Act and worked at the Institute's department in Burgenland, some distance from Vienna.   66.      Mr.   F. 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).   67.      In this report Mr.   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.   68.      Mr.   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.   69.      On the same day the District Court ex officio opened criminal proceedings against the applicant on the suspicion of manipulation of a piece of evidence (Section 293 of the Penal Code) by the addition of substances to the wine samples in question.   70.      In these criminal proceedings the District Court again appointed Mr.   F. as expert.   71.      In his expert opinion of 23 October 1984 Mr.   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.   72.      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.   73.      The case was tried by the Regional Court of Korneuburg on 4 July and 12 September 1985.   74.      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 bottles containing the counter-samples which he had intended to send to the Provincial Agricultural Chemical Control Institute (Landwirtschaftlichchemische 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.   75.      By judgment of 12 September 1985 the Regional Court found the applicant guilty as charged and fixed an unconditional sentence of three months' imprisonment.   76.      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.   77.      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.   78.      The applicant's appeal (Berufung) against this judgment was rejected by the Vienna Court of Appeal (Oberlandesgericht) on 24 September 1986.   79.      The Court of Appeal 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 stated 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 Mr.   F. this contradiction could only be explained by the addition of substances to the counter-samples.   80.      The Court of Appeal observed that 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.   81.      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.   82.      The applicant subsequently served 31 days of the prison sentence.   The remainder was conditionally suspended by an amnesty of the Federal President.   C.       The calumny case   83.      Simultaneously with the above proceedings concerning the tampering with evidence, further criminal proceedings were conducted against the applicant on a charge of calumny (Verleumdung) under Section 297 of the Penal Code.   84.      These proceedings had been instituted against the applicant (and also his wife and two sons, who were additionally charged with giving false evidence in court) following a request of the Public Prosecutor of 20 August 1984.   He submitted that in the proceedings under the Wine Act the applicant and his family had wrongly accused the Federal Cellar Inspector of procedural irregularities when drawing the first wine samples on 16 May 1983.   He referred to the statements made by the applicant and members of his family in the wine case (cf. para. 45 above).   By making these false allegations against the Cellar Inspector the applicant was now said to have exposed the Inspector to the danger of disciplinary proceedings and to have committed the offence of calumny.   85.      On 29 October 1984 the Regional Court of Korneuburg convicted the applicant of calumny on account of the following statement which he had made at his interrogation before the police on 22 July 1983 and the recording of which he had especially requested:           "He [i.e. the Cellar Inspector] also used for this         purpose [i.e. for drawing the wine samples] a bucket         which was rather dirty.   When the bottles were filled         I noticed that they contained water which presumably         had been left over from rinsing.   However he told me         that this was of no importance."           ["Er verwendete dazu auch einen Kübel, der ziemlich         verschmutzt war.   Ich bemerkte beim Abfüllen der         Flaschen, dass sich in diesen Wasser, welches vermutlich         vom Aufwaschen herstammt, befand.   Ich machte den         Kellereiinspektor darauf aufmerksam.   Dieser sagte jedoch         zu mir, dass dies nichts ausmache."]   86.      The Court considered that this statement was capable of exposing the Cellar Inspector to the danger of a disciplinary prosecution because the situation was described as if the Cellar Inspector had not emptied the bottles at the applicant's request. This, however, had been established and it followed that the applicant had knowingly made a false statement before the police.   He was given a conditional prison sentence of three months.   87.      The applicant's wife was convicted of calumny and giving false evidence at the trial in the wine case, because she had stated at the end of her deposition as a witness in that case: "I have seen myself that there was water in the bottles." ["Ich habe selber gesehen, dass Wasser in den Flaschen gewesen ist".]   In the Court's view this statement had been objectively and subjectively wrong, because she had earlier admitted that she could not judge whether the liquid in the bottles was water or wine.   She was given a conditional prison sentence of six weeks.   88.      One of the applicant's sons was also convicted of calumny and giving false evidence at the trial in the wine case because he had expressly stated as a witness that the bucket used for drawing the samples had been dirty, which had not been the case as established by the Court.   He was given a conditional prison sentence of six weeks.   89.      As regards a number of further statements which the applicant's wife and his two sons had made when heard as witnesses at the trial of the wine case, they were acquitted of the charges of calumny and giving false evidence.   90.      The Court established the facts concerning the Cellar Inspector's procedure and the subsequent statements related thereto which the applicant and members of his family had made during the proceedings in the wine case from the files of that case, including the evidence of the expert B., and from the statements of the witnesses (the Cellar Inspector and his assistant) and the accused (the applicant and members of his family) in the calumny case.   It found inter alia that the bucket used for drawing the wine samples had not been dirty although it had not been washed out, but only turned upside down and banged.   It further found that it was not possible to judge from the outside whether the residue of liquid in green bottles was water or wine.   These findings were primarily based on the expert opinion of Mr.   B. (cf. para. 51 above) which the Court found to be consistent in itself and conclusive.   91.      The Court did not state expressly that the residue of liquid in the bottles had been wine but, when analysing the various statements of the accused according to which this liquid had been water, it found that this assertion was objectively wrong.   It also observed in this context that it was bound by the final judgment in the wine case according to which the wine in the tanks from which the samples were taken had been produced under addition of water.   92.      In its detailed analysis of the various statements at issue, the Court each time examined whether these statements had been objectively and subjectively wrong.   A number of statements were found to be objectively wrong, but justifiable from the subjective point of view of the defendant who had made them.   In these cases the Court pronounced acquittals.   The statements which led to conviction were distinguished on the ground that they had been false not only from the objective, but also from the subjective point of view of the defendant concerned.   93.      The appeals of the applicant and his wife and son against this judgment were rejected by the Vienna Court of Appeal on 23 April 1985.   94.      Insofar as the applicant had claimed that his incriminating statement (cf. para. 85 above) had been justified by the exercise of his rights of defence under Sections 199 and 202 of the Code of Criminal Procedure and therefore could not be punished as calumny, the Court of Appeal referred to the consistent doctrine and case-law, according to which the limits of the right to defend oneself were overstepped by a conduct which did not merely serve the own defence in the proceedings concerned, but interfered with the rights of other persons by making unequivocal factual allegations against them of a nature which constituted a new criminal offence ("Das Verteidigungs- recht der Angeklagten findet jedenfalls nach ständiger Lehre und Rechtsprechung ... seine Grenzen dort, wo das Verhalten nicht nur der eigenen prozessualen Verteidigung dient, sondern durch unmissver- ständliche Angabe konkreter Tatsachen Rechte anderer Personen verletzt und dadurch eine neue strafbedrohte Rechtsgutverletzung darstellt.")   95.      The Court of Appeal considered that this condition was fulfilled in the applicant's case because he had knowingly raised a false suspicion against the Cellar Inspector which could have led to disciplinary proceedings against the latter.   According to the facts established by the Regional Court, he had wrongly insinuated that the result of the analysis of the wine samples was due to the use of an unsuitable receptacle.   96.      Insofar as the applicant had complained of a wrong application of the law in certain other respects, the Court of Appeal also confirmed the Regional Court's judgment.   97.      Insofar as the applicant and his wife and son had challenged the Regional Court's evaluation of the evidence, the Court of Appeal observed that that Court had extensively dealt with the results of the proceedings in a logical way and without contradiction to the file and had drawn realistic conclusions concerning the subjective element.   As regards the alleged residue of liquid in the bottles the Court of Appeal considered it as decisive that, irrespective of their having been rinsed with water or wine, there could not have remained any relevant quantity of liquid in the bottles after they had been emptied in the way described by the Cellar Inspector in a credible and convincing manner.   98.      The Court of Appeal therefore fully co