CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 28 août 1991

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margin-left:17pt; margin-bottom:0pt; text-indent:-17pt; text-align:justify } .s9FF10068 { margin-top:0pt; margin-bottom:12pt } .s40F41F73 { margin-top:0pt; margin-bottom:0pt; text-align:right } .sE7C30868 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .sCA1147F8 { margin-top:12pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .sF6A12959 { width:33%; height:1px; text-align:left } .s85226119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:10pt }       COURT (CHAMBER)             CASE OF BRANDSTETTER v. AUSTRIA   (Application no. 11170/84; 12876/87; 13468/87)             JUDGMENT       STRASBOURG   28 August 1991 In the case of Brandstetter v. Austria [] , The European Court of Human Rights, sitting, in accordance with Article 43 (art. 43) of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") [] and the relevant provisions of the Rules of Court [] , as a Chamber composed of the following judges:   Mr   R. Ryssdal , President ,   Mr   Thór Vilhjálmsson ,   Mrs   D. Bindschedler-Robert ,   Mr   F. Gölcüklü ,   Mr   F. Matscher ,   Mr   R. Macdonald ,   Mr   C. Russo ,   Mr   A. Spielmann ,   Mr   S.K. Martens , and also of Mr M.-A. Eissen , Registrar , and Mr H. Petzold , Deputy Registrar , Having deliberated in private on 21 February and 27 June 1991, Delivers the following judgment which was adopted on the last-mentioned date: PROCEDURE 1. The case was referred to the Court by the European Commission of Human Rights ("the Commission") and by the Government of the Republic of Austria ("the Government") on 11 July and 1 October 1990 respectively, within the three-month period laid down by Article 32 para. 1 and Article 47 (art. 32-1, art. 47) of the Convention. It originated in three applications (nos. 11170/84, 12876/87 and 13468/87) against Austria lodged with the Commission under Article 25 (art. 25) by an Austrian national, Mr Karl Brandstetter, on 6 September 1984, 13 March 1987 and 21 October 1987. The Commission’s request referred to Articles 44 and 48 (art. 44, art. 48) and to the declaration whereby Austria recognised the compulsory jurisdiction of the Court (Article 46) (art. 46); the Government’s application referred to Articles 45, 47 and 48 (art. 45, art. 47, art. 48). The object of the request and the application was to obtain a decision as to whether the facts of the case disclosed a breach by the respondent State of its obligations under Article 6 paras. 1, 2 and 3 (c) and (d) (art. 6-1, art. 6-2, art. 6-3-c, art. 6-3-d). 2. In response to the enquiry made in accordance with Rule 33 para. 3 (d) of the Rules of Court, the applicant stated that he wished to take part in the proceedings and designated the lawyer who would represent him (Rule 30). 3. The Chamber to be constituted included ex officio Mr F. Matscher, the elected judge of Austrian nationality (Article 43 of the Convention) (art. 43), and Mr R. Ryssdal, the President of the Court (Rule 21 para. 3 (b)). On 27 August 1990, in the presence of the Registrar, the President drew by lot the names of the other seven members, namely Mr Thór Vilhjálmsson, Mrs D. Bindschedler-Robert, Mr F. Gölcüklü, Mr R. Macdonald, Mr C. Russo, Mr A. Spielmann and Mr S.K. Martens (Article 43 in fine of the Convention and Rule 21 para. 4) (art. 43). 4. Mr Ryssdal assumed the office of President of the Chamber (Rule 21 para. 5) and, through the Registrar, consulted the Agent of the Government, the Delegate of the Commission and the applicant’s lawyer on the need for a written procedure (Rule 37 para. 1). In accordance with the orders made in consequence, the Registrar received, on 10 December 1990, the Government’s memorial and, on 14 and 17 December 1990 and 8 February 1991, Mr Brandstetter’s claims under Article 50 (art. 50) of the Convention. On the latter date the Secretary to the Commission informed the Registrar that the Delegate would submit his observations at the hearing. 5. Having consulted, through the Registrar, those who would be appearing before the Court, the President had set down, on 9 October 1990, the hearing for 18 February 1991 (Rule 38). 6. The hearing took place in public in the Human Rights Building, Strasbourg, on the appointed day. The Court had held a preparatory meeting beforehand. There appeared before the Court: - for the Government   Mr H. Türk , Legal Adviser,       Ministry of Foreign Affairs,   Agent ,   Mrs S. Bernegger , Federal Chancellery,   Mrs I. Gartner , Federal Ministry of Justice,   Advisers ; - for the Commission   Mr F. Ermacora ,   Delegate ; - for the applicant   Mr W. Sporn , Rechtsanwalt,   Counsel . The Court heard addresses by the above-mentioned representatives as well as their replies to its questions. The Government and the applicant submitted various documents. 7. On 5 March 1991, at the request of the Registrar acting on the instructions of the President, the applicant filed further observations on the application of Article 50 (art. 50) and the Commission several documents. 8. By a letter of 17 May 1991, the Agent of the Government informed the Registrar that the Vienna Senior Public Prosecutor (Oberstaatsanwalt) had issued instructions in order to change the practice in relation to the filing of his observations in cases pending before the Court of Appeal. As from that date they were to be established in several copies, one of which was to be sent to the defendant together with the summons to appear at the hearing. AS TO THE FACTS 9. Mr Karl Brandstetter is an Austrian wine merchant residing at Hadres (Lower Austria). I. THE PARTICULAR CIRCUMSTANCES OF THE CASE A. The background to the case 10.   On 16 May 1983 a Federal Inspector of Cellars (Bundeskellereiinspektor) visited the applicant’s undertaking to carry out an inspection under section 27 of the 1961 Wine Act, as amended (Weingesetz no. 187/1961, "the Wine Act"). He took three types of samples from two tanks of 1982 white wine. The tanks were sealed and officially seized (section 28, see paragraph 35 below). After having left the two counter-samples (Gegenproben) with the applicant, he sent the two official samples (Anzeigeproben) to the Federal Agricultural Chemical Research Institute (Landwirtschaftlich-chemische Bundesversuchsanstalt, "the Agricultural Institute") to be examined (section 30 of the Wine Act). Each sample consisted of two bottles. In addition, he drew from each of the tanks a reserve sample (Reserveprobe), for use should a further analysis prove necessary. 11. On 9 June 1983 the Agricultural Institute drew up a report containing the results of a chemical analysis of the samples, which revealed an abnormally low level of natural extracts and mineral substances. It also set out the conclusions reached by an official wine quality control panel (amtliche Weinkostkommission, see paragraph 35 below). This panel had found on 25 May 1983 that the wine in the samples had been diluted with water. As the levels were below those required by the Wine Ordinance (Weinverordnung), the Agricultural Institute suspected Mr Brandstetter of contravening section 45(1) (a) and (b) of the Wine Act in conjunction with section 44(1) (f) and section 43(3) (relating, inter alia, to the offering for sale to the public of "imitation wine" and adulterated wine). B. The proceedings concerning the quality of the wine 1. In the Haugsdorf District Court 12. On 8 June 1983 the Agricultural Institute had informed the Haugsdorf District Court (Bezirksgericht) of its suspicions in accordance with section 30(9) of the Wine Act (see paragraph 35 below), whereupon the District Prosecutor (Bezirksanwalt) instituted proceedings against Mr Brandstetter under section 45 of the Wine Act. 13. In order to prepare his defence, the applicant had the counter-samples analysed in Vienna by Mr Niessner of the Federal Food Control and Research Institute (Bundesanstalt für Lebensmitteluntersuchung und -forschung, "the Food Institute"). On 9 August 1983 Mr Niessner reported that the level of natural extracts and mineral substances was not below the required minimum. However, the tasting of the samples by a quality control panel on 14 July 1983 had confirmed that water had been added to at least one of them (by six votes out of seven), but had been unable to establish with certainty whether this was so for the other (five votes out of seven). 14. At a first hearing on 4 October 1983 Mr Brandstetter pleaded not guilty and requested the District Court to take expert evidence with a view to establishing that his wine was not "imitation wine" and had not been adulterated. Accordingly, the District Court instructed Mr Bandion of the Agricultural Institute to carry out an expert examination. Mr Bandion had not been involved in the first analysis of the official samples by the Agricultural Institute, or in the drawing up of its report. 15. On 22 November 1983, at the second hearing, the court took evidence from Mr Bandion. According to him, the difference between the results of that examination and the results obtained by Mr Niessner showed that in at least one of the analyses a grave error had been committed; he recommended that the reserve samples should be analysed in order to clarify the position. The court directed him to draw up a report on this matter. Mr Brandstetter maintained that the difference in the findings could also be explained by a circumstance to which he had already drawn the attention of the police on 22 July 1983. This was that the Inspector of Cellars had used a dirty bucket to draw the samples and had poured them into bottles in which there had been a residue of water. The Inspector had emptied the remaining bottles only after the applicant had protested. The applicant’s wife and two sons, who were called as witnesses, confirmed his statements. The Inspector and his assistant, who were also heard as witnesses, claimed on the other hand that the bucket had been clean and that the liquid which remained in the bottles had been wine used to rinse them. The Inspector had explained this to Mr Brandstetter when the latter had complained and, moreover, he had subsequently emptied the bottles in question. 16. The analysis of the reserve samples was carried out at the Agricultural Institute on 21 December 1983 under the supervision of Mr Bandion. It resulted in similar conclusions to those concerning the first samples, but there was no tasting by a quality control panel. In his report of 17 January 1984 Mr Bandion stated that the new analysis had corroborated the first examination carried out by the Agricultural Institute and therefore raised serious doubts with regard to the examination effected by Mr Niessner, of the Food Institute. The scientific findings corresponded to the conclusions of the quality control panels which had identified the addition of water in all the samples except one. As with the results of the tasting, they revealed the prohibited addition of water and sugar, and a level of natural extracts and substances below that required by the Wine Ordinance. The applicant’s products could not, however, be classified as "imitation wine". Various statements by Mr Brandstetter and members of his family during the hearing (see paragraph 15 above) must have been wrong in view of the results of the chemical analysis, in particular statements concerning the use of a dirty bucket by the Inspector of Cellars. Furthermore it was impossible to determine from the outside whether the liquid residue in the green bottles was wine or water. 17. A new hearing was held on 14 February 1984. The applicant’s lawyer criticised Mr Bandion’s opinion because the latter’s close links with the Agricultural Institute deprived him of the necessary objectivity in relation to the first analysis and could have led him to defend the results of that examination against those reported by Mr Niessner. In addition, the expert had exceeded his duties by expressing a view on questions of fact and of law instead of merely carrying out a chemical analysis. Consequently, the defence requested further investigative measures, namely the drawing of new samples from the two tanks which had been seized, the taking of evidence from several other experts, including Mr Niessner, and the consultation of the minutes of the quality control panel. The defence also alleged that the rules laid down for a tasting had not been complied with. Again, the court-appointed expert had not explained the differences between the conclusions of the two institutes. He had merely expressed his view that those of the Food Institute were erroneous and that those of his own Institute were correct. 18. On the same day the District Court convicted Mr Brandstetter of adulterating wine (section 45(1) (a) of the Wine Act) and fined him 5,600 schillings. It also ordered the forfeiture of the wine contained in the two tanks seized - a total of 27,000 litres - (section 46(1)) and the publication of the judgment (section 45(3)). Its judgment was based for the main part on Mr Bandion’s opinion. It cited long passages from that opinion which were in its view conclusive because they revealed a convincing, detailed, precise and exhaustive examination of the differences in analysis of the two institutes. However, the court refused to take into account certain of the expert’s statements which improperly dealt with questions of law and the assessment of evidence. In determining sentence, the court regarded the fact that Mr Brandstetter had made false allegations as to the manner in which the Inspector had carried out his duties as an aggravating circumstance. 19. In addition, the District Court rejected the application for further investigative measures. The court did not consider it to be relevant in so far as it concerned the tasting procedure, because the results of this procedure did not constitute conclusive evidence. The drawing of new samples would in its view be superfluous, in particular as it could not be ruled out that the wine, which in the meantime had remained in the sealed tanks, had undergone an alteration with regard to its composition. The same was true of the request to hear new experts, because no doubts existed as to the reliability of the Agricultural Institute’s conclusions, which had in part been confirmed by those of the Food Institute, or as to Mr Bandion’s objectivity. 2. In the Korneuburg Regional Court 20. Mr Brandstetter appealed. He repeated his request for further investigative measures and argued that by dismissing it the District Court had disregarded the rights of the defence. 21. On 7 May 1984 the Korneuburg Regional Court (Kreisgericht) upheld the contested decision. It noted that the applicant had not raised objections to the expert when he had first been appointed, but only on seeing his report. Mr Bandion’s objectivity was not in doubt. He was especially experienced and conscientious and had in no way been involved in the analysis of the first samples, had criticised the conclusions not only of the Food Institute but also, in certain respects, those of his own Institute, and had explained in detail the differences between the two reports. The citation of extracts from the expert’s opinion in the judgment could not be criticised. As it was a conclusive opinion, it was not necessary to seek new evidence (see paragraphs 17 and 19 above). Nor was it necessary to inspect the minutes of the quality control panel’s meeting since the Food Institute’s report contained a summary of the tasting procedure, which moreover could provide only indicative evidence of a subsidiary nature in relation to the evidence resulting from the chemical analysis. C. The proceedings concerning the charge of tampering with the evidence 1. In the Haugsdorf District Court 22. On his conviction becoming final, Mr Brandstetter had intended to bring an action for damages against the Republic of Austria alleging its liability for the unacceptable procedural errors (Verfahrensfehler) which had been made by the courts in the proceedings concerning the quality of the wine. In order to ensure that the evidence was preserved (Beweissicherungsantrag, Article 384 of the Code of Civil Procedure), he requested that additional samples be taken from the sealed tanks. His request was dismissed by the Haugsdorf District Court on 22 May 1984, but on his appeal the Korneuburg Regional Court reversed this decision on 12 June. 23. The District Court appointed as expert Mr Flack, who was a member of the staff of the Agricultural Institute’s branch in Burgenland and who had not been involved in the proceedings concerning the quality of the wine. It instructed him to supervise, on 16 August 1984, the drawing of new samples from the tanks, and then to analyse them. In his report of 27 September, Mr Flack found differences between the results of his analysis of these new samples and the results of the analyses by the Agricultural Institute of the official samples and the reserve samples obtained on 16 May 1983 (see paragraph 10 above). These differences could, in his opinion, not be explained by alterations in the composition of the wine with the passing of time, or by the effects of measures to preserve the wine authorised by the court. They were in his view due to the addition of substances capable of increasing the natural extract content (alcohol, glycerine, minerals). 24. On 25 September 1984, two days before officially submitting his report, Mr Flack had informed the District Court of his conclusions. The court, of its own motion, instituted criminal proceedings against Mr Brandstetter on a charge of tampering with evidence (Article 293 of the Criminal Code). Mr Flack was appointed as expert by the court and submitted his report on 23 October 1984. He confirmed the earlier findings and noted that the composition of the new samples was similar to that of the counter-samples drawn on 16 May 1983 and analysed by the Food Institute (see paragraph 13 above). 2. In the Korneuburg Regional Court 25. On the basis of this expert opinion, the public prosecutor’s office sought Mr Brandstetter’s conviction for tampering with evidence under Article 293 of the Criminal Code. 26. Hearings were held before the Korneuburg Regional Court on 4 July and 12 September 1985. The accused contended that it had been physically impossible for him to interfere with the counter-samples taken on 16 May 1983, because he had been absent from his business premises before they had been sent to the Food Institute. He stated that all the measures taken to preserve the wine in question had been carried out in the presence of and had been monitored by the Inspector of Cellars who had drawn the first samples. Mr Brandstetter affirmed that some of the bottles containing the counter-samples, which he had sent to the Regional Agricultural Chemical Research Institute (Landwirtschaftlich-chemische Landesversuchs-und Untersuchungsanstalt) at Graz, had been broken during transport, but the bottleneck, which had remained intact, of one of them showed clearly that the seals had not been disturbed. He maintained that Mr Niessner, the expert who had analysed the counter-samples (see paragraph 13 above), could attest to this. He asked that Mr Niessner be called as a witness in order to prove that the seals fixed by the Federal Inspector of Cellars on the counter-samples had been undisturbed when these samples had been given to the Food Institute and that the wine examined by Mr Niessner was identical to the wine examined by the Agricultural Institute. The latter’s first findings were therefore not correct and the quality of the wine at the time when the first samples were drawn in May 1983 had been identical to that of the wine analysed by Mr Flack in the course of the proceedings for securing evidence. The defence further requested that Mr Niessner be appointed as a second expert in order to report on the quality of the wine he had analysed. The court granted the first request, but refused the second. Accordingly, at the second hearing, Mr Niessner was called as a witness. He confirmed that the seals had been intact in so far as he had been able to judge at the time, but stated that the possibility of interference could not be completely ruled out because it was not the usual practice to carry out a detailed forensic examination. However, no question was put to the witness either by the prosecution or by the defence concerning the quality of the applicant’s wine, or in respect of another possible explanation for the above-mentioned differences. 27. On 12 September 1985 the Regional Court found the applicant guilty and sentenced him to three months’ imprisonment. The court accepted Mr Flack’s opinion that only the subsequent addition of substances could explain the significant differences in the analyses. It considered the latter’s opinion to be logical and convincing, in particular because it was consistent with Mr Bandion’s conclusions in the proceedings conducted under the Wine Act (see paragraphs 15 and 16 above). As regards the physical impossibility alleged by the applicant, the court referred to "notorious methods" (gerichtsbekannte Methoden) which consisted of replacing the contents of a sealed bottle by heating the container and carefully removing the seal and the cork or by injecting substances with a syringe through the cork. The fact that one of the bottles had been broken might indeed have been due to the failure of such attempted interference. The court ruled that there was no need to appoint Mr Niessner as a second expert, because he had already submitted a report on the quality of the wine, which he had analysed as a private expert, and because the results of his analysis had already been thoroughly discussed in Mr Bandion’s report. 3. In the Vienna Court of Appeal 28. On 24 September 1986 the Vienna Court of Appeal (Oberlandesgericht) dismissed Mr Brandstetter’s appeal (Berufung) against that judgment. In its view, the Regional Court had not disregarded the evidence submitted by the applicant, namely the broken bottle neck of one of the counter-samples, whose seal was intact; moreover the sample in question could not be used as evidence because it had not been analysed. The results of the examination of the counter-samples by the Food Institute were contradicted by those of the analysis of the official samples by the Agricultural Institute and, according to the convincing opinion of Mr Flack, this discrepancy could be explained only by the fact that substances had been added to the counter-samples. The Regional Court had also taken into account the identical conclusions which Mr Bandion had reached in the earlier proceedings, and the testimony of the witness Mr Niessner on the possibility of interfering with a sealed bottle. It had also described the notorious methods for carrying out such operations. It had therefore based its conclusion on sufficient reasons. Consequently, the Court of Appeal did not consider it necessary to consult a new expert as the accused had requested, since the conditions laid down in Article 126 of the Code of Criminal Procedure were not satisfied (see paragraph 36 below). 29. Mr Brandstetter served 31 days of his sentence. The remaining term was suspended following a pardon granted by the President of the Republic. D. The defamation proceedings 1. In the Korneuburg Regional Court 30. On 20 August 1984 criminal proceedings had been instituted at the request of the public prosecutor against Mr Brandstetter for defamation. According to the public prosecutor’s office he had wrongly accused the Inspector of Cellars of irregularities in taking the first samples on 16 May 1983 (see paragraph 15 above). In so doing he had exposed the latter to the risk of disciplinary sanctions. 31. On 29 October 1984 the Korneuburg Regional Court sentenced the applicant to a suspended term of three months imprisonment for defamation on account of the following statement made by him to the police on 22 July 1983 (see paragraph 15 above) and taken down at his express request: "[The Inspector of Cellars] also used for this purpose [for drawing the wine samples] a bucket which was rather dirty. When the bottles were being filled up, I noticed that they contained water, which presumably had been left over after rinsing. However, he told me that this was of no importance." These assertions, which were false and which he knew to be false, could have led to the opening of disciplinary proceedings against the Inspector, because they gave the impression that he had not emptied the bottles when the applicant had asked him to do so; in fact the contrary had been established. The court based its findings on the evidence adduced in the proceedings concerning the quality of the wine and in particular on the expert opinion and testimony of Mr Bandion, the statements of the Inspector and his assistant, the statements of the applicant and the members of his family and the judgment of 14 February 1984 (see paragraphs 15 and 18 above). 2. In the Vienna Court of Appeal (a) First set of proceedings 32. On 23 April 1985 the Vienna Court of Appeal dismissed the applicant’s appeal and upheld the Regional Court’s judgment in its entirety. In so far as Mr Brandstetter had claimed that the impugned statement (see paragraph 31 above) was justified in the exercise of the rights of the defence (Articles 199 and 202 of the Code of Criminal Procedure) and could not therefore constitute criminal defamation, the court referred to well-established case-law and academic opinion, according to which such rights could not extend to conduct which did not merely serve an accused’s defence, but also adversely affected the rights of another person through allegations of such a nature as to amount to a new criminal offence. As the applicant had consciously aroused false suspicions in respect of the Inspector, Article 297 of the Criminal Code was applicable. The court also took the view that the public prosecutor’s office had not tacitly waived its right to institute proceedings, even though it had not acted immediately. Finally, it found no procedural defect in the way in which the Regional Court had assessed the evidence. The latter court had examined the findings of the proceedings in detail, in a logical and coherent manner in relation to the evidence, and had drawn plausible conclusions concerning the subjective element. The appeal court regarded it as decisive that the bottles, irrespective of whether they had been rinsed with water or wine, could not contain a significant quantity of liquid once they had been emptied in the way described in a credible and convincing manner by the Inspector of Cellars. (b) Second set of proceedings 33. On an application by Mr Brandstetter, the Attorney-General (Generalprokurator) lodged a plea for a declaration of nullity in the interests of the law (Nichtigkeitsbeschwerde zur Wahrung des Gesetzes) directed against the composition of the Court of Appeal. The Supreme Court (Oberster Gerichtshof) allowed the appeal on 28 January 1987 and remitted the case to the Court of Appeal. At the hearing on 24 March 1987 the defence alleged that one of the judges present had already participated in the first appeal proceedings and should therefore withdraw. The court adjourned the hearing until 28 April 1987 when it sat in a composition that was in conformity with the law; it confirmed the judgment of 23 April 1985 in its entirety (see paragraph 32 above). 34. The applicant subsequently asked the Attorney-General to lodge a further application for a declaration of nullity in the interests of the law, but unsuccessfully. At this time he discovered that the judgments of 23 April 1985 and 28 April 1987 reproduced almost word for word the observations (the "croquis") of the Vienna Senior Public Prosecutor (Oberstaatsanwalt) filed with the Court of Appeal on 29 March 1985, which had not been served on him and of which he himself had had no knowledge at the time. II. THE RELEVANT AUSTRIAN LEGISLATION 35. According to the Wine Act, a Federal Inspector of Cellars may draw samples from wine tanks of the firm inspected and send them for analysis to the Agricultural Institute. A sealed counter-sample must be left with the firm in question. Furthermore, a reserve sample must be drawn, for use should a further analysis be necessary. The tanks may subsequently be sealed (sections 27 and 28). The Agricultural Institute analyses the official samples and draws up a report setting out its findings, as well as the results of a tasting by the official wine quality control panel (section 30(3)). The panel is composed of a Chairman (the Director of the Agricultural Institute) and at least five expert tasters appointed by the Federal Ministry of Agriculture and Forestry. It decides, by a qualified majority (five out of five or six, six out of seven, etc), whether the quality of the wine corresponds to its designation. The tasting, the conditions of which are laid down in internal rules, is not conducted in public. The identity of its members - who are under a duty of confidentiality - is not disclosed (section 30(4) to (8)). If the results of the analysis provide grounds for suspecting that a criminal offence has been committed, the Agricultural Institute must report this to the competent public prosecutor or court (section 30(9)). 36. As regards expert evidence in court, section 30(10) stated at the time: "If the court has doubts concerning the findings or the opinion of the Agricultural Institute, or if it considers that the findings or the opinion require elaboration, or if reasonable objections are raised against them, it must take expert evidence from an official of the Institute who has been involved in the preparation of the analysis or the opinion in question so that he may explain or discuss in greater detail the conclusions or opinion of that Institute". In all other aspects the provisions of the Code of Criminal Procedure are applicable. In particular if any doubts persist or if the findings of an expert "are unclear, vague, contradictory", etc. (Articles 125 and 126 of the Code of Criminal Procedure), the court may call another expert. Under the terms of Article 149 of the same Code, only the prosecutor and the defence counsel or the accused are entitled to put questions to witnesses and experts. Nevertheless, the court may authorise experts to examine witnesses and the accused. Witnesses, on the contrary, do not have this possibility. PROCEEDINGS BEFORE THE COMMISSION 37. In his applications of 6 September 1984 (11170/84), 13 March 1987 (12876/87) and 21 October 1987 (13468/87), Mr Brandstetter made the following complaints: that in the proceedings concerning the quality of the wine and those relating to the charge of tampering with evidence, he had not had a fair trial as required by Article 6 para. 1 (art. 6-1), nor had he had the benefit of the right secured under Article 6 para. 3 (d) (art. 6-3-d), on account of the position which the experts of the Agricultural Institute had occupied in relation to other expert witnesses; in addition, in the first proceedings, there had been a breach of Article 6 para. 3 (c) (art. 6-3-c) by reason of the applicant’s subsequent conviction for defamation on the basis of statements that he had made in his defence, during the investigation; in the second proceedings, there had been a breach of the principle of the presumption of innocence guaranteed under Article 6 para. 2 (art. 6-2); finally, in the defamation proceedings, the Court of Appeal had failed to satisfy the requirement of a fair trial by basing its decision on observations made by the prosecution which had not been communicated to the defence. 38. On 14 July 1987 the Commission declared the first application manifestly ill-founded on two points and admissible for the rest. On 10 July 1989 it declared the two other applications admissible and ordered their joinder with the remaining claims of the first application. In its report of 8 May 1990 (Article 31) (art. 31), the Commission expressed the opinion: (a) that, in the case concerning the quality of the wine, there had been a violation of Article 6 para. 1 (art. 6-1) taken in conjunction with Article 6 para. 3 (d) (art. 6-3-d) of the Convention inasmuch as the expert evidence for the prosecution and that for the defence had not been treated on an equal footing (unanimously); (b) that the same was true in the proceedings concerning the charge of tampering with evidence (unanimously); (c) that the applicant’s conviction for defamation had infringed Article 6 para. 3 (c) (art. 6-3-c) (nine votes to three); (d) that no separate issue arose concerning the question whether, in the proceedings concerning the charge of tampering with evidence, there had been in other respects an infringement of the applicant’s right to a fair trial (Article 6 para. 1) (art. 6-1) or a breach of the principle of the presumption of innocence (Article 6 para. 2) (art. 6-2) (unanimously); (e) that, in the defamation proceedings, there had not been, on appeal, a breach of the principle of equality of arms guaranteed in Article 6 para. 1 (art. 6-1) (eleven votes to one). The full text of the Commission’s opinion and the two separate opinions contained in the report is reproduced as an annex to this judgment [] . AS TO THE LAW I. ALLEGED VIOLATIONS OF ARTICLE 6 (art. 6) 39. Mr Brandstetter alleged that he had been the victim of breaches of paragraphs 1, 2 and 3 (c) and (d) of Article 6 (art. 6-1, art. 6-2, art. 6-3-c, art. 6-3-d) which, in so far as they are relevant, provide: "1. In the determination ... of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ... 2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law. 3. Everyone charged with a criminal offence has the following minimum rights: ... (c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; (d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; ... ." According to the applicant, these provisions were violated in three different sets of proceedings concerning, respectively, the quality of his wine, a charge of tampering with evidence and his prosecution for defamation. The Court will examine each set of proceedings in turn. A. The proceedings concerning the quality of the wine (see paragraphs 12-21 above) 40. Mr Brandstetter’s complaints in respect of the proceedings concerning the quality of the wine raise three distinct issues, namely: (1) the principle of equality of arms, inherent in Article 6 para. 1 (art. 6-1) and the specific provisions of Article 6 para. 3 (d) (art. 6-3-d), with regard to expert evidence; (2) the right to a fair trial and the right to obtain the attendance and examination of witnesses (Article 6 para. 1, in conjunction with Article 6 para. 3 (d)) (art. 6-1, art. 6-3-d) in relation to the evidence resulting from a wine-tasting procedure; (3) the rights of defence set forth in Article 6 para. 3 (c) (art. 6-3-c), in connection with the applicant’s subsequent conviction for defamation on account of statements made by him in his defence during these proceedings. 1. The principle of equality of arms with regard to expert evidence 41. Mr Brandstetter first complained that the Haugsdorf District Court, applying section 30(10) of the Wine Act (see paragraphs 14 and 36 above) had appointed, as official expert, Mr Bandion, a member of the staff of the Agricultural Institute which had reported the initial suspicions concerning him, and that, in breach of the principle of equality of arms, it had refused to hear any other expert, and even to call Mr Niessner, the expert commissioned by the applicant, as a witness. The Government argued that the expert in question had not been appointed in pursuance of the above-mentioned section but, under the general rules of Articles 125 and 126 of the Code of Criminal Procedure (see paragraph 36 above), to analyse a third set of samples (the reserve samples) and to compare the results with those of the analyses of the official samples and the counter-samples. As an "expert", he was, according to Austrian law, a neutral and objective auxiliary of the court. The Commission did not find it necessary to ascertain whether the appointment of Mr Bandion was based on section 30 of Wine Act, because what, in its opinion, was decisive for this issue was the fact that he belonged to the staff of the Agricultural Institute. 42. The Court considers it appropriate to examine the applicant’s complaint under the general rule of paragraph 1 of Article 6 (art. 6-1) of the Convention, whilst having due regard to the guarantees of paragraph 3 (art. 6-3) (see, inter alia, the Bönisch judgment of 6 May 1985, Series A no. 92, pp. 14-15, para. 29). The Court notes that, read literally, sub-paragraph (d) of paragraph 3 (art. 6-3-d) relates to witnesses and not experts. It points out that in any event the guarantees contained in paragraph 3 (art. 6-3) are constituent elements, amongst others, of the concept of a fair trial set forth in paragraph 1 (art. 6-1) (ibid.). In this context, it will take into consideration the position occupied by the expert throughout the proceedings and the manner in which he performed his functions (ibid., p. 15, para. 31). 43. First of all, the Court does not find it established that the District Court, when appointing Mr Bandion did so under section 30(10) of the Wine Act. At its first hearing, on 4 October 1983, the District Court had before it two contradictory reports, one supporting the prosecution’s views and the other those of the defence; as a result the defence requested the appointment of another expert (see paragraphs 12-14 above). The court allowed this request and appointed Mr Bandion who was not - as he should have been under the aforementioned provision - the "official" who either had carried out the analysis of the official samples or had drawn up the report thereon. 44. Admittedly, the fact that Mr Bandion was a member of the staff of the Agricultural Institute which had set in motion the prosecution may have given rise to apprehensions on the part of Mr Brandstetter. Such apprehensions may have a certain importance, but are not decisive. What is decisive is whether the doubts raised by appearances can be held objectively justified (see, mutatis mutandis, in respect of judges, the Hauschildt judgment of 24 May 1989, Series A no. 154, p. 21, para. 48). Such an objective justification is lacking here: in the Court’s opinion, the fact that an expert is employed by the same institute or laboratory as the expert on whose opinion the indictment is based, does not in itself justify fears that he will be unable to act with proper neutrality. To hold otherwise would in many cases place unacceptable limits on the possibility for courts to obtain expert advice. The Court notes, moreover, that it does not appear from the file that the defence raised any objection, either at the first hearing of 4 October 1983 when the District Court appointed Mr Bandion, or at the second hearing of 22 November 1983 when Mr Bandion made an oral statement and was asked to draw up a report; it was not until 14 February 1984, after Mr Bandion had filed his report, which was unfavourable to Mr Brandstetter, that the latter’s lawyer criticized the expert for his close links with the Agricultural Institute (see paragraphs 14-17 above). 45. The mere fact that Mr Bandion belonged to the staff of the Agricultural Institute does not justify his being regarded - as was the case with the expert in the Bönisch case (see the judgment cited above, Series A no. 92) - as a witness for the prosecution. Nor does the file disclose other grounds for so considering him. It is true that to a certain extent Mr Bandion stepped outside the duties attaching to his function by dealing in his report with matters relating to the assessment of evidence, but this does not warrant the conclusion that the position which he occupied in the proceedings under review was that of a witness for the prosecution either. Accordingly, the District Court’s refusal of the defence’s request to appoint other experts (see paragraph 17 above) cannot be seen as a breach of the principle of equality of arms. 46. Nor can it be said that because of this refusal or of the refusal to call Mr Niessner as a witness the proceedings were unfair. The right to a fair trial does not require that a national court should appoint, at the request of the defence, further experts when the opinion of the court- appointed expert supports the prosecution case. 47. Accordingly, there was no violation of Article 6 para. 1 (art. 6-1), read in conjunction with Article 6 para. 3 (d) (art. 6-3-d) of the Convention, under this head. 2. Right to a fair trial and right to obtain the attendance and examination of witnesses 48. Mr Brandstetter also complained that, contrary to Article 6 para. 1 (art. 6-1), taken in conjunction with Article 6 para. 3 (d) (art. 6-3-d), the Haugsdorf District Court relied on the evidence of anonymous witnesses, the members of the wine-tasting panel, who did not give evidence in court and whose identity was not disclosed. The Government argued that the panel’s evidence was only of secondary importance; the Commission observed that it had in fact been of some relevance, because it supported the argument of the official expert and provided an additional reason for refusing to call a second expert. 49. The Court notes in the first place that in the proceedings concerning the quality of the wine the applicant never sought the attendance and examination of the members of the Agricultural Institute’s panel: in fact, what he requested was the examination of the minutes of their wine-tasting session (see paragraphs 17 and 19 above). Furthermore, the results of the wine-tasting procedures, for both the official samples and the counter-samples, were included in the respective reports of 9 June and 9 August 1983 by the two Institutes (see paragraphs 11 and 13 above). They thus formed only part of the written expert opinions. In addition, the reserve samples, which were the subject of Mr Bandion’s analysis and report, and indeed the main evidence before the District Court, were not tasted at all by a panel (see paragraph 16 above). The expert did indeed note in his report that the results of his chemical analysis could not be considered to be contrary to the findings of the Agricultural Institute’s panel, and this view was accepted by the District Court in its judgment of 14 February 1984 (see paragraphs 16 and 18 above). However, when rejecting the defence’s request to examine the minutes of the wine-tasting session, the District Court stated that these findings were not relevant, because they did not constitute conclusive evidence (see paragraphs 17 and 19 above). On appeal, the Regional Court similarly held that these findings were, at best, an indication, since the results of the analyses already amounted to conclusive evidence (see paragraph 21 above). There has thus been no violation of Article 6 para. 1 (art. 6-1), taken in conjunction with Article 6 para. 3 (d) (art. 6-3-d), under this head either. 3. Rights of the defence 50. Again in connection with the proceedings concerning the quality of the wine, Mr Brandstetter complained finally that he had been convicted of defamation in subsequent proceedings, because he had alleged that the Inspector, when drawing the first wine samples on 16 May 1983, had acted irregularly (see paragraphs 15 and 30 above). This, in his view, constituted a violation of Article 6 para. 3 (c) (art. 6-3-c), inasmuch as an accused’s ability to make statements in his defence must not be limited or inhibited by a fear of facing charges at a later stage of wilfully making false allegations. 51. The Court understands the substance of this complaint to be as follows: first, that the applicant’s