CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 18 octobre 1995

.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. 26527/95                       by Wolfgang BLUM and Klaus Ignaz JACOBI                       against Austria        The European Commission of Human Rights (First Chamber) sitting in private on 18 October 1995, the following members being present:              Mr.    C.L. ROZAKIS, President            Mrs.   J. LIDDY            MM.    E. BUSUTTIL                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  M.P. PELLONPÄÄ                  B. MARXER                  G.B. REFFI                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  E. KONSTANTINOV                  G. RESS                  A. PERENIC                  C. BÎRSAN                  K. HERNDL              Mrs.   M.F. BUQUICCHIO, Secretary to the Chamber        Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;        Having regard to the application introduced on 24 October 1994 by Wolfgang BLUM and Klaus Ignaz JACOBI against Austria and registered on 15 February 1995 under file No. 26527/95;        Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;        Having deliberated;        Decides as follows:   THE FACTS        The applicants are German citizens, born in 1955 and 1959 respectively, who reside in Geisenheim (Germany). Before the Commission they are represented by Mr. Riess, a lawyer practising in Innsbruck.        The facts of the case, as submitted by the applicants, may be summarised as follows.        On 15 March 1992 the applicants led as tour guides a group on an alpine skiing tour in the Tyrolean Alps.   The group got caught in an avalanche and several members were injured.        On 3 May 1993 the Innsbruck Regional Court (Landesgericht) convicted the applicants of negligently causing bodily harm (fahrlässige Körperverletzung) and sentenced them to a fine of 12.000 AS each.   The Regional Court found that the applicants had alpine experience as tour guides.   However, they had never before made this specific tour and had failed to take the necessary precautions.   They had failed to listen to the weather and avalanche situation forecast for the day of the tour and had failed to enquire from the keeper of the mountain hut the safest route to take.   According to the expert in meteorology and avalanches heard by the court, there had been an increased avalanche risk on 15 March 1992.   Nevertheless, if the necessary precautions had been taken, and in particular the correct route chosen, the tour could have been considered as safe.   Since the applicants had failed to take these precautions they had not followed the safest route but had chosen a part of the slope which because of its weather and snow conditions had been at a high avalanche risk. Before the Regional Court the applicants were assisted by counsel.        The applicants and the Public Prosecutor's Office appealed against the Regional Court's judgment.   In their appeal the applicants submitted, inter alia, that the Regional Court had failed to hear the keeper of the mountain hut as a witness.        On 11 March 1994 after an oral hearing in which the applicants and their defence counsel participated, the Innsbruck Court of Appeal (Oberlandesgericht) dismissed their appeal.        At the appeal hearing several witnesses were heard, including the keeper of the mountain hut and the same expert in meteorology and avalanches as in the first instance proceedings.   In the course of the hearing the expert stated that he was an employee of the Regional Government's meteorologic service which is responsible for the avalanche situation forecasts.   He also stated that a colleague of his had prepared the avalanche situation forecast for 15 March 1992. Thereupon the applicants challenged the expert for bias.   They submitted that because of his main professional activity he might be prevented from questioning the correctness of the avalanche forecasts for the day of the accident.   The Court of Appeal dismissed the applicants' challenge.   It found that the expert's main professional activity did not interfere with his task of giving an expert opinion and was useful as it showed that he had a particularly good knowledge of avalanche problems.   COMPLAINTS        The applicants complain under Article 6 para. 1 of the Convention that the criminal proceedings have been unfair because the Court of Appeal dismissed their challenge for bias of the expert for meteorology and avalanches.   THE LAW        The applicants, invoking Article 6 para. 1 (Art. 6-1) of the Convention, complain that the criminal proceedings against them were unfair because the Court of Appeal refused to dismiss the expert for meteorology and avalanches as biased.        The Commission considers it appropriate to examine the applicants' complaint under the general rule of paragraph 1 of Article 6 (Art. 6-1) of the Convention, whilst also having due regard to the guarantee of paragraph 3 (d) (Art. 6-3-d) of the Convention (see Eur. Court H.R., Bönisch judgment of 6 May 1985, Series A no. 92, pp. 14-15, para. 29; Brandstetter judgment of 28 August 1991, Series A no. 211, p. 20, para. 42).        Article 6 (Art. 6) of the Convention, as far as relevant, reads as follows:        "(1) In the determination of ... any criminal charge against him,      everyone is entitled to a fair and public hearing ... by an      independent and impartial tribunal established by 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 applicants submit that the expert was a colleague of the meteorologist who had drawn up the avalanche situation forecast for the relevant day and must have felt obliged to defend it.   The forecast was, however, incorrect as on 15 March 1992 there had been no increased avalanche risk.        The Commission finds that the mere fact that the expert for meteorology and avalanches heard by the court was employed by the Regional Government's meterological service of which another employee had drawn up an avalanche situation forecast for the day of the accident does not in itself justify fears that the expert was 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 (see Eur. Court H.R., Brandstetter judgment, loc. cit., p. 21, para. 44; Zumtobel v. Austria, Comm. Report 30.6.92, para. 84, Eur. Court H.R., Zumtobel judgment of 21 September 1993, Series A no. 268-A, p. 22).        The Commission therefore finds no appearance that the Court of Appeal's refusal to dismiss the court expert for meteorology and avalanches for bias violated the applicants' defence rights under Article 6 paras. 1 and 3 (Art. 6-1, 6-3) of the Convention.   There is no indication that proceedings were otherwise conducted in an unfair manner or that the applicants, who were represented by counsel, could not argue their case properly.        It follows that the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.        For these reasons, the Commission, unanimously,        DECLARES THE APPLICATION INADMISSIBLE.   Secretary to the First Chamber         President of the First Chamber        (M.F. BUQUICCHIO)                         (C.L. ROZAKIS)