Lexploria

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 confirmed the Regional

Court's judgment including the sentence.

99. The applicant states that he later found out that the Court of

Appeal's judgment reproduced almost literally the observations (the

so-called "Croquis") which had been submitted to this Court on 29

March 1985 in a non-public procedure by the Senior Public Prosecutor

(Oberstaatsanwalt) of Vienna. This document had not been communicated

to the applicant who at the relevant time had no knowledge of its

existence.

100. The Government submit that it is the practice of the Court of

Appeal to send the file to the Senior Public Prosecutor who may then

submit written observations to the Court. A defendant's lawyer may

ask for access to the file, in which case the said observations would

be disclosed to him. The applicant claims that the practice is not as

described by the Government. He submits that observations by the

Senior Public Prosecutor are not disclosed to the defence because they

are considered as part of the internal file of the prosecution.

101. In its above judgment, the Court of Appeal held that

Section 297 of the Penal Code applied to the incriminated statements

of the applicant, which were wrong allegations likely to expose the

Cellar Inspector to a danger of disciplinary proceedings. It also

found that there was no tacit renunciation of a prosecution by the

public prosecutor who had not immediately reacted at the applicant's

first trial. Furthermore, the evaluation of the evidence by the

Regional Court showed no procedural defects.

102. Subsequently, upon the applicant's request, the Attorney

General (Generalprokurator) lodged a plea of nullity for safeguarding

the law (Nichtigkeitsbeschwerde zur Wahrung des Gesetzes). He

submitted that the Court of Appeal had been wrongly composed. The

Supreme Court (Oberster Gerichtshof) allowed the plea of nullity on

28 January 1987, quashing the Court of Appeal's judgment and referring

the case back to that Court.

103. At the new hearing before the Court of Appeal on 24 March 1987

the defence submitted that one of the judges had participated in the

earlier appeal hearing and was therefore disqualified. The hearing

was adjourned until 28 April 1987, when the Court was composed

according to the law. It again rejected the applicant's appeal,

confirming its judgment of 23 April 1985 and using the same terms as

in that judgment.

104. The applicant again applied to the Attorney General to file a

plea of nullity for safeguarding the law, but this application was

rejected. It was allegedly in connection with these latter

proceedings that the applicant learnt of the Senior Public

Prosecutor's submissions in the first appeal proceedings, and of the

fact that the Court of Appeal's judgments of 23 April 1985 and 28

April 1987 adopted these submissions.

III. OPINION OF THE COMMISSION

A. Points at issue

105. The following points are at issue:

a) As regards the wine case

- whether there has been a violation of Article 6

para. 1, read in conjunction with Article 6 para. 3 (d)

(Art. 6-1+6-3-d) of the Convention, in that there was

no equal treatment of the expert evidence of the prosecution

and of the defence;

- whether there has been a violation of Article 6

para. 3 (c) (Art. 6-3-c) of the Convention by the applicant's

subsequent conviction of calumny on account of

statements which he had made in his defence in the

wine case;

b) As regards the case concerning the tampering with

evidence

- whether there has been a violation of Article 6 para. 1

of the Convention, read in conjunction with Article 6

para. 3 (d) (Art. 6-1+6-3-d) of the Convention, in

that there was no equal treatment of the expert evidence

of the prosecution and of the defence;

- whether there has been a violation of the applicant's

right to a fair trial (Article 6 para. 1 (Art. 6-1) of the

Convention) and/or of his right to be presumed innocent

until proved guilty according to law (Article 6 para. 2

(Art. 6-2) of the Convention);

c) As regards the calumny case

- whether there has been a violation of the principle of

equality of arms (Article 6 para. 1 (Art. 6-1) of the Convention)

in the appeal proceedings.

B. The complaints concerning the wine case

1. The administration of the expert evidence

106. The first sentence of Article 6 para. 1 (Art. 6-1) of the

Convention reads as follows:

"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."

Article 6 para. 3 (d) (Art. 6-3-d) reads as follows:

"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."

107. The applicant alleges that these provisions have been violated

in the criminal proceedings under the Wine Act 1961 because under

Section 30 (10) of this Act the competent court was bound to appoint

as expert an employee of the Institute which had reported the

suspicion against him, and that it refused to hear any other experts.

He claims that Section 30 (10) undermined the Court's independence

and impartiality, and that, in its application, the Court furthermore

disregarded the principle of equality of arms inherent in Article 6

para. 1 (Art. 6-1) of the Convention, as well as the specific

provisions of Article 6 para. 3 (d) (Art. 6-3-d) which, in the

applicant's view, also apply to experts.

108. The applicant further alleges a violation of these provisions

because the Court used the results of an official wine-tasting

procedure without disclosing the identity of the members of the

wine-tasting panel and without there being any possibility of

examining those experts. It thus could not be controlled whether the

tasting procedure had been conducted in accordance with the rules.

109. The Commission recalls that in its Bönisch judgment of

6 May 1985 (Series A no. 92) the European Court of Human Rights found

a violation of Article 6 para. 1 (Art. 6-1) of the Convention concerning a

procedure under Section 48 of the 1975 Food Act which contained the

same principle as Section 30 (10) of the Wine Act 1961.

110. In the Bönisch case, the report of the Institute underlying

the prosecution had been prepared by the same person who subsequently

acted as the court's expert, and for this reason the European Court of

Human Rights considered that doubts could arise concerning the

neutrality of this expert who was more like a witness against the

accused. Having regard to the principle of equality of arms inherent

in the concept of a fair trial, and exemplified in paragraph 3 (d) of

Article 6 (Art. 6-3-d), the Court held that in these circumstances

equal treatment was required between the hearing of the expert and the

hearing of persons who were or could be called, in whatever capacity,

by the defence (Bönisch judgment, loc. cit., p. 15 para. 32).

111. The Court held that such equal treatment had not been afforded

because the statements of the "expert" invested with the function of

neutral and impartial auxiliary of the domestic Court must have

carried greater weight than those of an "expert witness" called by the

defence, in particular as the Court's expert played a dominant role in

the proceedings in that he could attend throughout the hearings, put

questions to the accused and to witnesses with the leave of the Court

and comment on their evidence (ibid. p. 16 para. 33).

112. The Court further observed that there was little opportunity

for the defence to obtain the appointment of a counter-expert. The

domestic Court was required to first hear a member of the Institute

whose report had prompted the introduction of a prosecution, for the

purpose of "explaining and supplementing the findings or the opinion"

of the Institute, and the Court could not have recourse to another

expert except in the contingencies referred to in Sections 125 and 126

of the Code of Criminal Procedure (ibid. p. 16 para. 34).

113. For the same reasons, the Austrian Constitutional Court

subsequently quashed Section 48 of the 1975 Food Act as being

incompatible with the requirements of Article 6 para. 1 (Art. 6-1) of the

Convention, and thus unconstitutional (judgment of 28 November 1985,

Collection of Constitutional Court Decisions No. 10701). The Commission

notes that as a consequence not only Section 48 of the 1975 Food Act,

but also Section 30 (10) of the 1961 Wine Act has in the meanwhile

been replaced by new legislation.

114. In the present case, the Government submit that Section 30

(10) of the 1961 Wine Act, as in force at the relevant time, was not

applied because the Court appointed a different expert than the one

who had prepared the Institute's initial report underlying the

prosecution. In the Government's submission this expert was perfectly

neutral and objective, his report was consistent in itself and

conclusive, and he did not dominate the proceedings. Therefore it was

not necessary to hear another expert, either as a counter-expert in

the formal sense or as an expert witness. The Government deny a

violation of Article 6 para. 1 (Art. 6-1) on grounds analogous to

those stated in the Bönisch case and contend that the present case is

not comparable to that case.

115. The applicant, on the other hand, observes that the Court had

to apply Section 30 (10) of the Wine Act, that it appointed an expert

from the same Institute which had furnished the report underlying the

prosecution, and even if this expert had not been involved in the

preparation of the initial report, his function was only to explain

and supplement the findings of that report, a function which he could

hardly carry out in an unbiased manner. The applicant further submits

that his private expert was not heard at all.

116. The Commission does not find it necessary to ascertain whether

the appointment of the Court's expert, Mr. B., was based on Section 30

(10) of the Wine Act, and if so, whether this provision was correctly

applied. In any event the expert belonged to the staff of the same

Institute which had raised the initial suspicion against the

applicant. The fact that he had not been involved in the preparation

of the Institute's first report was not sufficient to remove doubts as

to his neutrality, in particular as the analysis of the second

counter-samples made under his supervision was apparently carried out

in the same laboratory where the first samples had been tested. It

follows that, as in the Bönisch case (para. 110 above), this expert

must be assimilated to a witness for the prosecution and that,

consequently, the applicant was entitled to equal treatment of the

witnesses on his behalf.

117. It is true that in the present case the expert in question did

not assume such a dominant role as the expert consulted in the Bönisch

case. The fact that to a certain extent he overstepped his functions

by dealing with questions of law and the evaluation of the evidence is

irrelevant because the Court expressly rejected these arguments as

inadmissible and did not take them into account. It further appears

that in this case the expert did not put questions to the persons who

appeared in court, i.e. the applicant and the witnesses.

118. On the other hand, the defence was treated even less

favourably than in the Bönisch case. Its private expert was not

called at all although this had been requested by the defence. The

Court finally held on the basis of the opinion of its official expert

that the results reached by this private expert, namely that the wine

was not to be regarded as adulterated, were wrong.

119. The Court further relied on the evidence of anonymous

witnesses, i.e. the members of the wine-tasting panel, who were not

heard in court and whose identity was not disclosed. While it is true

that their evidence was only of a subsidiary nature, it nevertheless

was important in the present case because it supported the arguments

of the Court's expert, and provided an additional reason to refuse the

hearing of a counter-expert.

120. The Government claim that the confidentiality of the panel's

procedure and the anonymity of its members contributed to its

objectivity. In the Government's view questions concerning the

panel's procedure could also be answered by the Institute's expert.

121. The applicant claims that the tasting procedure could not be

regarded as reliable because it was impossible to control whether the

rules had been observed by the panel.

122. The Commission and the Court have held that the use of

evidence from anonymous witnesses may raise issues under Article 6

para. 1 read in conjunction with Article 6 para. 3 (d)

(Art. 6-1+6-3-d) (cf. Eur. Court H.R, Kostovski judgment of 20

November 1989, Series A no. 166; Application No. 11444/85, Delta v.

France, Comm. Report 12.10.89; Application No. 12489/86, W. v.

Austria, Comm. Report 12.7.89).

123. However, in the present case the Commission may leave open

whether the fact that the applicant was unable to question the members

of the wine-tasting panel, being anonymous witnesses against him,

would as such have constituted a violation of the above provisions.

In any event, the applicant was also unable to obtain the hearing of

a counter-expert, i.e. a witness on his behalf.

124. Taking all circumstances into account, the Commission finds

that, as regards the administration of the expert evidence in the

present case, the principle of equality of arms has not been respected

in that the defence could not present its evidence under the same

conditions as the prosecution.

Conclusion

125. The Commission concludes, by a unanimous vote*, that in the

wine case there has been a violation of Article 6 para. 1,

read in conjunction with Article 6 para. 3 (d) (Art. 6-1+6-3-d) of the

Convention, in that there was no equal treatment of the expert

evidence of the prosecution and of the defence.

---------

* Mr. Schermers took part in this vote.

--------

2. The respect of the applicant's right of defence

126. The applicant complains that, by punishing him in subsequent

proceedings for statements which he had made in defence in the

wine case, his rights of defence in that case were violated. He

invokes in particular Article 6 para. 3 (c) (Art. 6-3-c) of the

Convention which reads as follows:

"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;

..."

127. The Commission notes that the applicant was convicted of

calumny for having made the unfounded allegation that a Federal Cellar

Inspector had followed an irregular procedure when drawing the first

wine samples in the applicant's enterprise on 16 May 1983. The

applicant had stated before the police at the investigation of the

wine case that the Cellar Inspector had used a dirty bucket and had

filled the samples into bottles which contained a residue of water.

Similar statements had also been made by members of the applicant's

family when they were heard as witnesses at the trial of the wine

case. The Cellar Inspector concerned and his assistant had also been

heard as witnesses and had contested the above allegations. While

admitting that the applicant had protested against their procedure,

they claimed that it had been explained to him at the relevant time

that the residue of liquid in the bottles was wine left over from the

rinsing. In any event the residual liquid had been emptied from the

bottles at the applicant's request. They also denied the use of a

dirty bucket.

128. The applicant was convicted of calumny because the Court

considered that by making the above allegations he had knowingly made

false statements likely to expose the Cellar Inspector to the danger

of disciplinary proceedings. The applicant's wife and one of his sons

were also convicted of calumny and, additionally, of giving false

evidence in court. They and the applicant's second son were, however,

acquitted in respect of a number of further statements made by them at

the trial in the wine case (cf. paras. 89 and 92 above).

129. The applicant claims that his allegations against the Cellar

Inspector were legitimate defence arguments in the wine case. They

therefore could not justify a criminal charge and the punishment for

calumny violated his rights of defence in the wine case, as guaranteed

by Article 6 para. 3 (c) (Art. 6-3-c) of the Convention.

130. The Government submit that the accused is not obliged to tell

the truth, but that he is not free, in his defence, knowingly to make

false allegations against third persons. The applicant's statements

in the wine case went beyond what was necessary for his defence in

that case. He did not merely deny his guilt and contest the

correctness of the Cellar Inspector's statements, but accused the

latter of improper manipulations when drawing the wine samples. The

courts were convinced that he knew that these statements were false

and his conviction was therefore justified and did not violate his

rights of defence in the wine case.

131. The Commission notes that the calumny proceedings were

conducted against the applicant at a time when he was no longer

"charged with a criminal offence" in the wine case, the proceedings

in that case having been concluded by his final conviction of an

adulteration offence. The prosecution for calumny therefore could

not directly interfere with his rights of defence in the wine case.

There could only be an indirect inhibition on the effective exercise

of his rights of defence at the time of the wine case if at that time

he had to fear being prosecuted on account of legitimate defence

statements.

132. As the rights which the Convention is intended to guarantee

are not theoretical or illusory, but practical and effective,

in particular where the rights of defence are concerned (cf. Eur.

Court H.R., Artico judgment of 13 May 1980, Series A no. 37, p. 16

para. 33), the Commission is of the opinion that an inhibition on the

rights of defence resulting from the danger of a subsequent

prosecution falls to be considered under Article 6 para. 3 (c)

(Art. 6-3-c) of the Convention, even if the prosecution takes place at

a time when the person concerned is no longer "charged with a criminal

offence" in the earlier case in relation to which he claims a

violation of his rights of defence. The actual prosecution only

shows that already in the earlier proceedings the submission of

certain defence arguments was regarded as unlawful. In the present

case this is underlined by the fact that in the wine case the court,

when fixing the sentence, regarded it as an aggravating circumstance

that the applicant had made false allegations against the Cellar

Inspector (cf. para. 57 above).

133. The Commission notes that the applicant was convicted in

respect of statements made before the police at the investigation

stage of the proceedings, and not on account of his subsequent defence

arguments in court by which he confirmed the earlier statements before

the police and repeated his allegations against the Cellar Inspector.

134. The Commission considers, however, that the applicant's

defence in the wine case must be seen as a whole, in particular as he

raised essentially the same arguments before the police and before the

court. This also seems to have been the attitude of the Austrian

courts. In particular the Court of Appeal, before which the applicant

invoked his rights of defence, accepted that the applicant's

incriminating statements were part of his defence. In its judgment of

23 April 1985 it only referred to the limits of the rights of defence

according to Austrian legal doctrine and practice (cf. para. 94

above). The Commission therefore finds that the applicant was

prosecuted on account of statements which were defence arguments

in the wine case.

135. The applicant had a legitimate interest that the drawing of

the wine samples in his enterprise was carried out in a correct manner

and he could have doubts in this respect because the bucket used for

drawing the wine samples was only turned upside down and banged, and

because furthermore there was initially a residue of liquid in some

bottles into which the wine samples were filled. Even after the

explanations provided by the Cellar Inspector, the applicant could

therefore reasonably draw the attention of the prosecution authorities

and of the Court to the deficiency of the Cellar Inspector's procedure

as allegedly perceived by him.

136. It was for the courts in the wine case to decide whether the

version of the facts as stated, on the one hand, by the applicant and

members of his family and, on the other, by the Cellar Inspector and

his assistant, being State organs having acted in an official

capacity, was correct. For judging the matter, the courts could rely

on the expert evidence of Mr. B. on this issue (cf. para. 51 above).

On the basis of this evidence, the courts dealing with the wine case

could reasonably come to the conclusion that the Cellar Inspector had

told the truth in regard to the disputed facts. In any event it is

not the Commission's task to review the domestic courts' findings in

this respect.

137. However, it is another question whether the applicant's

allegations concerning the Cellar Inspector's procedure transgressed

the bounds of the legitime defence, even if they involved at the same

time the insinuation that the Cellar Inspector had behaved unlawfully.

In this respect the Commission agrees with the Government that the

deliberate raising of a false suspicion against a witness in criminal

proceedings cannot be considered as a legitimate defence argument

protected by Article 6 para. 3 (c) (Art. 6-3-c) of the Convention.

The Commission further notes in this context that the offence of

calumny under Section 297 of the Austrian Penal Code presupposes the

raising of a false suspicion in the knowledge that it is false.

138. The question therefore arises whether the applicant must have

known that his allegations against the Cellar Inspector were false.

That they were objectively wrong was established on the basis of the

expert opinion which Mr. B. had submitted in the wine case as well as

the judgment handed down in that case (cf. paras. 90 and 91 above).

However, the reason why the courts assumed that the applicant's

statements were also subjectively wrong, i.e. that the applicant had

knowingly made false allegations against the Cellar Inspector, was

that he created the impression that the Cellar Inspector had not

emptied the bottles. It is implied in the court decisions in the

calumny case that, because the bottles were in fact emptied by the

Cellar Inspector, the applicant should have abstained in the wine case

from submitting the allegation regarding the Cellar Inspector's

procedure.

139. The Commission observes that at the hearing before the

District Court on 22 November 1983 the applicant made allegations to

the same effect as those which he had made to the police on 22 July 1983

(cf. para. 45 above). In the Court's judgment on 14 February 1984,

the Court found those allegations to have been false and took the

falsity into account when fixing the applicant's sentence (cf. para. 57

above). On 22 November 1985 he was, in the calumny case, sentenced to

a further punishment in respect of the allegations which he had made

to the police. Thus the applicant, having had his sentence increased

for having made the allegations, was further punished by the imposition

of a separate and additional penalty.

140. The fact that because of the submission of his arguments in

the wine case the applicant did not only run the risk of his sentence

being increased but also had at that time to expect a prosecution for

calumny, as shown by his subsequent conviction of this offence, created

an inhibition on his legitimate rights of defence in the wine case

which, in the Commission's opinion, is incompatible with Article 6

para. 3 (c) (Art. 6-3-c).

Conclusion

141. The Commission concludes, by nine votes to three*, that there

has been a violation of Article 6 para. 3 (c) (Art. 6-3-c) of the

Convention in that the applicant was convicted of calumny on account

of statements which he had made in his defence in the wine case.

C. The complaints concerning the case of tampering with evidence

1. The administration of the expert evidence

142. The applicant complains that, as in the wine case (see

Section B 1. above), the provisions of Article 6 paras. 1 and 3 (d)

(Art. 6-1, 6-3-d) have also been violated in the subsequent criminal

proceedings in which he was convicted of tampering with evidence. He

submits that in this case the Court appointed as an expert the very

person, Mr. F., who had raised the criminal suspicion against him and

who, moreover, belonged to the same Institute whose experts had been

the only ones consulted in the previous proceedings under the Wine

Act. His private expert was only heard as a witness and thus not

under the same conditions as the Court's official expert.

143. The Government deny a violation of the Convention. They

observe that no provision similar to Section 48 of the 1975 Food Act

or Section 30 (10) of the 1961 Wine Act was applicable in this case,

in which the Court therefore was free in the choice of its expert.

While Mr. F. was employed by the Federal Agricultural Chemical

Institute, whose experts had been consulted in the previous proceedings

under the Wine Act, he nevertheless worked in a different branch of

that Institute located at some distance from Vienna. The applicant

failed to challenge this expert in time, and his neutrality and

objectivity was in no way compromised. The applicant's private

expert, Mr. N., was heard as a witness and, although formally he did

not have the same status as the Court's expert, in substance he was

not treated differently.

144. The Commission recalls that the charge of tampering with

evidence referred to the earlier proceedings under the Wine Act. The

applicant claimed that in those proceedings he had been convicted on

the basis of wrong evidence. He prepared an official liability action

and instituted proceedings for securing evidence by which he could

prove this claim. New samples were taken from his sealed wine tanks.

Although the purpose of this measure was to contest the earlier

findings of experts of the Agricultural Chemical Institute, the Court

entrusted the analysis of the new samples to another expert of this

Institute, Mr. F.

145. This expert subsequently raised the criminal suspicion against

the applicant that he had tampered with the evidence. It is

irrelevant in this context whether his communication to the Court of

25 September 1984 was a criminal information or merely the

announcement of the written report of 27 September 1984, which

prompted the Court to institute criminal proceedings ex officio. In

substance the criminal suspicion emanated from Mr. F.

-----------

* Mr. Schermers did not take part in this vote.

___________

146. As the Government have pointed out, the Court was free in the

subsequent criminal proceedings in its choice of the expert. It

appointed Mr. F. whose neutrality could give rise to doubts for two

reasons: because the criminal suspicion was based on his report in the

civil case, and because he was employed by the same Institute whose

expert evidence was challenged by the applicant with allegedly

tampered new evidence. The Commission considers that in these

circumstances the expert was to be assimilated to a witness for the

prosecution.

147. The Government submit that the applicant failed to challenge

the expert in time. The applicant states that this was practically

impossible as he only discovered at a later stage that Mr. F. was also

employed by the Agricultural Chemical Institute. In fact the expert

was appointed in his personal capacity and therefore his employment

in the Institute was not necessarily known from the outset. The

applicant must, however, immediately have realised that the expert was

the same who had been consulted in the proceedings for securing

evidence, and he could have challenged the expert on this ground.

148. Nevertheless, the Commission considers that the applicant was

not required to do so. He could also invoke the principle of equality

of arms and request the taking of counter-evidence under the same

conditions. In fact, the applicant requested that his private expert,

Mr. N. from the Federal Food Control Institute, be appointed as the

Court's second expert. The case concerned a dispute between the

respective experts of the two Institutes concerning the analysis of

the applicant's wine.

149. The applicant's request was, however, refused and Mr. N. was

only heard as a witness. The Government claim that, in substance, he

was not treated differently from the expert who, unlike the expert in

the Bönisch case, did not dominate the proceedings and did not put

questions to those appearing in court, including the witness N.

150. The Commission notes that witness N. was questioned only by

the judge, the prosecutor and the applicant's defence counsel and that

the Court's expert did not comment on his statements. Nevertheless, as

a witness, Mr. N. could only reply to the questions put to him, which

mainly concerned the observations which he had made when analysing the

counter-samples submitted by the applicant. In particular he

explained in some detail the methods applied to verify the seals of

the counter-samples. Mr. N., however, did not have the opportunity

to furnish his own explanations of the discrepencies in the results of

the analysis by the two Institutes.

151. Thus Mr. N. was not heard under the same conditions as Mr. F.

It follows that the principle of equality of arms between the

prosecution and the defence was not respected.

Conclusion

152. The Commission concludes, by a unanimous vote*, that in the

case concerning the tampering with evidence there has been a violation

of Article 6 para. 1, read in conjunction with Article 6 para. 3 (d)

(Art. 6-1+6-3-d) of the Convention, in that there was no equal

treatment of the expert evidence of the prosecution and of the

defence.

------------

* Mr. Schermers did not take part in this vote

----------

2. Fair trial and presumption of innocence

153. The applicant complains that, in the criminal proceedings

concerning the tampering with evidence, his right to a fair hearing

(Article 6 para. 1 (Art. 6-1)) and his right to be presumed innocent

until proved guilty according to law (Article 6 para. 2 (Art. 6-2) of

the Convention) were also violated. He submits, in particular, that

the Court unfairly relied on "notorious methods" by which wine samples

could be manipulated, and failed to deal with his submission that at

the relevant time he had been absent from his enterprise. By assuming

the applicant's guilt merely because the expert had found that

substances must have been added to the wine, the Court allegedly

disregarded the presumption of innocence.

154. Having regard to its above finding that in the proceedings in

question there has been a violation of Artice 6 para. 1 read in

conjunction with Article 6 para. 3 (d) (Art. 6-1+6-3-d) of the Convention

(para. 152 above), the Commission considers that no separate issue

arises as regards the applicant's further allegations concerning the

same proceedings.

Conclusion

155. The Commission concludes, by a unanimous vote*, that no separate

issue arises as to whether in the proceedings concerning the tampering

with evidence the applicant's right to a fair hearing (Article 6

para. 1) (Art. 6-1) has been violated in other respects, or whether the

presumption of innocence (Article 6 para. 2) (Art. 6-2) has been disregarded.

D. The complaint concerning the appeal proceedings in the calumny case

156. The applicant complains that in the hearing of his appeal in

the calumny case Article 6 para. 1 (Art. 6-1) of the Convention has

been violated in that, contrary to the principle of equality of arms

enshrined in this provision, the Court of Appeal relied on submissions

by the senior public prosecutor which were not communicated to the

defence. These submissions allegedly came to the notice of the defence

only after the conclusion of the proceedings and revealed that the

Court of Appeal had "almost literally" incorporated the senior public

prosecutor's arguments in its judgments of 23 April 1985 and 28 April

1987.

157. The Government admit that the submissions of the senior public

prosecutor were not served on the applicant. They observe, however,

that according to constant court practice, which must also have been

known to the applicant's defence counsel, such submissions could be

inspected by the defence if it requested access to the file. In the

Peschke case (No. 8289/78, Dec. 5.10.80, D.R. 18 p. 160) the

Commission had found this procedure to be in line with the

requirements of Article 6 para. 1 (Art. 6-1) of the Convention. As

the applicant in the present case had not made use of his right to

inspect the file, there could be no question of a violation of Article

6 para. 1 (Art. 6-1) of the Convention and in particular the principle of

equality of arms.

------------

* Mr. Schermers did not take part in this vote

____________

158. The applicant submits that the court practice is not as

described by the Government. While he did not request permission to

consult the senior public prosecutor's submissions, such an inspection

had been refused in other cases on the ground that these submissions

were "part of the Attorney General's file".

159. The Commission notes that the submissions of the senior public

prosecutor were made to the Court of Appeal before it gave its

judgment of 23 April 1985. As the applicant observes, this decision

"reproduced almost literally" the text of prosecution's submissions.

Insofar as this was the case, they became known to the applicant when

he received the Court of Appeal's judgment of 23 April 1985. He could

therefore deal with the arguments contained therein in the proceedings

before the Court of Appeal which took place after the above judgment

had been quashed by the Supreme Court. In this respect there is

therefore no appearance of any interference with the principle of

equality of arms.

160. The applicant has not submitted that the senior public

prosecutor's submissions contained any passages which were not

reproduced in the judgment of 23 April 1985 and on which he would have

liked to comment in the subsequent appeal proceedings. There is

therefore no appearance of an interference with the principle of

equality of arms in this respect either.

161. Finally, the second appeal judgment of 28 April 1987, being

identical with the first one, does not seem to raise any further

issues concerning the senior public prosecutor's submissions, in

particular as no new submissions were made by him in the second appeal

proceedings.

Conclusion

162. The Commission concludes, by eleven votes to one*, that in the

appeal proceedings concerning the calumny case, there has been no

violation of the principle of equality of arms which is enshrined in

Article 6 para. 1 (Art. 6-1) of the Convention.

-----------

* Mr. Schermers did not take part in this vote

___________

E. Recapitulation

163. The Commission concludes, by a unanimous vote, that in the

wine case there has been a violation of Article 6 para. 1, read in

conjunction with Article 6 para. 3 (d) (Art. 6-1+6-3-d) of the

Convention, in that there was no equal treatment of the expert

evidence of the prosecution and of the defence (cf. para. 125 above).

164. The Commission concludes, by nine votes to three, that there

has been a violation of Article 6 para. 3 (c) (Art. 6-3-c) of the

Convention by the applicant's conviction of calumny on account of

statements which he had made in his defence in the wine case (cf.

para. 141 above).

165. The Commission concludes, by a unanimous vote, that in the

case concerning the tampering with evidence there has been a violation

of Article 6 para. 1, read in conjunction with Article 6 para. 3 (d)

(Art. 6-1+6-3-d) of the Convention, in that there was no equal

treatment of the expert evidence of the prosecution and of the defence

(cf. para. 152 above).

166. The Commission concludes, by a unanimous vote, that no separate

issue arises as to whether in the proceedings concerning the tampering

with evidence the applicant's right to a fair hearing (Article 6

para. 1 (Art. 6-1)) has been violated in other respects, or whether the

presumption of innocence (Article 6 para. 2 (Art. 6-2)) has been disregarded

(cf. para. 155 above).

167. The Commission concludes, by eleven votes to one, that in the

appeal proceedings concerning the calumny case, there has been no

violation of the principle of equality of arms which is enshrined in

Article 6 para. 1 (Art. 6-1) of the Convention (cf. para. 162 above).

Secretary to the Commission Acting President of the Commission

(H.C. KRÜGER) (S. TRECHSEL)

Partly dissenting opinion of Mr. S. Trechsel,

joined by MM. F. Ermacora and G. Jörundsson

While in agreement with the Commission's majority on all other

points, we do not share the opinion expressed in paragraph 141 of the

Report that there has been a violation of Article 6 para. 3 (c) of the

Convention in that the applicant was convicted of calumny on account

of statements which he had made in his defence in the wine case.

Under Article 6 para. 3 (c) of the Convention everyone accused

of a criminal charge has the right to defend himself. This right

includes the right to remain silent. If the accused accepts to be

questioned he is not under an obligation to speak the truth. As a

rule, at least under the Austrian law of criminal procedure, he does

not incur any sanctions even if he tells lies.

This right, however, is not without limits. The Convention

cannot be interpreted in such a way that an accused would have a right

to bring forward accusations against a person whom he knows to be

innocent.

In the present case the applicant had to stand trial for

calumny because he was suspected knowingly to have brought forward

false accusations against the Cellar Inspector. After a careful

examination of the evidence the court came to the conclusion that the

accusation was well-founded.

It cannot be the task of the Commission to review the domestic

courts' findings in this respect. There is no indication that the

relative proceedings were conducted in an arbitrary or unreasonable

manner. It is true that the false allegations brought forward by the

applicant in his defence had already been taken into account when

fixing the sentence. However, in our view, this does not fall to be

considered under Article 6 para. 3 (c) of the Convention. At the

utmost, it could raise a problem under Article 4 para. 1 of Protocol

No. 7. This question, however, is not at issue in the present case.

Partly dissenting opinion of Mrs. G.H. Thune

Unfortunately I am unable to share the opinion of the majority

concerning the complaint of the appeal proceedings in the calumny case

expressed in paragraphs 156 - 162 of the Report.

The applicant alleges a violation of the principle of equality

of arms enshrined in Article 6 para. 1 of the Convention since the

Court of Appeal relied on submissions by the senior public prosecutor

which were not communicated to the defence.

The Commission's decision refers, in particular, to the fact

that the applicant obtained knowledge of the content of these

submissions through the Court's judgment. He was able to deal

with the arguments contained in those submissions during the new

proceedings which took place before the Court of Appeal after the

first judgment was quashed by the Supreme Court.

As stated on numerous occasions by the Commission and the

European Court of Human Rights, equality of arms in criminal

proceedings is one of the important principles protected by Article 6

para. 1 of the Convention. This, in my submission, calls for a strict

interpretation providing the defence with the same rights and

possibilities as the prosecution at all stages of the proceedings.

I accept that the applicant in the present case acquired

knowledge of the substance of the prosecution's arguments and was thus

able to respond before the final judgment was made against him.

However I find it difficult to accept that this can rectify

or justify a way of proceeding which allows the prosecution to present

arguments to a court without the court being formally obliged to

immediately pass these on to the accused or his defence counsel or at

least to inform them of the fact that such submissions have been filed.

The principle of equality of arms cannot, in my opinion, be

considered satisfied by a right to consult the file with a view to

discovering submissions which the prosecution might have filed, even

more so when these are subsequently regarded as important enough for

the court to reproduce them extensively in its judgment.

In the present case, the defence was not aware until after the

final decision that the senior public prosecutor had submitted

comments on the applicant's first appeal. Before the hearing of that

appeal, there was no particular reason for the defence to ask for an

inspection of the file as the fact that the senior public prosecutor

had made submissions had not been brought to their attention.

Furthermore, this fact was not mentioned in the Court of Appeal's

decisions of 23 April 1985 and 28 April 1987. If the former decision

had not been quashed on other grounds, the defence would not have had

any possibility of reacting to those submissions, the very existence

of which would in all likelihood not have otherwise come to light.

For these reasons, I have voted in favour of also finding a

violation of Article 6 para. 1 on this point.

APPENDIX I

HISTORY OF PROCEEDINGS

Date Item

______________________________________________________________________

Application No. 11170/84

6 September 1984 Introduction of the application

24 September 1984 Registration of the application

Examination of Admissibility

12 December 1985 Commission's decision to invite

the Government to submit

observations on the admissibility

and merits of the application

17 March 1986 Extension of time-limit

10 April 1986 Government's observations

6 June 1986 Extension of time-limit

25 June 1986 Applicant's observations in reply

14 July 1987 Commission's decision to declare the

application in part admissible

Examination of the merits

13 August 1987 Decision on admissibility

communicated to the parties

17 December 1987 Commission's decision to hold an oral

hearing on the merits

12 April 1988 Oral hearing and Commission's

deliberations on the merits

9 July 1988 ) Commission's consideration of the

8 October 1988 ) state of proceedings

11 March 1989 )

Applications No. 12876/87 and No. 13468/87

13 March 1987 Introduction of Application No. 12876/87

21 April 1987 Registration of Application No. 12876/87

21 October 1987 Introduction of Application No. 13468/87

9 December 1987 Registration of Application No. 13468/87

Examination of Admissibility

15 July 1988 Commission's decision to invite the

Government to submit observations

on the admissibility and merits of

the applications

3 November 1988 Extension of time-limit

17 November 1988 Government's observations

16 December 1988 Grant of legal aid

6 January 1989 Extension of time-limit granted to

applicant until 6 March 1989

8 March 1989 Further extension of time-limit until

31 March 1989 refused to applicant

19 April 1989 Applicant's observations in reply

10 July 1989 Commission's decision to declare the

applications admissible and to join

them to Application No. 11170/84

Examination of the merits

29 August 1989 Decisions on admissibility

communicated to the parties

8 September 1989 Applicant requests oral hearing

18 October 1989 Government's supplementary observations

9 December 1989 Commission's decision not to hold an

oral hearing

Applications No. 11170/84, No. 12876/87 and No. 13468/87

2 April 1990 Commission's deliberations on the merits,

final vote on Application No. 11170/84

8 May 1990 Commission's further deliberations on

the merits, final votes on Applications

Nos. 12876/87 and 13468/87 and adoption

of the Report

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BRANDSTETTER v. AUSTRIA

BRANDSTETTER v. AUSTRIA

LEXI