Lexploria

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)

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BLUM and JACOBI v. AUSTRIA

BLUM and JACOBI v. AUSTRIA

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