AS TO THE ADMISSIBILITY OF

                      Application No. 12876/87

                      by B.

                      against Austria

        The European Commission of Human Rights sitting in private

on 10 July 1989, the following members being present:

              MM. C.A. NØRGAARD, President

                  J.A. FROWEIN

                  S. TRECHSEL

                  F. ERMACORA

                  G. SPERDUTI

                  E. BUSUTTIL

                  G. JÖRUNDSSON

                  A.S. GÖZÜBÜYÜK

                  A. WEITZEL

                  J.-C. SOYER

                  H.G. SCHERMERS

                  H. DANELIUS

                  G. BATLINER

                  J. CAMPINOS

                  H. VANDENBERGHE

             Mrs.  G.H. THUNE

             Sir  Basil HALL

             MM.  F. MARTINEZ

                  C.L. ROZAKIS

             Mrs.  J. LIDDY

             Mr.  L. LOUCAIDES

             Mr.  H.C. KRÜGER, Secretary to the Commission

        Having regard to Article 25 of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

        Having regard to the application introduced on 13 March 1987

by B. against Austria and registered on 21 April 1987 under file

No. 12876/87;

        Having regard to the report provided for in Rule 40 of the

Rules of Procedure of the Commission;

        Having regard to:

      - the Commission's decision of 15 July 1988 to bring the

        application to the notice of the respondent Goverment and

        invite them to submit written observations on its

        admissibility and merits;

      - the observations submitted by the respondent Government

        on 17 November 1988 and the observations in reply submitted

        by the applicant on 19 April 1989;

        Having deliberated;

        Decides as follows:

THE FACTS

        The applicant is an Austrian citizen born in 1939 who resides

at Hadres, Lower Austria.  He is represented by Dr.  Werner Sporn, a

lawyer practising in Vienna.

        The facts as submitted by the parties may be summarised as

follows:

        The applicant has introduced a previous application concerning

criminal proceedings (No.11170/84) which the Commission declared

admissible on 14 July 1987.  In that application he complained of a

conviction of adulteration (Verfälschung) of wine by dilution with

water under Section 45 para. 1 a) of the Wine Act 1961.  The judgment

pronounced by the District Court (Bezirksgericht) of Haugsdorf on

14 February 1984 was confirmed on appeal by a judgment of the Regional

Court (Kreisgericht) of Korneuburg on 7 May 1984.

        Two further criminal proceedings were subsequently instituted

against the applicant.  One of these proceedings concerned a charge

under Section 293 of the Penal Code (Strafgesetzbuch), namely that

he had manipulated certain pieces of evidence (Fälschung von

Beweismitteln), i.e. officially seized wine in two tanks and

counter-samples (Gegenproben) left to him when the wine in these tanks

was inspected on 16 May 1983 in connection with the above criminal

proceedings under the Wine Act.

        On that date, three types of samples had been taken from the

applicant's wine tanks which had then been officially seized

(beschlagnahmt) and sealed:

-       first samples whose subsequent analysis by the

        Federal Agricultural Chemical Control Institute

        (Landwirtschaftlich - chemische Bundesanstalt) led

        to the above criminal proceedings under the Wine Act

        (Anzeigeproben);

-       counter-samples (Gegenproben) left to the applicant

        who later had two of them analysed by an expert N. of

        the Federal Institute for Food Control and Research

        (Bundesanstalt für Lebensmitteluntersuchung und -forschung);

-       control-samples (Reserveproben) kept for the purpose of

        a possible second official analysis which was actually

        carried out by the Federal Agricultural Chemical Control

        Institute under the authority of an expert B. who in

        the above criminal proceedings under the Wine Act had

        been appointed as the Court's official expert.  The applicant

        submits that this was done in conformity with Section 30

        para. 10 of the Wine Act, while the Government deny that

        this provision was applied.

        The three analyses produced different results but the expert,

B., of the Federal Agricultural Chemical Control Institute came to the

conclusion that those relating to the control-samples in essence

confirmed the unfavourable results of the analysis of the first

samples by the same institute, while the analysis of the

counter-samples by the other institute must have been wrong.  The

courts dealing with the case under the Wine Act refused the taking of

new samples from the sealed tanks as requested by the applicant, and

also his request to hear the expert of the latter institute.

        After the applicant's conviction on the basis of the above

expert opinion, he intended to bring an official liability action

(Amtshaftungsklage) against the expert B. of the Federal

Agricultural Chemical Control Institute on the ground that he had

submitted a wrong expert opinion.  In connection with these

proceedings 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.  This application was first rejected by the District Court

of Haugsdorf on 22 May 1984, but subsequently allowed, on the

applicant's appeal (Rekurs), by the Regional Court (Kreisgericht) of

Korneuburg on 12 June 1984.  The District Court then appointed another

employee F. of the Federal Agricultural Chemical Control Institute,

who had not been involved in the proceedings under the Wine Act, as

its official expert in the proceedings for securing evidence.  The

expert 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).

        In this report 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.

        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.  On the same day the District

Court ex officio opened criminal proceedings against the applicant on

the suspicion of his having manipulated a piece of evidence (Section

293 of the Penal Code) by the addition of substances to the wine

samples in question.  In these criminal proceedings it appointed the

same expert F. who had been consulted in the civil proceedings for

securing evidence.  In his expert opinion of 23 October 1984 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.

        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.  The case was tried

by the Regional Court of Korneuburg on 4 July and 12 September 1985.

        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 counter-samples which he had intended to send to the

Provincial Agricultural Chemical Control Institute (Landwirtschaftlich-

chemische 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.

        By judgment of 12 September 1985 the Regional Court found the

applicant guilty as charged and fixed an unconditional sentence of 3

months' imprisonment.  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.  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.

        The applicant's appeal (Berufung) against this judgment was

rejected by the Vienna Court of Appeal (Oberlandesgericht) on 24

September 1986.  It 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 made findings, observing

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 F. this

contradiction could only be explained by the addition of substances to

the counter-samples.  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.  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.  The Court of Appeal finally confirmed the sentence

pronounced by the Regional Court.

        The applicant subsequently served 31 days of the prison

sentence imposed on him.  The remainder was conditionally suspended by

an amnesty of the Federal President.

COMPLAINTS

        The applicant now complains that the requirements of "fair

trial" (Article 6 para. 1 of the Convention) were disregarded: the

Regional Court failed to deal with his submission that, having been

absent from his enterprise at the relevant time, he could not

manipulate the counter-samples as alleged; concerning the argument

that the seals of the counter-samples had not been broken, the

Regional Court relied on "notorious methods" of manipulation which the

defence was given no opportunity to discuss; finally the Regional

Court admitted no further expert evidence to control the reliability

of the results of the Federal Agricultural Chemical Control Institute

whose experts had been the only ones to be called in all proceedings.

        The applicant further complains that the presumption of

innocence (Article 6 para. 2) was violated in that the Regional Court,

without further evidence, assumed the applicant's guilt exclusively on

the basis of the expert opinion according to which substances must

have been added to the wine.

PROCEEDINGS

        The application was introduced on 13 March and registered on

21 August 1987.

        On 15 July 1988 the Commission decided, pursuant to 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 submit

before 4 November 1988 observations in writing on its admissibility

and merits.  At the Government's request, the time-limit was

subsequently extended until 15 November 1988.

        The Government submitted their observations on 17 November

1988 and the applicant was invited to submit observations in reply

before 2 January 1989.  On 30 December 1988 he requested an extension

of this time-limit until 31 March 1989.  On 6 January 1989 the

President of the Commission ruled that the extension should only be

granted until 6 March 1989.  On 3 March 1989 the applicant again

applied for an extension until 31 March 1989, however this was refused

by a ruling of the President on 8 March 1989.  The applicant submitted

observations in reply to the Government's observations after the

expiration of the time-limit, on 19 April 1989.

        On 16 December 1988 the Commission decided to grant free legal

aid to the applicant.

THE LAW

        The applicant complains that in the criminal proceedings

at issue Article 6 (Art. 6) of the Convention has been violated in several

respects.  The relevant parts of this Article read as follows:

        "1.   In the determination of ... any criminal charge against

        him, everyone is entitled to a fair ... hearing ...

        2.   Everyone charged with a criminal offence shall be

        presumed innocent until proved guilty according to law.

        3.   Everyone charged with a criminal offence has the

        following minimum rights:

        ...

        (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 applicant's principal complaint is that it was unfair to

appoint only an expert from the Federal Agricultural Chemical

Institute, whose experts had already been consulted in the previous

proceedings, and to admit no other expert evidence.  The Government

submit that the applicant did not object to the appointment of

expert F. from the above Institute, and that therefore he has failed

to exhaust the domestic remedies in conformity with the requirements

of Article 26 (Art. 26) of the Convention.  The Commission notes,

however, that the applicant claims to have learnt of the fact that the

expert belonged to the same Institute only on 1 October 1984, long

after his appointment, when F. had almost completed his expert

opinion.  At this moment it was practically impossible to challenge

the expert.  The applicant does not only complain of the appointment

of this expert but also of the refusal of his request to hear other

experts after experts from the same Institute had been consulted in

the earlier proceedings and although the suspicion of the offence at

issue in the new proceedings was based on F.'s findings who allegedly

dominated the proceedings.  In this latter respect the applicant has

exhausted the domestic remedies by including relevant arguments in his

appeal.  His above complaint therefore cannot be rejected under

Article 27 para. 3 (Art. 27-3) of the Convention for non-exhaustion of

domestic remedies.  The possibility of raising objections against

expert F. will be considered in connection with the examination of the

substance of the applicant's above complaint.

        In this respect the Government have submitted that F. belonged to

another department of the Institute, separated from the department of the

experts consulted in the previous proceedings.  He had not been appointed

through the Institute but in his personal capacity and without there being a

legal requirement for the Regional Court to appoint an expert precisely from

this Institute.  Furthermore, he had not initiated the new criminal proceedings

against the applicant which were instituted ex officio on the basis of a report

submitted by F. in civil proceedings.  In the subsequent criminal proceedings

the expert had been charged with the preparation of an opinion on a subject

different from that discussed by the Institute's experts in the earlier

criminal proceedings against the applicant.  He had done so in full

independence and had submitted a conclusive report so that the legal conditions

for the appointment of further experts were not met. F. had not dominated the

trial and no further expert was therefore required.  The applicant's private

expert had also been heard as a witness, and his position in this capacity had

not been fundamentally different from that of F., the Court's official expert.

The Government consider that the case differs from the Bönisch case (Eur. Court

H.R., judgment of 6 May 1985, Series A no. 92) and that there has been no

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

        The Commission has considered these arguments but finds that the

applicant's complaint cannot be rejected as being manifestly ill-founded within

the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.  It raises

complex issues of law and fact under Article 6 para. 1, read in conjunction

with para. 3 (d), (Art. 6-1+6-3-d) of the Convention, which require a

determination on the merits.

        The applicant's further complaints under Article 6 paras. 1

and 2 (Art. 6-1, 6-2) of the Convention are so closely related to the

above issue that they cannot be separated.  It follows that they must

also be examined on their merits.

        The Commission finally notes the close link between the

present case and Application No. 11170/84 pending before the

Commission.  The Commission considers it appropriate to join the

present case to Application No. 11170/84.

        For these reasons, the Commission

1.      DECLARES THE APPLICATION ADMISSIBLE,

        without prejudging the merits of the case;

2.      Decides to join the present application to

        Application No. 11170/84.

  Secretary to the Commission            President of the Commission

         (H.C. KRÜGER)                         (C.A. NØRGAARD)