AS TO THE ADMISSIBILITY OF

                      Application No. 10532/83

                      by Helmut ALDRIAN

                      against Austria

        The European Commission of Human Rights sitting in private

on 15 December 1987, the following members being present:

              MM. S. TRECHSEL, Acting President

                  J.A. FROWEIN

                  F. ERMACORA

                  E. BUSUTTIL

                  A.S. GÖZÜBÜYÜK

                  A. WEITZEL

                  J.-C. SOYER

                  H.G. SCHERMERS

                  H. DANELIUS

                  J. CAMPINOS

             Sir  Basil HALL

             MM.  F. MARTINEZ

                  C.L. ROZAKIS

             Mrs.  J. LIDDY

             Mr.  J. RAYMOND, Deputy 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 27 June 1983

by Helmut Aldrian against Austria and registered on 17 August 1983

under file No. 10532/83;

        Having regard to the Government's observations submitted on

21 October 1986 and the applicant's observations in reply submitted

on 29 December 1986;

        Having regard to the parties' oral submissions at the hearing

on 15 December 1987;

        Having deliberated;

        Decides as follows:

THE FACTS

        The applicant is an Austrian citizen born in 1957 who is

represented by Rechtsanwalt Dr.  Karl Bernhauser of Vienna.

        The facts agreed between the parties may be summarised as

follows:

        The applicant is serving a life sentence for murder and

complains of the way in which the expert evidence concerning his

criminal responsibility has been administered in the relevant

court proceedings.

        The facts of the case go back to 1978, when the applicant did

military service with an Austrian peacekeeping contingent of UNDOF

(United Nations Disengagement Observer Forces).  He was stationed at a

small observation post on top of Mount Hermon (Syria) when one day

after consumption of a moderate quantity of alcohol he suddenly ran

amuck, attacking his four fellow soldiers with his gun.  Two were shot

dead and a third one was gravely injured.  The fourth managed to avoid

the applicant's attack.  The applicant then attempted suicide and was

himself badly injured.

        After his return to Austria, the applicant was charged under

Sections 75 and 15 of the Penal Code (Strafgesetzbuch) with murder on

two counts and attempted murder on two further counts.  The trial took

place in December 1979 before the Vienna Regional Court for Criminal

Affairs (Landesgericht für Strafsachen) sitting as a Court of Assizes

(Geschworenengericht).  The Court heard numerous witnesses and also

three experts, two psychiatrists and a psychologist.  While all

experts agreed that there were no signs of an existing or past genuine

mental disease, the two psychiatric experts disagreed on whether or not

the crime could be attributed to the influence of alcohol, possibly

combined with other factors (taking of medicine, isolation, altitude)

and whether or not certain statements which the applicant had made

subsequently in a hospital in Israel could be taken into account for

assessing his state of mind at the relevant time.  Both psychiatric

experts admitted that they had not reached any clear results, but one

tended to the view that the applicant was to be considered as

criminally responsible (a view also supported by the psychological

expert) whereas the other psychiatrist thought that the applicant's

criminal responsibility had probably been excluded by an abnormal

reaction to alcohol ("dämmriger Rauschzustand").

        In these circumstances, the applicant requested the Court to

obtain an opinion from a university medical faculty (Fakultätsgutachten)

in accordance with Section 126 of the Code of Criminal Procedure (Straf-

prozessordnung).  However, the Court refused the request.

        On 21 December 1979, the jury found by a unanimous verdict of

eight votes that the applicant was guilty of two killings and of two

attempts to kill.  The additional question to the jury whether he had

acted in a state of complete intoxication (Volltrunkenheit) remained

unanswered.  The applicant was convicted as charged and was given a

life sentence.

        The applicant then filed a plea of nullity (Nichtigkeits-

beschwerde) which was partly allowed by the Supreme Court (Oberster

Gerichtshof) on 16 December 1980.  It quashed the Regional Court's

judgment and referred the case back to that Court with the direction

that it should hold a new trial including the taking of a medical

faculty opinion on the question of the applicant's criminal

responsibility.  This additional question should be answered by the

jury while the above verdict on the principal question could stand.

        In the renewed proceedings the Regional Court accordingly

requested the opinion of the Medical Faculty of the University of

Vienna on the question of the applicant's criminal responsibility

having regard in particular to the possibility of a complete

intoxication.  The opinion was prepared by the director of the

psychiatric university clinic on behalf of the medical faculty.

However, it appears from the contents that other university

institutes, in particular the Institute for Forensic Medicine, had

also made contributions and that the conclusions were those of a

committee set up by the faculty for the purpose.  Before being

transmitted to the Regional Court on 5 July 1982, the expert opinion

was notified to the faculty as a whole at a meeting on 30 June 1982.

        The conclusion of the faculty opinon was that the applicant

had committed the crime in a pathological state of intoxication

(pathologischer Rauschzustand) which had led to a grave disturbance of

his consciousness (tiefgreifende Bewusstseinsstörung).  He had not

been able to foresee this state of mind and the crime.  He therefore

had lacked criminal responsibility (Section 11 of the Penal Code)

although his state had not been one of "complete intoxication"

(Section 287 of the Penal Code).

        At the new trial, which took place in September 1982 before

the Regional Court sitting with a different jury, the Court, after

having examined numerous witnesses, heard the psychological expert

who had been consulted already in the first round of the proceedings.

This expert first stated his own opinion on the question of the

applicant's criminal responsibility.  He concluded that the loss of

memory which the applicant had pretended was unlikely in view of his

subsequent behaviour, in particular the fact that he had remembered

certain elements of the events.  In his view the applicant was a

person of average intelligence who showed no signs of any disturbance

of the central nervous system, but only some symptoms of a neurotic

personality characterised by a tendency to inhibit affective emotions.

The expert also referred to a slight tendency to simulation.  However,

in his view the applicant showed no signs of mental disease or

consequential defect resulting from such a disease.

        Following these explanations of his own scientific opinion the

said psychological expert turned to the faculty opinion, stating that

it might be helpful to the Court if he explained certain technical

terms used in that opinion.  Having done so, he replied to various

questions by the Presiding Judge, the jury and the defence referring

partly to the faculty opinion, partly to his own views on the matter.

        The applicant had requested that the faculty opinion should be

explained to the Court by an "informed representative" of the medical

faculty and that the statements of the two psychiatric experts should

be limited to a discussion of the faculty opinion.  However, the Court

rejected both requests, holding that it was inadmissible to have the

collective opinion of the faculty explained by a single person.

Further it was inadmissible for the experts to discuss the faculty

opinion.  Their statements on other matters could not be restricted

because it had been precisely the disagreement between these experts

which had led to the request of the defence to obtain a faculty

opinion.  Therefore, the Court ruled that the psychiatric experts

should first be heard before the faculty opinion was read out.

        The two psychiatric experts then stated their opinions and

replied to numerous questions of members of the court and jury,

the prosecution and the defence.  Both maintained their earlier

conclusions while expressing considerable doubts that a clear

diagnosis could be made.  After their depositions the faculty opinion

was read out and the hearing was closed immediately afterwards.

        The jury then deliberated and contrary to the faculty opinion

unanimously denied a lack of criminal responsibility of the applicant

at the relevant time.  The applicant was accordingly convicted of

murder and attempted murder, and was again given a life sentence

(judgment of 22 September 1982).

        The reasons for the jury's decisions were not stated in the

judgment as this is excluded by Section 342 of the Code of Criminal

Procedure.  However, in the memorandum (Niederschrift) on the jury's

deliberations prepared according to Section 331 para. 3 of the Code

the following reasons were stated:

        The applicant could not be regarded as lacking criminal

responsibility at the time of committing the offence on the ground of

an abnormal or complicated reaction to alcohol.  There was no amnesia

caused by such a reaction.  The applicant's statements recorded by a

witness showed that he had a more or less complete recollection of the

facts.  Certain unclarities in particular as regards the motivation

for the shooting could be explained by the tendency of the applicant

to justify his behaviour (Schutzbehauptungen).  The subsequent

extension of the alleged amnesia spoke against an alcoholic

intoxication, and this had been confirmed both by the faculty opinion

and the individual expert opinions of the two psychiatrists.  Rather

there was a mixture of a tendency to justify his behaviour (Schutz-

behauptung) and of suppression (Verdrängung), as stated by the

psychological expert.

        Moreover, the applicant's behaviour was not completely

incompatible with his personality structure (nicht völlig persön-

lichkeitsfremd).  Statements of several witnesses showed that he

had felt neglected (zurückgesetzt), that he had openly resisted his

superiors, and that he had been teased by his fellow soldiers.  The

faculty opinion and the psychological expert had found an increased

potential for aggressiveness, the latter also a tendency for rash

reactions (Kurzschlusshandlungen).  In these circumstances and having

regard to the isolation, the applicant's behaviour could be explained

as being due to the not very strong inhibitions of his aggressive

potential having been removed by a state of slight alcoholism, but not

by a complete intoxication.  The fact that he had not earlier reacted

in the same way was explained by the consideration that not all

relevant factors had coincided.

        The criminal act had been carried out in conformity with its

aim (zielstrebig) and in a logical way (folgerichtig).  It showed

planning and did not reveal a disturbed conception of realities

(gestörte Umweltbezüge).  This was confirmed by the description

of the facts by the fellow soldier who had not been shot.  The

latter's active intervention had not been foreseen by the applicant.

The applicant's subsequent attempt of suicide also showed that he had

been aware of what he had done, and that he had drawn the logical

conclusions.  When he had finally been found, he had given a correct

account of the facts and had committed an error only by thinking that

he had shot dead three of his fellow soldiers.

        All experts agreed that a state of complete intoxication

(physiologischer Rausch) was excluded in view of the small quantity of

alcohol consumed.  The above considerations spoke against a state of

pathological intoxication which was a rare phenomenon.  Insofar as the

experts had come to different conclusions, they could not be followed

because their assumptions contradicted the facts as established by the

jury (amnesia caused by alcoholic intoxication, illogical behaviour,

incompatibility of the offence with the applicant's personality

structure).  Even if the statements of the applicant in the hospital

had been a reaction to the behaviour of the guarding soldiers, they

had in no way been invented.  In particular some of the statements had

been made so long after the possible state of intoxication that their

explanation in the faculty opinion did not convince the jury.

        The explanation by the psychiatric expert who had denied the

applicant's criminal responsibility, namely that these statements were

due to an exogeneous psychosis caused by the loss of blood and a shock

as well as by elements of reactive considerations (erlebnisreaktive

Komponente), was possible but not logically stringent.  The statements

in question were so much in the line of the offence itself that the

explanation given by the other psychiatric expert was much more

probable.  This expert had confirmed the applicant's criminal

responsibility and established a link between the applicant's attitude

at the time of the offence and at the time of these later statements,

describing them as mental undressing (psychische Entkleidung).

        The applicant's plea of nullity based on the Regional

Court's refusal to hear an "informed representative" of the faculty

and to limit the depositions of the other psychiatric experts to a

discussion of the faculty opinion was rejected by the Supreme Court

on 26 April 1983.

        First, the Supreme Court held that although the applicant was

requesting the presence of an "informed representative", in reality,

due to the collegiate nature of the faculty, he was effectively asking

for an independent expert to give his opinion.  There was no provision

in Austrian law for the calling of such a further expert.  Secondly,

because of the special nature of the medical faculty opinion, the

Austrian Code of Criminal Procedure only permitted it to be read out

in court as documentary evidence under Section 252 para. 2.  Thirdly,

the Supreme Court underlined that medical faculty opinions could not,

under Austrian law, be challenged or reviewed as to their content,

although the court was entitled to ask the faculty itself for an

explanation as to the meaning of such an opinion.  No request for such

an explanation had been made in the present case.  As regards finally

the requested limitation of the statements of the other experts, the

Supreme Court did not see why the oral presentation of their full

opinions should in any way have diminished the value of the faculty

opinion and thereby violated fundamental principles of criminal

procedure.  In fact it was the function of the faculty opinion to

clarify points of disagreement between those experts whose opinions

were required to be presented orally to the court.

COMPLAINTS

        The applicant now complains that his rights under Article 6

paras. 1 and 3 (d) of the Convention have been violated.

        He observes that his case was the first case in the judicial

history of Austria where a court did not follow a faculty opinion and,

as it was a Court of Assizes, it was not even required to give any

reasons.  In similar cases where professional judges had not followed

a faculty opinion, the Supreme Court had quashed the judgment on the

ground that a court could not depart from a faculty opinion without

giving reasons.

        The applicant further observes that the faculty opinion

concluded in his favour, and that it was not presented to the court

under the same conditions as the evidence of the expert who had

considered him to be criminally responsible and who therefore was to

be considered as a "witness against him" for the purpose of Article 6

para. 3 (d) of the Convention.  That expert could not only submit his

opinion orally to the court, but he could also be and was asked various

questions.  In the applicant's view the mere reading of the faculty

opinion did not leave the same lively impression with the members of

the jury as the oral presentation of the above expert's opinion and

accordingly the probative value of the faculty opinion was

considerably diminished.  In the applicant's view, the principle of

equality of arms enshrined in Article 6 para. 1 of the Convention has

been violated by this way of proceeding.

PROCEEDINGS

        The application was introduced on 27 June 1983 and registered

on 17 August 1983.

        On 7 July 1986 the Commission decided to give notice of the

application to the respondent Government and to invite them, in

accordance with Rule 42 para. 2 (b) of its Rules of Procedure, to

submit observations in writing on the admissibility and merits of the

application before 24 October 1986.  Certain questions were put to

the Government in this connection.

        The Government submitted their observations on 21 October 1986

and the applicant submitted observations in reply on 29 December 1986.

        On 13 March 1987, the Commission decided to grant free legal

aid to the applicant under the Addendum to its Rules of Procedure.

        On 13 May 1987 the Commission decided, pursuant to Rule 40

para. 3 (b) of the Rules of Procedure, to invite the parties to submit

further observations orally at a hearing on the admissibility and

merits of the application.

        The hearing took place on 15 December 1987.  The parties were

represented as follows:

        - the Government by their Agent, Ambassador Dr.  Helmut TÜRK,

Head of the International Law Department of the Federal Ministry of

Foreign Affairs, who was assisted by Dr.  Wolf OKRESEK, of the

Constitutional Law Department of the Federal Chancellery, and by

Dr.  Irene GARTNER, of the Federal Ministry of Justice, Advisers;

        - the applicant by Dr.  Richard SOYER, criminal defence

counsel, acting as substitute for the applicant's legal representative,

Dr.  Karl BERNHAUSER, barrister in Vienna.

SUBMISSIONS OF THE PARTIES

A.      The Government

1.      The Government do not contest that the formal conditions

of admissibility are fulfilled.  They submit, however, that the

application is manifestly ill-founded or, alternatively, that there

has been no breach of the Convention as claimed by the applicant.

2.      The Government observe that the Austrian Code of Criminal

Procedure provides for two kinds of expert evidence:  the normal

expert (Sections 118 et seq.) and in particularly difficult cases

the faculty opinion (Section 126).  In the Government's view,

differences in dealing with these two kinds of evidence follow from

the fact that a faculty opinion is attributable not to a physical

person but to a collegial body.  In either case the expert evidence in

question does not bind the court which must retain its freedom to

evaluate the evidence, including a faculty opinion, according to its

judicial discretion.

3.      The so-called faculty opinion under Section 126 of the Code

of Criminal Procedure is the opinion of a medical faculty college of

an Austrian university.  It may be obtained by the Court in cases

where individual expert opinions contain contradictions or logical

inconsistencies which cannot be removed by questioning the expert or

experts concerned.  The basis of a faculty opinion is the (possibly

divergent) technical knowledge of all its members.  A faculty

opinion, then, is not the opinion of an expert (Sachverständiger)

within the meaning of Section 2 of the Experts and Interpreters Act

(Sachverständigen- und Dolmetschergesetz), i.e. not the opinion of

an individual person, but the opinion of several experts.  An opinion

of this kind requires reports by a rapporteur and a co-rapporteur,

detailed debates and deliberations, and finally a resolution passed by

the members of the faculty in accordance with Sections 15, 63 and 64

of the University Organisation Act (Universitätsorganisationsgesetz).

Since the faculty opinion is submitted to the Court in writing, the

rule that applies to it by virtue of Section 252 para. 2 of the Code

of Criminal Procedure is that it must be read out as a whole.

4.      It is not in itself inconsistent with the requirements of

Article 6 of the Convention that a court obtains a written collective

expert opinion from a highly qualified body such as a medical faculty

of a university.  Expert evidence is not as such mentioned in the

Convention and cannot simply be equated to witnesses' evidence.

Experts and witnesses have fundamentally different functions.

Witnesses are persons able to report from their own direct experiences

about important facts concerning a case, whereas experts are called by

the court on account of their special knowledge in a certain field to

submit a well-founded opinion on relevant facts without any regard to

their personal experiences.  Experts are required to be neutral and

objective and can be challenged and replaced if they are not, whereas

such considerations do not apply to witnesses.  Questions to the

latter, therefore, have a corrective function which does not exist to

the same degree in the case of experts.  In these circumstances it is

not justified to apply the rules of the Convention law concerning

witnesses automatically also to experts.  The Government refer in this

respect to their submissions made in the Bönisch case and the fact

that the question of classifying experts as witnesses has not been

entirely clarified in the Court's judgment in that case (cf.  Eur.

Court H.R., judgment of 6 May 1985, Series A no. 92).

5.      Further differences exist between normal expert evidence and a

faculty opinion such as the one at issue in the present case.  By

virtue of its nature as a written expert opinion of a collective body

the latter can even less be equated to the deposition of a witness,

let alone a witness "on behalf" of the accused.  Despite the fact that

in the present case the faculty opinion was requested by the defence

and that it was favourable to the applicant, it must - like other

expert evidence - in principle be regarded as a neutral and objective

piece of evidence.  The specific reasons which led the Commission in

the Bönisch case to consider an expert opinion as evidence "against"

the accused - namely the fact that the expert in question had himself

reported the case to the prosecution authorities - do not exist in the

present case.

6.      As the faculty opinion represents the expert knowledge of a

whole faculty as applied to a specific case, it does not in principle

require any special oral explanation, given its high scientific

quality.  This is not expressly laid down in the law, but constitutes

the general practice based on the case-law of the Supreme Court.  It

is not excluded that this practice might be reconsidered by the

Supreme Court.  The practice has been criticised by legal writers,

some of whom consider that a court must be able to summon one of the

faculty members involved in the preparation of the faculty opinion or

some other expert, if it considers this to be relevant to its

decision.  However, due to its character as a genuine "collective

opinion" it seems to be problematical to ask one person to explain or

defend the faculty opinion in court.  Such a person could only state

his own views and would therefore have to be considered as a further

individual expert.  A collective appearance of all members of the

faculty to explain and discuss the faculty opinion in court is not

only impossible for practical reasons, but also because it would be

inappropriate to disclose the internal opinion-forming process of the

faculty in court.

7.      This does not mean, however, that a faculty opinion

can never be further clarified or explained in court.  There are two

different situations in this respect:

        a) Where a faculty opinion is such that it is open to several

different interpretations or where a new constellation emerges at the

trial, it may in fact happen in the individual case that a review or

complementation of the faculty opinion becomes indispensable.  Such

review or complementation must then again be entrusted to the whole

faculty college.

        b) There may be a need for an explanation in the sense of an

interpretation of the technical terms and scientific concepts used in

the faculty opinion for a medical layman or a reassuring clarification

of the facts.  In such a case it is admissible according to the

Supreme Court to call on an individual expert involved in the

proceedings to give the necessary explanations at the trial.

8.      As regards the possibility of obtaining a review or

complementation of the faculty opinion by the faculty itself, the

applicant did not make any request to this effect.  The conclusions of

the faculty opinion were such a clear statement in favour of the

applicant that there was apparently no need for such a review or

complementation.  If, however, the defence had been of the view that

the faculty opinion was based on facts which were at variance with the

evidence before the Court, it could have requested a complementary

faculty opinion.

9.      In the present case, the preparation of the faculty opinion

had not been limited to members of the medical faculty itself.  The

faculty apparently considered it to be of such importance for its work

to be supplemented by certain psychological tests that it decided to

consult a psychological expert outside the medical faculty who then

contributed a partial report (Teilgutachten) to the faculty opinion.

It was this psychological expert who was later called as an official

expert of the Court and was entrusted with the task of explaining the

technical terms and scientific concepts of the faculty opinion to the

Court.

10.     The expert in question essentially limited his statements to

technical explanations of the faculty opinion without expressing

his own views on this opinion.  The fact that he had reached

different results from those of the faculty could not impair his

objectivity and was irrelevant for the specific task of providing

technical explanations.  In view of the neutral status of experts in

court proceedings their objectivity must be presumed as long as there

are no indications of bias.  In the present case there is no such

indication.  Before the Court the expert emphasised that it was not

his intention to state his own views on the faculty opinion, and that

it was entirely the jury's task to evaluate the evidence.  This

particular behaviour underlines his sense for objectivity and

neutrality.

11.     The Court's way of proceeding in this respect again is not in

conflict with the requirements of a fair trial.  There is no reason

why an expert consulted earlier by the Court should not be entrusted

with the task of providing technical explanations.  In any event the

applicant could have challenged the choice of this particular expert

under Section 120 of the Code of Criminal Procedure.  If there had

been reasonable grounds of objection, the Court would have been

required to appoint another expert for the purpose.  However, the

applicant did not raise any objections against this expert at the

relevant time.

12.     The defence asked for a discussion of the faculty opinion

by summoning an "informed representative" of the faculty, and for

a limitation of the individual psychiatric experts' statements to a

discussion of the faculty opinion.  However, these motions had to

be rejected for the above reasons.  Insofar as a clarification of

technical terms of the faculty opinion was admissible, it was

entrusted to the above psychological expert.  The discussion of the

faculty opinion by the individual experts, whose disagreement had

given rise to the request for a faculty opinion, was excluded because

it was the very purpose of a faculty opinion to put an end to the

dispute between those individual experts by obtaining a sort of

"superior" scientific opinion of high authority.  In view of this

particular function of the faculty opinion it was also necessary that

the individual experts state their full opinions.  According to the

applicable rules of the Code of Criminal Procedure they were required

to do so orally at the trial whereas the faculty opinion, as a written

document within the meaning of Section 252 para. 2 of the Code of

Criminal Procedure, could only be read out in court.

13.     The different treatment of individual expert opinions on the

one hand and the faculty opinion on the other was only due to the

different nature of these two types of expert evidence, but it did

not encroach on the weighty position which appertains in Austrian

criminal procedure to a faculty opinion.  Such an opinion has always

been regarded as particularly crucial to the court's decision.  The

lack of oral presentation does not diminish its value but, on the

contrary, may contribute to its authority.  In the present case the

importance of the faculty opinion was also underlined by the fact

that it was read out at the end of the trial and that technical

explanations were previously obtained from an expert.  In the

Government's view the reading of the whole faculty opinion in court,

especially where it comes to such clear conclusions as in the present

case, is entirely equivalent to the oral hearing of an individual

expert.  The perfectly clear conclusions of the faculty opinion could

not have been made more persuasive by the oral interrogation of one of

its authors who could only have expressed his individual opinion.  In

view of the clear conclusions there was further no need to put

questions to a member of the faculty.  As a result of the procedure

chosen, the faculty opinion stood firm on its pedestal without being

exposed to criticism, an effect surely favourable to the applicant.

14.     In any event the faculty opinion went along with another

individual expert opinion favourable to the applicant which

counterbalanced the unfavourable opinion of the other individual

psychiatric expert.  It could even be said that, including the faculty

opinion, there was more favourable than unfavourable expert evidence

before the Court.  In these circumstances it cannot be maintained that

the faculty opinion was not presented to the Court under the "same

conditions" as the unfavourable expert evidence.

15.     The fact that the faculty opinion was only read out in court

and not presented orally did not involve any disadvantage for the

defence or an advantage for the prosecution.  Both parties were

treated in exactly the same way as neither could put any questions

directly concerning the faculty opinion.  If there had been a

possibility to put such questions, they might have strengthened the

position of the prosecution.  In any event the defence did have the

opportunity of underlining the importance of the faculty opinion in

the final submissions immediately after it had been read out.  The

principle of equality of arms has therefore been respected.

16.     The Government finally observe in this context that even

regarding witnesses the right to put questions under Article 6 para. 3

(d) of the Convention is not an absolute right.  The Commission has

clearly recognised in its case-law that the right to put questions to

witnesses may be subjected to restrictions (cf. e.g.  No. 9000/80,

Dec. 11.3.1982, D.R. 28 p. 127, and No. 7987/77, Dec. 13.12.1979,

D.R. 18 p. 31).  If restrictions are possible in relation to

witnesses, they must be all the more acceptable in relation to the

particular type of written expert evidence in question here.  There

was accordingly no violation of Article 6 para. 3 (d) in this respect.

17.     In the present case ample scope was allowed to permit

evaluation of the faculty opinion by the jury whose memorandum shows

that it thoroughly examined the faculty opinion when assessing the

evidence.  However, the jury was required to consider all evidence

before it.  The fact that the conclusions of the faculty opinion did

not convince the jury is a matter of their freedom to evaluate the

evidence.  It would be inconsistent with the principle of the judicial

freedom of evaluating evidence to bind the court to a specific piece

of evidence, including a faculty opinion.

18.     As regards the absence of any reasoning in the court's

judgment, the Government point out that this is typical for trial by

jury.  The participation of laymen in the administration of justice

is an expression of democracy and is considered to be of fundamental

importance in the Austrian legal system.  The incorporation of this

democratic element in the administration of justice is not as such

incompatible with the Convention and accordingly it must be allowed

that the proceedings are being organised in a manner which is

appropriate to the participation of laymen.  The provisions of the

Austrian Code of Criminal Procedure ensure that the jury can demand

the taking of evidence with a view to clearing up the relevant facts

and the members of the jury are also entitled to question the accused,

the witnesses and the experts.  The evaluation of the evidence and the

passing of the verdict is the exclusive task of the jury.  The bench

of professional judges is therefore required to put the questions to

the jury in such a manner that their freedom of evaluating the

evidence is fully respected.  They have to answer these questions by

"yes" or "no".  However, being laymen the members of the jury cannot

be expected to give a formal reasoning of their decisions which would

be challengeable on appeal.

19.     The fact that the judgment does not contain reasons does not

mean that the jury can take arbitrary decisions.  The jury is required

to set out the reasons for its verdict in a memorandum annexed to the

trial record (cf.  Sections 331 para. 3 and 332 para. 6 of the Code of

Criminal Procedure).  As part of the court file this memorandum is

accessible to the accused and will also be submitted to the Supreme

Court in the context of any appeal proceedings.  However, the lack of

adequate reasoning which otherwise constitutes a ground of nullity

(Section 281 para. 1 (5) of the Code of Criminal Procedure) is not

applicable in assize court proceedings.  The function of the said

memorandum is primarily to remind the members of the jury of their

duty to take a decision in conformity with the applicable legal

requirements.  It may also be used as a basis of a monitoring

procedure by which the bench of professional judges can set aside the

jury's verdict if it is convinced that the verdict is unlawful.

20.     The memorandum drawn up by the jury in the present case shows

that the whole evidence was thoroughly evaluated and that the faculty

opinion was in no way disregarded.  It contained the substantive

reasons why the jury unanimously came to the conclusion that it should

not follow the faculty opinion and confirm the applicant's criminal

reponsibility despite the result of that opinion.  It is true that

under the Supreme Court's case-law, due to the special weight of a

faculty opinion, a court cannot depart from the results of such an

opinion without good reasons, which normally have to be stated in the

judgment.  This is only the expression of a general rule according to

which no evidence and, in particular, no expert evidence can be

disregarded by a court without good reasons.  The fact that in the

case of assize court proceedings the reasons are not required to be

given in the judgment but only in the jury's memorandum cannot be

regarded as being contrary to the "fair hearing" requirement of

Article 6 para. 1 of the Convention.  In this type of trial,

specifically characterised by the participation of laymen, the

explanation of the jury's evaluation of the evidence in the memorandum

should be sufficient to meet the terms of this provision (cf.

No. 8769/79, D.R. 25 p. 240 and No. 9523/81, Dec. 4.5.1982).

21.     The Government finally contest the applicant's submission that

he would have left the Court as a free man if the jury had followed

the faculty opinion and had denied his criminal responsibility at the

relevant time.  The Court then would have been required to consider

the imposition of a measure under Section 21 of the Penal Code

(detention in an institution for mentally deranged offenders).  The

applicant's submissions to the contrary are based on mere speculation.

B.      The Applicant

1.      In the applicant's view the rights guaranteed in Article 6

para. 3 (d) are applicable not only in relation to witnesses but also

in relation to experts and that means any kind of expert evidence.  A

faculty opinion is expert evidence par excellence and cannot be treated

differently from other expert evidence in this respect.  It is nowhere

provided that a faculty opinion must be treated exclusively as a

written piece of evidence and cannot be discussed in court in the same

way as other collective expert evidence such as e.g. the report of a

food control institute under Section 48 of the Food Act 1975 (former

version).  No argument can be drawn in this respect from the

provisions of the Experts and Interpreters Act which only concern the

general approval of court-certified experts.  It is true that the

practice based on the Supreme Court's case-law classifies faculty

opinions as written evidence within the meaning of Section 252 para. 2

of the Code of Criminal Procedure, but this interpretation is, in the

applicant's view, contrary to the requirements of the Convention.

2.      In the present case, there is a special reason to assimilate

the faculty opinion to witnesses' evidence because it not only

contained scientific conclusions but also a comprehensive factual part

which, contrary to the Government assertions, was not exclusively

based on the applicant's own statements, but on the whole contents of

the court file.  The factual findings involved observations made by

members of the faculty on the basis of their scientific knowledge

which can be described as observations of expert witnesses ("sach-

verständiger Zeugenbeweis").  In view of the fact that the faculty

opinion had been obtained at the request of the applicant and that

it reached a result in his favour, it must be regarded as witnesses'

evidence on his behalf.

3.      It is not contested that the applicant's request to hear an

informed representative of the medical faculty for the purpose of

explaining the faculty opinion was rejected by the Regional Court.  By

this decision the applicant was prevented from putting questions which

would have elucidated the faculty opinion for the lay judges in an

understandable and convincing manner.  By the same decision the authors

of the faculty opinion were prevented from putting questions to witnesses

and to the defence in the same way as the individual experts.  In this

way it could not be explained to the court on which premises the

faculty opinion had been based and what relations existed between the

faculty opinion and the individual expert opinions.  Also it was not

possible to explain how the faculty had evaluated the facts and

whether the allegedly different facts established by the court were

capable of leading to other results.  The applicant observes in this

context that it was part of the scientific task of the faculty to

identify and evaluate the facts which could be of relevance for the

applicant's criminal responsibility and that, in view of this

scientific dimension of the issue, only a representative of the

faculty could have validly answered the question whether other facts

warranted different conclusions from a scientific point of view.

4.      The applicant does not contest that the right to put questions

under Article 6 para. 3 (d) of the Convention is not an absolute right

and that the court has the power to control any questions put by the

parties as to their relevance for the proceedings.  However, he

considers that the total exclusion of questions concerning a faculty

opinion amounts to a prohibition to defend the accused in this

respect.  He observes that in the present case, unlike Application

No. 7130/75, there was no possibility of putting questions prior to

the trial.  Also there was no real chance at the trial to obtain a

complementary faculty opinion in view of the clear results of that

opinion and the fact that the alleged discrepency of the facts

underlying the faculty opinion with the facts established by the court

was not brought to the attention of the defence.  Finally, there was

no possibility of raising any questions in this respect after the

verdict of the jury because the verdict did not depart from the

memorandum.  In the circumstances the defence had no possibility to

request a monitoring procedure by the bench of professional judges or

to obtain an extraordinary revision (ausserordentliche Wiederaufnahme)

by the Supreme Court.

5.      The failure to call on one or more representatives of the

faculty to explain the faculty opinion cannot be justified by the

argument that this is not appropriate and not provided for by law.

The Government indeed admit that the case-law to this effect is not

accepted by legal writers.  However, they do not explain in a

convincing manner why it should not be appropriate to hear members of

the faculty.  The way in which the faculty opinion is being prepared

is in the applicant's view irrelevant for its presentation in court

and the possibility to put questions to one or more members of the

faculty for the purpose of clarifying or discussing that opinion.

6.      The applicant contests the Government's assertion that one

of the experts in fact discussed the faculty opinion.  The expert in

question was not a psychiatrist, but a psychologist, and he expressly

stated that he would not comment on the faculty opinion but merely

explain certain statements of his colleagues who had carried out

similar examinations as himself in the framework of this faculty

opinion.  The expert then discussed certain methods of examination

which had also been at the basis of the faculty opinion, but with a

different result from the faculty opinion.  This expert therefore

could in no way be regarded as an expert witness for the defence.

On the contrary, it is a particularly serious violation of the right

guaranteed in Article 6 para. 3 (d) to obtain the attendance and

examination of witnesses "on his behalf" if only an expert witness

"against" the accused is ordered by the court to explain an expert

opinion which has concluded in the applicant's favour.

7.      Contrary to the Government's submission, the above

psychological expert could not have been challenged under

Section 120 of the Code of Criminal Procedure.  He started by setting

out his own expert opinion which was unfavourable to the applicant.

He then went on to give some technical explanations on the faculty

opinion although this had not been expressly ordered by the court when

it appointed this expert.  In doing so, the expert clearly showed a

critical undertone concerning the faculty's result and he did not

distinguish between his own views and those of the faculty.

Favourable and unfavourable expert evidence was thus mixed up in an

indistinguishable manner.  The jury could only be confused by this way

of presenting the evidence.  They were prevented from perceiving the

faculty opinion in its own right as a separate piece of evidence in

the applicant's favour.

8.      Finally, the function of the faculty opinion as a particularly

important piece of evidence was completely undermined by the fact that

it was merely read out in court in a monotonous way.  The members of

the jury, who had not previously received a copy of the faculty

opinion, could not possibly have gained any proper understanding of

this voluminous and complex document of twenty-nine pages which in

itself was not easily understandable.  The proper weight was not given

to this important piece of evidence by presenting it to the court in

this way.  The applicant further observes that under Section 252

para. 2 of the Code of Criminal Procedure the parties could even have

renounced the reading, a fact which shows that the application of this

provision is wholely inappropriate.  It could even lead to a situation

where the presumably most important piece of evidence is totally

ignored by the court.

9.      A faculty opinion as a superior expert opinion contains so

to speak irrefutable scientific statements and therefore must be of

crucial importance for the court's decision.  However in the present

case the jury came to a wrong decision in exercise of its free

evaluation of evidence because of the rejection of the applicant's

motion for evidence.  The principle of free evaluation of evidence

only means that there is no strict rule of evidence in the Code of

Criminal Procedure.  It does not mean that the judges including lay

judges are entitled to take an arbitrary decision, that they may

arbitrarily disregard the scientific advice by all members of the

Medical Faculty of the University of Vienna.  However this is exactly

what happened in the present case.  The jury denied the correctness of

the opinion of the faculty, the highest scientific body.  The legal

issue of the applicant's criminal responsibility was thus wrongly

decided.

10.     The only relevant element of this decision is the verdict of

the jury.  It is a particular feature of trial by jury that the

jury is not required to state reasons for its verdict which can be

attacked on appeal.  However from the jury's memorandum it is quite

clear that the faculty opinion was disregarded.   The jury there

simply stated that the faculty opinion was based on other facts than

those which it considered as established, but it did not indicate in

detail which of the facts underlying the faculty opinion had not been

established.  In any event the jury's memorandum could not be used by

the defence because it could not draw any argument from it in the

subsequent proceedings.  It could neither request a monitoring

procedure by the bench of professional judges nor could it challenge

the reasons given in the memorandum in the subsequent Supreme Court

procedure.  Accordingly the Supreme Court in its decision did not

mention this memorandum at all.

11.     The Government have referred to the high authority of the

faculty opinion.  However, in his final submissions, which were not

included in the transcript, the public prosecutor even ridiculed that

opinion in view of its lack of proper presentation.  The lay judges

tend to judge an expert opinion in closest connection with the

person of the expert, and in the present case the fact that the

faculty opinion was discussed by an expert who had reached the

opposite result led to a wrong decision of the jury.  In these

circumstances there can be no question of a fair balance between the

faculty opinion and the conflicting individual expert opinion.  The

individual expert who had reached a result favourable to the applicant

also could not rely on the faculty opinion when presenting his report.

12.     If there had been a proper procedure the jury would probably

have followed the faculty opinion and denied the applicant's criminal

responsibility.  The applicant then would have left the court as a

free man since the reasons excluding his criminal responsibility, as

found by the faculty, were of a temporary nature and thus did not

justify the imposition of a measure under Section 21 of the Penal Code

which requires an unfavourable prognosis concerning future criminal

behaviour.

THE LAW

        The applicant complains that a medical faculty opinion on the

issue of his criminal responsibility was obtained by the Court which,

unlike other expert evidence, was only presented as written evidence

to the Court with the consequence that no questions could be put for

its explanation and clarification to a representative of the medical

faculty.  He further complains that the Court accepted some

explanations on the faculty opinion by an individual expert who,

contrary to the medical faculty, had reached a result unfavourable to

the applicant.  He finally complains that, without giving reasons, the

jury did not follow the faculty opinion.  The applicant claims that,

in these circumstances, he did not enjoy the guarantees of a "fair

trial" within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention and

that his rights under Article 6 para. 3 (d) (Art. 6-3-d) have been violated.

        Article 6 para. 1 (Art. 6-1) reads as follows:

                "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:

        "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;

         ... "

        It is not in dispute that Article 6 para. 1 (Art. 6-1) is applicable to

the case.  The parties disagree, however, on whether or not Article 6

para. 3 (d) (Art. 6-3-d) is also applicable as regards the faculty opinion.

In this respect the Commission notes, on the one hand, the

Government's submission that, by its terms, Article 6 para. 3 (d) (Art. 6-3-d)

refers only to witnesses and that expert evidence, in particular a written

expert opinion submitted by a collective body such as a medical faculty, cannot

automatically be assimilated to witnesses' evidence.  The Commission notes, on

the other hand, the applicant's argument that the applicability of Article 6

para. 3 (d) (Art. 6-3-d) to experts has been recognised in the earlier case-law

(cf. in particular No. 8658/79, Bönisch v.  Austria, Comm.  Report 12.3.84,

paras. 86-89) and that in the present case the faculty opinion involved

elements of witnesses' evidence in that it contained, inter alia, factual

findings concerning the applicant's behaviour during the relevant period which

were based on observations made by members of the medical faculty in the

exercise of their scientific task.

        The Commission recalls para. 88 of its Report in the Bönisch

case (loc. cit.) where it stated the following:

                "With regard to the facts of the present case,

        the Commission maintains and confirms its view that the

        term 'witness' in Article 6 para. 3 (d) (Art. 6-3-d) of the Convention

        must be understood as relating also to experts ('expert

        witnesses').  By giving the defence a right to put

        questions and to present its evidence under the same

        conditions as the prosecution this provision indeed

        specifies the particular procedural means which are

        appropriate in respect of all types of oral evidence in

        order to secure the effective implementation of the principle

        of equality of arms.  Despite their special professional

        qualifications and their duty to adopt an objective approach,

        the evidence of experts, as that of witnesses, requires to

        be checked by questions and to be confronted, where

        contested, with other conflicting evidence.  It is only in

        this way that there is a chance for the defence to present

        its case in a fair way and to ensure that all relevant

        aspects of the case will thus emerge."

        The Commission further observes that in its subsequent

judgment in the same case the European Court of Human Rights left open

the question of direct applicability of Article 6 para. 3 (d) (Art. 6-3-d) to

expert evidence and based its conclusions on analogous considerations under

Article 6 para. 1 (Art. 6-1) "whilst also having due regard to the paragraph 3

guarantees, including those enunciated in subparagraph (d)" (Eur.  Court H.R.

judgment of 6 May 1985, Series A no. 92, p. 15 para. 29).

        In the present case it cannot be decisive that under the

practice of the Austrian courts a faculty opinion is regarded as a

piece of written evidence, to be read out under Section 252 para. 2

of the Code of Criminal Procedure, in respect of which an oral

presentation is inadmissible.  It is the very issue before the

Commission whether the exclusion of oral presentation of such a

faculty opinion, and the exclusion of any possibility to put

questions in relation to it, is appropriate having regard to the

particular nature of this piece of evidence and its function in the

overall context of the proceedings, and whether such exclusion

is in conformity with the provisions of the Convention, including the specific

guarantee enunciated in Article 6 para. 3 (d) (Art. 6-3-d).  It follows that

the applicant's complaints, insofar as they are based on this provision, cannot

at this stage be rejected under Article 27 para. 2 (Art. 27-2) of the

Convention as being incompatible, ratione materiae, with the provisions of the

Convention.

        As regards the substance of the applicant's complaints under

Article 6 (Art. 6), the Commission notes that the case raises complex and

difficult issues concerning the application and interpretation of Article 6

paras. 1 and 3 (d) (Art. 6-1, 6-3-d) of the Convention which require to be

determined as to their merits.  The application accordingly cannot be rejected

as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art;

27-2) of the Convention.

        For these reasons, the Commission

        DECLARES THE APPLICATION ADMISSIBLE,

        without in any way prejudging the merits.

Deputy Secretary to the Commission         Acting President of the Commission

         (J. RAYMOND)                               (S. TRECHSEL)