AS TO THE ADMISSIBILITY OF

                      Application No. 11170/84

                      by K.B.

                      against Austria

        The European Commission of Human Rights sitting in private

on 14 July 1987 the following members being present:

              MM. C. A. NØRGAARD, President

                  J. A. FROWEIN

                  S. TRECHSEL

                  F. ERMACORA

                  E. BUSUTTIL

                  A. S. GÖZÜBÜYÜK

                  A. WEITZEL

                  J. C. SOYER

                  H. G. SCHERMERS

                  H. DANELIUS

                  G. BATLINER

                  H. VANDENBERGHE

             Mrs.  G. H. THUNE

             Sir  Basil HALL

             MM.  F. MARTINEZ

                  C.L. ROZAKIS

             Mrs.  J. LIDDY

             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 6 September

1984 by K.B. against Austria and registered on 29 September 1984 under

file N° 11170/84;

        Having regard to the Commission's decision of 12 December 1985

to give notice of the application to the respondent Government and to

invite them in accordance with Rule 42 para. 2(b) of the Rules of

Procedure, to submit observations in writing on the admissibility and

merits;

        Having regard to the Government's observations submitted on

10 August 1986 and to the applicant's observations in reply submitted

on 25 June 1986;

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

Rules of Procedure of the Commission ;

        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 Mr.  Werner Sporn,

a lawyer practising in Vienna.

        The applicant is a vintner and he complains of criminal

proceedings taken against him 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).

        These proceedings were instituted 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.

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.

        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.  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).  According to the regulations on

this panel (Section 30 paras. 4-8) it 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 in the rules.

It is not public and the members of the panel are bound by

confidentiality.

        In the present case, the tasting panel examined the samples of

the applicant's wines on 25 May 1983.  It came to the conclusion

concerning both samples that water and residual products from the wine

manufacturing process had been added.  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).

        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 of Haugsdorf on 8 June 1983.  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.

        In preparation of his defence, the applicant had the counter-

samples analysed by the Federal Food Control and Research Institute

(Bundesanstalt für Lebensmitteluntersuchung und -forschung) in Vienna

which in its 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 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).

        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.  The Court appointed an employee of the

Agricultural Chemical Institute as its official expert 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."

        The expert in question had not been involved in the earlier

analysis of the applicant's wine samples by his Institute.  At the next

court hearing on 22 November 1983, he stated that the results of this

analysis were so different from those obtained by the Food Control

Institute concerning the counter-samples, that an error of analysis must

have ocurred at one of the institutes.  In his view a clarification

could only be brought about by an analysis of the second control

samples.  The Court asked him to prepare a written expert opinion to

this effect.

        On 21 December 1983, the Agricultural Chemical Institute

analysed the control samples under the supervision of the expert and

reached results similar to those concerning the first samples analysed

by it.  A new examination by the tasting panel did not take place.  In

his written report of 17 January 1984, the expert 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 stated by the required majority could

be ignored.

        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.

        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.

        At the hearing of 14 February 1984, the applicant's lawyer

criticised this expert opinion on the ground of the expert's close link

with the Agricultural Chemical Institute which deprived him of the

necessary objectivity concerning that Institute's first analysis and

might have prompted him to defend the results of this analysis against

the different results of the Food Control Institute.  He further

criticised that the expert had exceeded his powers by discussing

various questions of fact and law instead of limiting himself to a

chemical analysis.

        The defence requested the taking of additional evidence

including the taking of new samples from the applicant's wine tanks,

the hearing of several further experts including the expert of the

Food Control Institute who had analysed the counter-samples, and the

consultation of the records of the tasting panel.  It was, in

particular, 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 legal provisions on the tasting procedure had not been

complied with.  It was further alleged that 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.

        However, the Court rejected these requests for additional

evidence and concluded the proceedings.  It 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,OOO L and

15,000 L, respectively) to be forfeited.  Finally, the Court ordered

the publication of the judgment in accordance with Section 45 (3).

        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, the expert

opinion could not be taken into account insofar as it had dealt in an

inadmissible manner with questions of law and questions concerning the

evaluation of the evidence.  As regards the applicant's requests for

additional evidence, they 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 even been confirmed by those of the Food

Control Institute.  There was no doubt concerning the objectivity of

the Court's expert despite his link to the Agricultural Chemical

Institute.  The Court finally stated that the applicant had made

certain 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.

        The applicant appealed, repeating his requests for evidence

and claiming that by the rejection of these requests the District Court

had violated his rights of defence.  However, the appeal was rejected

by the Regional Court (Kreisgericht) of Korneuburg on 7 May 1984.

        This Court observed, in particular, that objections against the

expert had been raised only 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 could not be maintained.  There was no

objection to the Court quoting literally from the expert's opinion.

In view of its conclusiveness, it was not necessary to take any

further evidence, such as hearing the expert of the Food

Control Institute or a third expert.  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.  Finally, as

regards the tasting procedure, the applicant's criticism was equivocal

because he had, on the one hand, challenged its reliability, but had,

at the same time, alleged violations of the applicable procedural

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.

        No further remedy was available to the applicant against this

decision.

COMPLAINTS

1.      The applicant complains that the criminal proceedings were

conducted in violation of his right to a fair hearing by an independent

and impartial tribunal (Article 6 para. 1) and his right 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 (Article 6 para. 3 (d) of the Convention).

        The applicant criticises, in particular, that under

Section 30 (10) of the Wine Act the Court was not free to appoint an

expert of its choice, but was bound to appoint as its expert an

employee of the Institute which had reported the suspicion under

Section 30 (9) of the Act.  In fact, the Court heard no other expert

despite the applicant's requests.

        The applicant further alleges a violation of the above

provisions by the fact that the courts used the results of an official

wine-tasting procedure without his being able to examine members of

the wine-tasting panel or to put questions to them.  The identity of

these persons, who must be regarded as experts, was not disclosed to

the Court or the defence throughout the proceedings.  Because of the

confidentiality of the tasting procedure, it was not possible to

control its conformity with the applicable regulations or the

reliability of its results.

2.      The applicant furthermore alleges a violation of the

presumption of innocence as guaranteed by Article 6 para. 2 of the

Convention because the Regional Court expressly stated that the

existence of different results in the analysis of the two Institutes

could not create any doubt as to his guilt.  Its reasoning proceeded

on the basis that it had been the task of the defence to disprove the

charges based on the Agricultural Chemical Institute's initial report,

rather than the prosecution's task to prove the correctness of these

charges.  It spoke of an attempt to "defame" the expert although the

applicant had only alluded to his link with the Institute whose tests

had given rise to suspicion.  Finally, the Court insinuated the

possibility of manipulations of the seized tanks of wine, i.e. a

criminal offence under Section 271 or 272 of the Penal Code, when it

refused the taking of further samples from these tanks.

3.      The applicant considers that the publication of the

judgment in the local press and official gazettes and notice boards

ordered under Section 45 (3) of the Wine Act was tantamount to his

being "pilloried".  In his view this was a degrading punishment

contrary to Article 3 of the Convention which was in no way justified

in the circumstances.

PROCEEDINGS

        The application was introduced on 6 September and registered

on 29 September 1984.

        On 12 December 1985, 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 14 March 1986.  Certain questions were put to the

Government in this context, in particular, as regards the applicant's

complaints under Article 6 paras. 1 and 3 (d) of the Convention.

        On 17 March 1986, following a request by the respondent

Government, the President of the Commission ruled to extend the time

limit for the submission of the Government's observations until

1 April 1986.

        The Government submitted their observations on 10 April 1986.

        The applicant was requested to submit any observations which

he wished to make in reply before 31 May 1986.  On 6 June 1986 the

Commission's President, following a request by the applicant, extended

the time limit until 30 June 1986.

        The applicant submitted his observations on 25 June 1986.

SUMMARY OF THE PARTIES' SUBMISSIONS

A.      The Government

        The Government admit that the formal requirements of Article 26

of the Convention have been met.

        As regards the alleged violation of Article 6 paras. 1 and

3(d), the Government first observe that Section 30 para. 10 of the

1961 Wine Act which was applied in the present case has in the

meantime been amended in the light of the Eur.  Court of H.R. Bönisch

judgment of 6 May 1985 (Series A No. 92) and the Constitutional Court's

subsequent decision of 28 November 1985.  By the latter decision the

first sentence of Section 48 of the 1975 Food Act (which was identical

to Section 30, para. 10 of the 1961 Wine Act) has been quashed as

being unconstitutional.  The corresponding provision of the new Wine

Act of 1985 reads as follows:

Section 47 (10):

The Federal Inspectors of Cellars (Bundeskellereiinspektoren)

and persons who were officially in charge of the examination

or tasting of the reported wine may be called upon only as

witnesses but not as experts.

        However, at the time of the proceedings against the applicant,

the relevant provision was still in force; therefore an employee of

the Control Institute was called in as expert because of the

difference in the results of the analyses contained in the first

opinion and the opinion on the counter-samples.

        If the court has doubts in respect of a written expert opinion

that has led to the charge, it must first try to eliminate these

doubts by hearing an employee of the Control Institute as an expert;

however, it is not bound by the oral opinion of this expert any more

than the opinion of any other expert.  This opinion is also subject to

the free evaluation of evidence by the judge, which can often only be

done by recourse to other experts since he lacks the relevant

expertise.  In this respect the Government refer to Sections 125 and

126 of the Code of Criminal Procedure, which lay down the conditions

under which the court may appoint additional experts.

        Section 30 (10) of the 1961 Wine Act thus constitutes neither

a restricition of evidence nor an influence on the free evaluation of

evidence by the judge, but merely settles a certain chronological

order of evidence.

        In the present case there were no requirements for appointing

other experts under Sections 125 or 126 of the Code as the Court,

which had to decide by freely assessing the furnished evidence, had no

doubts in respect of the opinion rendered by its expert.

        This expert had not taken part in the examination of the

reported samples by the members of the wine tasting panel, who remain

anonymous.  He analysed the second samples in his capacity as an

independent expert and assistant to the Court.  It cannot be said

that he gave the impression of a "witness for the prosecution" as he

himself also criticised the first opinion and explained that the

terms "imitated" and "adulterated" were not used accurately by the

Agricultural Chemical Control Institute and that technical mistakes

had been made as far as the qualifying term of "imitated" was

concerned.  This clearly shows that in spite of the fact that he was

an employee of the Control Institute, the expert provided an

objective, careful and conclusive opinion which supplemented and

rectified the first opinion and clarified contradictions between the

first opinion and the opinion on the counter-samples.  Hence, the

"fair-trial" principle laid down in Article 6 para. 1 of the

Convention has also been complied with in respect of the outward

appearance.

        Moreover, when the expert was appointed the applicant himself

was present and was cognizant of the expert's relation to the

Agricultural Chemical Control Institute.  He obviously did not doubt

his expert knowledge and impartiality as he failed to raise objections

against the expert in accordance with Section 120 of the Code of

Criminal Procedure, which, if justified, could have led to the

appointment of a different expert.  The expert's alleged lack of

impartiality as well as his close ties to the Control Institute were

made an issue by the applicant only after the expert rendered an

opinion which was unfavourable to him.  However, in view of

the facts the Court saw no reason to appoint other experts.

        The right to obtain the attendance or examination of witnesses

is not an absolute right.  According to the consistent practice of the

Commission the judge has to take into account or admit only such

evidence or offers of proof and questions to witnesses as he considers

relevant to the decision.  Therefore Article 6 para. 3 (d) of the

Convention has not been violated by the fact that no other expert was

appointed, as the Court saw no reason to object to the opinion

furnished by its expert.

        As regards the fact that the expert of the Federal Food

Control Institute who had examined the counter-samples was not called

in, the Government observe that the Court and the court-appointed

expert examined the findings concerning the counter-samples, and

clearly discussed the causes of the different results.  As far as

the applicant's private expert can be considered as a "witness for the

defence" within the meaning of Article 6 para. 3 (d) of the

Convention, there is according to the consistent practice of the

Commission no absolute right to the hearing of such a witness.  In the

present case the Court did not hear him as a witness because it did

not consider this relevant to its decision after all contradictions

had been clarified by the court-appointed expert.

        As regards the applicant's complaint that the tasting record

was not submitted, the Government observe that it was also contained

in the opinion on the counter-samples and by itself was not sufficient

as a basis for the Court's evaluation of evidence as "it did not

constitute certain proof but only indicative evidence of the quality

of the wine" (decision of the Korneuburg Regional Court of 7 May 1984).

For this reason it was also possible to forego the participation and

hearing of the members of the wine tasting panel.  It could not be

expected that they make statements on the wine samples relevant in the

present complaint because observance of the principle of anonymity was

essential to ensure their objectivity as wine testers.  They could

only have made general statements on the tasting procedure, the number

of samples, the recording of the results, etc.  Such general

statements, however, could also be given by the Court's expert, an

employee of the Institute where the tasting panel worked, who was also

available to the applicant for questioning in this respect.  Therefore,

the Court was entitled within its discretionary power to refuse the

summoning and hearing of the members of the panel on grounds of

irrelevance for ascertaining the truth.

        The Government therefore request the Commission to declare the

application manifestly ill-founded under Article 27 para. 2 of the

Convention, or in eventu, to declare that provisions of the

Convention were not violated.

B.      The applicant

        The applicant considers that under the principle of fair trial

according to Article 6 para. 1 of the Convention it must be left to an

independent court to decide whether or not it wishes to consult an

expert and also to decide which person included in the list of experts

it wishes to appoint.  However, Section 30 para. 10 of the 1961 Wine

Act departs from this principle.  The court is thereby obliged to

appoint as its expert an employee of the Control Institute who has

participated in the preparation of the report of that Institute which

has given rise to doubts of the court.  The court therefore is obliged

to appoint as its expert a person who is not neutral because he has

participated in the initial examination.  Furthermore the court is

obliged to appoint him as the first expert.  As a rule he will also

remain the only expert unless the specific conditions of Section 125

of the Code of Criminal Procedure are met.  The court's discretion in

this respect is limited without any reasonable justification.

        It does not make an essential difference that in the present

case the person appointed as the Court's expert had not himself been

involved in the preparation of the initial report and of the opinion

on the second counter-samples.  This was a mere coincidence.  Under

the law it was possible and, indeed, required that only a person who

had participated in the preparation of the initial report and opinion

should be appointed and heard as expert.  That expert's opinion is of

crucial importance for the decision of the case because the judge

himself does not have the required special knowledge and therefore

depends on the advice of the expert.  The applicant invokes the

European Court of Human Rights judgments in the cases De Cubber

(judgment of 26 October 1984, Series A No. 86) and Sramek (judgment

of 22 October 1984, Series A No. 84) according to which it must

clearly appear to the public that the principle of fair trial has been

respected.

        The applicant observes that both the Federal Agricultural

Chemical Control Institute, which in the present case submitted the

initial report and the opinion on the second counter-samples, and the

Federal Food Control Institute, which examined the counter-samples, are

recognised by the State as fulfilling the same qualifications (cf.

Section 9 para. 2 of the Wine Ordinance).  Both State institutions in

principle apply the same objective approach, and in this respect it

cannot make any difference that in the present case the Federal Food

Control Institute examined the counter-samples at the request of the

applicant.  However, in the criminal proceedings the two institutions

are not treated in the same way and therefore the principle of

equality of arms is violated.  According to Section 30 para. 10 of the

Wine Act only the person who has prepared the initial report can be

appointed as expert while the person who has analysed the

counter-samples can only be heard as witness.  The constant case-law

of the Austrian criminal courts does not consider private experts as

experts of the court, their opinions have no procedural relevance and

need not even be read out in court.  The conflicting evidence on both

sides is therefore not given the same weight.

        In the present case the initial report of the Control

Institute was based, inter alia, on the tasting of the wine samples by

the official wine-tasting panel.  Several members of the panel thought

that he had diluted the wine with water and this finding eventually

constituted one of the reasons for the applicant's conviction.

However, the applicant did not have any opportunity to put questions to

the members of the panel who must be considered as experts for the

prosecution.  These experts were not at all heard by the Court and not

even their identity was disclosed to the Court or the applicant.  Also

in this respect the Court's choice of the experts was restricted.

Because of their anonymity, the Court and the defence furthermore did

not have the possibility to control whether these persons had the

necessary qualifications or whether they carried out the tasting

procedure in conditions which allowed them to achieve reliable

results.  Nevertheless the evidence obtained from this source which

remained unidentified throughout the proceedings was sufficient for

the Regional Court to refer to it in the judgment as "an indication

of the quality of the wine".

        By referring to the anonymous and objective working methods of

the panel which excluded the necessity to put questions to its

members, the Government overlook that the defence had no possibility

to verify whether the legal conditions for carrying out the tasting

procedure had been complied with.  These conditions, which are

regulated in much detail in the panel's rules of procedure, are of

considerable importance for the reliability of the tasting procedure.

As the Court refused to summon members of the panel as requested by

the defence, the applicant's rights under Article 6 para. 3 (d) of the

Convention were also violated in this respect.

THE LAW

1.      The applicant complains that the criminal proceedings

against him under the Wine Act 1961 violated  Article 6 paras. 1 and

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

        He alleges, in particular, that his right to a fair hearing by an

independent and impartial tribunal (Article 6 para. 1) (Art. 6-1) and his right

to obtain the attendance and examination of witnesses on his behalf under the

same conditions as witnesses against him (Article 6 para. 3 (d) (Art. 6-3-d) of

the Convention) were violated by the fact that, under Section 30 (10) of the

Wine Act, the Court was bound to appoint as its expert an employee of the

Institute which had reported the suspicion, and that in fact it refused to hear

any other experts.

        The applicant further alleges that his right to a hearing by

an independent and impartial tribunal (Article 6 para. 1) (Art. 6-1) and his

right to examine or have examined witnesses against him (Article 6 para. 3 (d))

(Art. 6-3-d) were violated because the Court used the results of an official

wine-tasting procedure without disclosure of the members of the wine-tasting

panel and without there being any possibility of examining those persons who,

in the applicant's view, must be regarded as experts.  Because of the

confidentiality of the tasting procedure it thus could not be controlled

whether it had been conducted in accordance with the applicable rules.

        The Government do not contest that the applicant has complied

with the conditions of Article 26 (Art. 26) of the Convention as regards the

exhaustion of domestic remedies and submission of the application

within a period of six months from the final domestic decision.  The

Commission must therefore deal with the applicant's above complaints.

        The Commission finds that these complaints resemble in many

respects those examined in the Bönisch case in which the European Court

of Human Rights in its judgment of 6 May 1985 (Series A No. 92) found

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

        It is true that in the present case the expert appointed by

the Court had not himself participated in the preparation of the

initial report by which the case was referred to the prosecution

authorities.  The Court was obliged by law to appoint as its first

expert a person from the Institute, and it also refused to hear any

other expert.  Unlike the procedure followed in the Bönisch case the

applicant's private expert, who had examined the counter-samples and

had reached different results, was not heard as a witness.

        Moreover, the Court used the results of an official

wine-tasting procedure conducted by a panel of wine-tasting experts

whose identity was not disclosed throughout the proceedings and who,

under the established court practice in Austria, apparently could not

be required to appear in court for the purpose of being examined

regarding the conditions under which the tasting procedure had been

carried out.

        In view of these circumstances and having regard to the

Bönisch judgment the Commission considers that the applicant's

above complaints raise complex issues as to the interpretation and

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

(Art. 6-1+6-3-d) of the Convention which need to be determined as to their

merits.  This part of 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.

2.      The applicant also complains of a violation of Article 6

para. 2 (Art. 6-2) of the Convention which reads as follows:

        "Everyone charged with a criminal offence

        shall be presumed innocent until proved

        guilty according to the law."

        This provision, which enshrines the principle of presumption

of innocence, is above all a guarantee of a procedural nature, and

applies to any criminal proceedings (see application No. 788/60,

Austria v.  Italy, Yearbook 6, 784).  However, in its decision on the

admissibility of application No. 7986/77, Petra Krause v.  Switzerland

(Dec. 3.10.78, D.R. 13 p. 73), the Commission observed that the

presumption of innocence is not merely a procedural guarantee but

prohibits any representative of the State from declaring a person

guilty of an offence before guilt has been established by a court.

        The Commission stated as follows:

        "It is a fundamental principle embodied in this

        Article which protects everybody against being

        treated by public officers as being guilty of an

        offence before this is established according to

        law by a competent court.  Article 6 para. 2,

        (Art. 6-2) therefore, may be violated by public officials

        if they declare that somebody is responsible for

        criminal acts without a court having found so.

        This does not mean, of course, that the authorities

        may not inform the public about criminal investi-

        gations.  They do not violate Article 6 para. 2 (Art. 6-2) if

        they state that a suspicion exists, that people have

        been arrested, that they have confessed, etc.  What

        is excluded, however, is a formal declaration that

        somebody is guilty." (D.R. 13 pp. 75-76).

        In the present case, the applicant first invokes the

presumption of innocence as a procedural guarantee concerning the

Court's attitude towards the offences under the 1961 Wine Act with

which he was charged in the proceedings at issue.  He claims that

despite the conflicting expert evidence the Court did not afford him

the benefit of the doubt and that the decision was reasoned in such a

way as to imply a reversal of the burden of proof.

        However, the Commission considers that the wording of a

judgment finding the accused guilty of an offence as the result of the

evidence taken cannot in itself amount to a violation of the

presumption of innocence.  There is no indication that in the course of

the proceedings the burden of proof was actually reversed and that the

applicant was in substance required to disprove the charges raised

against him in the report of the Federal Agricultural Chemical Control

Institute.  It was still the prosecution's task to prove these

charges.  Several aspects of the Court's handling of the case show

that it did not start from the assumption that the applicant was

guilty, in particular the Court's doubts concerning the Institute's

initial report, the appointment of an expert to clarify these doubts,

and the fact that on the expert's advice the Court amended the charges

in the indictment.  Moreover, the applicant's request for further expert

evidence was rejected only after the Court had heard its official

expert and found his opinion to be conclusive, showing that the Court

had no pre-established views concerning the applicant's guilt.

        The applicant further invokes the presumption of innocence

submitting that it was disregarded by certain statements of the

Regional Court which alluded to his possible responsibility for

offences other than those included in the indictment.  In fact the

Regional Court stated that it could not be excluded that the sealed

wine tanks had been tampered with.  Thus a suspicion was raised that

the applicant had committed certain further criminal offences, which

were not a subject of the trial in this case.  However, the Commission

notes that the relevant statement of the Court was clearly limited to

the expression of a suspicion and no formal declaration was made that

the applicant was guilty.

        Therefore the facts do not reveal that the presumption of

innocence as interpreted in the Commission's case-law has been violated

(cf. application Nos. 9077/80, Dec. 6.10.81, D.R. 26 p. 211; 10874/84,

Dec. 7.10.85, unpublished; and 10802/84, partial Dec. 14.5.87,

unpublished).

        This part of the application is therefore manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

3.      The applicant finally complains that by the Court's order to

publish the judgment in the local newspapers, in the official gazette

and on the public notice-board he was "pilloried" and thus subjected

to degrading punishment contrary to Article 3 (Art. 3) of the Convention.

However, the Commission observes that under Article 6 para. 1 (Art. 6-1) of the

Convention it is expressly required that any judgment which involves

the determination of a criminal charge should be pronounced publicly.

Publicity is thus an essential requirement of court proceedings in a

democratic society.  In the present case the publication of the

judgment pronounced against the applicant finds a particular

justification in the nature of the offence in question which involved

a certain risk to the general public, namely the sale of adulterated

wine.  The publication of a judgment in these circumstances does not

seek to publicly vilify the offender and cannot be regarded as

a degrading punishment within the meaning of Article 3 (Art. 3) of the

Convention.  The applicant's complaint in this respect must also be

rejected as manifestly ill-founded.

        For these reasons, the Commission

1.      DECLARES ADMISSIBLE, without in any way prejudging the

        merits, the applicant's complaints that he did not obtain

        the hearing of any expert apart from the Court's official

        expert belonging to an institute which had originally

        raised the charges against him, and that he could not

        obtain the hearing of the members of the official wine-

        tasting panel;

2.      DECLARES THE REMAINDER OF THE APPLICATION INADMISSIBLE

Secretary to the Commission               President of the Commission

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