Lexploria

The European Commission of Human Rights sitting in private on

3 December 1986, the following members being present:

MM. C.A. NØRGAARD, President

J. A. FROWEIN

E. BUSUTTIL

G. JÖRUNDSSON

G. TENEKIDES

S. TRECHSEL

B. KIERNAN

A. WEITZEL

J. C. SOYER

H. G. SCHERMERS

H. DANELIUS

G. BATLINER

H. VANDENBERGHE

Mrs G. H. THUNE

Sir Basil HALL

Mr. F. MARTINEZ

Mr. J. RAYMOND, Deputy Secretary to

the Commission

Having regard to Article 25 (Art. 25) of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 5 April 1985 by O.

N. against Austria and registered on 31 May 1985 under file

No. 11571/85;

Having regard to

- the Commission's decision of 12 December 1985 to give notice of the

application to the respondent Government and 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;

- the President's ruling of 17 March 1986 to extend the time- limit

fixed for this purpose to 1 April 1986;

- the observations submitted by the respondent Government on

7 April 1986;

- the applicant's declaration of 28 May 1986 that he does not wish to

submit observations in reply;

- the applicant's further declaration of 6 August 1986 that he wishes

to withdraw the application;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is an Austrian citizen born in 1927 who resides at

Grafenwörth, Lower Austria. He is represented by Mr. Werner Sporn, a

lawyer practising in Vienna.

The applicant complained of criminal proceedings taken against him

under the Wine Act 1961 (Weingesetz, Federal Law Gazette No. 187/61).

These proceedings were instituted following a control carried out in

his enterprise at which several samples of wine were drawn and

counter-samples left behind for the firm's use. After examination by

the official wine tasting panel (amtliche Weinkostkommission) and a

chemical analysis, the Federal Agricultural Chemical Control Institute

(Landwirtschaftlich-chemische Bundesversuchsanstalt) in Vienna found

the wine samples to be adulterated and diluted with water. In

accordance with Section 30 (9) of the Wine Act it therefore laid a

criminal information (Anzeige) with the District Court of Kirchberg am

Wagram expressing the suspicion of various offences. The district

prosecutor (Bezirksanwalt) requested the applicant's punishment under

Section 45 (1) of the Wine Act.

The applicant's firm had in the meantime arranged for the examination

of the counter-samples by the Provincial Agricultural Chemical Control

Institute of Styria (Landwirtschaftlich-chemische Landes-Versuchs- und

Untersuchungsanstalt) in Graz. The tasting panel at this Institute

found the counter-samples to be unsuitable for tasting (kostunfähig).

Their chemical analysis did not give rise to objections.

The trial of the case by the District Court took place on 14 June

1984. The Court heard an employee of the Vienna 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 being 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."

This expert admitted that the tasting could be considerably affected

by the circumstance that the wines were still in the process of

fermentation. However, he considered that it was nevertheless

possible to identify with some certainty a dilution of wine with

water. These explanations were confirmed by a second expert consulted

by the court who was neither employed by the Vienna nor the Graz

Institute, but who had not seen the samples himself.

The defence requested the taking of additional evidence including the

consultation of the records of the tasting panels and the hearing of

the individual members of the Vienna panel, the examination of new

samples of the wines, and the hearing of further experts, including an

expert of the Graz Institute who had analysed the counter-samples.

However, these requests were rejected.

The Court found the applicant guilty of the offence of keeping for

sale stocks of adulterated (diluted) wine and sentenced him to a fine

of AS 20,000.-. The wine was declared forfeited.

The applicant's appeal against this judgment was rejected by the

Regional Court (Kreisgericht) of Krems on 16 October 1984. It

considered that the procedure had been in accordance with Section 30

of the Wine Act. The members of the tasting panel were not to be

considered as experts, the Court was not required to hear them nor was

it necessary to consult other experts as to the reliability of the

tasting procedure. The Court further considered that there had been

no interference with the right to a fair trial under Article 6

(Art. 6) of the Convention. As it had no doubts concerning the

constitutionality of the tasting procedure it did not see any reason

to bring this issue before the Constitutional Court.

COMPLAINTS

The applicant has complained that he was not able to put questions to

the members of the wine tasting panel whose expert evidence was of

crucial importance in the case. He invokes Article 6 para 3 (d)

(Art. 6-3) of the Convention in this respect.

The applicant further complained under Article 6 para. 3 (d)

(Art. 6-3-d) that the Court was not free in the choice of its official

expert and that his request to hear the expert who had analysed the

counter- samples was rejected.

Because of the restrictions on the choice and evaluation of evidence,

the applicant further considered that the court's impartiality had

been infringed contrary to Article 6 para. 1 (Art. 6-1) of the

Convention.

The applicant finally complained that certain statements of the

Regional Court were based on an assumption of his guilt and therefore

violated Article 6 para. 2 (Art. 6-2).

PROCEEDINGS

The application was introduced on 5 August 1985 and registered on

31 May 1985.

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 the Rules of Procedure, to

submit observations in writing on the admissibility and merits.

14 March 1986 was originally fixed as the time-limit for this purpose

but, at the Government's request, on 17 March 1986, the President

granted an extension until 1 April 1986.

The Government submitted their observations on 7 April 1986. They

requested the Commission to reject the application as inadmissible for

being manifestly ill-founded or, alternatively, to find no breach of

the Convention.

The applicant informed the Commission on 28 May 1986 that he did not

wish to submit observations in reply. By a further letter of

6 August 1986 he declared his wish to withdraw the application.

REASONS FOR THE DECISION

The Commmission notes that the applicant wishes to withdraw the

application. The Commission finds that there are no reasons of a

general character affecting the observance of the Convention which

would require a further examination of the present application.

For these reasons, the Commission

DECIDES TO STRIKE THE APPLICATION OFF ITS LIST OF CASES

Deputy Secretary to the Commission President of the

Commission

(J. RAYMOND) (C.A. NØRGAARD)

Menu

N. v. AUSTRIA

N. v. AUSTRIA

LEXI