FOURTH SECTION

DECISION

Application no. 62162/13 Günter STRIEDINGER against Austria and 3 other applications (see list appended)

The European Court of Human Rights (Fourth Section), sitting on 11 May 2021 as a Committee composed of:

Iulia Antoanella Motoc, President, Gabriele Kucsko-Stadlmayer, Pere Pastor Vilanova, judges, and Ilse Freiwirth, Deputy Section Rgistrar ,

Having regard to the above applications lodged on the various dates indicated in the appended table ,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

1 . A list of the applicants and of their representatives is set out in the appendix.

2 . The Austrian Government (“the Government”) were represented by their Agent, Ambassador H. Tichy, Head of the International Law Department at the Federal Ministry for European and International Affairs.

3 . The facts of the case, as submitted by the parties, may be summarised as follows.

4 . The first and fourth applicants were members of the management board ( Vorstand ) of Hypo Alpe ‑ Adria ‑ Bank International AG (hereinafter referred to as “HB International”) in 2004. The second and third applicants were the bank ’ s lawyer and tax adviser respectively.

5 . To finance an economic expansion strategy, the applicants designed a plan to generate equity capital ( Eigenmittel ) for the accounts of HB International within the holding structure, without introducing any fresh external capital.

6 . On 1 July 2004 the Hypo Alpe ‑ Adria ‑ Leasing Holding AG (“HLH”), a subsidiary stock corporation of HB International, issued 100,000 registered non-voting preference shares ( stimmrechtslose Vorzugsaktien ) with a nominal value of 1,000 euros (EUR) each and a maximum dividend of 6.25%. On the same day, the shares were bought by HB International.

7 . On 9 July 2004 HB International resold 55,000 shares for EUR 55 million to the BC Holding AG (“BCH”), which had been established by the second applicant in June 2004. The second and third applicants sat on the management board of BCH. The sale contract included a call option for HB International. The purchase price was indirectly financed by a loan from the Global Group Invest Anstalt (“G. foundation”) under Liechtenstein law; the G. foundation itself took loans from a further eleven foundations under Liechtenstein law. Those eleven foundations, all established in June 2004, had taken loans from Hypo Alpe ‑ Adria ‑ Bank (Liechtenstein) AG (“HBL”), the subsidiary bank of HB International in Liechtenstein. The shares in question were the security for the loans. Neither BCH, nor the twelve foundations, conducted any business other than this share deal.

8 . In its annual balance sheet for 2004, HB International showed an increase in equity capital because of the share deal. HBL showed an increased business value owing to the rise in its credit sector caused by the loans granted to the eleven foundations.

9 . When the annual accounts auditors for 2004 for HB International and HBL examined the share deals and the loan deals respectively, all applicants gave written declarations that they were not aware of any subsidiary agreements or arrangements in relation to the share deal with BCH, and that HBL had neither directly nor indirectly financed the increase in capital stock of HLH.

10 . On 29 April 2005 and 27 April 2006 HLH paid a dividend of EUR 2,578,000 to BCH. That money was, after the deduction of tax and after reductions as a result of payment of fees and remuneration, transferred to the G. foundation, paid out in cash, and transferred to the eleven foundations. It was then transferred to HBL to reimburse the loans.

11 . In 2006, audits of HBL by the Financial Market Authority of Liechtenstein , and of HB International by the National Bank of Austria ( Ö sterreichische Nationalbank ) took place. The Liechtenstein authorities classified the loans granted to the eleven foundations as cluster risks ( Klumpenrisiko ) because no adequate security deposit was available. HBL was therefore ordered to liquidate the loan contracts. In addition, HB International (as the parent company) was ordered to provide guarantees until the loans were paid back. The National Bank examined the increase of HB International ’ s capital stock and criticised the registered non-voting preference share deal of June 2004. It found that the share deal could not allow HB International to show an increase in capital stock.

12 . From December 2006 to April 2007, the share deal between HB International and BCH, and the loan deals between the foundations and HBL, were reversed. HB International repurchased the non ‑ voting preference shares and sold them to other investors.

13 . In May 2007 a German bank, B. Bank, became the majority shareholder of HB International. Because HB International was suffering from a substantial lack of capital, the Austrian government took over its shares in December 2008 ( Notverstaatlichung ). Thereupon, a government commissioner took over control.

14 . In 2009, on the basis of the commissioner ’ s findings in an evaluation process, the Klagenfurt Public Prosecutor ’ s Office ( Staatsanwaltschaft Klagenfurt , hereinafter “the public prosecutor”) instituted criminal investigation proceedings against the first, second and fourth applicants and others, on suspicion of breach of trust and other offences, and enquired into HB International ’ s business in the previous years. W.-A. was assigned to the public prosecutor as an expert adviser in accordance with section 2(5a) of the Agency for the Assistance of the Judiciary Act ( Justizbetreuungsagentur-Gesetz ).

15 . On 22 February 2010 the public prosecutor appointed H., a tax adviser, accountant and judicially certified sworn-in expert in this field, as an official expert in the investigation proceedings.

16 . On 17 August 2010 the public prosecutor instructed H. to submit a report concerning the issue of non-voting shares in HLH. In particular, H. was asked to provide expertise on the following questions, on the basis of the case file and the available documents:

“1. whether there were any special features with regard to the arrangement for the issue of the non-voting shares, taking into account any side agreements made with the investors;

2. whether, and to what extent and in what form, refunding ( Refinanzierung ) of the investors took place within HB International;

3. if question 2 was answered in the affirmative, whether the issue of the shares and the refunding of the investors could be seen as one uniform act ( einheitlicher Vorgang );

4. whether it was possible that the terms of the arrangement for the issue of the shares, taking into account any side agreements made with the investors, could have caused damage to HB International;

5. whether, considering the arrangement for the issue of the shares, and any side agreements made with the investors, the non-voting shares could still be treated as equity capital ( Eigenkapital ) from an operational ( betriebswirtschaftlich ) and financial ( bilanziell ) point of view.

6. who knew or should have known about the terms of the arrangement for the issue of the non-voting shares and any side agreements made with the investors and possible refunding of the investors;

7. whether, considering the economic situation of HB International, a back-payment/repurchase/reduction of share capital ( R ü ckzahlung/R ü ckkauf/ Kapitalherabsetzung ) could be justified.”

17 . On 6 May 2010 criminal proceedings were opened against the third applicant. He submitted a private expert ’ s report on 20 October 2010 in order to prove the lawfulness of the share issue arrangement.

18 . On 27 December 2010 H. submitted his expert report. He concluded that the specific features of the arrangement, such as the investors involved and the legal vehicle used (non-voting shares), had not lived up to economic expectations and a business actor of integrity would not have used such arrangements. From an economic point of view such an arrangement was implausible and could only have been implemented through the intentional cooperation ( bewusste und gewollte Zusammenarbeit ) of those involved with the aim of concealing the real purpose of the arrangement. There was evidence showing refinancing of the investors within HB International, which had, however, been concealed from the certified public accountant by the first and fourth applicants, who had submitted incorrect statements in that regard. The transactions had to be seen as one uniform act. Within HLH, the value of the non-voting shares could be treated as shareholder capital, but this was not the case within HB International. The applicants must have known about the complete framework of the transactions. The arrangement had caused damage of at least EUR 5.5 million for HB International. The stock repurchase ( Rückkauf ) in 2006 and 2007 had been reasonable from an economic perspective (see paragraph 12 above).

19 . Upon a request by the public prosecutor, H. added to certain parts of his expert report on 14 January 2011. The expert report and the statement of 14 January 2011 were served on the applicants.

20 . On 21 and 22 February 2011 respectively, the second and third applicants lodged objections on the grounds of violations of the law ( Einspruch wegen Rechtsverletzung ) against H. ’ s appointment by the public prosecutor, complaining that they had not been informed about his appointment in advance and that H. had in fact answered questions of law. They applied for the dismissal of H. as an official expert, on the ground of bias, because he lacked the necessary expertise and had acted outside his field of expertise. If H. ’ s appointment were to be maintained, an additional expert should be appointed. The second and third applicants also claimed that there had been an error of calculation. They submitted two further expert reports which they had commissioned on a private basis.

21 . On 22 February 2011 and 11 March 2011 H. responded to the applicants ’ statements and to the private expert reports that had been submitted, stating that he did not share the private experts ’ opinions and concluding that their findings did not change the result of his report. He explained his calculation and maintained that it was correct.

22 . On 10 June 2011 the Klagenfurt Regional Court ( Landesgericht Klagenfurt ) dismissed the second applicant ’ s objection, in a decision not submitted to the Court.

23 . On 17 June 2011 the Regional Court dismissed the third applicant ’ s objection. It noted that question six to the expert needed to be interpreted in a restrictive way but it did not find a reason to dismiss H. from his position as an appointed expert.

24 . On 21 June 2011 the public prosecutor asked H. to consider bank account data regarding the foundations in Liechtenstein, and to amend his expert report if necessary. On 29 July 2011 H. submitted an amendment to his expert report including detailed findings on the foundations in Liechtenstein.

25 . On 8 August 2011 the public prosecutor lodged a bill of indictment, charging the first and fourth applicants with breach of trust ( Untreue ) under Article 153 of the Austrian Criminal Code, and the second and third applicants with aiding and abetting a breach of trust by setting up in 2004 an arrangement involving the issue of non-voting shares in HLH, the sale of those shares and the financing of that operation within the holding structure. According to the bill of indictment, that arrangement had caused damage to HB International amounting to at least EUR 5.49 million.

26 . On 23 August 2011 the Graz Court of Appeal dismissed the second applicant ’ s complaint against the Regional Court ’ s decision of 10 June 2011 and the third applicant ’ s complaint against the Regional Court ’ s decision of 17 June 2011 and confirmed that there had been no violations of the law to the detriment of the applicants. They had had the possibility of challenging H. for bias at any time. As regards the complaints concerning the broad wording of question six which had been put to the expert, the Court of Appeal found that an accused person had no right to challenge the questions submitted by the public prosecutor.

27 . On 12 October 2011 the Court of Appeal dismissed the third applicant ’ s objection against the indictment ( Einspruch gegen die Anklageschrift ), reasoning that the public prosecutor had based his suspicion on facts that had been sufficiently investigated.

28 . On 13 December 2011 the Regional Court appointed H. as an official expert to the trial.

29 . On 27 March 2012 the applicants ’ trial started. The first applicant made an application to the Regional Court, asking it not to admit H. ’ s expert report as evidence, not to hear H. as an expert during the trial, and to dismiss H. as a court ‑ appointed expert, because

“1.) the expert (H.) had been appointed by the public prosecutor in preliminary proceedings and has to be seen as a witness for the prosecution. In this context reference is made to Article 6 of the Convention;

2.) H. is not an expert certified according to the court ’ s expert register for questions regarding the Banking Act ( Bankwesengesetz );

3.) in particular, he is biased, because he has acted outside his expertise when answering questions of law and evaluating evidence.”

The other applicants joined that application.

30 . The public prosecutor asked the Regional Court to dismiss the application as H. ’ s appointment in the preliminary proceedings had been in accordance with the Code of Criminal Procedure (CCP) and did not constitute a reason for bias.

31 . H. responded to the application stating that he had answered the questions posed to him by the public prosecutor within his expertise as a judicially certified sworn-in expert, tax adviser and accountant.

32 . The Regional Court dismissed the application without giving any reasons other than referring to the reasons given by the Graz Court of Appeal in its decision of 23 August 2011 (see paragraph 26 above).

33 . The first applicant thereupon made an application to the Regional Court asking it to admit as evidence the reports of three private experts and to appoint them as official court experts, in order to examine the facts and in particular the question whether the scheme devised by the accused had had a positive effect on the equity capital of HB International . The other applicants joined that application.

34 . The Regional Court dismissed the application, referring to the Supreme Court ’ s case-law and stating that reading out a private expert opinion was inadmissible under Article 252 of the CCP. As regards the requirements for appointing another expert, reference was made to Articles 126 et seq. of the CCP.

35 . Further hearings took place at which the applicants and several witnesses were heard. Numerous documents were read out, including statements of the auditors who had been assigned to the case and officials of the Austrian bank supervisory authorities. H., who was present during all the hearings, was allowed to question witnesses and the accused and he asked them some questions.

36 . From the hearing on 17 April 2012 onwards, the second applicant was also represented by E., who had previously issued a private expert report and whose appointment as official court expert had been requested by the applicants (see paragraph 33 above), as defence counsel.

37 . On 15 and 16 May 2012 H. was heard by the Regional Court. First, he gave a presentation on the written expert report. When the court asked the applicants to comment on the report, all of them claimed that it was wrong. H. then answered questions from the court and the parties. All of the applicants, represented by their lawyers, asked H. questions. While H. was being questioned by the parties, the second applicant made an application for the court to dismiss H., arguing that his presentation and his statements during the hearing had shown that he lacked the necessary knowledge for acting as an expert in the proceedings. The other applicants joined that application. The public prosecutor applied for it to be dismissed. H. responded to the application and referred to his qualifications. The Regional Court dismissed the application, reasoning that an expert ’ s lack of qualifications could not be argued after the expert had already issued his report. Thereupon the third applicant made an application for H. to be dismissed on the grounds of bias, arguing that he had evaluated evidence and implied misconduct by the applicants, which indicated his partiality. The other applicants joined that application. The public prosecutor applied for it to be dismissed. H. responded to the applicants ’ application, stating that he did not consider himself to be partial and that he had not acted outside of his field of expertise. The Regional Court dismissed the application, reasoning that it was within H. ’ s expertise to draw conclusions. His conduct had not given any reason to doubt his impartiality.

38 . The third applicant made an application for the three private experts to be heard as witnesses. The other applicants joined that application. The Regional Court dismissed the application, reasoning that those persons were not material witnesses.

39 . On 24 May 2012 the Regional Court convicted the applicants as charged by the public prosecutor, and sentenced the first and second applicants to four years ’ imprisonment, the third applicant to four and a half years ’ imprisonment, and the fourth applicant to three and a half years ’ imprisonment. The Regional Court found that the applicants had cooperated to unlawfully increase HB International ’ s equity capital figures in the accounts, even though they had known that this was against the law, and had caused expenses in the approximate amount of EUR 5.49 million where there was no adequate equivalent value. Both the share deals and the loan deals were evasive transactions ( Umgehungsgeschäfte ), entered into for the purpose of hiding the fact that no fresh capital had been introduced but only the nominal capital stock had increased.

40 . In its findings the Regional Court conducted a detailed evaluation of all of the evidence. It held that the appointment of an expert who had previously been appointed by the public prosecutor was in accordance with the law. Thereupon it again examined the applicants ’ allegations regarding H. ’ s objectivity and his expertise. It concluded that no reasons had been found to establish any bias on the part of H. or to doubt his professional expertise in answering the questions posed to him. To the extent that H. might have evaluated evidence when answering the public prosecutor ’ s questions, the Regional Court did not take those statements into consideration.

41 . All of the applicants lodged pleas of nullity against the judgment and lodged appeals against the sentence with the Supreme Court. They argued, inter alia , that H. had been biased because even though the public prosecutor had based the bill of indictment to a large extent on H. ’ s findings during the investigation proceedings, H. had been appointed by the Regional Court as an expert at the trial and therefore had to be seen as a prosecution witness and not as an independent expert. H. had been present during the trial and had examined witnesses on behalf of the Regional Court. The applicants had had no chance to submit evidence to the same extent to the court. Their private expert reports had not been taken into account and those experts had not been examined during the trial. Their right to equality of arms had therefore been violated. H. had acted outside his field of expertise by making statements concerning the applicants ’ intent ( subjektive Tatseite ), by evaluating evidence and by providing legal analyses. The Regional Court had refused to examine any bias on the part of H. and had made its decision on the basis of Article 126 § 4 of the CCP. Under that provision, a challenge against an official expert for bias could not be made on the grounds that that person had previously been appointed as an official expert in a preliminary investigations. That provision was contrary to Article 6 §§ 1 and 3 (d) of the Convention. The second and third applicants stated that H. had close business links to W.-A. (see paragraph 14 above), who was not neutral with regard to HB International on account of her previous professional activities.

42 . On 22 April 2013 the Attorney General ( Generalprokuratur ) made observations in response to the pleas of nullity which were served on the third applicant on 21 May 2013. He lodged his comments on these observations on 18 June 2013, thus within his four weeks ’ time limit.

43 . On 2 July 2013 the Supreme Court dismissed the applicants ’ pleas of nullity and did not allow the appeals against the sentences. Concerning the complaints about the alleged bias of H., the Supreme Court referred to the wording of the applicants ’ application in the trial (see paragraph 29 above) and found that they had not based their bias challenge on the fact that H. had been appointed by the public prosecutor in preliminary proceedings. Rather, they had explicitly claimed that H. had been biased because he had acted outside his expertise by assessing evidence and answering questions of law. The question of a possible violation of the Convention by Article 126 § 4 of the CCP had not been raised in the course of the trial. Therefore the applicants could not rely on that argument in their pleas of nullity. Furthermore, the accused had not shown any reasons for considering H. to be biased as they had failed to submit any concrete statements in that regard. The applicants ’ applications to admit as evidence the private expert reports that had been submitted, and to appoint those private experts as official experts at the trial, had rightfully been dismissed. In addition, the accused would have had the opportunity to be assisted by experts during the trial both when questioning witnesses and when questioning H. None of them had made use of that opportunity.

44 . The decision was served on the applicants on 22 and 23 August 2013.

45 . For an extensive summary of the domestic law and the relevant practice regarding the appointment and challenging of experts see J.M. and Others v. Austria (nos. 61503/14 and 2 others, § § 80-97, 1 June 2017).

COMPLAINTS

46 . The applicants complained under Article 6 § 1, Article 6 § 3 (d) and Article 13 of the Convention that their right to a fair trial had been violated as the person appointed as a court expert had previously acted as an expert for the public prosecutor at the stage of the preliminary proceedings. He should therefore have been seen as a prosecution witness and not as an impartial expert. As there had been no opportunity for the defence to summon a private expert or to submit a written report by a private expert for inclusion in the case file, the principle of equality of arms had been violated.

THE LAW

47 . In view of the connection between the applications as regards the facts and the substantive questions that they raise, the Court considers it appropriate to join them in accordance with Rule 42 § 1 of the Rules of Court.

48 . As the requirements of Article 13 of the Convention are less strict than those of Article 6, the Court considers it appropriate to examine the complaints from the perspective of Article 6 §§ 1 and 3 (d) of the Convention only, the relevant parts of which read as follows:

“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing ... by an independent and impartial tribunal established by law. ...

3. Everyone charged with a criminal offence has the following minimum rights:

...

(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;”

(a) The Government

49 . The Government argued that H. had acted as an independent and impartial court-appointed expert at the trial. Experts were under an obligation to act objectively, regardless of which body had appointed them and at which stage of the criminal proceedings they had been appointed.

50 . The experts ’ objectivity had also been ensured by the regulations concerning the entitlement to charge fees, which were always paid from public funds irrespective of the outcome of the proceedings. In that respect, court ‑ appointed experts differed considerably from privately commissioned experts, in respect of whom there was no guarantee of impartiality and objectivity since the latter acted on behalf of a party to the proceedings.

51 . The applicants had been given sufficient procedural opportunities to challenge the appointment and activities of the court-appointed expert with the help of private experts. They had not been put at a disadvantage vis ‑ Ã ‑ vis the public prosecutor.

(b) The applicants

52 . The applicants argued that their objections had not been subject to numerous reviews by the judiciary, as had been suggested by the Government. Under the CCP, the inclusion of a private expert report in the court ’ s evidentiary proceedings was not permitted. It therefore had not been possible in practice to challenge the report of the court-appointed expert.

53 . The public prosecutor ’ s mandate to the expert had been broadly and vaguely formulated. According to that mandate, the expert had not been supposed to make statements about specific subjects but rather to generally find out whether there could be considered to have been any abuse of authority or any damage caused. Therefore, H. had become part of the prosecuting authorities. He had conducted investigative measures and had to be seen as an extended arm of the prosecution.

54 . The Supreme Court had wrongly denied that the applicants had substantiated their submissions regarding H. ’ s partiality on the basis of his having been active for the public prosecutor in the preliminary proceedings. It had not performed any kind of detailed examination in its appeal decision, but had rather found there to have been no partiality without examining the content of the arguments that had been made.

55 . The Court reiterates that the guarantees in paragraph 3 (d) of Article 6 of the Convention are specific aspects of the right to a fair hearing set forth in paragraph 1 of this provision; it will therefore consider the applicants ’ complaints under both provisions taken together (see Brandstetter v. Austria , 28 August 1991, § 42, Series A no. 211; C.B. v. Austria , no. 30465/06, § 38, 4 April 2013; and Schatschaschwili v. Germany [GC], no. 9154/10, § 100, ECHR 2015).

56 . The Court observes that the issue at stake, namely the appointment of a court expert who had previously acted as an expert for the public prosecution, has been dealt with in detail in J.M. and Others v. Austria (nos. 61503/14 and 2 others, 1 June 2017). It refers to the relevant case-law principles set out in that case (ibid., §§ 116-20). The Court has found that if a bill of indictment is based on the report of an expert who had been appointed in the preliminary investigations by the public prosecutor, the appointment of the same person as an expert by the trial court entails the risk of a breach of the principle of equality of arms, which can, however, be counterbalanced by specific procedural safeguards ( ibid. , § 121).

57 . In particular, the Court identified the relevance of the following procedural safeguards ( ibid . , §§ 124-28):

“124. Firstly, the Court notes that F.S. was not employed by the public prosecutor ’ s office or a Ministry, but was a professor of law at a university in Germany ... Nor did F.S. ’ s remuneration depend on whether the accused were convicted or not. F.S. was not, economically or otherwise, dependent on the public prosecutor ’ s office.

125. Secondly, the Court notes that F.S. was present at the hearing of 9 August 2012, when he gave a brief summary of his written report and answered questions raised by the court and the parties. Although the legal regulation granted the officially appointed expert a special status in the trial and allowed him to question witnesses and the accused on his own, he did not play any active role in the trial (see para. 59). The applicants had also been free to rely on assistance by private experts for support in the trial, for example when questioning the expert ...

126. Thirdly, the Court observes that F.S. was under a strict legal obligation to be objective and could have been challenged for bias if there had been relevant reasons for raising doubts as to his full impartiality and objectivity. Therefore the fact that he had been appointed by the prosecutor and that the indictment had been based on his expert report did not mean that he would side with the prosecution.

127. Fourth, as regards the possibility of challenging the expert F.S. for bias, it appears that the Regional Court did not merely reject the applicants ’ challenge on the ground of Article 126 § 4 CCP. Rather, it examined the allegations as to the bias of F.S. and his lack of competence in the concrete case but eventually dismissed them as unfounded ...

128. In conclusion, the Court considers that the applicants ’ doubts as to F.S. ’ impartiality were not objectively justified. Moreover, the fact that the defence was able to rely on the assistance of privately commissioned experts when questioning the court-appointed expert in the trial or formulating requests for the taking of evidence did provide it with sufficient means for effectively defending the applicants ’ case. Thus, the applicants did have a reasonable opportunity to present their case and were not placed at a substantial disadvantage vis-à-vis the prosecution ... Thus in the circumstances of the case, there was no breach of the principle of equality of arms in the criminal proceedings conducted against the applicants.”

58 . Turning to the present case, the Court notes that the provisions containing procedural safeguards in the Code of Criminal Procedure are the same as in J.M. and Others (cited above). Firstly, the Court observes that the expert at issue in the present case was not employed by the public prosecutor ’ s office or a ministry and that his remuneration did not depend on whether the accused were convicted or not. He was therefore neither economically nor otherwise dependent on the public prosecutor ’ s office. The fact that the public prosecutor had also appointed H. in other cases does not in itself imply bias on his part as suggested by the third applicant. Only two of the applicants challenged H. ’ s appointment by the public prosecutor but they appear to have merely criticised his expertise and the report he had submitted rather than questioning his conduct and his personal impartiality (see paragraph 20 above).

59 . Secondly, H. was present at all hearings and, even though he played an active role by putting several questions to the applicants and to some witnesses, he also answered every question, not only regarding his report but also his qualifications and the way he had carried out his tasks, when examined by the applicants ’ lawyers for almost twenty hours (see paragraph 35 above). The applicants thus had considerable opportunity to challenge H. and his report during the trial. They had also been free to rely on assistance from private experts for support during the trial when questioning H., but they did not make use of that opportunity. One of the private experts, whose involvement as a court-appointed expert had been requested, later represented the second applicant as defence counsel and thus could personally question H. (see paragraphs 33 and 36 above).

60 . Thirdly, as an officially sworn-in expert certified by the court, H. was under a strict legal obligation to be objective. All of the applicants challenged him as biased and questioned his expertise on 27 March 2012 and on 15 May 2012. Although the Regional Court dismissed the applicants ’ application on 27 March 2012 without giving a detailed reason (see paragraph 32 above), it did assess the applicants ’ allegations on 15 May 2012 and concluded that H. ’ s conduct did not give reason to doubt his impartiality (see paragraph 37 above).

61 . Fourthly, the Court finds that in their application on 27 March 2012 the applicants, contrary to the Supreme Court ’ s view, did, at least in substance, challenge H. for having been previously appointed by the public prosecutor. However, they did not specify how this affected his conduct as a court-appointed expert in the actual case in question. They only relied on his alleged lack of qualifications and his – in their view – wrongful assumptions and assessment of evidence, which exceeded his area of expertise (see paragraph 29 above).

62 . In its written findings the Regional Court once again considered the applicants ’ allegations regarding H. ’ s bias and his lack of expertise. It concluded that they were unfounded. Furthermore, it based its judgment not only on H. ’ s report, but also on numerous other pieces of evidence, including statements of the auditors assigned to the case and officials of the Austrian bank supervisory authorities (see paragraphs 35 and 40 above).

63 . Even if the Supreme Court took a rather formalistic view when it opposed to deal with the applicants ’ complaint that H. had previously been appointed by the public prosecutor, it did consider their specific arguments regarding the alleged bias of H. and upheld the Regional Court ’ s decision (see paragraph 43 above).

64 . As to the third applicant ’ s argument that H. had had professional links to W.-A., he did not substantiate how such links could have had an impact on H. ’ s report and what influence W.-A. had had on him.

65 . In addition, in their replies to the Government ’ s observations, the third and fourth applicants argued that H. had actively carried out investigations and had collected evidence through “fishing expeditions” in the course of the investigation proceedings. However, whereas the Court notes that according to the new evidence submitted by the applicants H. had participated in house searches and interviews conducted by the public prosecutor, the evidence did not show that he had actually carried out such investigations himself, either upon the request of the public prosecutor, or on his own initiative. Although the questions which the public prosecutor put to H. were wide-ranging, his mandate was explicitly limited to the case file and the available documents (see paragraph 16 above).

66 . In the light of the above, the Court finds that in the instant case there is no reason to come to a different conclusion from the one reached in J.M. and Others (cited above), namely that the applicants ’ doubts as to H. ’ s impartiality were not objectively justified and that there is no appearance of a breach of the equality of arms in the criminal proceedings conducted against the applicants.

67 . Accordingly, the applicants ’ complaints are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

68 . On 13 November 2017, in his reply to the Government ’ s submissions the third applicant complained under Article 6 § 1 and Article 13 of the Convention and under Article 2 of Protocol No. 7 to the Convention that the Supreme Court had decided on his plea of nullity before the time-limit for responding to the submissions of the Attorney General ( Generalprokuratur ) had elapsed (see paragraph 42 above). He had learned from an article in the press published on 23 October 2013 that the Supreme Court had in fact drafted its decision before 1 June 2013. Therefore, it had deliberately not considered his comments on the Attorney General ’ s observations. However, the Court observes that the domestic decision it considers final within the meaning of Article 35 § 1 of the Convention, namely the Supreme Court ’ s decision, was served on 23 August 2013 and thus more than six months before the date on which the complaints were submitted to the Court. Even if 23 October 2013 were to be taken as the starting point for the running of the six-month time-limit, the third applicant has failed to comply with it, as he only raised the above complaints more than four years later. Accordingly, these complaints have been submitted belatedly and must be rejected under Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Court, unanimously,

Decides to join the applications;

Declares the applications inadmissible.

Done in English and notified in writing on 10 June 2021 .

             {signature_p_2}

Ilse Freiwirth Iulia Antoanella Motoc Deputy Registrar President

Appendix

No.

Application no.

Case name

Lodged on

Applicant

Year of Birth

Nationality

Represented by

1

62162/13

Striedinger v. Austria

02/10/2013

Günter STRIEDINGER

1960Austrian

Norbert WESS,

lawyer practicing in Vienna

2

62736/13

Kucher v. Austria

04/10/2013

Gerhard KUCHER

1960Austrian

ROHREGGER SCHEIBNER RECHTSANWÄLTE GMBH,

law firm situated in Vienna

3

62889/13

Gabriel v. Austria

04/10/2013

Hermann GABRIEL

1966Austrian

Eva Maria BAUMGARTNER, lawyer practicing in Vienna

4

18571/14

Kulterer v. Austria

21/02/2014

Wolfgang KULTERER

1953Austrian

Ulrike PÖCHINGER,

lawyer practicing in Vienna