Information Note on the Court’s case-law 208

June 2017

J.M. and Others v. Austria - 61503/14, 61673/14 and 64583/14

Judgment 1.6.2017 [Section V]

Article 6

Criminal proceedings

Article 6-1

Fair hearing

Equality of arms

Appointment of expert who had already reported to the public prosecutor during the preliminary investigation as official expert at trial: no violation

Facts – The applicants were investigated i n connection with an alleged breach of trust and fraud relating to the level of consultancy fees paid in connection with the sale of shares in a bank. During the preliminary investigation the public prosecutor appointed an expert (F.S.) to submit a report on what would have been a reasonable payment for the consultant’s services.

During the applicants’ ensuing trial the same expert from the preliminary investigation was appointed an official expert. He submitted a written report and was questioned by the tr ial court and the parties. Although the applicants were able to challenge him for bias, their challenge was dismissed as unfounded. An expert commissioned by the defence sat next to the applicants’ lawyers and advised them, but was not allowed to question F.S. on his own and the applicants’ request to call evidence from their private experts to counter F.S.’s findings were rejected. The applicants were convicted.

In the Convention proceedings, the applicants complained that the criminal proceedings had been unfair as the official expert at the trial (F.S.) had also acted as an expert appointed by the public prosecutor during the preliminary proceedings.

Law – Article 6 §§ 1 and 3 (d): If a bill of indictment is based on the report of an expert who was appointed in the preliminary investigations by the public prosecutor, the appointment of the same person as expert by the trial court entails the risk of a bre ach of the principle of equality of arms. However, that risk can be counterbalanced by specific procedural safeguards.

In the instant case, the applicants’ doubts about F.S.’s impartiality were not objectively justified. As a professor of law at a German u niversity, F.S. was not, economically or otherwise, dependent on the public prosecutor’s office. He had been present at the trial and had given a brief summary of his report and answered questions by the court and the parties, but otherwise had played no a ctive role. The applicants had been free to rely on assistance by private experts for support at the trial, for example when questioning F.S. F.S. was under a strict legal obligation to be objective and the trial court had examined the applicants’ allegati ons of bias before dismissing them as unfounded. F.S.’s evidence was not decisive for the conviction. The applicants had had a reasonable opportunity to present their case and had not been placed at a substantial disadvantage vis-à-vis the prosecution. The re had thus been no breach of the principle of equality of arms in the criminal proceedings against the applicants.

Conclusion : no violation (unanimously).

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the C ourt.

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