[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> BRANDSTETTER v. AUSTRIA - 11170/84;12876/87;13468/87 [1991] ECHR 39 (28 August 1991) URL: http://www.bailii.org/eu/cases/ECHR/1991/39.html Cite as: [1991] ECHR 39, (1993) 15 EHRR 378, 15 EHRR 378

[New search] [Contents list] [Help]

In the case of Brandstetter v. Austria*,

The European Court of Human Rights, sitting, in accordance with Article 43

(art. 43) of the Convention for the Protection of Human Rights and Fundamental

Freedoms ("the Convention")** and the relevant provisions of the Rules of

Court***, as a Chamber composed of the following judges:

Mr R. Ryssdal, President,

Mr Thór Vilhjálmsson,

Mrs D. Bindschedler-Robert,

Mr F. Gölcüklü,

Mr F. Matscher,

Mr R. Macdonald,

Mr C. Russo,

Mr A. Spielmann,

Mr S.K. Martens,

and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy Registrar,

Having deliberated in private on 21 February and 27 June 1991,

Delivers the following judgment which was adopted on the last-mentioned date:

_______________

Notes by the Registrar

* The case is numbered 37/1990/228/292-294. The first number is the

case's position on the list of cases referred to the Court in the

relevant year (second number). The last two numbers indicate the

case's position on the list of cases referred to the Court since its

creation and on the list of the corresponding originating applications

to the Commission.

** As amended by Article 11 of Protocol No. 8 (P8-11) , which came into

force on 1 January 1990.

*** The amendments to the Rules of Court which came into force on

1 April 1989 are applicable to this case.

_______________

PROCEDURE

1. The case was referred to the Court by the European Commission of Human

Rights ("the Commission") and by the Government of the Republic of Austria

("the Government") on 11 July and 1 October 1990 respectively, within the

three-month period laid down by Article 32 para. 1 and Article 47 (art. 32-1,

art. 47) of the Convention. It originated in three applications

(nos. 11170/84, 12876/87 and 13468/87) against Austria lodged with the

Commission under Article 25 (art. 25) by an Austrian national,

Mr Karl Brandstetter, on 6 September 1984, 13 March 1987 and 21 October 1987.

The Commission's request referred to Articles 44 and 48

(art. 44, art. 48) and to the declaration whereby Austria recognised the

compulsory jurisdiction of the Court (Article 46) (art. 46); the Government's

application referred to Articles 45, 47 and 48 (art. 45, art. 47, art. 48).

The object of the request and the application was to obtain a decision as to

whether the facts of the case disclosed a breach by the respondent State of

its obligations under Article 6 paras. 1, 2 and 3 (c) and (d) (art. 6-1,

art. 6-2, art. 6-3-c, art. 6-3-d).

2. In response to the enquiry made in accordance with

Rule 33 para. 3 (d) of the Rules of Court, the applicant stated that he wished

to take part in the proceedings and designated the lawyer who would represent

him (Rule 30).

3. The Chamber to be constituted included ex officio Mr F. Matscher, the

elected judge of Austrian nationality (Article 43 of the Convention)

(art. 43), and Mr R. Ryssdal, the President of the Court (Rule 21 para. 3

(b)). On 27 August 1990, in the presence of the Registrar, the President drew

by lot the names of the other seven members, namely Mr Thór Vilhjálmsson,

Mrs D. Bindschedler-Robert, Mr F. Gölcüklü, Mr R. Macdonald, Mr C. Russo,

Mr A. Spielmann and Mr S.K. Martens (Article 43 in fine of the Convention and

Rule 21 para. 4) (art. 43).

4. Mr Ryssdal assumed the office of President of the Chamber

(Rule 21 para. 5) and, through the Registrar, consulted the Agent of the

Government, the Delegate of the Commission and the applicant's lawyer on the

need for a written procedure (Rule 37 para. 1). In accordance with the orders

made in consequence, the Registrar received, on 10 December 1990, the

Government's memorial and, on 14 and 17 December 1990 and 8 February 1991,

Mr Brandstetter's claims under Article 50 (art. 50) of the Convention. On the

latter date the Secretary to the Commission informed the Registrar that the

Delegate would submit his observations at the hearing.

5. Having consulted, through the Registrar, those who would be appearing

before the Court, the President had set down, on 9 October 1990, the hearing

for 18 February 1991 (Rule 38).

6. The hearing took place in public in the Human Rights Building,

Strasbourg, on the appointed day. The Court had held a preparatory meeting

beforehand.

There appeared before the Court:

(a) for the Government

Mr H. Türk, Legal Adviser, Ministry of Foreign

Affairs, Agent,

Mrs S. Bernegger, Federal Chancellery,

Mrs I. Gartner, Federal Ministry of Justice, Advisers;

(b) for the Commission

Mr F. Ermacora, Delegate;

(c) for the applicant

Mr W. Sporn, Rechtsanwalt, Counsel.

The Court heard addresses by the above-mentioned representatives as well as

their replies to its questions. The Government and the applicant submitted

various documents.

7. On 5 March 1991, at the request of the Registrar acting on the

instructions of the President, the applicant filed further observations on the

application of Article 50 (art. 50) and the Commission several documents.

8. By a letter of 17 May 1991, the Agent of the Government informed the

Registrar that the Vienna Senior Public Prosecutor (Oberstaatsanwalt) had

issued instructions in order to change the practice in relation to the filing

of his observations in cases pending before the Court of Appeal. As from that

date they were to be established in several copies, one of which was to be

sent to the defendant together with the summons to appear at the hearing.

AS TO THE FACTS

9. Mr Karl Brandstetter is an Austrian wine merchant residing at Hadres

(Lower Austria).

I. The particular circumstances of the case

A. The background to the case

10. On 16 May 1983 a Federal Inspector of Cellars (Bundeskellereiinspektor)

visited the applicant's undertaking to carry out an inspection under section

27 of the 1961 Wine Act, as amended (Weingesetz no. 187/1961, "the Wine Act").

He took three types of samples from two tanks of 1982 white wine. The tanks

were sealed and officially seized (section 28, see paragraph 35 below).

After having left the two counter-samples (Gegenproben) with the applicant,

he sent the two official samples (Anzeigeproben) to the Federal Agricultural

Chemical Research Institute (Landwirtschaftlich-chemische

Bundesversuchsanstalt, "the Agricultural Institute") to be examined (section

30 of the Wine Act). Each sample consisted of two bottles. In addition, he

drew from each of the tanks a reserve sample (Reserveprobe), for use should

a further analysis prove necessary.

11. On 9 June 1983 the Agricultural Institute drew up a report containing

the results of a chemical analysis of the samples, which revealed an

abnormally low level of natural extracts and mineral substances. It also set

out the conclusions reached by an official wine quality control panel

(amtliche Weinkostkommission, see paragraph 35 below). This panel had found

on 25 May 1983 that the wine in the samples had been diluted with water.

As the levels were below those required by the Wine Ordinance

(Weinverordnung), the Agricultural Institute suspected Mr Brandstetter of

contravening section 45(1) (a) and (b) of the Wine Act in conjunction with

section 44(1) (f) and section 43(3) (relating, inter alia, to the offering for

sale to the public of "imitation wine" and adulterated wine).

B. The proceedings concerning the quality of the wine

1. In the Haugsdorf District Court

12. On 8 June 1983 the Agricultural Institute had informed the Haugsdorf

District Court (Bezirksgericht) of its suspicions in accordance with

section 30(9) of the Wine Act (see paragraph 35 below), whereupon the District

Prosecutor (Bezirksanwalt) instituted proceedings against Mr Brandstetter

under section 45 of the Wine Act.

13. In order to prepare his defence, the applicant had the counter-samples

analysed in Vienna by Mr Niessner of the Federal Food Control and Research

Institute (Bundesanstalt für Lebensmitteluntersuchung und -forschung, "the

Food Institute"). On 9 August 1983 Mr Niessner reported that the level of

natural extracts and mineral substances was not below the required minimum.

However, the tasting of the samples by a quality control panel on 14 July 1983

had confirmed that water had been added to at least one of them (by six votes

out of seven), but had been unable to establish with certainty whether this

was so for the other (five votes out of seven).

14. At a first hearing on 4 October 1983 Mr Brandstetter pleaded not

guilty and requested the District Court to take expert evidence with a view

to establishing that his wine was not "imitation wine" and had not been

adulterated.

Accordingly, the District Court instructed Mr Bandion of the Agricultural

Institute to carry out an expert examination. Mr Bandion had not been involved

in the first analysis of the official samples by the Agricultural Institute,

or in the drawing up of its report.

15. On 22 November 1983, at the second hearing, the court took evidence

from Mr Bandion. According to him, the difference between the results of that

examination and the results obtained by Mr Niessner showed that in at least

one of the analyses a grave error had been committed; he recommended that the

reserve samples should be analysed in order to clarify the position. The

court directed him to draw up a report on this matter.

Mr Brandstetter maintained that the difference in the findings could also be

explained by a circumstance to which he had already drawn the attention of the

police on 22 July 1983. This was that the Inspector of Cellars had used a

dirty bucket to draw the samples and had poured them into bottles in which

there had been a residue of water. The Inspector had emptied the remaining

bottles only after the applicant had protested. The applicant's wife and two

sons, who were called as witnesses, confirmed his statements.

The Inspector and his assistant, who were also heard as witnesses, claimed on

the other hand that the bucket had been clean and that the liquid which

remained in the bottles had been wine used to rinse them. The Inspector had

explained this to Mr Brandstetter when the latter had complained and,

moreover, he had subsequently emptied the bottles in question.

16. The analysis of the reserve samples was carried out at the

Agricultural Institute on 21 December 1983 under the supervision of

Mr Bandion. It resulted in similar conclusions to those concerning the first

samples, but there was no tasting by a quality control panel.

In his report of 17 January 1984 Mr Bandion stated that the new analysis had

corroborated the first examination carried out by the Agricultural Institute

and therefore raised serious doubts with regard to the examination effected

by Mr Niessner, of the Food Institute. The scientific findings corresponded

to the conclusions of the quality control panels which had identified the

addition of water in all the samples except one. As with the results of the

tasting, they revealed the prohibited addition of water and sugar, and a level

of natural extracts and substances below that required by the Wine Ordinance.

The applicant's products could not, however, be classified as "imitation

wine". Various statements by Mr Brandstetter and members of his family during

the hearing (see paragraph 15 above) must have been wrong in view of the

results of the chemical analysis, in particular statements concerning the use

of a dirty bucket by the Inspector of Cellars. Furthermore it was impossible

to determine from the outside whether the liquid residue in the green bottles

was wine or water.

17. A new hearing was held on 14 February 1984. The applicant's lawyer

criticised Mr Bandion's opinion because the latter's close links with the

Agricultural Institute deprived him of the necessary objectivity in relation

to the first analysis and could have led him to defend the results of that

examination against those reported by Mr Niessner. In addition, the expert

had exceeded his duties by expressing a view on questions of fact and of law

instead of merely carrying out a chemical analysis. Consequently, the defence

requested further investigative measures, namely the drawing of new samples

from the two tanks which had been seized, the taking of evidence from several

other experts, including Mr Niessner, and the consultation of the minutes of

the quality control panel. The defence also alleged that the rules laid down

for a tasting had not been complied with. Again, the court-appointed expert

had not explained the differences between the conclusions of the two

institutes. He had merely expressed his view that those of the Food Institute

were erroneous and that those of his own Institute were correct.

18. On the same day the District Court convicted Mr Brandstetter of

adulterating wine (section 45(1) (a) of the Wine Act) and fined him

5,600 schillings. It also ordered the forfeiture of the wine contained in the

two tanks seized - a total of 27,000 litres - (section 46(1)) and the

publication of the judgment (section 45(3)).

Its judgment was based for the main part on Mr Bandion's opinion. It cited

long passages from that opinion which were in its view conclusive because they

revealed a convincing, detailed, precise and exhaustive examination of the

differences in analysis of the two institutes. However, the court refused to

take into account certain of the expert's statements which improperly dealt

with questions of law and the assessment of evidence.

In determining sentence, the court regarded the fact that Mr Brandstetter had

made false allegations as to the manner in which the Inspector had carried out

his duties as an aggravating circumstance.

19. In addition, the District Court rejected the application for further

investigative measures. The court did not consider it to be relevant in so

far as it concerned the tasting procedure, because the results of this

procedure did not constitute conclusive evidence. The drawing of new samples

would in its view be superfluous, in particular as it could not be ruled out

that the wine, which in the meantime had remained in the sealed tanks, had

undergone an alteration with regard to its composition. The same was true of

the request to hear new experts, because no doubts existed as to the

reliability of the Agricultural Institute's conclusions, which had in part

been confirmed by those of the Food Institute, or as to Mr Bandion's

objectivity.

2. In the Korneuburg Regional Court

20. Mr Brandstetter appealed. He repeated his request for further

investigative measures and argued that by dismissing it the District Court had

disregarded the rights of the defence.

21. On 7 May 1984 the Korneuburg Regional Court (Kreisgericht) upheld the

contested decision.

It noted that the applicant had not raised objections to the expert when he

had first been appointed, but only on seeing his report. Mr Bandion's

objectivity was not in doubt. He was especially experienced and conscientious

and had in no way been involved in the analysis of the first samples, had

criticised the conclusions not only of the Food Institute but also, in certain

respects, those of his own Institute, and had explained in detail the

differences between the two reports. The citation of extracts from the

expert's opinion in the judgment could not be criticised. As it was a

conclusive opinion, it was not necessary to seek new evidence

(see paragraphs 17 and 19 above). Nor was it necessary to inspect the minutes

of the quality control panel's meeting since the Food Institute's report

contained a summary of the tasting procedure, which moreover could provide

only indicative evidence of a subsidiary nature in relation to the evidence

resulting from the chemical analysis.

C. The proceedings concerning the charge of tampering with the evidence

1. In the Haugsdorf District Court

22. On his conviction becoming final, Mr Brandstetter had intended to

bring an action for damages against the Republic of Austria alleging its

liability for the unacceptable procedural errors (Verfahrensfehler) which had

been made by the courts in the proceedings concerning the quality of the wine.

In order to ensure that the evidence was preserved (Beweissicherungsantrag,

Article 384 of the Code of Civil Procedure), he requested that additional

samples be taken from the sealed tanks. His request was dismissed by the

Haugsdorf District Court on 22 May 1984, but on his appeal the Korneuburg

Regional Court reversed this decision on 12 June.

23. The District Court appointed as expert Mr Flack, who was a member of

the staff of the Agricultural Institute's branch in Burgenland and who had not

been involved in the proceedings concerning the quality of the wine. It

instructed him to supervise, on 16 August 1984, the drawing of new samples

from the tanks, and then to analyse them.

In his report of 27 September, Mr Flack found differences between the results

of his analysis of these new samples and the results of the analyses by the

Agricultural Institute of the official samples and the reserve samples

obtained on 16 May 1983 (see paragraph 10 above). These differences could,

in his opinion, not be explained by alterations in the composition of the wine

with the passing of time, or by the effects of measures to preserve the wine

authorised by the court. They were in his view due to the addition of

substances capable of increasing the natural extract content (alcohol,

glycerine, minerals).

24. On 25 September 1984, two days before officially submitting his

report, Mr Flack had informed the District Court of his conclusions. The

court, of its own motion, instituted criminal proceedings against

Mr Brandstetter on a charge of tampering with evidence (Article 293 of the

Criminal Code).

Mr Flack was appointed as expert by the court and submitted his report on

23 October 1984. He confirmed the earlier findings and noted that the

composition of the new samples was similar to that of the counter-samples

drawn on 16 May 1983 and analysed by the Food Institute (see paragraph 13

above).

2. In the Korneuburg Regional Court

25. On the basis of this expert opinion, the public prosecutor's office

sought Mr Brandstetter's conviction for tampering with evidence under

Article 293 of the Criminal Code.

26. Hearings were held before the Korneuburg Regional Court on 4 July and

12 September 1985.

The accused contended that it had been physically impossible for him to

interfere with the counter-samples taken on 16 May 1983, because he had been

absent from his business premises before they had been sent to the Food

Institute. He stated that all the measures taken to preserve the wine in

question had been carried out in the presence of and had been monitored by the

Inspector of Cellars who had drawn the first samples.

Mr Brandstetter affirmed that some of the bottles containing the

counter-samples, which he had sent to the Regional Agricultural Chemical

Research Institute (Landwirtschaftlich-chemische Landesversuchs-und

Untersuchungsanstalt) at Graz, had been broken during transport, but the

bottleneck, which had remained intact, of one of them showed clearly that the

seals had not been disturbed.

He maintained that Mr Niessner, the expert who had analysed the

counter-samples (see paragraph 13 above), could attest to this. He asked that

Mr Niessner be called as a witness in order to prove that the seals fixed by

the Federal Inspector of Cellars on the counter-samples had been undisturbed

when these samples had been given to the Food Institute and that the wine

examined by Mr Niessner was identical to the wine examined by the Agricultural

Institute. The latter's first findings were therefore not correct and the

quality of the wine at the time when the first samples were drawn in May 1983

had been identical to that of the wine analysed by Mr Flack in the course of

the proceedings for securing evidence. The defence further requested that

Mr Niessner be appointed as a second expert in order to report on the quality

of the wine he had analysed.

The court granted the first request, but refused the second. Accordingly, at

the second hearing, Mr Niessner was called as a witness. He confirmed that

the seals had been intact in so far as he had been able to judge at the time,

but stated that the possibility of interference could not be completely ruled

out because it was not the usual practice to carry out a detailed forensic

examination. However, no question was put to the witness either by the

prosecution or by the defence concerning the quality of the applicant's wine,

or in respect of another possible explanation for the above-mentioned

differences.

27. On 12 September 1985 the Regional Court found the applicant guilty and

sentenced him to three months' imprisonment.

The court accepted Mr Flack's opinion that only the subsequent addition of

substances could explain the significant differences in the analyses. It

considered the latter's opinion to be logical and convincing, in particular

because it was consistent with Mr Bandion's conclusions in the proceedings

conducted under the Wine Act (see paragraphs 15 and 16 above). As regards the

physical impossibility alleged by the applicant, the court referred to

"notorious methods" (gerichtsbekannte Methoden) which consisted of replacing

the contents of a sealed bottle by heating the container and carefully

removing the seal and the cork or by injecting substances with a syringe

through the cork. The fact that one of the bottles had been broken might

indeed have been due to the failure of such attempted interference.

The court ruled that there was no need to appoint Mr Niessner as a second

expert, because he had already submitted a report on the quality of the wine,

which he had analysed as a private expert, and because the results of his

analysis had already been thoroughly discussed in Mr Bandion's report.

3. In the Vienna Court of Appeal

28. On 24 September 1986 the Vienna Court of Appeal (Oberlandesgericht)

dismissed Mr Brandstetter's appeal (Berufung) against that judgment.

In its view, the Regional Court had not disregarded the evidence submitted by

the applicant, namely the broken bottle neck of one of the counter-samples,

whose seal was intact; moreover the sample in question could not be used as

evidence because it had not been analysed. The results of the examination of

the counter-samples by the Food Institute were contradicted by those of the

analysis of the official samples by the Agricultural Institute and, according

to the convincing opinion of Mr Flack, this discrepancy could be explained

only by the fact that substances had been added to the counter-samples.

The Regional Court had also taken into account the identical conclusions which

Mr Bandion had reached in the earlier proceedings, and the testimony of the

witness Mr Niessner on the possibility of interfering with a sealed bottle.

It had also described the notorious methods for carrying out such operations.

It had therefore based its conclusion on sufficient reasons.

Consequently, the Court of Appeal did not consider it necessary to consult a

new expert as the accused had requested, since the conditions laid down in

Article 126 of the Code of Criminal Procedure were not satisfied (see

paragraph 36 below).

29. Mr Brandstetter served 31 days of his sentence. The remaining term

was suspended following a pardon granted by the President of the Republic.

D. The defamation proceedings

1. In the Korneuburg Regional Court

30. On 20 August 1984 criminal proceedings had been instituted at the

request of the public prosecutor against Mr Brandstetter for defamation.

According to the public prosecutor's office he had wrongly accused the

Inspector of Cellars of irregularities in taking the first samples on

16 May 1983 (see paragraph 15 above). In so doing he had exposed the latter

to the risk of disciplinary sanctions.

31. On 29 October 1984 the Korneuburg Regional Court sentenced the

applicant to a suspended term of three months imprisonment for defamation on

account of the following statement made by him to the police on 22 July 1983

(see paragraph 15 above) and taken down at his express request:

"[The Inspector of Cellars] also used for this purpose [for drawing the wine

samples] a bucket which was rather dirty. When the bottles were being filled

up, I noticed that they contained water, which presumably had been left over

after rinsing. However, he told me that this was of no importance."

These assertions, which were false and which he knew to be false, could have

led to the opening of disciplinary proceedings against the Inspector, because

they gave the impression that he had not emptied the bottles when the

applicant had asked him to do so; in fact the contrary had been established.

The court based its findings on the evidence adduced in the proceedings

concerning the quality of the wine and in particular on the expert opinion and

testimony of Mr Bandion, the statements of the Inspector and his assistant,

the statements of the applicant and the members of his family and the judgment

of 14 February 1984 (see paragraphs 15 and 18 above).

2. In the Vienna Court of Appeal

(a) First set of proceedings

32. On 23 April 1985 the Vienna Court of Appeal dismissed the applicant's

appeal and upheld the Regional Court's judgment in its entirety.

In so far as Mr Brandstetter had claimed that the impugned statement (see

paragraph 31 above) was justified in the exercise of the rights of the defence

(Articles 199 and 202 of the Code of Criminal Procedure) and could not

therefore constitute criminal defamation, the court referred to

well-established case-law and academic opinion, according to which such rights

could not extend to conduct which did not merely serve an accused's defence,

but also adversely affected the rights of another person through allegations

of such a nature as to amount to a new criminal offence. As the applicant had

consciously aroused false suspicions in respect of the Inspector, Article 297

of the Criminal Code was applicable.

The court also took the view that the public prosecutor's office had not

tacitly waived its right to institute proceedings, even though it had not

acted immediately. Finally, it found no procedural defect in the way in which

the Regional Court had assessed the evidence. The latter court had examined

the findings of the proceedings in detail, in a logical and coherent manner

in relation to the evidence, and had drawn plausible conclusions concerning

the subjective element. The appeal court regarded it as decisive that the

bottles, irrespective of whether they had been rinsed with water or wine,

could not contain a significant quantity of liquid once they had been emptied

in the way described in a credible and convincing manner by the Inspector of

Cellars.

(b) Second set of proceedings

33. On an application by Mr Brandstetter, the Attorney-General

(Generalprokurator) lodged a plea for a declaration of nullity in the

interests of the law (Nichtigkeitsbeschwerde zur Wahrung des Gesetzes)

directed against the composition of the Court of Appeal. The Supreme Court

(Oberster Gerichtshof) allowed the appeal on 28 January 1987 and remitted the

case to the Court of Appeal.

At the hearing on 24 March 1987 the defence alleged that one of the judges

present had already participated in the first appeal proceedings and should

therefore withdraw. The court adjourned the hearing until 28 April 1987 when

it sat in a composition that was in conformity with the law; it confirmed the

judgment of 23 April 1985 in its entirety (see paragraph 32 above).

34. The applicant subsequently asked the Attorney-General to lodge a

further application for a declaration of nullity in the interests of the law,

but unsuccessfully.

At this time he discovered that the judgments of 23 April 1985 and

28 April 1987 reproduced almost word for word the observations (the "croquis")

of the Vienna Senior Public Prosecutor (Oberstaatsanwalt) filed with the Court

of Appeal on 29 March 1985, which had not been served on him and of which he

himself had had no knowledge at the time.

II. The relevant Austrian legislation

35. According to the Wine Act, a Federal Inspector of Cellars may draw

samples from wine tanks of the firm inspected and send them for analysis to

the Agricultural Institute. A sealed counter-sample must be left with the

firm in question. Furthermore, a reserve sample must be drawn, for use should

a further analysis be necessary. The tanks may subsequently be sealed

(sections 27 and 28).

The Agricultural Institute analyses the official samples and draws up a report

setting out its findings, as well as the results of a tasting by the official

wine quality control panel (section 30(3)). The panel is composed of a

Chairman (the Director of the Agricultural Institute) and at least five expert

tasters appointed by the Federal Ministry of Agriculture and Forestry. It

decides, by a qualified majority (five out of five or six, six out of seven,

etc), whether the quality of the wine corresponds to its designation. The

tasting, the conditions of which are laid down in internal rules, is not

conducted in public. The identity of its members - who are under a duty of

confidentiality - is not disclosed (section 30(4) to (8)).

If the results of the analysis provide grounds for suspecting that a criminal

offence has been committed, the Agricultural Institute must report this to the

competent public prosecutor or court (section 30(9)).

36. As regards expert evidence in court, section 30(10) stated at the

time:

"If the court has doubts concerning the findings or the opinion of the

Agricultural Institute, or if it considers that the findings or the opinion

require elaboration, or if reasonable objections are raised against them, it

must take expert evidence from an official of the Institute who has been

involved in the preparation of the analysis or the opinion in question so that

he may explain or discuss in greater detail the conclusions or opinion of that

Institute".

In all other aspects the provisions of the Code of Criminal Procedure are

applicable. In particular if any doubts persist or if the findings of an

expert "are unclear, vague, contradictory", etc. (Articles 125 and 126 of the

Code of Criminal Procedure), the court may call another expert.

Under the terms of Article 149 of the same Code, only the prosecutor and the

defence counsel or the accused are entitled to put questions to witnesses and

experts. Nevertheless, the court may authorise experts to examine witnesses

and the accused. Witnesses, on the contrary, do not have this possibility.

PROCEEDINGS BEFORE THE COMMISSION

37. In his applications of 6 September 1984 (11170/84), 13 March 1987

(12876/87) and 21 October 1987 (13468/87), Mr Brandstetter made the following

complaints: that in the proceedings concerning the quality of the wine and

those relating to the charge of tampering with evidence, he had not had a fair

trial as required by Article 6 para. 1 (art. 6-1), nor had he had the benefit

of the right secured under Article 6 para. 3 (d) (art. 6-3-d), on account of

the position which the experts of the Agricultural Institute had occupied in

relation to other expert witnesses; in addition, in the first proceedings,

there had been a breach of Article 6 para. 3 (c) (art. 6-3-c) by reason of the

applicant's subsequent conviction for defamation on the basis of statements

that he had made in his defence, during the investigation; in the second

proceedings, there had been a breach of the principle of the presumption of

innocence guaranteed under Article 6 para. 2 (art. 6-2); finally, in the

defamation proceedings, the Court of Appeal had failed to satisfy the

requirement of a fair trial by basing its decision on observations made by the

prosecution which had not been communicated to the defence.

38. On 14 July 1987 the Commission declared the first application

manifestly ill-founded on two points and admissible for the rest. On

10 July 1989 it declared the two other applications admissible and ordered

their joinder with the remaining claims of the first application.

In its report of 8 May 1990 (Article 31) (art. 31), the Commission expressed

the opinion:

(a) that, in the case concerning the quality of the wine,

there had been a violation of Article 6 para. 1 (art. 6-1) taken

in conjunction with Article 6 para. 3 (d) (art. 6-3-d) of the Convention

inasmuch as the expert evidence for the prosecution and that for the defence

had not been treated on an equal footing (unanimously);

(b) that the same was true in the proceedings concerning the

charge of tampering with evidence (unanimously);

(c) that the applicant's conviction for defamation had

infringed Article 6 para. 3 (c) (art. 6-3-c) (nine votes to three);

(d) that no separate issue arose concerning the question whether,

in the proceedings concerning the charge of tampering with

evidence, there had been in other respects an infringement of

the applicant's right to a fair trial (Article 6 para. 1) (art. 6-1) or

a breach of the principle of the presumption of innocence (Article 6 para. 2)

(art. 6-2) (unanimously);

(e) that, in the defamation proceedings, there had not been, on

appeal, a breach of the principle of equality of arms

guaranteed in Article 6 para. 1 (art. 6-1) (eleven votes to one).

The full text of the Commission's opinion and the two separate opinions

contained in the report is reproduced as an annex to this judgment*.

______________

* Note by the Registrar: For practical reasons this annex will appear

only with the printed version of the judgment (volume 211 of Series A

of the Publications of the Court), but a copy of the Commission's

report is obtainable from the registry.

_______________

AS TO THE LAW

I. ALLEGED VIOLATIONS OF ARTICLE 6 (art. 6)

39. Mr Brandstetter alleged that he had been the victim of breaches of

paragraphs 1, 2 and 3 (c) and (d) of Article 6 (art. 6-1, art. 6-2,

art. 6-3-c, art. 6-3-d) which, in so far as they are relevant, provide:

"1. 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. ...

2. Everyone charged with a criminal offence shall be presumed innocent until

proved guilty according to law.

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

...

(c) to defend himself in person or through legal assistance of his own

choosing or, if he has not sufficient means to pay for legal assistance, to

be given it free when the interests of justice so require;

(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;

... ."

According to the applicant, these provisions were violated in three different

sets of proceedings concerning, respectively, the quality of his wine, a

charge of tampering with evidence and his prosecution for defamation. The

Court will examine each set of proceedings in turn.

A. The proceedings concerning the quality of the wine

(see paragraphs 12-21 above)

40. Mr Brandstetter's complaints in respect of the proceedings concerning

the quality of the wine raise three distinct issues, namely:

(1) the principle of equality of arms, inherent in

Article 6 para. 1 (art. 6-1) and the specific provisions of

Article 6 para. 3 (d) (art. 6-3-d), with regard to expert evidence;

(2) the right to a fair trial and the right to obtain the attendance and

examination of witnesses (Article 6 para. 1, in conjunction with

Article 6 para. 3 (d)) (art. 6-1, art. 6-3-d) in relation to the evidence

resulting from a wine-tasting procedure;

(3) the rights of defence set forth in Article 6 para. 3 (c) (art. 6-3-c), in

connection with the applicant's subsequent conviction for defamation on

account of statements made by him in his defence during these proceedings.

1. The principle of equality of arms with regard to expert evidence

41. Mr Brandstetter first complained that the Haugsdorf District Court,

applying section 30(10) of the Wine Act (see paragraphs 14 and 36 above) had

appointed, as official expert, Mr Bandion, a member of the staff of the

Agricultural Institute which had reported the initial suspicions concerning

him, and that, in breach of the principle of equality of arms, it had refused

to hear any other expert, and even to call Mr Niessner, the expert

commissioned by the applicant, as a witness.

The Government argued that the expert in question had not been appointed in

pursuance of the above-mentioned section but, under the general rules of

Articles 125 and 126 of the Code of Criminal Procedure (see paragraph 36

above), to analyse a third set of samples (the reserve samples) and to compare

the results with those of the analyses of the official samples and the

counter-samples. As an "expert", he was, according to Austrian law, a neutral

and objective auxiliary of the court.

The Commission did not find it necessary to ascertain whether the appointment

of Mr Bandion was based on section 30 of Wine Act, because what, in its

opinion, was decisive for this issue was the fact that he belonged to the

staff of the Agricultural Institute.

42. The Court considers it appropriate to examine the applicant's

complaint under the general rule of paragraph 1 of Article 6 (art. 6-1) of the

Convention, whilst having due regard to the guarantees of paragraph 3

(art. 6-3) (see, inter alia, the Bönisch judgment of 6 May 1985,

Series A no. 92, pp. 14-15, para. 29). The Court notes that, read literally,

sub-paragraph (d) of paragraph 3 (art. 6-3-d) relates to witnesses and not

experts. It points out that in any event the guarantees contained in

paragraph 3 (art. 6-3) are constituent elements, amongst others, of the

concept of a fair trial set forth in paragraph 1 (art. 6-1) (ibid.).

In this context, it will take into consideration the position occupied by the

expert throughout the proceedings and the manner in which he performed his

functions (ibid., p. 15, para. 31).

43. First of all, the Court does not find it established that the District

Court, when appointing Mr Bandion did so under section 30(10) of the Wine Act.

At its first hearing, on 4 October 1983, the District Court had before it two

contradictory reports, one supporting the prosecution's views and the other

those of the defence; as a result the defence requested the appointment of

another expert (see paragraphs 12-14 above). The court allowed this request

and appointed Mr Bandion who was not - as he should have been under the

aforementioned provision - the "official" who either had carried out the

analysis of the official samples or had drawn up the report thereon.

44. Admittedly, the fact that Mr Bandion was a member of the staff of the

Agricultural Institute which had set in motion the prosecution may have given

rise to apprehensions on the part of Mr Brandstetter. Such apprehensions may

have a certain importance, but are not decisive. What is decisive is whether

the doubts raised by appearances can be held objectively justified (see,

mutatis mutandis, in respect of judges, the Hauschildt judgment of

24 May 1989, Series A no. 154, p. 21, para. 48).

Such an objective justification is lacking here: in the Court's opinion, the

fact that an expert is employed by the same institute or laboratory as the

expert on whose opinion the indictment is based, does not in itself justify

fears that he will be unable to act with proper neutrality. To hold otherwise

would in many cases place unacceptable limits on the possibility for courts

to obtain expert advice. The Court notes, moreover, that it does not appear

from the file that the defence raised any objection, either at the first

hearing of 4 October 1983 when the District Court appointed Mr Bandion, or at

the second hearing of 22 November 1983 when Mr Bandion made an oral statement

and was asked to draw up a report; it was not until 14 February 1984, after

Mr Bandion had filed his report, which was unfavourable to Mr Brandstetter,

that the latter's lawyer criticized the expert for his close links with the

Agricultural Institute (see paragraphs 14-17 above).

45. The mere fact that Mr Bandion belonged to the staff of the

Agricultural Institute does not justify his being regarded - as was the case

with the expert in the Bönisch case (see the judgment cited above,

Series A no. 92) - as a witness for the prosecution. Nor does the file

disclose other grounds for so considering him. It is true that to a certain

extent Mr Bandion stepped outside the duties attaching to his function by

dealing in his report with matters relating to the assessment of evidence, but

this does not warrant the conclusion that the position which he occupied in

the proceedings under review was that of a witness for the prosecution either.

Accordingly, the District Court's refusal of the defence's request to appoint

other experts (see paragraph 17 above) cannot be seen as a breach of the

principle of equality of arms.

46. Nor can it be said that because of this refusal or of the refusal to

call Mr Niessner as a witness the proceedings were unfair. The right to a

fair trial does not require that a national court should appoint, at the

request of the defence, further experts when the opinion of the court-

appointed expert supports the prosecution case.

47. Accordingly, there was no violation of Article 6 para. 1 (art. 6-1),

read in conjunction with Article 6 para. 3 (d) (art. 6-3-d) of the Convention,

under this head.

2. Right to a fair trial and right to obtain the attendance

and examination of witnesses

48. Mr Brandstetter also complained that, contrary to Article 6 para. 1

(art. 6-1), taken in conjunction with Article 6 para. 3 (d) (art. 6-3-d), the

Haugsdorf District Court relied on the evidence of anonymous witnesses, the

members of the wine-tasting panel, who did not give evidence in court and

whose identity was not disclosed.

The Government argued that the panel's evidence was only of secondary

importance; the Commission observed that it had in fact been of some

relevance, because it supported the argument of the official expert and

provided an additional reason for refusing to call a second expert.

49. The Court notes in the first place that in the proceedings concerning

the quality of the wine the applicant never sought the attendance and

examination of the members of the Agricultural Institute's panel: in fact,

what he requested was the examination of the minutes of their wine-tasting

session (see paragraphs 17 and 19 above).

Furthermore, the results of the wine-tasting procedures, for both the official

samples and the counter-samples, were included in the respective reports of

9 June and 9 August 1983 by the two Institutes (see paragraphs 11 and 13

above). They thus formed only part of the written expert opinions. In

addition, the reserve samples, which were the subject of Mr Bandion's analysis

and report, and indeed the main evidence before the District Court, were not

tasted at all by a panel (see paragraph 16 above).

The expert did indeed note in his report that the results of his chemical

analysis could not be considered to be contrary to the findings of the

Agricultural Institute's panel, and this view was accepted by the District

Court in its judgment of 14 February 1984 (see paragraphs 16 and 18 above).

However, when rejecting the defence's request to examine the minutes of the

wine-tasting session, the District Court stated that these findings were not

relevant, because they did not constitute conclusive evidence

(see paragraphs 17 and 19 above).

On appeal, the Regional Court similarly held that these findings were, at

best, an indication, since the results of the analyses already amounted to

conclusive evidence (see paragraph 21 above).

There has thus been no violation of Article 6 para. 1 (art. 6-1), taken in

conjunction with Article 6 para. 3 (d) (art. 6-3-d), under this head either.

3. Rights of the defence

50. Again in connection with the proceedings concerning the quality of the

wine, Mr Brandstetter complained finally that he had been convicted of

defamation in subsequent proceedings, because he had alleged that the

Inspector, when drawing the first wine samples on 16 May 1983, had acted

irregularly (see paragraphs 15 and 30 above). This, in his view, constituted

a violation of Article 6 para. 3 (c) (art. 6-3-c), inasmuch as an accused's

ability to make statements in his defence must not be limited or inhibited by

a fear of facing charges at a later stage of wilfully making false

allegations.

51. The Court understands the substance of this complaint to be as

follows: first, that the applicant's conviction in the defamation proceedings

was incompatible with the rights of the defence set forth in

Article 6 para. 3 (c) (art. 6-3-c) because it was based on statements made as

a defence in the proceedings concerning the quality of the wine; and secondly,

that it follows from this conviction that in the latter proceedings the

applicant's rights of defence were interfered with.

52. As to the first limb (which, although it concerns the defamation

proceedings, for the sake of coherence will be discussed here), the Court

observes in the first place that Article 6 para. 3 (c) (art. 6-3-c) does not

provide for an unlimited right to use any defence arguments.

Mr Brandstetter claimed in his appeal in the defamation proceedings that,

since he had made the impugned statements in the exercise of his rights of

defence, they could not constitute punishable defamation. According to the

Vienna Court of Appeal, however, the rights of defence could not extend to an

accused's conduct where it amounted to a criminal offence such as, in the

present case, that of consciously arousing false suspicions concerning the

Inspector (see paragraph 32 above).

The Court agrees in principle with this ruling. It would be overstraining the

concept of the right of defence of those charged with a criminal offence if

it were to be assumed that they could not be prosecuted when, in exercising

that right, they intentionally arouse false suspicions of punishable behaviour

concerning a witness or any other person involved in the criminal proceedings.

It is, however, not for the Court to determine whether Mr Brandstetter was

rightly found guilty of having done so. According to its case-law, it is, as

a rule, for the national courts to assess the evidence before them (see,

mutatis mutandis, the Delta judgment of 19 December 1990, Series A no. 191-A,

p. 15, para. 35).

53. As to the second limb, which is related to the proceedings concerning

the quality of the wine, it follows from the above considerations that the

mere possibility of an accused being subsequently prosecuted on account of

allegations made in his defence cannot be deemed to infringe his rights under

Article 6 para. 3 (c) (art. 6-3-c). The position might be different if it

were established that, as a consequence of national law or practice in this

respect being unduly severe, the risk of subsequent prosecution is such that

the defendant is genuinely inhibited from freely exercising these rights.

Mr Brandstetter has not, however, alleged that this is the case in Austria.

Moreover, Mr Brandstetter might have been indirectly inhibited if, when he

made his allegations, he had been threatened with the possibility of

prosecution for defamation. It is true that the Regional Court took these

statements into account as an aggravating circumstance when determining

sentence (see paragraph 18 above), but it does not appear that, during the

proceedings leading to this judgment, any warning was given to the applicant

in this respect. In fact Mr Brandstetter made the impugned allegations first

before the police on 22 July 1983, and then before the Haugsdorf District

Court on 22 November 1983 (see paragraph 15 above). There is no evidence to

show that, at the time, he was stopped from making them or in any way

restrained from airing the views which he expressed.

54. Having regard to all these circumstances, the Court concludes that

there has been no violation of Article 6 para. 3 (c) (art. 6-3-c).

B. The proceedings concerning the charge of tampering with evidence

(see paragraphs 22-29 above)

55. In respect of the proceedings concerning the charge of tampering with

evidence, Mr Brandstetter complained that the principle of equality of arms

in relation to expert evidence had been disregarded, in breach of

Article 6 paras. 1 and 3 (d) (art. 6-1, art. 6-3-d).

Before the Commission he had also alleged that there had been a violation of

Article 6 paras. 1 and 2 (art. 6-1, art. 6-2) (right to a fair trial and right

to be presumed innocent), as a result of various specific findings made by the

Korneuburg Regional Court in its judgment of 12 September 1985 (see

paragraph 27 above). The Commission, having regard to its conclusion that

there had been a violation of the principle of equality of arms, considered

that there was no need to deal with these complaints. They were not pursued

before the Court which, accordingly, does not find it necessary to examine

them.

1. Preliminary objection

56. The Government submitted, as they had already done before the

Commission, that Mr Brandstetter had failed to exhaust domestic remedies as

is required under Article 26 (art. 26) of the Convention, since he had not

challenged in due time Mr Flack, the official expert appointed by the

Haugsdorf District Court (see paragraph 23 above).

57. The Court observes that the applicant's complaint is not that Mr Flack

was appointed as the official expert; what he is complaining about is that the

Regional Court refused his request for Mr Niessner, his privately commissioned

expert, to be appointed as second court expert (see paragraph 27 above). In

his appeal to the Vienna Court of Appeal the applicant raised this point at

least in substance, but it was rejected (see paragraph 28 above).

This being so, the domestic remedies were exhausted.

2. The merits of the complaint

58. The applicant complained that the Haugsdorf District Court had

designated, as official expert, Mr Flack, who had raised the initial suspicion

against him and who, moreover, was on the staff of the Agricultural Institute,

whose experts had been consulted in the previous proceedings

(see paragraphs 11 and 14 above), while it heard the expert commissioned by

the applicant to analyse the counter-samples only as a witness, and thus not

"under the same conditions". He alleged that this constituted a violation of

Article 6 para. 1 taken together with Article 6 para. 3 (d) (art. 6-1,

art. 6-3-d).

59. In examining this complaint, the Court will adopt the same approach

as it did in considering the issue of expert evidence in the previous

proceedings. To determine whether the principle of equality of arms has been

complied with in this case, it is necessary to take into consideration both

the position occupied by the expert throughout the proceedings and the manner

in which he performed his functions (see paragraph 42 above).

60. As to the first point, it should be noted that the charge of tampering

with evidence originated in a report prepared by Mr Flack. In the context of

the proceedings for securing evidence instituted by Mr Brandstetter, Mr Flack

had been instructed to supervise the drawing of new samples from

Mr Brandstetter's tanks and to analyse them (see paragraphs 22 and 23 above).

When Mr Flack did so, he found differences between the results of his analysis

of the new samples and the results of the analyses by the Agricultural

Institute of the official samples and the reserve samples obtained on

16 May 1983. These differences could, in his opinion, only be explained by

assuming that substances capable of increasing the natural extract content had

been added to the wine in the tanks (see paragraph 23 above). This opinion

was imparted by Mr Flack to the District Court, whereupon that court, of its

own motion, instituted criminal proceedings against the applicant for

tampering with evidence.

The Court agrees with the Commission that, in substance, the criminal

suspicion emanated from Mr Flack. Notwithstanding this fact, he was later

appointed as official expert by the court in the above-mentioned proceedings

(see paragraph 24 above).

61. In these circumstances the applicant's apprehensions with regard to

the neutrality and objectivity of the expert in question can be held to have

been justified (see paragraph 44 above), the situation here being closer to

that obtaining in the Bönisch case (see the judgment cited above,

Series A no. 92, p. 15, paras. 31-32) than the position in the case concerning

the quality of the wine (see paragraph 45 above).

This does not mean that it was contrary to the Convention to examine Mr Flack

at the hearing of 4 July 1985 (see paragraph 26 above); however, under the

principle of equality of arms persons who were or could be called, in whatever

capacity, by the defence in order to refute the views professed by Mr Flack,

should have been examined under the same conditions as he was (see, mutatis

mutandis, ibid., p. 15, para. 32).

62. In this respect the Court notes first that Mr Flack was present at the

hearings of 4 July and 12 September 1985, but did not play a dominant role:

in particular he did not put questions to the applicant or Mr Niessner, the

"expert witness" called by the applicant; nor did he comment on the evidence

given by Mr Niessner. In this regard the present case differs from the

Bönisch case.

Furthermore, at the first hearing of the Reginal Court Mr Flack was given the

opportunity to summarise his written report and to explain why, in his

opinion, the only possible explanation of: (1) the differences between the

results of his analyses and the results of the analyses of the official and

the reserve samples and (2) the similarities between his results and those of

the analysis of the counter-samples by Mr Niessner, was that, after the

official samples had been taken, substances had been added both to the tanks

and the counter-samples.

At that first hearing the defence did not dispute the results of Mr Flack's

analyses, or his opinion that the differences between these results and those

of the analyses of the official and the reserve samples could not be explained

as being the effect of the passing of time on the composition of the wine.

The defence stressed the similarities between the results of Mr Flack and

those of Mr Niessner. Taking them as its starting point, the defence

followed the line of reasoning that (1) it could be proved that the seals on

the bottles containing the counter-samples were untouched when Mr Niessner

started their analysis; (2) accordingly, the counter-samples could not have

been tampered with; and (3) it followed that Mr Niessner had analysed the same

wine as the Agricultural Institute and that the analyses of that Institute

must have been wrong. In order to prove these allegations the defence

requested that Mr Niessner should be heard, both as a witness and as an expert

(paragraph 26 above).

The first request was granted but the second rejected, and, at the second

hearing, Mr Niessner was heard merely as a witness (see paragraph 26 above).

As such he could only answer questions put to him by the judge, the public

prosecutor and the defence. The questions that were actually put to him

concerned solely the question whether it could indeed be ruled out that the

counter-samples had been tampered with before he started his analysis. No

one, not even the defence, asked questions with regard to the methods he had

employed or the results that he had obtained.

It is true that Mr Niessner was not heard "under the same conditions" as

Mr Flack, yet in the light of the way argument was presented it cannot be said

that the refusal to appoint Mr Niessner as an expert amounted to a breach of

the principle of equality of arms. The line taken by the defence implied that

the results of Mr Niessner's analysis were only relevant if it could be proved

that the counter-samples had not, and could not have been, tampered with. On

the latter issue Mr Flack had not written or said anything, while the defence

had been able to put all the questions it wished to the only witness it had

called on this point. Since the court found that it had not been established

that tampering with the counter-samples could be excluded, the ground for the

request to appoint Mr Niessner as a second expert ceased to exist.

63. Having regard to the particular circumstances of the case concerning

the charge of tampering with evidence, the Court concludes that, here also,

there has been no violation of Article 6 para. 1 (art. 6-1), taken in

conjunction with Article 6 para. 3 (d) (art. 6-3-d).

C. The defamation proceedings (see paragraphs 30-34 above).

64. Finally, the applicant complained, in respect of the defamation

proceedings, that the Vienna Court of Appeal, in its judgments of

23 April 1985 and 28 April 1987, had relied on submissions by the Senior

Public Prosecutor which had not been communicated to the accused and the

existence of which was not known to him (see paragraph 34 above). Here again

he alleged a breach of the principle of equality of arms (Article 6 para. 1).

(art. 6-1)

65. Whilst admitting that these submissions had not been served on the

applicant, the Government observed that, according to a well-established

practice, defence counsel could have requested access to the file and could

have inspected such submissions. He had not however availed himself of this

possibility.

The applicant's lawyer denied that such a practice existed and referred to

certain cases - without however identifying them - where access had been

refused on the ground that the submissions belonged to the "Attorney-General's

file".

66. The principle of equality of arms is only one feature of the wider

concept of a fair trial, which also includes the fundamental right that

criminal proceedings should be adversarial (see, mutatis mutandis, in respect

of the examination of witnesses, the Barberà, Messegué and Jabardo judgment

of 6 December 1988, Series A no. 146, pp. 33-34, para. 78). The Court will

thus examine the matter in the light of the whole of paragraph 1

of Article 6 (art. 6-1) (see the Delcourt judgment of 17 January 1970,

Series A no. 11, p. 15, para. 28).

67. The right to an adversarial trial means, in a criminal case, that both

prosecution and defence must be given the opportunity to have knowledge of and

comment on the observations filed and the evidence adduced by the other party.

Various ways are conceivable in which national law may secure that this

requirement is met. However, whatever method is chosen, it should ensure that

the other party will be aware that observations have been filed and will get

a real opportunity to comment thereon. This is henceforth the case, as far

as the Vienna Court of Appeal is concerned (see paragraph 8 above).

In the present case it is common ground that no copy of the submissions of the

Senior Public Prosecutor was sent to the applicant and that he was not

informed of their having been filed either. The Government's argument is not

that these submissions are prescribed by law so that the applicant should have

known that they were to be filed; their argument seems to be that the

submissions - the so-called "croquis" (see paragraph 34 above) - were filed

according to a standing practice which enables the Senior Public Prosecutor

to file such a croquis in such cases as he deems appropriate. They suggest

that this practice must have been known to the applicant's lawyer who,

accordingly, could have enquired whether in the applicant's case a croquis had

been filed. If so, he could have requested leave to inspect the file under

section 82 of the Code of Criminal Procedure and thus could have commented on

it. Section 82, as it is formulated, however, does not seem to grant an

unconditional right to inspect the complete file but only the possibility to

ask for leave to do so, and the parties differ as to whether, with regard to

the croquis, such leave would have been granted at the relevant time. The

Commission left that question unsettled and so will the Court.

The Court notes that the croquis apparently has considerable importance and

that the alleged practice requires vigilance and efforts on the part of the

defence; against this background, the Court is not satisfied that this

practice sufficiently ensures that appellants in whose cases the Senior Public

Prosecutor has filed a croquis on which they should comment are aware of such

filing.

68. The Commission established that, after the Court of Appeal's judgment

of 23 April 1985 had been quashed by the Supreme Court on 28 January 1987 (see

paragraphs 33-34 above), no new submissions were filed by the Senior Public

Prosecutor. It considered therefore that, in so far as the Court of Appeal's

judgment "reproduced almost literally" the text of the observations in

question, the applicant had had the opportunity to deal with the arguments

contained therein in the second set of proceedings.

The Court does not share this view. An indirect and purely hypothetical

possibility for an accused to comment on prosecution arguments included in the

text of a judgment can scarcely be regarded as a proper substitute for the

right to examine and reply directly to submissions made by the prosecution.

Furthermore, the Supreme Court did not remedy this situation by quashing the

first judgment since its decision was based on a ground entirely unrelated to

the matter in issue.

69. The Court therefore concludes that, in the appeal proceedings

concerning the defamation case, there was a violation of Article 6 para. 1

(art. 6-1) of the Convention.

II. APPLICATION OF ARTICLE 50 (art. 50)

70. Article 50 (art. 50) of the Convention provides:

"If the Court finds that a decision or a measure taken by a legal authority

or any other authority of a High Contracting Party is completely or partially

in conflict with the obligations arising from the ... Convention, and if the

internal law of the said Party allows only partial reparation to be made for

the consequences of this decision or measure, the decision of the Court shall,

if necessary, afford just satisfaction to the injured party."

Mr Brandstetter claimed compensation for pecuniary and non-pecuniary damage,

as well as the reimbursement of his costs and expenses. He also sought

interest at 10% per annum on the relevant amounts.

71. The Court first notes that it has found a violation of

Article 6 para. 1 (art. 6-1) of the Convention only in relation to the appeal

proceedings in the defamation case (see paragraph 69 above). Accordingly, in

so far as the applicant's claims are related to the proceedings concerning the

quality of the wine and the charge of tampering with evidence, they must be

dismissed.

72. As regards the proceedings in the defamation case the applicant

claimed only his costs and expenses, namely 2,000 schillings for court costs

and 43,609.35 schillings for his lawyer's fees. These costs cannot, however,

be considered to be a consequence of the violation found by the Court.

It follows that this claim must also be dismissed.

73. With regard to the proceedings before the Convention institutions, the

applicant claimed the reimbursement of his costs and expenses. The Court

notes that he received legal aid for the proceedings before the Commission and

the Court, but this does not exclude that he incurred additional costs.

74. For his lawyer's fees before the Commission and the Court,

Mr Brandstetter sought an overall sum of 547,595.90 schillings. The Court has

had regard to the fact that, of the applicant's complaints made in his three

different applications, only one has been found to be justified. Taking also

into account the sums already paid to him by way of legal aid and making an

assessment on an equitable basis, it awards to the applicant

60,000 schillings, including interest.

FOR THESE REASONS, THE COURT

1. Holds unanimously that, in the proceedings concerning the quality of

the wine, there was no violation of Article 6 para. 1 (art. 6-1),

taken in conjunction with Article 6 para. 3 (d) (art. 6-3-d);

2. Holds unanimously that, in the same proceedings, there was no

violation of Article 6 para. 3 (c) (art. 6-3-c);

3. Rejects unanimously the preliminary objection which the Government

raised as regards expert evidence in the proceedings concerning the

charge of tampering with evidence;

4. Holds unanimously that, in those proceedings, there was no violation

of Article 6 para. 1 (art. 6-1), taken in conjunction with

Article 6 para. 3 (d) (art. 6-3-d);

5. Holds unanimously that, as regards those proceedings, it is not

necessary to examine the other complaints under

Article 6 paras. 1 and 2 (art. 6-1, art. 6-2);

6. Holds unanimously that, in the defamation proceedings, there was no

violation of Article 6 para. 3 (c) (art. 6-3-c);

7. Holds by six votes to three that, in those proceedings, there was a

violation of Article 6 para. 1 (art. 6-1) on appeal;

8. Holds unanimously that the respondent State is to pay to the

applicant, for costs and expenses, 60,000 (sixty thousand) Austrian

schillings;

9. Dismisses unanimously the remainder of the claim for just

satisfaction.

Done in English and in French, and delivered at a public hearing in the Human

Rights Building, Strasbourg, on 28 August 1991.

Signed: Rolv RYSSDAL

President

Signed: Marc-André EISSEN

Registrar

In accordance with Article 51 para. 2 (art. 51-2) of the Convention and

Rule 53 para. 2 of the Rules of Court, the following separate opinions are

annexed to this judgment:

a) partly dissenting opinion of Mr Matscher, joined by

Mr Thór Vilhjálmsson and Mrs Bindschedler-Robert.

b) concurring opinion of Mr Martens.

Initialled: R.R.

Initialled: M.-A.E.

PARTLY DISSENTING OPINION OF JUDGE MATSCHER, JOINED BY JUDGES

THÓR VILHJÁLMSSON AND BINDSCHEDLER-ROBERT

(Translation)

Contrary to the bare assertions of counsel for the applicant, I regard it as

established that Austrian lawyers are well aware of the practice on the part

of the public prosecutors at the Austrian Courts of Appeal and Supreme Court

of submitting written observations (croquis) which are included in the court's

case-file and that, despite the no doubt unsatisfactory wording of Article 82

of the Code of Criminal Procedure, any person who can show a legitimate

interest is guaranteed access to the file; it is certain that a defendant (or

his lawyer) has such an interest and is consequently always allowed the right

of access.

This practice is in my opinion entirely in accordance with the requirements

of Article 6 (art. 6) of the Convention, as the Commission moreover recognised

in its decision on admissibility given in the Peschke case concerning Austria

(no. 8289/78 of 5.3.80, Decisions and Reports, vol. 18, p. 160).

Its conformity with the requirements of the Convention might be questionable

if the public prosecutor's observations were submitted to the court at a very

late date, too close to the hearing of the appeal, or if access to the file

involved a substantial burden for defence counsel.

None of that is the case. In particular, in the present case, the Senior

Public Prosecutor's observations were submitted over three weeks before the

date of the appeal hearing (see paragraph 34 of the judgment) and the

applicant's lawyer could have found about them very easily, simply by

telephoning the registry of the Court of Appeal and, if appropriate, asking

it to supply a copy.

In these circumstances, it seems clear to me that the principle of equality

of arms was respected. Of course it is possible to imagine a better system

than that in force in Austria at the time of the instant case (see paragraphs

8 and 67 of the judgment), but that does not mean that the Convention has

thereby been violated.

If the majority of the Chamber consider that a defendant must always be

informed by the court of the submission of observations by the public

prosecutor, or at least that the right of access to the file ought to be

guaranteed more explicitly in the law itself, that in my opinion goes beyond

the requirements of Article 6 (art. 6).

CONCURRING OPINION OF JUDGE MARTENS

I agree with the Court's reasoning in paragraph 57, sed ceterum censeo ...

(see my concurring opinion in the Brozicek case, judgment of 19 December 1989,

Series A no. 167, pp. 23-28).