AS TO THE ADMISSIBILITY OF
Application No. 10532/83
by Helmut ALDRIAN
against Austria
The European Commission of Human Rights sitting in private
on 15 December 1987, the following members being present:
MM. S. TRECHSEL, Acting President
J.A. FROWEIN
F. ERMACORA
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
J. CAMPINOS
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
Mr. J. RAYMOND, Deputy Secretary to the Commission
Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 27 June 1983
by Helmut Aldrian against Austria and registered on 17 August 1983
under file No. 10532/83;
Having regard to the Government's observations submitted on
21 October 1986 and the applicant's observations in reply submitted
on 29 December 1986;
Having regard to the parties' oral submissions at the hearing
on 15 December 1987;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is an Austrian citizen born in 1957 who is
represented by Rechtsanwalt Dr. Karl Bernhauser of Vienna.
The facts agreed between the parties may be summarised as
follows:
The applicant is serving a life sentence for murder and
complains of the way in which the expert evidence concerning his
criminal responsibility has been administered in the relevant
court proceedings.
The facts of the case go back to 1978, when the applicant did
military service with an Austrian peacekeeping contingent of UNDOF
(United Nations Disengagement Observer Forces). He was stationed at a
small observation post on top of Mount Hermon (Syria) when one day
after consumption of a moderate quantity of alcohol he suddenly ran
amuck, attacking his four fellow soldiers with his gun. Two were shot
dead and a third one was gravely injured. The fourth managed to avoid
the applicant's attack. The applicant then attempted suicide and was
himself badly injured.
After his return to Austria, the applicant was charged under
Sections 75 and 15 of the Penal Code (Strafgesetzbuch) with murder on
two counts and attempted murder on two further counts. The trial took
place in December 1979 before the Vienna Regional Court for Criminal
Affairs (Landesgericht für Strafsachen) sitting as a Court of Assizes
(Geschworenengericht). The Court heard numerous witnesses and also
three experts, two psychiatrists and a psychologist. While all
experts agreed that there were no signs of an existing or past genuine
mental disease, the two psychiatric experts disagreed on whether or not
the crime could be attributed to the influence of alcohol, possibly
combined with other factors (taking of medicine, isolation, altitude)
and whether or not certain statements which the applicant had made
subsequently in a hospital in Israel could be taken into account for
assessing his state of mind at the relevant time. Both psychiatric
experts admitted that they had not reached any clear results, but one
tended to the view that the applicant was to be considered as
criminally responsible (a view also supported by the psychological
expert) whereas the other psychiatrist thought that the applicant's
criminal responsibility had probably been excluded by an abnormal
reaction to alcohol ("dämmriger Rauschzustand").
In these circumstances, the applicant requested the Court to
obtain an opinion from a university medical faculty (Fakultätsgutachten)
in accordance with Section 126 of the Code of Criminal Procedure (Straf-
prozessordnung). However, the Court refused the request.
On 21 December 1979, the jury found by a unanimous verdict of
eight votes that the applicant was guilty of two killings and of two
attempts to kill. The additional question to the jury whether he had
acted in a state of complete intoxication (Volltrunkenheit) remained
unanswered. The applicant was convicted as charged and was given a
life sentence.
The applicant then filed a plea of nullity (Nichtigkeits-
beschwerde) which was partly allowed by the Supreme Court (Oberster
Gerichtshof) on 16 December 1980. It quashed the Regional Court's
judgment and referred the case back to that Court with the direction
that it should hold a new trial including the taking of a medical
faculty opinion on the question of the applicant's criminal
responsibility. This additional question should be answered by the
jury while the above verdict on the principal question could stand.
In the renewed proceedings the Regional Court accordingly
requested the opinion of the Medical Faculty of the University of
Vienna on the question of the applicant's criminal responsibility
having regard in particular to the possibility of a complete
intoxication. The opinion was prepared by the director of the
psychiatric university clinic on behalf of the medical faculty.
However, it appears from the contents that other university
institutes, in particular the Institute for Forensic Medicine, had
also made contributions and that the conclusions were those of a
committee set up by the faculty for the purpose. Before being
transmitted to the Regional Court on 5 July 1982, the expert opinion
was notified to the faculty as a whole at a meeting on 30 June 1982.
The conclusion of the faculty opinon was that the applicant
had committed the crime in a pathological state of intoxication
(pathologischer Rauschzustand) which had led to a grave disturbance of
his consciousness (tiefgreifende Bewusstseinsstörung). He had not
been able to foresee this state of mind and the crime. He therefore
had lacked criminal responsibility (Section 11 of the Penal Code)
although his state had not been one of "complete intoxication"
(Section 287 of the Penal Code).
At the new trial, which took place in September 1982 before
the Regional Court sitting with a different jury, the Court, after
having examined numerous witnesses, heard the psychological expert
who had been consulted already in the first round of the proceedings.
This expert first stated his own opinion on the question of the
applicant's criminal responsibility. He concluded that the loss of
memory which the applicant had pretended was unlikely in view of his
subsequent behaviour, in particular the fact that he had remembered
certain elements of the events. In his view the applicant was a
person of average intelligence who showed no signs of any disturbance
of the central nervous system, but only some symptoms of a neurotic
personality characterised by a tendency to inhibit affective emotions.
The expert also referred to a slight tendency to simulation. However,
in his view the applicant showed no signs of mental disease or
consequential defect resulting from such a disease.
Following these explanations of his own scientific opinion the
said psychological expert turned to the faculty opinion, stating that
it might be helpful to the Court if he explained certain technical
terms used in that opinion. Having done so, he replied to various
questions by the Presiding Judge, the jury and the defence referring
partly to the faculty opinion, partly to his own views on the matter.
The applicant had requested that the faculty opinion should be
explained to the Court by an "informed representative" of the medical
faculty and that the statements of the two psychiatric experts should
be limited to a discussion of the faculty opinion. However, the Court
rejected both requests, holding that it was inadmissible to have the
collective opinion of the faculty explained by a single person.
Further it was inadmissible for the experts to discuss the faculty
opinion. Their statements on other matters could not be restricted
because it had been precisely the disagreement between these experts
which had led to the request of the defence to obtain a faculty
opinion. Therefore, the Court ruled that the psychiatric experts
should first be heard before the faculty opinion was read out.
The two psychiatric experts then stated their opinions and
replied to numerous questions of members of the court and jury,
the prosecution and the defence. Both maintained their earlier
conclusions while expressing considerable doubts that a clear
diagnosis could be made. After their depositions the faculty opinion
was read out and the hearing was closed immediately afterwards.
The jury then deliberated and contrary to the faculty opinion
unanimously denied a lack of criminal responsibility of the applicant
at the relevant time. The applicant was accordingly convicted of
murder and attempted murder, and was again given a life sentence
(judgment of 22 September 1982).
The reasons for the jury's decisions were not stated in the
judgment as this is excluded by Section 342 of the Code of Criminal
Procedure. However, in the memorandum (Niederschrift) on the jury's
deliberations prepared according to Section 331 para. 3 of the Code
the following reasons were stated:
The applicant could not be regarded as lacking criminal
responsibility at the time of committing the offence on the ground of
an abnormal or complicated reaction to alcohol. There was no amnesia
caused by such a reaction. The applicant's statements recorded by a
witness showed that he had a more or less complete recollection of the
facts. Certain unclarities in particular as regards the motivation
for the shooting could be explained by the tendency of the applicant
to justify his behaviour (Schutzbehauptungen). The subsequent
extension of the alleged amnesia spoke against an alcoholic
intoxication, and this had been confirmed both by the faculty opinion
and the individual expert opinions of the two psychiatrists. Rather
there was a mixture of a tendency to justify his behaviour (Schutz-
behauptung) and of suppression (Verdrängung), as stated by the
psychological expert.
Moreover, the applicant's behaviour was not completely
incompatible with his personality structure (nicht völlig persön-
lichkeitsfremd). Statements of several witnesses showed that he
had felt neglected (zurückgesetzt), that he had openly resisted his
superiors, and that he had been teased by his fellow soldiers. The
faculty opinion and the psychological expert had found an increased
potential for aggressiveness, the latter also a tendency for rash
reactions (Kurzschlusshandlungen). In these circumstances and having
regard to the isolation, the applicant's behaviour could be explained
as being due to the not very strong inhibitions of his aggressive
potential having been removed by a state of slight alcoholism, but not
by a complete intoxication. The fact that he had not earlier reacted
in the same way was explained by the consideration that not all
relevant factors had coincided.
The criminal act had been carried out in conformity with its
aim (zielstrebig) and in a logical way (folgerichtig). It showed
planning and did not reveal a disturbed conception of realities
(gestörte Umweltbezüge). This was confirmed by the description
of the facts by the fellow soldier who had not been shot. The
latter's active intervention had not been foreseen by the applicant.
The applicant's subsequent attempt of suicide also showed that he had
been aware of what he had done, and that he had drawn the logical
conclusions. When he had finally been found, he had given a correct
account of the facts and had committed an error only by thinking that
he had shot dead three of his fellow soldiers.
All experts agreed that a state of complete intoxication
(physiologischer Rausch) was excluded in view of the small quantity of
alcohol consumed. The above considerations spoke against a state of
pathological intoxication which was a rare phenomenon. Insofar as the
experts had come to different conclusions, they could not be followed
because their assumptions contradicted the facts as established by the
jury (amnesia caused by alcoholic intoxication, illogical behaviour,
incompatibility of the offence with the applicant's personality
structure). Even if the statements of the applicant in the hospital
had been a reaction to the behaviour of the guarding soldiers, they
had in no way been invented. In particular some of the statements had
been made so long after the possible state of intoxication that their
explanation in the faculty opinion did not convince the jury.
The explanation by the psychiatric expert who had denied the
applicant's criminal responsibility, namely that these statements were
due to an exogeneous psychosis caused by the loss of blood and a shock
as well as by elements of reactive considerations (erlebnisreaktive
Komponente), was possible but not logically stringent. The statements
in question were so much in the line of the offence itself that the
explanation given by the other psychiatric expert was much more
probable. This expert had confirmed the applicant's criminal
responsibility and established a link between the applicant's attitude
at the time of the offence and at the time of these later statements,
describing them as mental undressing (psychische Entkleidung).
The applicant's plea of nullity based on the Regional
Court's refusal to hear an "informed representative" of the faculty
and to limit the depositions of the other psychiatric experts to a
discussion of the faculty opinion was rejected by the Supreme Court
on 26 April 1983.
First, the Supreme Court held that although the applicant was
requesting the presence of an "informed representative", in reality,
due to the collegiate nature of the faculty, he was effectively asking
for an independent expert to give his opinion. There was no provision
in Austrian law for the calling of such a further expert. Secondly,
because of the special nature of the medical faculty opinion, the
Austrian Code of Criminal Procedure only permitted it to be read out
in court as documentary evidence under Section 252 para. 2. Thirdly,
the Supreme Court underlined that medical faculty opinions could not,
under Austrian law, be challenged or reviewed as to their content,
although the court was entitled to ask the faculty itself for an
explanation as to the meaning of such an opinion. No request for such
an explanation had been made in the present case. As regards finally
the requested limitation of the statements of the other experts, the
Supreme Court did not see why the oral presentation of their full
opinions should in any way have diminished the value of the faculty
opinion and thereby violated fundamental principles of criminal
procedure. In fact it was the function of the faculty opinion to
clarify points of disagreement between those experts whose opinions
were required to be presented orally to the court.
COMPLAINTS
The applicant now complains that his rights under Article 6
paras. 1 and 3 (d) of the Convention have been violated.
He observes that his case was the first case in the judicial
history of Austria where a court did not follow a faculty opinion and,
as it was a Court of Assizes, it was not even required to give any
reasons. In similar cases where professional judges had not followed
a faculty opinion, the Supreme Court had quashed the judgment on the
ground that a court could not depart from a faculty opinion without
giving reasons.
The applicant further observes that the faculty opinion
concluded in his favour, and that it was not presented to the court
under the same conditions as the evidence of the expert who had
considered him to be criminally responsible and who therefore was to
be considered as a "witness against him" for the purpose of Article 6
para. 3 (d) of the Convention. That expert could not only submit his
opinion orally to the court, but he could also be and was asked various
questions. In the applicant's view the mere reading of the faculty
opinion did not leave the same lively impression with the members of
the jury as the oral presentation of the above expert's opinion and
accordingly the probative value of the faculty opinion was
considerably diminished. In the applicant's view, the principle of
equality of arms enshrined in Article 6 para. 1 of the Convention has
been violated by this way of proceeding.
PROCEEDINGS
The application was introduced on 27 June 1983 and registered
on 17 August 1983.
On 7 July 1986 the Commission decided to give notice of the
application to the respondent Government and to invite them, in
accordance with Rule 42 para. 2 (b) of its Rules of Procedure, to
submit observations in writing on the admissibility and merits of the
application before 24 October 1986. Certain questions were put to
the Government in this connection.
The Government submitted their observations on 21 October 1986
and the applicant submitted observations in reply on 29 December 1986.
On 13 March 1987, the Commission decided to grant free legal
aid to the applicant under the Addendum to its Rules of Procedure.
On 13 May 1987 the Commission decided, pursuant to Rule 40
para. 3 (b) of the Rules of Procedure, to invite the parties to submit
further observations orally at a hearing on the admissibility and
merits of the application.
The hearing took place on 15 December 1987. The parties were
represented as follows:
- the Government by their Agent, Ambassador Dr. Helmut TÜRK,
Head of the International Law Department of the Federal Ministry of
Foreign Affairs, who was assisted by Dr. Wolf OKRESEK, of the
Constitutional Law Department of the Federal Chancellery, and by
Dr. Irene GARTNER, of the Federal Ministry of Justice, Advisers;
- the applicant by Dr. Richard SOYER, criminal defence
counsel, acting as substitute for the applicant's legal representative,
Dr. Karl BERNHAUSER, barrister in Vienna.
SUBMISSIONS OF THE PARTIES
A. The Government
1. The Government do not contest that the formal conditions
of admissibility are fulfilled. They submit, however, that the
application is manifestly ill-founded or, alternatively, that there
has been no breach of the Convention as claimed by the applicant.
2. The Government observe that the Austrian Code of Criminal
Procedure provides for two kinds of expert evidence: the normal
expert (Sections 118 et seq.) and in particularly difficult cases
the faculty opinion (Section 126). In the Government's view,
differences in dealing with these two kinds of evidence follow from
the fact that a faculty opinion is attributable not to a physical
person but to a collegial body. In either case the expert evidence in
question does not bind the court which must retain its freedom to
evaluate the evidence, including a faculty opinion, according to its
judicial discretion.
3. The so-called faculty opinion under Section 126 of the Code
of Criminal Procedure is the opinion of a medical faculty college of
an Austrian university. It may be obtained by the Court in cases
where individual expert opinions contain contradictions or logical
inconsistencies which cannot be removed by questioning the expert or
experts concerned. The basis of a faculty opinion is the (possibly
divergent) technical knowledge of all its members. A faculty
opinion, then, is not the opinion of an expert (Sachverständiger)
within the meaning of Section 2 of the Experts and Interpreters Act
(Sachverständigen- und Dolmetschergesetz), i.e. not the opinion of
an individual person, but the opinion of several experts. An opinion
of this kind requires reports by a rapporteur and a co-rapporteur,
detailed debates and deliberations, and finally a resolution passed by
the members of the faculty in accordance with Sections 15, 63 and 64
of the University Organisation Act (Universitätsorganisationsgesetz).
Since the faculty opinion is submitted to the Court in writing, the
rule that applies to it by virtue of Section 252 para. 2 of the Code
of Criminal Procedure is that it must be read out as a whole.
4. It is not in itself inconsistent with the requirements of
Article 6 of the Convention that a court obtains a written collective
expert opinion from a highly qualified body such as a medical faculty
of a university. Expert evidence is not as such mentioned in the
Convention and cannot simply be equated to witnesses' evidence.
Experts and witnesses have fundamentally different functions.
Witnesses are persons able to report from their own direct experiences
about important facts concerning a case, whereas experts are called by
the court on account of their special knowledge in a certain field to
submit a well-founded opinion on relevant facts without any regard to
their personal experiences. Experts are required to be neutral and
objective and can be challenged and replaced if they are not, whereas
such considerations do not apply to witnesses. Questions to the
latter, therefore, have a corrective function which does not exist to
the same degree in the case of experts. In these circumstances it is
not justified to apply the rules of the Convention law concerning
witnesses automatically also to experts. The Government refer in this
respect to their submissions made in the Bönisch case and the fact
that the question of classifying experts as witnesses has not been
entirely clarified in the Court's judgment in that case (cf. Eur.
Court H.R., judgment of 6 May 1985, Series A no. 92).
5. Further differences exist between normal expert evidence and a
faculty opinion such as the one at issue in the present case. By
virtue of its nature as a written expert opinion of a collective body
the latter can even less be equated to the deposition of a witness,
let alone a witness "on behalf" of the accused. Despite the fact that
in the present case the faculty opinion was requested by the defence
and that it was favourable to the applicant, it must - like other
expert evidence - in principle be regarded as a neutral and objective
piece of evidence. The specific reasons which led the Commission in
the Bönisch case to consider an expert opinion as evidence "against"
the accused - namely the fact that the expert in question had himself
reported the case to the prosecution authorities - do not exist in the
present case.
6. As the faculty opinion represents the expert knowledge of a
whole faculty as applied to a specific case, it does not in principle
require any special oral explanation, given its high scientific
quality. This is not expressly laid down in the law, but constitutes
the general practice based on the case-law of the Supreme Court. It
is not excluded that this practice might be reconsidered by the
Supreme Court. The practice has been criticised by legal writers,
some of whom consider that a court must be able to summon one of the
faculty members involved in the preparation of the faculty opinion or
some other expert, if it considers this to be relevant to its
decision. However, due to its character as a genuine "collective
opinion" it seems to be problematical to ask one person to explain or
defend the faculty opinion in court. Such a person could only state
his own views and would therefore have to be considered as a further
individual expert. A collective appearance of all members of the
faculty to explain and discuss the faculty opinion in court is not
only impossible for practical reasons, but also because it would be
inappropriate to disclose the internal opinion-forming process of the
faculty in court.
7. This does not mean, however, that a faculty opinion
can never be further clarified or explained in court. There are two
different situations in this respect:
a) Where a faculty opinion is such that it is open to several
different interpretations or where a new constellation emerges at the
trial, it may in fact happen in the individual case that a review or
complementation of the faculty opinion becomes indispensable. Such
review or complementation must then again be entrusted to the whole
faculty college.
b) There may be a need for an explanation in the sense of an
interpretation of the technical terms and scientific concepts used in
the faculty opinion for a medical layman or a reassuring clarification
of the facts. In such a case it is admissible according to the
Supreme Court to call on an individual expert involved in the
proceedings to give the necessary explanations at the trial.
8. As regards the possibility of obtaining a review or
complementation of the faculty opinion by the faculty itself, the
applicant did not make any request to this effect. The conclusions of
the faculty opinion were such a clear statement in favour of the
applicant that there was apparently no need for such a review or
complementation. If, however, the defence had been of the view that
the faculty opinion was based on facts which were at variance with the
evidence before the Court, it could have requested a complementary
faculty opinion.
9. In the present case, the preparation of the faculty opinion
had not been limited to members of the medical faculty itself. The
faculty apparently considered it to be of such importance for its work
to be supplemented by certain psychological tests that it decided to
consult a psychological expert outside the medical faculty who then
contributed a partial report (Teilgutachten) to the faculty opinion.
It was this psychological expert who was later called as an official
expert of the Court and was entrusted with the task of explaining the
technical terms and scientific concepts of the faculty opinion to the
Court.
10. The expert in question essentially limited his statements to
technical explanations of the faculty opinion without expressing
his own views on this opinion. The fact that he had reached
different results from those of the faculty could not impair his
objectivity and was irrelevant for the specific task of providing
technical explanations. In view of the neutral status of experts in
court proceedings their objectivity must be presumed as long as there
are no indications of bias. In the present case there is no such
indication. Before the Court the expert emphasised that it was not
his intention to state his own views on the faculty opinion, and that
it was entirely the jury's task to evaluate the evidence. This
particular behaviour underlines his sense for objectivity and
neutrality.
11. The Court's way of proceeding in this respect again is not in
conflict with the requirements of a fair trial. There is no reason
why an expert consulted earlier by the Court should not be entrusted
with the task of providing technical explanations. In any event the
applicant could have challenged the choice of this particular expert
under Section 120 of the Code of Criminal Procedure. If there had
been reasonable grounds of objection, the Court would have been
required to appoint another expert for the purpose. However, the
applicant did not raise any objections against this expert at the
relevant time.
12. The defence asked for a discussion of the faculty opinion
by summoning an "informed representative" of the faculty, and for
a limitation of the individual psychiatric experts' statements to a
discussion of the faculty opinion. However, these motions had to
be rejected for the above reasons. Insofar as a clarification of
technical terms of the faculty opinion was admissible, it was
entrusted to the above psychological expert. The discussion of the
faculty opinion by the individual experts, whose disagreement had
given rise to the request for a faculty opinion, was excluded because
it was the very purpose of a faculty opinion to put an end to the
dispute between those individual experts by obtaining a sort of
"superior" scientific opinion of high authority. In view of this
particular function of the faculty opinion it was also necessary that
the individual experts state their full opinions. According to the
applicable rules of the Code of Criminal Procedure they were required
to do so orally at the trial whereas the faculty opinion, as a written
document within the meaning of Section 252 para. 2 of the Code of
Criminal Procedure, could only be read out in court.
13. The different treatment of individual expert opinions on the
one hand and the faculty opinion on the other was only due to the
different nature of these two types of expert evidence, but it did
not encroach on the weighty position which appertains in Austrian
criminal procedure to a faculty opinion. Such an opinion has always
been regarded as particularly crucial to the court's decision. The
lack of oral presentation does not diminish its value but, on the
contrary, may contribute to its authority. In the present case the
importance of the faculty opinion was also underlined by the fact
that it was read out at the end of the trial and that technical
explanations were previously obtained from an expert. In the
Government's view the reading of the whole faculty opinion in court,
especially where it comes to such clear conclusions as in the present
case, is entirely equivalent to the oral hearing of an individual
expert. The perfectly clear conclusions of the faculty opinion could
not have been made more persuasive by the oral interrogation of one of
its authors who could only have expressed his individual opinion. In
view of the clear conclusions there was further no need to put
questions to a member of the faculty. As a result of the procedure
chosen, the faculty opinion stood firm on its pedestal without being
exposed to criticism, an effect surely favourable to the applicant.
14. In any event the faculty opinion went along with another
individual expert opinion favourable to the applicant which
counterbalanced the unfavourable opinion of the other individual
psychiatric expert. It could even be said that, including the faculty
opinion, there was more favourable than unfavourable expert evidence
before the Court. In these circumstances it cannot be maintained that
the faculty opinion was not presented to the Court under the "same
conditions" as the unfavourable expert evidence.
15. The fact that the faculty opinion was only read out in court
and not presented orally did not involve any disadvantage for the
defence or an advantage for the prosecution. Both parties were
treated in exactly the same way as neither could put any questions
directly concerning the faculty opinion. If there had been a
possibility to put such questions, they might have strengthened the
position of the prosecution. In any event the defence did have the
opportunity of underlining the importance of the faculty opinion in
the final submissions immediately after it had been read out. The
principle of equality of arms has therefore been respected.
16. The Government finally observe in this context that even
regarding witnesses the right to put questions under Article 6 para. 3
(d) of the Convention is not an absolute right. The Commission has
clearly recognised in its case-law that the right to put questions to
witnesses may be subjected to restrictions (cf. e.g. No. 9000/80,
Dec. 11.3.1982, D.R. 28 p. 127, and No. 7987/77, Dec. 13.12.1979,
D.R. 18 p. 31). If restrictions are possible in relation to
witnesses, they must be all the more acceptable in relation to the
particular type of written expert evidence in question here. There
was accordingly no violation of Article 6 para. 3 (d) in this respect.
17. In the present case ample scope was allowed to permit
evaluation of the faculty opinion by the jury whose memorandum shows
that it thoroughly examined the faculty opinion when assessing the
evidence. However, the jury was required to consider all evidence
before it. The fact that the conclusions of the faculty opinion did
not convince the jury is a matter of their freedom to evaluate the
evidence. It would be inconsistent with the principle of the judicial
freedom of evaluating evidence to bind the court to a specific piece
of evidence, including a faculty opinion.
18. As regards the absence of any reasoning in the court's
judgment, the Government point out that this is typical for trial by
jury. The participation of laymen in the administration of justice
is an expression of democracy and is considered to be of fundamental
importance in the Austrian legal system. The incorporation of this
democratic element in the administration of justice is not as such
incompatible with the Convention and accordingly it must be allowed
that the proceedings are being organised in a manner which is
appropriate to the participation of laymen. The provisions of the
Austrian Code of Criminal Procedure ensure that the jury can demand
the taking of evidence with a view to clearing up the relevant facts
and the members of the jury are also entitled to question the accused,
the witnesses and the experts. The evaluation of the evidence and the
passing of the verdict is the exclusive task of the jury. The bench
of professional judges is therefore required to put the questions to
the jury in such a manner that their freedom of evaluating the
evidence is fully respected. They have to answer these questions by
"yes" or "no". However, being laymen the members of the jury cannot
be expected to give a formal reasoning of their decisions which would
be challengeable on appeal.
19. The fact that the judgment does not contain reasons does not
mean that the jury can take arbitrary decisions. The jury is required
to set out the reasons for its verdict in a memorandum annexed to the
trial record (cf. Sections 331 para. 3 and 332 para. 6 of the Code of
Criminal Procedure). As part of the court file this memorandum is
accessible to the accused and will also be submitted to the Supreme
Court in the context of any appeal proceedings. However, the lack of
adequate reasoning which otherwise constitutes a ground of nullity
(Section 281 para. 1 (5) of the Code of Criminal Procedure) is not
applicable in assize court proceedings. The function of the said
memorandum is primarily to remind the members of the jury of their
duty to take a decision in conformity with the applicable legal
requirements. It may also be used as a basis of a monitoring
procedure by which the bench of professional judges can set aside the
jury's verdict if it is convinced that the verdict is unlawful.
20. The memorandum drawn up by the jury in the present case shows
that the whole evidence was thoroughly evaluated and that the faculty
opinion was in no way disregarded. It contained the substantive
reasons why the jury unanimously came to the conclusion that it should
not follow the faculty opinion and confirm the applicant's criminal
reponsibility despite the result of that opinion. It is true that
under the Supreme Court's case-law, due to the special weight of a
faculty opinion, a court cannot depart from the results of such an
opinion without good reasons, which normally have to be stated in the
judgment. This is only the expression of a general rule according to
which no evidence and, in particular, no expert evidence can be
disregarded by a court without good reasons. The fact that in the
case of assize court proceedings the reasons are not required to be
given in the judgment but only in the jury's memorandum cannot be
regarded as being contrary to the "fair hearing" requirement of
Article 6 para. 1 of the Convention. In this type of trial,
specifically characterised by the participation of laymen, the
explanation of the jury's evaluation of the evidence in the memorandum
should be sufficient to meet the terms of this provision (cf.
No. 8769/79, D.R. 25 p. 240 and No. 9523/81, Dec. 4.5.1982).
21. The Government finally contest the applicant's submission that
he would have left the Court as a free man if the jury had followed
the faculty opinion and had denied his criminal responsibility at the
relevant time. The Court then would have been required to consider
the imposition of a measure under Section 21 of the Penal Code
(detention in an institution for mentally deranged offenders). The
applicant's submissions to the contrary are based on mere speculation.
B. The Applicant
1. In the applicant's view the rights guaranteed in Article 6
para. 3 (d) are applicable not only in relation to witnesses but also
in relation to experts and that means any kind of expert evidence. A
faculty opinion is expert evidence par excellence and cannot be treated
differently from other expert evidence in this respect. It is nowhere
provided that a faculty opinion must be treated exclusively as a
written piece of evidence and cannot be discussed in court in the same
way as other collective expert evidence such as e.g. the report of a
food control institute under Section 48 of the Food Act 1975 (former
version). No argument can be drawn in this respect from the
provisions of the Experts and Interpreters Act which only concern the
general approval of court-certified experts. It is true that the
practice based on the Supreme Court's case-law classifies faculty
opinions as written evidence within the meaning of Section 252 para. 2
of the Code of Criminal Procedure, but this interpretation is, in the
applicant's view, contrary to the requirements of the Convention.
2. In the present case, there is a special reason to assimilate
the faculty opinion to witnesses' evidence because it not only
contained scientific conclusions but also a comprehensive factual part
which, contrary to the Government assertions, was not exclusively
based on the applicant's own statements, but on the whole contents of
the court file. The factual findings involved observations made by
members of the faculty on the basis of their scientific knowledge
which can be described as observations of expert witnesses ("sach-
verständiger Zeugenbeweis"). In view of the fact that the faculty
opinion had been obtained at the request of the applicant and that
it reached a result in his favour, it must be regarded as witnesses'
evidence on his behalf.
3. It is not contested that the applicant's request to hear an
informed representative of the medical faculty for the purpose of
explaining the faculty opinion was rejected by the Regional Court. By
this decision the applicant was prevented from putting questions which
would have elucidated the faculty opinion for the lay judges in an
understandable and convincing manner. By the same decision the authors
of the faculty opinion were prevented from putting questions to witnesses
and to the defence in the same way as the individual experts. In this
way it could not be explained to the court on which premises the
faculty opinion had been based and what relations existed between the
faculty opinion and the individual expert opinions. Also it was not
possible to explain how the faculty had evaluated the facts and
whether the allegedly different facts established by the court were
capable of leading to other results. The applicant observes in this
context that it was part of the scientific task of the faculty to
identify and evaluate the facts which could be of relevance for the
applicant's criminal responsibility and that, in view of this
scientific dimension of the issue, only a representative of the
faculty could have validly answered the question whether other facts
warranted different conclusions from a scientific point of view.
4. The applicant does not contest that the right to put questions
under Article 6 para. 3 (d) of the Convention is not an absolute right
and that the court has the power to control any questions put by the
parties as to their relevance for the proceedings. However, he
considers that the total exclusion of questions concerning a faculty
opinion amounts to a prohibition to defend the accused in this
respect. He observes that in the present case, unlike Application
No. 7130/75, there was no possibility of putting questions prior to
the trial. Also there was no real chance at the trial to obtain a
complementary faculty opinion in view of the clear results of that
opinion and the fact that the alleged discrepency of the facts
underlying the faculty opinion with the facts established by the court
was not brought to the attention of the defence. Finally, there was
no possibility of raising any questions in this respect after the
verdict of the jury because the verdict did not depart from the
memorandum. In the circumstances the defence had no possibility to
request a monitoring procedure by the bench of professional judges or
to obtain an extraordinary revision (ausserordentliche Wiederaufnahme)
by the Supreme Court.
5. The failure to call on one or more representatives of the
faculty to explain the faculty opinion cannot be justified by the
argument that this is not appropriate and not provided for by law.
The Government indeed admit that the case-law to this effect is not
accepted by legal writers. However, they do not explain in a
convincing manner why it should not be appropriate to hear members of
the faculty. The way in which the faculty opinion is being prepared
is in the applicant's view irrelevant for its presentation in court
and the possibility to put questions to one or more members of the
faculty for the purpose of clarifying or discussing that opinion.
6. The applicant contests the Government's assertion that one
of the experts in fact discussed the faculty opinion. The expert in
question was not a psychiatrist, but a psychologist, and he expressly
stated that he would not comment on the faculty opinion but merely
explain certain statements of his colleagues who had carried out
similar examinations as himself in the framework of this faculty
opinion. The expert then discussed certain methods of examination
which had also been at the basis of the faculty opinion, but with a
different result from the faculty opinion. This expert therefore
could in no way be regarded as an expert witness for the defence.
On the contrary, it is a particularly serious violation of the right
guaranteed in Article 6 para. 3 (d) to obtain the attendance and
examination of witnesses "on his behalf" if only an expert witness
"against" the accused is ordered by the court to explain an expert
opinion which has concluded in the applicant's favour.
7. Contrary to the Government's submission, the above
psychological expert could not have been challenged under
Section 120 of the Code of Criminal Procedure. He started by setting
out his own expert opinion which was unfavourable to the applicant.
He then went on to give some technical explanations on the faculty
opinion although this had not been expressly ordered by the court when
it appointed this expert. In doing so, the expert clearly showed a
critical undertone concerning the faculty's result and he did not
distinguish between his own views and those of the faculty.
Favourable and unfavourable expert evidence was thus mixed up in an
indistinguishable manner. The jury could only be confused by this way
of presenting the evidence. They were prevented from perceiving the
faculty opinion in its own right as a separate piece of evidence in
the applicant's favour.
8. Finally, the function of the faculty opinion as a particularly
important piece of evidence was completely undermined by the fact that
it was merely read out in court in a monotonous way. The members of
the jury, who had not previously received a copy of the faculty
opinion, could not possibly have gained any proper understanding of
this voluminous and complex document of twenty-nine pages which in
itself was not easily understandable. The proper weight was not given
to this important piece of evidence by presenting it to the court in
this way. The applicant further observes that under Section 252
para. 2 of the Code of Criminal Procedure the parties could even have
renounced the reading, a fact which shows that the application of this
provision is wholely inappropriate. It could even lead to a situation
where the presumably most important piece of evidence is totally
ignored by the court.
9. A faculty opinion as a superior expert opinion contains so
to speak irrefutable scientific statements and therefore must be of
crucial importance for the court's decision. However in the present
case the jury came to a wrong decision in exercise of its free
evaluation of evidence because of the rejection of the applicant's
motion for evidence. The principle of free evaluation of evidence
only means that there is no strict rule of evidence in the Code of
Criminal Procedure. It does not mean that the judges including lay
judges are entitled to take an arbitrary decision, that they may
arbitrarily disregard the scientific advice by all members of the
Medical Faculty of the University of Vienna. However this is exactly
what happened in the present case. The jury denied the correctness of
the opinion of the faculty, the highest scientific body. The legal
issue of the applicant's criminal responsibility was thus wrongly
decided.
10. The only relevant element of this decision is the verdict of
the jury. It is a particular feature of trial by jury that the
jury is not required to state reasons for its verdict which can be
attacked on appeal. However from the jury's memorandum it is quite
clear that the faculty opinion was disregarded. The jury there
simply stated that the faculty opinion was based on other facts than
those which it considered as established, but it did not indicate in
detail which of the facts underlying the faculty opinion had not been
established. In any event the jury's memorandum could not be used by
the defence because it could not draw any argument from it in the
subsequent proceedings. It could neither request a monitoring
procedure by the bench of professional judges nor could it challenge
the reasons given in the memorandum in the subsequent Supreme Court
procedure. Accordingly the Supreme Court in its decision did not
mention this memorandum at all.
11. The Government have referred to the high authority of the
faculty opinion. However, in his final submissions, which were not
included in the transcript, the public prosecutor even ridiculed that
opinion in view of its lack of proper presentation. The lay judges
tend to judge an expert opinion in closest connection with the
person of the expert, and in the present case the fact that the
faculty opinion was discussed by an expert who had reached the
opposite result led to a wrong decision of the jury. In these
circumstances there can be no question of a fair balance between the
faculty opinion and the conflicting individual expert opinion. The
individual expert who had reached a result favourable to the applicant
also could not rely on the faculty opinion when presenting his report.
12. If there had been a proper procedure the jury would probably
have followed the faculty opinion and denied the applicant's criminal
responsibility. The applicant then would have left the court as a
free man since the reasons excluding his criminal responsibility, as
found by the faculty, were of a temporary nature and thus did not
justify the imposition of a measure under Section 21 of the Penal Code
which requires an unfavourable prognosis concerning future criminal
behaviour.
THE LAW
The applicant complains that a medical faculty opinion on the
issue of his criminal responsibility was obtained by the Court which,
unlike other expert evidence, was only presented as written evidence
to the Court with the consequence that no questions could be put for
its explanation and clarification to a representative of the medical
faculty. He further complains that the Court accepted some
explanations on the faculty opinion by an individual expert who,
contrary to the medical faculty, had reached a result unfavourable to
the applicant. He finally complains that, without giving reasons, the
jury did not follow the faculty opinion. The applicant claims that,
in these circumstances, he did not enjoy the guarantees of a "fair
trial" within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention and
that his rights under Article 6 para. 3 (d) (Art. 6-3-d) have been violated.
Article 6 para. 1 (Art. 6-1) reads as follows:
"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. ..."
Article 6 para. 3 (d) (Art. 6-3-d) reads as follows:
"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;
... "
It is not in dispute that Article 6 para. 1 (Art. 6-1) is applicable to
the case. The parties disagree, however, on whether or not Article 6
para. 3 (d) (Art. 6-3-d) is also applicable as regards the faculty opinion.
In this respect the Commission notes, on the one hand, the
Government's submission that, by its terms, Article 6 para. 3 (d) (Art. 6-3-d)
refers only to witnesses and that expert evidence, in particular a written
expert opinion submitted by a collective body such as a medical faculty, cannot
automatically be assimilated to witnesses' evidence. The Commission notes, on
the other hand, the applicant's argument that the applicability of Article 6
para. 3 (d) (Art. 6-3-d) to experts has been recognised in the earlier case-law
(cf. in particular No. 8658/79, Bönisch v. Austria, Comm. Report 12.3.84,
paras. 86-89) and that in the present case the faculty opinion involved
elements of witnesses' evidence in that it contained, inter alia, factual
findings concerning the applicant's behaviour during the relevant period which
were based on observations made by members of the medical faculty in the
exercise of their scientific task.
The Commission recalls para. 88 of its Report in the Bönisch
case (loc. cit.) where it stated the following:
"With regard to the facts of the present case,
the Commission maintains and confirms its view that the
term 'witness' in Article 6 para. 3 (d) (Art. 6-3-d) of the Convention
must be understood as relating also to experts ('expert
witnesses'). By giving the defence a right to put
questions and to present its evidence under the same
conditions as the prosecution this provision indeed
specifies the particular procedural means which are
appropriate in respect of all types of oral evidence in
order to secure the effective implementation of the principle
of equality of arms. Despite their special professional
qualifications and their duty to adopt an objective approach,
the evidence of experts, as that of witnesses, requires to
be checked by questions and to be confronted, where
contested, with other conflicting evidence. It is only in
this way that there is a chance for the defence to present
its case in a fair way and to ensure that all relevant
aspects of the case will thus emerge."
The Commission further observes that in its subsequent
judgment in the same case the European Court of Human Rights left open
the question of direct applicability of Article 6 para. 3 (d) (Art. 6-3-d) to
expert evidence and based its conclusions on analogous considerations under
Article 6 para. 1 (Art. 6-1) "whilst also having due regard to the paragraph 3
guarantees, including those enunciated in subparagraph (d)" (Eur. Court H.R.
judgment of 6 May 1985, Series A no. 92, p. 15 para. 29).
In the present case it cannot be decisive that under the
practice of the Austrian courts a faculty opinion is regarded as a
piece of written evidence, to be read out under Section 252 para. 2
of the Code of Criminal Procedure, in respect of which an oral
presentation is inadmissible. It is the very issue before the
Commission whether the exclusion of oral presentation of such a
faculty opinion, and the exclusion of any possibility to put
questions in relation to it, is appropriate having regard to the
particular nature of this piece of evidence and its function in the
overall context of the proceedings, and whether such exclusion
is in conformity with the provisions of the Convention, including the specific
guarantee enunciated in Article 6 para. 3 (d) (Art. 6-3-d). It follows that
the applicant's complaints, insofar as they are based on this provision, cannot
at this stage be rejected under Article 27 para. 2 (Art. 27-2) of the
Convention as being incompatible, ratione materiae, with the provisions of the
Convention.
As regards the substance of the applicant's complaints under
Article 6 (Art. 6), the Commission notes that the case raises complex and
difficult issues concerning the application and interpretation of Article 6
paras. 1 and 3 (d) (Art. 6-1, 6-3-d) of the Convention which require to be
determined as to their merits. The application accordingly cannot be rejected
as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art;
27-2) of the Convention.
For these reasons, the Commission
DECLARES THE APPLICATION ADMISSIBLE,
without in any way prejudging the merits.
Deputy Secretary to the Commission Acting President of the Commission
(J. RAYMOND) (S. TRECHSEL)