AS TO THE ADMISSIBILITY OF
Application No. 26527/95
by Wolfgang BLUM and Klaus Ignaz JACOBI
against Austria
The European Commission of Human Rights (First Chamber) sitting
in private on 18 October 1995, the following members being present:
Mr. C.L. ROZAKIS, President
Mrs. J. LIDDY
MM. E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
M.P. PELLONPÄÄ
B. MARXER
G.B. REFFI
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
Mrs. M.F. BUQUICCHIO, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 24 October 1994
by Wolfgang BLUM and Klaus Ignaz JACOBI against Austria and registered
on 15 February 1995 under file No. 26527/95;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicants are German citizens, born in 1955 and 1959
respectively, who reside in Geisenheim (Germany). Before the Commission
they are represented by Mr. Riess, a lawyer practising in Innsbruck.
The facts of the case, as submitted by the applicants, may be
summarised as follows.
On 15 March 1992 the applicants led as tour guides a group on an
alpine skiing tour in the Tyrolean Alps. The group got caught in an
avalanche and several members were injured.
On 3 May 1993 the Innsbruck Regional Court (Landesgericht)
convicted the applicants of negligently causing bodily harm
(fahrlässige Körperverletzung) and sentenced them to a fine of 12.000
AS each. The Regional Court found that the applicants had alpine
experience as tour guides. However, they had never before made this
specific tour and had failed to take the necessary precautions. They
had failed to listen to the weather and avalanche situation forecast
for the day of the tour and had failed to enquire from the keeper of
the mountain hut the safest route to take. According to the expert in
meteorology and avalanches heard by the court, there had been an
increased avalanche risk on 15 March 1992. Nevertheless, if the
necessary precautions had been taken, and in particular the correct
route chosen, the tour could have been considered as safe. Since the
applicants had failed to take these precautions they had not followed
the safest route but had chosen a part of the slope which because of
its weather and snow conditions had been at a high avalanche risk.
Before the Regional Court the applicants were assisted by counsel.
The applicants and the Public Prosecutor's Office appealed
against the Regional Court's judgment. In their appeal the applicants
submitted, inter alia, that the Regional Court had failed to hear the
keeper of the mountain hut as a witness.
On 11 March 1994 after an oral hearing in which the applicants
and their defence counsel participated, the Innsbruck Court of Appeal
(Oberlandesgericht) dismissed their appeal.
At the appeal hearing several witnesses were heard, including the
keeper of the mountain hut and the same expert in meteorology and
avalanches as in the first instance proceedings. In the course of the
hearing the expert stated that he was an employee of the Regional
Government's meteorologic service which is responsible for the
avalanche situation forecasts. He also stated that a colleague of his
had prepared the avalanche situation forecast for 15 March 1992.
Thereupon the applicants challenged the expert for bias. They
submitted that because of his main professional activity he might be
prevented from questioning the correctness of the avalanche forecasts
for the day of the accident. The Court of Appeal dismissed the
applicants' challenge. It found that the expert's main professional
activity did not interfere with his task of giving an expert opinion
and was useful as it showed that he had a particularly good knowledge
of avalanche problems.
COMPLAINTS
The applicants complain under Article 6 para. 1 of the Convention
that the criminal proceedings have been unfair because the Court of
Appeal dismissed their challenge for bias of the expert for meteorology
and avalanches.
THE LAW
The applicants, invoking Article 6 para. 1 (Art. 6-1) of the
Convention, complain that the criminal proceedings against them were
unfair because the Court of Appeal refused to dismiss the expert for
meteorology and avalanches as biased.
The Commission considers it appropriate to examine the
applicants' complaint under the general rule of paragraph 1 of
Article 6 (Art. 6-1) of the Convention, whilst also having due regard
to the guarantee of paragraph 3 (d) (Art. 6-3-d) of the Convention (see
Eur. Court H.R., Bönisch judgment of 6 May 1985, Series A no. 92,
pp. 14-15, para. 29; Brandstetter judgment of 28 August 1991, Series A
no. 211, p. 20, para. 42).
Article 6 (Art. 6) of the Convention, as far as relevant, reads
as follows:
"(1) In the determination of ... any criminal charge against him,
everyone is entitled to a fair and public hearing ... by an
independent and impartial tribunal established by law. ...
(3) Everyone charged with a criminal offence has the following
minimum rights:
(d) to examine or have examined witnesses against him and to
obtain the attendance and examination of witnesses on his behalf
under the same conditions as witnesses against him; ..."
The applicants submit that the expert was a colleague of the
meteorologist who had drawn up the avalanche situation forecast for the
relevant day and must have felt obliged to defend it. The forecast
was, however, incorrect as on 15 March 1992 there had been no increased
avalanche risk.
The Commission finds that the mere fact that the expert for
meteorology and avalanches heard by the court was employed by the
Regional Government's meterological service of which another employee
had drawn up an avalanche situation forecast for the day of the
accident does not in itself justify fears that the expert was 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 (see Eur. Court H.R., Brandstetter judgment, loc. cit.,
p. 21, para. 44; Zumtobel v. Austria, Comm. Report 30.6.92, para. 84,
Eur. Court H.R., Zumtobel judgment of 21 September 1993, Series A
no. 268-A, p. 22).
The Commission therefore finds no appearance that the Court of
Appeal's refusal to dismiss the court expert for meteorology and
avalanches for bias violated the applicants' defence rights under
Article 6 paras. 1 and 3 (Art. 6-1, 6-3) of the Convention. There is
no indication that proceedings were otherwise conducted in an unfair
manner or that the applicants, who were represented by counsel, could
not argue their case properly.
It follows that the application is manifestly ill-founded within
the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (C.L. ROZAKIS)
Full & Egal Universal Law Academy