Information Note on the Court’s case-law No.
August 1991
Brandstetter v. Austria - 11170/84, 12876/87 and 13468/87
Judgment 28.8.1991
Article 6
Article 6-1
Fair hearing
Equality of arms
Article 6-3-d
Examination of witnesses
Appointment of court experts and hearing of witnesses in two sets of criminal proceedings: no violation
[This summary is extracted from the Court’s official reports (Series A or Reports of Judgments and Decisions). Its formatting and structure may therefore differ from the Case-Law Information Note summaries.]
I.ARTICLE 6 OF THE CONVENTION
A.Proceedings concerning the quality of wine
1.Principle of equality of arms with regard to expert evidence
Complaint concerning failure to appoint other experts and to call a witness: examined under paragraph 1 – sub-paragraph (d) of paragraph 3 relates to witnesses, not experts and its guarantees are constituent elements, amongst others, of the general concept of a fair trial.
Role played in particular circumstances by the court expert: not established that he was appointed under section 30 § 10 of the Wine Act – fact that he was employed by the Institute which initiated the prosecution did not of itself justify doubts as to his neutrality – defence raised no objection until he filed report unfavourable to the applicant -no grounds for considering him as a witness for the prosecution – District Court's refusal to appoint other experts therefore not a breach of the principle of equality of arms.
Proceedings not unfair on account of that refusal or refusal to call the witness – right to a fair trial does not require national courts to appoint, at request of the defence, further experts when opinion of the court expert supports the prosecution case.
Conclusion: no violation of Article 6 § 1, in conjunction with Article 6 § 3 (d) (unanimously).
2.Right to a fair trial and right to obtain the attendance and examination of witnesses
Complaint that District Court relied on evidence of, but did not hear, anonymous members of wine-tasting panel: applicant never sought their attendance and examination – their findings formed only part of the written expert opinions, were only an indication and did not constitute conclusive evidence.
Conclusion: no violation of Article 6 § 1, in conjunction with Article 6 § 3 (d) (unanimously).
3.Rights of the defence
Applicant's conviction for defamation alleged to have constituted a violation of rights of the defence as such and to have interfered with those rights in the wine-quality proceedings.
Article 6 § 3 (c) does not provide for unlimited right to use defence arguments – concept of right of defence would be overstrained if accused could not be prosecuted when they intentionally arouse false suspicions against a witness or other person involved in criminal proceedings – not for the European Court to determine whether applicant was rightly found guilty by the national courts of having done so.
As to the wine-quality proceedings, mere risk of subsequent prosecution on account of allegations made in defence does not violate Article 6 § 3 (c) – not established that applicant was indirectly inhibited by threat of prosecution or was in any way restrained from making his allegations.
Conclusion: no violation of Article 6 § 3 (c) on either ground (unanimously).
B.Proceedings concerning the charge of tampering with evidence
Allegations of violations of Article 6 §§ 1 and 2 in connection with specific findings of Regional Court not pursued.
Conclusion: no need to examine them (unanimously).
1.Preliminary objection
Plea that applicant had failed to exhaust domestic remedies by not challenging court expert in due time – his complaint was not against that expert but against Regional Court's refusal to appoint a second expert.
Conclusion: objection rejected (unanimously).
2.Merits
Charge of tampering with evidence had originated in report prepared by court expert – applicant's apprehensions as to his neutrality were therefore justified and, under principle of equality of arms, persons called, in whatever capacity, by the defence should have been examined under same conditions as court expert – however, latter did not play a dominant role – furthermore, although applicant's own expert was heard only as a witness, refusal to appoint him as a second expert did not, having regard to particular circumstances, breach requirements of a fair trial.
Conclusion: no violation of Article 6 § 1, in conjunction with Article 6 § 3 (d) (unanimously).
C.Defamation proceedings
Principle of equality of arms is only one feature of wider concept of fair trial, which also includes right to adversarial proceedings – latter means that prosecution and defence must be given opportunity to have knowledge of and comment on each other's observations and evidence.
Public prosecutor's submissions not prescribed by law, but filed according to a standing practice – not established that practice sufficiently ensures that appellants are aware of the filing – 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 right to examine and reply directly to submissions by prosecution.
Conclusion: violation of Article 6 § 1 (six votes to three).
II.ARTICLE 50 OF THE CONVENTION
Damage and costs and expenses related to proceedings concerning the quality of wine and the charge of tampering with evidence: claims dismissed since no violation found.
Costs and expenses in the defamation case: claim dismissed as not a consequence of violation found.
Costs and expenses before the Convention institutions: account taken of fact that only one of applicant's various complaints upheld and of his legal aid – award in equity.
Conclusion: respondent State to pay a specified sum to the applicant (unanimously).
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