AS TO THE ADMISSIBILITY OF
Application No. 11170/84
by K.B.
against Austria
The European Commission of Human Rights sitting in private
on 14 July 1987 the following members being present:
MM. C. A. NØRGAARD, President
J. A. FROWEIN
S. TRECHSEL
F. ERMACORA
E. BUSUTTIL
A. S. GÖZÜBÜYÜK
A. WEITZEL
J. C. SOYER
H. G. SCHERMERS
H. DANELIUS
G. BATLINER
H. VANDENBERGHE
Mrs. G. H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
Mr. H. C. KRÜGER 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 6 September
1984 by K.B. against Austria and registered on 29 September 1984 under
file N° 11170/84;
Having regard to the Commission's decision of 12 December 1985
to give notice of the application to the respondent Government and to
invite them in accordance with Rule 42 para. 2(b) of the Rules of
Procedure, to submit observations in writing on the admissibility and
merits;
Having regard to the Government's observations submitted on
10 August 1986 and to the applicant's observations in reply submitted
on 25 June 1986;
Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission ;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is an Austrian citizen born in 1939 who resides
at Hadres, Lower Austria. He is represented by Mr. Werner Sporn,
a lawyer practising in Vienna.
The applicant is a vintner and he complains of criminal
proceedings taken against him under the Wine Act 1961 (Weingesetz,
Federal Law Gazette No. 187/61 as amended by Federal Law Gazette
Nos. 446/80, 577/80 and 391/83).
These proceedings were instituted following a control carried
out in his enterprise under Section 27 of the Wine Act by a Federal
Inspector of Cellars (Bundeskellereiinspektor) on 16 May 1983.
The inspector drew samples from two tanks of 1982 white wine, leaving
behind counter-samples for the applicant's use (Gegenproben). A
second control sample (Reserveprobe) was also taken from each of
the tanks in case a further official analysis should become
necessary. The tanks were sealed and officially seized (beschlagnahmt)
according to Section 28 of the Act.
The inspector then sent the official samples to the Federal
Agricultural Chemical Control Institute (landwirtschaftlich-
chemische Bundesversuchsanstalt) in Vienna for examination in
accordance with Section 30 of the Wine Act. Section 30 (3) stipulates
that the Institute shall draw up a full report including a chemical
analysis and the results of the tasting by an official panel
(amtliche Weinkostkommission). According to the regulations on
this panel (Section 30 paras. 4-8) it is composed of a President
(i.e. the Director of the above Institute) and the required number (at
least five) of wine-tasting experts appointed by the Federal Ministry
of Agriculture and Forestry who have to decide by qualified majority
votes (five out of five or six, six out of seven, etc.) whether or not
the quality of a wine corresponds to its description. The tasting
takes place under certain technical conditions laid down in the rules.
It is not public and the members of the panel are bound by
confidentiality.
In the present case, the tasting panel examined the samples of
the applicant's wines on 25 May 1983. It came to the conclusion
concerning both samples that water and residual products from the wine
manufacturing process had been added. The Institute's report of
9 June 1983 further contained a chemical analysis which showed an
abnormally low value of extract substances and minerals in both samples,
and as these values were below those admissible under the Wine
Ordinance (Weinverordnung, Federal Law Gazette No. 321/61 as amended)
the applicant was suspected of having violated criminal provisions of
the Wine Act (in particular offering "imitation wine" to the public,
Section 45 (1)(a) and (b) read in conjunction with Section 44 (1)(f)
and Section 43 (3) of the Wine Act).
Section 30 (9) of the Wine Act provides that if the results of
an examination lead to the suspicion of a criminal act, the Institute
must report the case to the competent public prosecutor or court. In
accordance with this provision, the Institute reported its suspicion
to the District Court of Haugsdorf on 8 June 1983. The district
prosecutor (Bezirksanwalt) requested the applicant's punishment
under Section 45 of the Wine Act, and the Court opened the proceedings
on this basis.
In preparation of his defence, the applicant had the counter-
samples analysed by the Federal Food Control and Research Institute
(Bundesanstalt für Lebensmitteluntersuchung und -forschung) in Vienna
which in its reports of 9 August 1983 found that the value of extract
substances and minerals was not below the minimum prescribed by
the Wine Ordinance, although the examination of these counter-samples
by the official wine tasting panel on 14 July 1983 confirmed the
addition of water in one case (six out of seven members) whereas such
addition could not be established with sufficient certainty in the
case of the second counter-sample (only five out of seven members
considered that water had been added).
The first hearing before the District Court took place on
4 October 1983. The applicant pleaded not guilty and asked for the
taking of expert evidence to the effect that his wine had not been
imitated or adulterated. The Court appointed an employee of the
Agricultural Chemical Institute as its official expert in conformity
with Section 30 (10) of the Wine Act which reads as follows:-
"If the court has doubts concerning the findings or the
opinion of the Institute or if it considers that the
findings or the opinion require elaboration or if
reasonable objections are raised against the findings
or the opinion, it must hear as expert an employee of
the Institute who has been involved in the preparation
of the analysis or opinion for the purpose of explaining
or elaborating on the Institute's findings or opinion."
The expert in question had not been involved in the earlier
analysis of the applicant's wine samples by his Institute. At the next
court hearing on 22 November 1983, he stated that the results of this
analysis were so different from those obtained by the Food Control
Institute concerning the counter-samples, that an error of analysis must
have ocurred at one of the institutes. In his view a clarification
could only be brought about by an analysis of the second control
samples. The Court asked him to prepare a written expert opinion to
this effect.
On 21 December 1983, the Agricultural Chemical Institute
analysed the control samples under the supervision of the expert and
reached results similar to those concerning the first samples analysed
by it. A new examination by the tasting panel did not take place. In
his written report of 17 January 1984, the expert concluded that the
new analysis confirmed the first one carried out by his Institute,
and that there were serious doubts as to the correctness of the Food
Control Institute's analysis of the counter-samples. He stated that
the chemical results were also confirmed by the tasting panel which in
all but one samples had identified the addition of water. The sample
where no such addition had been stated by the required majority could
be ignored.
The correct assessment of the chemical and tasting results
showed that there had been an impermissible addition of water and sugar,
and that the minimum concentration of extract substances required by
the Wine Ordinance had not been reached. However, the description of
the applicant's product as "imitation wine" (produced from residual
substances of the wine manufacturing process) could not be maintained.
The expert finally observed that certain statements of the
applicant and his relatives in the proceedings must have been wrong in
view of the results of the chemical analysis.
At the hearing of 14 February 1984, the applicant's lawyer
criticised this expert opinion on the ground of the expert's close link
with the Agricultural Chemical Institute which deprived him of the
necessary objectivity concerning that Institute's first analysis and
might have prompted him to defend the results of this analysis against
the different results of the Food Control Institute. He further
criticised that the expert had exceeded his powers by discussing
various questions of fact and law instead of limiting himself to a
chemical analysis.
The defence requested the taking of additional evidence
including the taking of new samples from the applicant's wine tanks,
the hearing of several further experts including the expert of the
Food Control Institute who had analysed the counter-samples, and the
consultation of the records of the tasting panel. It was, in
particular, alleged that the wine had still been in fermentation when
the original samples had been drawn by the Federal Cellar Inspector,
that it had not therefore been suitable for tasting (kostfähig), and
that the legal provisions on the tasting procedure had not been
complied with. It was further alleged that the different results of
the Agricultural Chemical Institute and of the Food Control Institute
had not been explained by the Court's expert who had only concluded
that those of the Food Control Institute must be wrong because he
considered the results of his own Institute as being correct.
However, the Court rejected these requests for additional
evidence and concluded the proceedings. It convicted the applicant of
an adulteration offence under Section 45 (1)(a) of the Wine Act
imposing a fine of AS 5,600.--. In conformity with Section 46 (1) of
the Act it further declared the wine in the two tanks (12,OOO L and
15,000 L, respectively) to be forfeited. Finally, the Court ordered
the publication of the judgment in accordance with Section 45 (3).
In the judgment the Court relied essentially on the expert's
opinion from which long verbatim passages were quoted. In the Court's
view this opinion was conclusive, dealing in particular
with the differences of analysis by the two Institutes in a convincing,
detailed, precise and comprehensive manner. However, the expert
opinion could not be taken into account insofar as it had dealt in an
inadmissible manner with questions of law and questions concerning the
evaluation of the evidence. As regards the applicant's requests for
additional evidence, they had to be rejected. Insofar as they
concerned the tasting procedure, they were irrelevant because the
results of this procedure provided insufficient evidence. The taking
of new samples was superfluous and it could not be excluded that
tampering with the tanks had taken place in the meantime because of
the impossibility of sealing the seized tanks completely. The hearing
of further experts was not necessary because there could be no doubt
as to the correctness of the results of the Agricultural Chemical
Institute which in part had even been confirmed by those of the Food
Control Institute. There was no doubt concerning the objectivity of
the Court's expert despite his link to the Agricultural Chemical
Institute. The Court finally stated that the applicant had made
certain false allegations against the Federal Cellar Inspector
concerning the manner in which he had drawn the samples from the
applicant's tanks, and it took this into account as an aggravating
circumstance.
The applicant appealed, repeating his requests for evidence
and claiming that by the rejection of these requests the District Court
had violated his rights of defence. However, the appeal was rejected
by the Regional Court (Kreisgericht) of Korneuburg on 7 May 1984.
This Court observed, in particular, that objections against the
expert had been raised only after he had submitted his opinion and not
when he was first appointed. There were no doubts as to his
objectivity as he was known as particularly experienced and thorough,
had not participated in the analysis of the first samples, and had
criticised not only the results of the Food Control Institute, but
also those of his own Institute in several respects. He had given
detailed explanations concerning the differences of analysis between
the two Institutes. The applicant's submission that the Court should
have had doubts as to his guilt because of the mere existence of those
differences of analysis could not be maintained. There was no
objection to the Court quoting literally from the expert's opinion.
In view of its conclusiveness, it was not necessary to take any
further evidence, such as hearing the expert of the Food
Control Institute or a third expert. Nor was it necessary to take
further samples as they would in any event show a different
composition and as tampering could not be ruled out. Finally, as
regards the tasting procedure, the applicant's criticism was equivocal
because he had, on the one hand, challenged its reliability, but had,
at the same time, alleged violations of the applicable procedural
rules. In reality, this procedure was capable of providing evidence
of an indicative nature, but subsidiary to the chemical analysis. In
view of the summary of the tasting procedure contained in the Food
Control Institute's report it was not necessary to consult the
relevant record of the tasting panel.
No further remedy was available to the applicant against this
decision.
COMPLAINTS
1. The applicant complains that the criminal proceedings were
conducted in violation of his right to a fair hearing by an independent
and impartial tribunal (Article 6 para. 1) and his right 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 (Article 6 para. 3 (d) of the Convention).
The applicant criticises, in particular, that under
Section 30 (10) of the Wine Act the Court was not free to appoint an
expert of its choice, but was bound to appoint as its expert an
employee of the Institute which had reported the suspicion under
Section 30 (9) of the Act. In fact, the Court heard no other expert
despite the applicant's requests.
The applicant further alleges a violation of the above
provisions by the fact that the courts used the results of an official
wine-tasting procedure without his being able to examine members of
the wine-tasting panel or to put questions to them. The identity of
these persons, who must be regarded as experts, was not disclosed to
the Court or the defence throughout the proceedings. Because of the
confidentiality of the tasting procedure, it was not possible to
control its conformity with the applicable regulations or the
reliability of its results.
2. The applicant furthermore alleges a violation of the
presumption of innocence as guaranteed by Article 6 para. 2 of the
Convention because the Regional Court expressly stated that the
existence of different results in the analysis of the two Institutes
could not create any doubt as to his guilt. Its reasoning proceeded
on the basis that it had been the task of the defence to disprove the
charges based on the Agricultural Chemical Institute's initial report,
rather than the prosecution's task to prove the correctness of these
charges. It spoke of an attempt to "defame" the expert although the
applicant had only alluded to his link with the Institute whose tests
had given rise to suspicion. Finally, the Court insinuated the
possibility of manipulations of the seized tanks of wine, i.e. a
criminal offence under Section 271 or 272 of the Penal Code, when it
refused the taking of further samples from these tanks.
3. The applicant considers that the publication of the
judgment in the local press and official gazettes and notice boards
ordered under Section 45 (3) of the Wine Act was tantamount to his
being "pilloried". In his view this was a degrading punishment
contrary to Article 3 of the Convention which was in no way justified
in the circumstances.
PROCEEDINGS
The application was introduced on 6 September and registered
on 29 September 1984.
On 12 December 1985, 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 14 March 1986. Certain questions were put to the
Government in this context, in particular, as regards the applicant's
complaints under Article 6 paras. 1 and 3 (d) of the Convention.
On 17 March 1986, following a request by the respondent
Government, the President of the Commission ruled to extend the time
limit for the submission of the Government's observations until
1 April 1986.
The Government submitted their observations on 10 April 1986.
The applicant was requested to submit any observations which
he wished to make in reply before 31 May 1986. On 6 June 1986 the
Commission's President, following a request by the applicant, extended
the time limit until 30 June 1986.
The applicant submitted his observations on 25 June 1986.
SUMMARY OF THE PARTIES' SUBMISSIONS
A. The Government
The Government admit that the formal requirements of Article 26
of the Convention have been met.
As regards the alleged violation of Article 6 paras. 1 and
3(d), the Government first observe that Section 30 para. 10 of the
1961 Wine Act which was applied in the present case has in the
meantime been amended in the light of the Eur. Court of H.R. Bönisch
judgment of 6 May 1985 (Series A No. 92) and the Constitutional Court's
subsequent decision of 28 November 1985. By the latter decision the
first sentence of Section 48 of the 1975 Food Act (which was identical
to Section 30, para. 10 of the 1961 Wine Act) has been quashed as
being unconstitutional. The corresponding provision of the new Wine
Act of 1985 reads as follows:
Section 47 (10):
The Federal Inspectors of Cellars (Bundeskellereiinspektoren)
and persons who were officially in charge of the examination
or tasting of the reported wine may be called upon only as
witnesses but not as experts.
However, at the time of the proceedings against the applicant,
the relevant provision was still in force; therefore an employee of
the Control Institute was called in as expert because of the
difference in the results of the analyses contained in the first
opinion and the opinion on the counter-samples.
If the court has doubts in respect of a written expert opinion
that has led to the charge, it must first try to eliminate these
doubts by hearing an employee of the Control Institute as an expert;
however, it is not bound by the oral opinion of this expert any more
than the opinion of any other expert. This opinion is also subject to
the free evaluation of evidence by the judge, which can often only be
done by recourse to other experts since he lacks the relevant
expertise. In this respect the Government refer to Sections 125 and
126 of the Code of Criminal Procedure, which lay down the conditions
under which the court may appoint additional experts.
Section 30 (10) of the 1961 Wine Act thus constitutes neither
a restricition of evidence nor an influence on the free evaluation of
evidence by the judge, but merely settles a certain chronological
order of evidence.
In the present case there were no requirements for appointing
other experts under Sections 125 or 126 of the Code as the Court,
which had to decide by freely assessing the furnished evidence, had no
doubts in respect of the opinion rendered by its expert.
This expert had not taken part in the examination of the
reported samples by the members of the wine tasting panel, who remain
anonymous. He analysed the second samples in his capacity as an
independent expert and assistant to the Court. It cannot be said
that he gave the impression of a "witness for the prosecution" as he
himself also criticised the first opinion and explained that the
terms "imitated" and "adulterated" were not used accurately by the
Agricultural Chemical Control Institute and that technical mistakes
had been made as far as the qualifying term of "imitated" was
concerned. This clearly shows that in spite of the fact that he was
an employee of the Control Institute, the expert provided an
objective, careful and conclusive opinion which supplemented and
rectified the first opinion and clarified contradictions between the
first opinion and the opinion on the counter-samples. Hence, the
"fair-trial" principle laid down in Article 6 para. 1 of the
Convention has also been complied with in respect of the outward
appearance.
Moreover, when the expert was appointed the applicant himself
was present and was cognizant of the expert's relation to the
Agricultural Chemical Control Institute. He obviously did not doubt
his expert knowledge and impartiality as he failed to raise objections
against the expert in accordance with Section 120 of the Code of
Criminal Procedure, which, if justified, could have led to the
appointment of a different expert. The expert's alleged lack of
impartiality as well as his close ties to the Control Institute were
made an issue by the applicant only after the expert rendered an
opinion which was unfavourable to him. However, in view of
the facts the Court saw no reason to appoint other experts.
The right to obtain the attendance or examination of witnesses
is not an absolute right. According to the consistent practice of the
Commission the judge has to take into account or admit only such
evidence or offers of proof and questions to witnesses as he considers
relevant to the decision. Therefore Article 6 para. 3 (d) of the
Convention has not been violated by the fact that no other expert was
appointed, as the Court saw no reason to object to the opinion
furnished by its expert.
As regards the fact that the expert of the Federal Food
Control Institute who had examined the counter-samples was not called
in, the Government observe that the Court and the court-appointed
expert examined the findings concerning the counter-samples, and
clearly discussed the causes of the different results. As far as
the applicant's private expert can be considered as a "witness for the
defence" within the meaning of Article 6 para. 3 (d) of the
Convention, there is according to the consistent practice of the
Commission no absolute right to the hearing of such a witness. In the
present case the Court did not hear him as a witness because it did
not consider this relevant to its decision after all contradictions
had been clarified by the court-appointed expert.
As regards the applicant's complaint that the tasting record
was not submitted, the Government observe that it was also contained
in the opinion on the counter-samples and by itself was not sufficient
as a basis for the Court's evaluation of evidence as "it did not
constitute certain proof but only indicative evidence of the quality
of the wine" (decision of the Korneuburg Regional Court of 7 May 1984).
For this reason it was also possible to forego the participation and
hearing of the members of the wine tasting panel. It could not be
expected that they make statements on the wine samples relevant in the
present complaint because observance of the principle of anonymity was
essential to ensure their objectivity as wine testers. They could
only have made general statements on the tasting procedure, the number
of samples, the recording of the results, etc. Such general
statements, however, could also be given by the Court's expert, an
employee of the Institute where the tasting panel worked, who was also
available to the applicant for questioning in this respect. Therefore,
the Court was entitled within its discretionary power to refuse the
summoning and hearing of the members of the panel on grounds of
irrelevance for ascertaining the truth.
The Government therefore request the Commission to declare the
application manifestly ill-founded under Article 27 para. 2 of the
Convention, or in eventu, to declare that provisions of the
Convention were not violated.
B. The applicant
The applicant considers that under the principle of fair trial
according to Article 6 para. 1 of the Convention it must be left to an
independent court to decide whether or not it wishes to consult an
expert and also to decide which person included in the list of experts
it wishes to appoint. However, Section 30 para. 10 of the 1961 Wine
Act departs from this principle. The court is thereby obliged to
appoint as its expert an employee of the Control Institute who has
participated in the preparation of the report of that Institute which
has given rise to doubts of the court. The court therefore is obliged
to appoint as its expert a person who is not neutral because he has
participated in the initial examination. Furthermore the court is
obliged to appoint him as the first expert. As a rule he will also
remain the only expert unless the specific conditions of Section 125
of the Code of Criminal Procedure are met. The court's discretion in
this respect is limited without any reasonable justification.
It does not make an essential difference that in the present
case the person appointed as the Court's expert had not himself been
involved in the preparation of the initial report and of the opinion
on the second counter-samples. This was a mere coincidence. Under
the law it was possible and, indeed, required that only a person who
had participated in the preparation of the initial report and opinion
should be appointed and heard as expert. That expert's opinion is of
crucial importance for the decision of the case because the judge
himself does not have the required special knowledge and therefore
depends on the advice of the expert. The applicant invokes the
European Court of Human Rights judgments in the cases De Cubber
(judgment of 26 October 1984, Series A No. 86) and Sramek (judgment
of 22 October 1984, Series A No. 84) according to which it must
clearly appear to the public that the principle of fair trial has been
respected.
The applicant observes that both the Federal Agricultural
Chemical Control Institute, which in the present case submitted the
initial report and the opinion on the second counter-samples, and the
Federal Food Control Institute, which examined the counter-samples, are
recognised by the State as fulfilling the same qualifications (cf.
Section 9 para. 2 of the Wine Ordinance). Both State institutions in
principle apply the same objective approach, and in this respect it
cannot make any difference that in the present case the Federal Food
Control Institute examined the counter-samples at the request of the
applicant. However, in the criminal proceedings the two institutions
are not treated in the same way and therefore the principle of
equality of arms is violated. According to Section 30 para. 10 of the
Wine Act only the person who has prepared the initial report can be
appointed as expert while the person who has analysed the
counter-samples can only be heard as witness. The constant case-law
of the Austrian criminal courts does not consider private experts as
experts of the court, their opinions have no procedural relevance and
need not even be read out in court. The conflicting evidence on both
sides is therefore not given the same weight.
In the present case the initial report of the Control
Institute was based, inter alia, on the tasting of the wine samples by
the official wine-tasting panel. Several members of the panel thought
that he had diluted the wine with water and this finding eventually
constituted one of the reasons for the applicant's conviction.
However, the applicant did not have any opportunity to put questions to
the members of the panel who must be considered as experts for the
prosecution. These experts were not at all heard by the Court and not
even their identity was disclosed to the Court or the applicant. Also
in this respect the Court's choice of the experts was restricted.
Because of their anonymity, the Court and the defence furthermore did
not have the possibility to control whether these persons had the
necessary qualifications or whether they carried out the tasting
procedure in conditions which allowed them to achieve reliable
results. Nevertheless the evidence obtained from this source which
remained unidentified throughout the proceedings was sufficient for
the Regional Court to refer to it in the judgment as "an indication
of the quality of the wine".
By referring to the anonymous and objective working methods of
the panel which excluded the necessity to put questions to its
members, the Government overlook that the defence had no possibility
to verify whether the legal conditions for carrying out the tasting
procedure had been complied with. These conditions, which are
regulated in much detail in the panel's rules of procedure, are of
considerable importance for the reliability of the tasting procedure.
As the Court refused to summon members of the panel as requested by
the defence, the applicant's rights under Article 6 para. 3 (d) of the
Convention were also violated in this respect.
THE LAW
1. The applicant complains that the criminal proceedings
against him under the Wine Act 1961 violated Article 6 paras. 1 and
3 (d) (Art. 6-1, 6-3-d) of the Convention.
He alleges, in particular, that his right to a fair hearing by an
independent and impartial tribunal (Article 6 para. 1) (Art. 6-1) and his right
to obtain the attendance and examination of witnesses on his behalf under the
same conditions as witnesses against him (Article 6 para. 3 (d) (Art. 6-3-d) of
the Convention) were violated by the fact that, under Section 30 (10) of the
Wine Act, the Court was bound to appoint as its expert an employee of the
Institute which had reported the suspicion, and that in fact it refused to hear
any other experts.
The applicant further alleges that his right to a hearing by
an independent and impartial tribunal (Article 6 para. 1) (Art. 6-1) and his
right to examine or have examined witnesses against him (Article 6 para. 3 (d))
(Art. 6-3-d) were violated because the Court used the results of an official
wine-tasting procedure without disclosure of the members of the wine-tasting
panel and without there being any possibility of examining those persons who,
in the applicant's view, must be regarded as experts. Because of the
confidentiality of the tasting procedure it thus could not be controlled
whether it had been conducted in accordance with the applicable rules.
The Government do not contest that the applicant has complied
with the conditions of Article 26 (Art. 26) of the Convention as regards the
exhaustion of domestic remedies and submission of the application
within a period of six months from the final domestic decision. The
Commission must therefore deal with the applicant's above complaints.
The Commission finds that these complaints resemble in many
respects those examined in the Bönisch case in which the European Court
of Human Rights in its judgment of 6 May 1985 (Series A No. 92) found
a violation of Article 6 para. 1 (Art. 6-1) of the Convention.
It is true that in the present case the expert appointed by
the Court had not himself participated in the preparation of the
initial report by which the case was referred to the prosecution
authorities. The Court was obliged by law to appoint as its first
expert a person from the Institute, and it also refused to hear any
other expert. Unlike the procedure followed in the Bönisch case the
applicant's private expert, who had examined the counter-samples and
had reached different results, was not heard as a witness.
Moreover, the Court used the results of an official
wine-tasting procedure conducted by a panel of wine-tasting experts
whose identity was not disclosed throughout the proceedings and who,
under the established court practice in Austria, apparently could not
be required to appear in court for the purpose of being examined
regarding the conditions under which the tasting procedure had been
carried out.
In view of these circumstances and having regard to the
Bönisch judgment the Commission considers that the applicant's
above complaints raise complex issues as to the interpretation and
application of Article 6 para. 1 read in conjunction with Article 6 para. 3 (d)
(Art. 6-1+6-3-d) of the Convention which need to be determined as to their
merits. This part of 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.
2. The applicant also complains of a violation of Article 6
para. 2 (Art. 6-2) of the Convention which reads as follows:
"Everyone charged with a criminal offence
shall be presumed innocent until proved
guilty according to the law."
This provision, which enshrines the principle of presumption
of innocence, is above all a guarantee of a procedural nature, and
applies to any criminal proceedings (see application No. 788/60,
Austria v. Italy, Yearbook 6, 784). However, in its decision on the
admissibility of application No. 7986/77, Petra Krause v. Switzerland
(Dec. 3.10.78, D.R. 13 p. 73), the Commission observed that the
presumption of innocence is not merely a procedural guarantee but
prohibits any representative of the State from declaring a person
guilty of an offence before guilt has been established by a court.
The Commission stated as follows:
"It is a fundamental principle embodied in this
Article which protects everybody against being
treated by public officers as being guilty of an
offence before this is established according to
law by a competent court. Article 6 para. 2,
(Art. 6-2) therefore, may be violated by public officials
if they declare that somebody is responsible for
criminal acts without a court having found so.
This does not mean, of course, that the authorities
may not inform the public about criminal investi-
gations. They do not violate Article 6 para. 2 (Art. 6-2) if
they state that a suspicion exists, that people have
been arrested, that they have confessed, etc. What
is excluded, however, is a formal declaration that
somebody is guilty." (D.R. 13 pp. 75-76).
In the present case, the applicant first invokes the
presumption of innocence as a procedural guarantee concerning the
Court's attitude towards the offences under the 1961 Wine Act with
which he was charged in the proceedings at issue. He claims that
despite the conflicting expert evidence the Court did not afford him
the benefit of the doubt and that the decision was reasoned in such a
way as to imply a reversal of the burden of proof.
However, the Commission considers that the wording of a
judgment finding the accused guilty of an offence as the result of the
evidence taken cannot in itself amount to a violation of the
presumption of innocence. There is no indication that in the course of
the proceedings the burden of proof was actually reversed and that the
applicant was in substance required to disprove the charges raised
against him in the report of the Federal Agricultural Chemical Control
Institute. It was still the prosecution's task to prove these
charges. Several aspects of the Court's handling of the case show
that it did not start from the assumption that the applicant was
guilty, in particular the Court's doubts concerning the Institute's
initial report, the appointment of an expert to clarify these doubts,
and the fact that on the expert's advice the Court amended the charges
in the indictment. Moreover, the applicant's request for further expert
evidence was rejected only after the Court had heard its official
expert and found his opinion to be conclusive, showing that the Court
had no pre-established views concerning the applicant's guilt.
The applicant further invokes the presumption of innocence
submitting that it was disregarded by certain statements of the
Regional Court which alluded to his possible responsibility for
offences other than those included in the indictment. In fact the
Regional Court stated that it could not be excluded that the sealed
wine tanks had been tampered with. Thus a suspicion was raised that
the applicant had committed certain further criminal offences, which
were not a subject of the trial in this case. However, the Commission
notes that the relevant statement of the Court was clearly limited to
the expression of a suspicion and no formal declaration was made that
the applicant was guilty.
Therefore the facts do not reveal that the presumption of
innocence as interpreted in the Commission's case-law has been violated
(cf. application Nos. 9077/80, Dec. 6.10.81, D.R. 26 p. 211; 10874/84,
Dec. 7.10.85, unpublished; and 10802/84, partial Dec. 14.5.87,
unpublished).
This part of the application is therefore manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
3. The applicant finally complains that by the Court's order to
publish the judgment in the local newspapers, in the official gazette
and on the public notice-board he was "pilloried" and thus subjected
to degrading punishment contrary to Article 3 (Art. 3) of the Convention.
However, the Commission observes that under Article 6 para. 1 (Art. 6-1) of the
Convention it is expressly required that any judgment which involves
the determination of a criminal charge should be pronounced publicly.
Publicity is thus an essential requirement of court proceedings in a
democratic society. In the present case the publication of the
judgment pronounced against the applicant finds a particular
justification in the nature of the offence in question which involved
a certain risk to the general public, namely the sale of adulterated
wine. The publication of a judgment in these circumstances does not
seek to publicly vilify the offender and cannot be regarded as
a degrading punishment within the meaning of Article 3 (Art. 3) of the
Convention. The applicant's complaint in this respect must also be
rejected as manifestly ill-founded.
For these reasons, the Commission
1. DECLARES ADMISSIBLE, without in any way prejudging the
merits, the applicant's complaints that he did not obtain
the hearing of any expert apart from the Court's official
expert belonging to an institute which had originally
raised the charges against him, and that he could not
obtain the hearing of the members of the official wine-
tasting panel;
2. DECLARES THE REMAINDER OF THE APPLICATION INADMISSIBLE
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)