Communicated on 18 June 2015
FIRST SECTION
Application no. 64583/14
Gert XANDER
against Austria
lodged on 24 September 2014
STATEMENT OF FACTS
The applicant, Mr Gert Xander, is an Austrian national, who was born in 1964 and lives in Maria Wörth. He studied law and worked as a lawyer before becoming an employee of the law department of the H.Bank in 1999. In 2001 he became the head of this department. Beginning in 2005 he became a member of the board of the Kärntner Landes- und Hypothekenbank-Holding.
He is represented before the Court by Mr G. Murko, a lawyer practising in Klagenfurt.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. The background of the case
The Kärntner Landes- and Hypothekenbank-Holding (hereinafter referred to as: Landesholding) is a corporate body governed by public law (Anstalt öffentlichen Rechts) with the duty to manage the estate of the Land Kärnten considering its interests (unter Berücksichtung der Interessen des Landes). The Land Kärnten is liable as a guarantor in the case of insolvency of the Landesholding.
The corporate body is governed by the board of management (Vorstand) which consists of two persons and which is supervised by the supervisory body (Aufsichtsrat). The board represents the Landesholding. It is up to the supervisory body to appoint the board’s members and to participate in special commercial transactions specified by the law. The supervisory body itself is appointed by the Regional Government of Carinthia and is composed of representatives of the political parties to the Landtag.
It is the task of one member of the Regional Government – the commissioner for the review (Aufsichtskommissär), a position defined by the relevant law – to monitor the supervisory board. He or she has the power to appeal against decisions of the supervisory board if they counter the interests of the Land.
On 1 January 1991 the H.Bank was split-off from the Landesholding and became a public limited company (Aktiengesellschaft). The majority of shares were held by the Landesholding until 2006. Following an increase of capital stock at the end of 2006 the Landesholding still owned 44.91 %, of the stocks.
In 2007 J.M. was Minister (Landesrat) of the Regional Government of Carinthia (Kärntner Landesregierung) and head of the Austrian Peoples’ Party in Carinthia (Österreichische Volkspartei Kärnten – ÖVP Kärnten) which was coalition partner of the Alliance for the Future of Austria (Bündnis Zukunft Ӧsterreich, BZӦ) under the leadership of J.H. From 1999 until 2008 J.H. was Regional Governor and head of the Regional Government of Carinthia. As the Governor of Carinthia, he also was the commissioner for the review of the Landesholding. J.M. was chairperson of the supervisory board of the Landesholding.
As well as the applicant, H.M. became after a career as managers in the H.Bank members of the board of management of the Landesholding.
In 2007 the B.Bank showed its interest in taking over the H.Bank by buying a certain amount of its shares. The ensuing negotiations involved J.H. and J.M. as the political leaders of the Regional Government of Kärnten, the head of the board of management of the H.Bank and the head of a co-holder of shares as well as an investors group. The main negotiations were done by investment banks and law firms. J.H. and J.M. mandated D.B, an accountant and financial consultant (Wirtschaftsprüfer und Steuerberater) in Villach, Austria, to take part and supervise the negotiations for the Landesholding and to examine the ‘purpose, practicability and feasibility’ (Sinnhaftigkeit, Zweckmässigkeit und Machbarkeit) of the share deal.
The board of management of the Landesholding itself was not informed and did not participate in the negotiation process. Neither was it informed about the mandate of D.B. Only a short time before the signing of the contract, the board of management of the Landesholding was informed about the negotiation process. The mandate of D.B. was not communicated to it.
The board of the Landesholding had to sign the contract for the transfer of the shares and the supervisory board had to confirm this action in advance. On 21 May 2007 the supervisory board was informed by the board governed by J.M. and confirmed the deal by four to three votes. The contract was signed on 22 May 2007.
On 9 October 2007 all legal arrangements necessary for finalising the transaction were completed. The B.Bank took over around 25% of the shares held by the Landesholding for EUR 809,544,534.
In a parliamentarian plenary debate of the Landtag on 9 August 2007 J.H. stated that the costs for consulting service connected to the share deal would not exceed EUR 250,000.
In February 2008 J.M. and J.H. informed H.M. that D.B. had been entrusted by them with supervising the negotiations on behalf of the Landesholding and that he was entitled to a fee of 1.5% of the total sales profit (EUR 12,143,168). The Landesholding should pay out this fee. H.M. informed the applicant and both presented the claim for fees of D.B. to the supervisory board of the Landesholding on 12 February 2008. The supervisory board accepted by five to two votes the payment of the fee.
After the meeting of the supervisory board, the media reported on the claim of D.B. and expressed doubts as to his contribution to the negotiation process and the amount of the fee. Following this media coverage the applicant and H.M. mandated lawyers and legal experts and asked them to confirm the appropriateness and reasonability of the claim for fees.
One of these experts, however, refused to state that the fee note was appropriate and reasonable. As the media controversy did not cease and an expert report which confirmed without reservations the reasonableness of the fee note was not at hand, J.H. and J.M. persuaded D.B. to reduce his claim for fees by the half. Thereupon the expert was asked to amend his report and in March 2008 he concluded that fees of EUR 6,000,000 could be considered reasonable.
Based on this expert’s report the supervisory board discussed the payment of the fee note in its sessions on 25 April 2008 and 29 May 2008 and finally confirmed the payment by four to three votes.
On 4 June 2008 the applicant ordered to pay out the amount of EUR 4,500,000 to D.B. On 17 December 2009 H.M. and the applicant ordered the payment of the remaining amount to D.B.
The share deal was the subject of intense debates within the Carinthian Regional Parliament and Bavarian Regional Parliament, as the B.Bank had its head office in Munich, which led to parliamentary enquiries (Untersuchungsausschuss) in both Parliaments.
2. The first set of criminal proceedings
In March 2008 the public prosecutor opened preliminary investigations against J.H., J.M. and D.B. for breach of trust and fraud, after the Carinthian branch of the Social Democratic Party of Austria (SPӦ Kärnten) and R.H., a member of the Carinthian Regional Parliament (Landtag), had separately filed criminal information (Strafanzeige) against J.H., J.M. and D.B.
On 21 June 2008 the applicant and H.M. filed seven expert reports to show the appropriation and reasonability of the fees note of D.B. for his services in the negotiation process.
J.H., J.M. and D.B. filed statements to the public prosecutor and refuted the accusations.
On 2 September 2008 the applicant and H.M. filed a statement and submitted a written contract of 28 April 2008 concluded between J.H., J.M., the Kärntner Landesholding and D.B. in which D.B. lowered his claim for fees from EUR 12,143,168 to EUR 6,000,000.
J.H. died on 11 October 2008.
On 19 January 2009 the Klagenfurt public prosecutor closed the preliminary investigations. The investigations against J.H. were closed because he had died meanwhile. The investigations against J.M. and D.B. for breach of trust were closed because there was a new contract fixing a lower fee and the submitted expert reports had shown that the claim for fees was appropriate and reasonable. The investigations against J.M. for perjury (Falsche Beweisaussage) at a hearing of the parliamentary enquiry of the Carinthian Regional Parliament were closed because an intention to commit this crime could not be proven.
On 13 February 2009 R.H. filed a request for the reopening of the preliminary investigations.
On 17 September 2009 the Graz Court of Appeal rejected the request for the reopening of the preliminary investigations.
3. The second set of criminal proceedings
On 1 March 2010 11 persons filed criminal information with the Procurator General’s Office in which they accused all public prosecutors of the Klagenfurt public prosecutors’ office of abuse of authority and asked for the reopening of the preliminary investigations and a transfer of the case to another public prosecutors’ office. The Procurator General’s Office transferred this file to the Public Prosecutor’s Office for crimes of corruption (Korruptionsstaatsanwaltschaft, KStA). The KStA conducted investigations, closed the investigations against the public prosecutors and transferred the file to the Klagenfurt public prosecutors’ office proposing the reopening of the investigations.
On 19 January 2011 the public prosecutor reopened the investigations against J.M. and D.B. On 9 February 2011 the investigations were extended to the applicant and H.M. for breach of trust.
On 6 April 2011 the public prosecutor appointed F.S. as expert in the preliminary investigations and instructed him to submit a report dealing with the following questions
‘- whether the services of D.B. as described in a letter of April 2007 and the progress report of 20 February 2008 were comparable to the services normally offered by an investment bank in these circumstances
- which amount of money was appropriate and reasonable for the services D.B. had provided.’
The accused were informed about the appointment of the expert and that they had the possibility to object to his appointment within 3 days. J.M. did not object.
F.S. held contact with the public prosecutor during his work and asked him to clarify certain questions concerning this case.
On 28 June 2011 F.S. delivered his expert report. This report stated that services provided by D.B. where not comparable to the services of an investment bank and that an amount of EUR 200,000 was appropriate and reasonable for the services provided by D.B.
This report was served to the applicant.
On 19 September 2011 H.M. submitted expert reports from two court approved experts which he had ordered on a private basis. These private expert reports stated that fees of 1.5% of the sum of the transaction were reasonable for the activity of an investment bank when negotiating a share deal of bank. The services provided by D.B. could in part be seen as those of an investment bank. The second expert certified that D.B. had carried out 43% of activities which are normally set by an investment bank. These expert reports were transmitted to F.S. for further considerations.
On 28 September 2011 F.S. commented on the private expert’s reports submitted by H.M. In detail he examined the findings of the two experts and stated that the methods used to examine which activities D.B. had taken in the negotiations were not plausible. This comment was served on the accused.
On 5 October 2011 the applicant also submitted another expert report by a court approved expert which he had ordered on a private basis to counter the findings of F.S. This expert report stated that F.S. had acted without competences by weighting evidences. He further had not fulfilled the formal settings for an expert report. The calculation for a reasonable fee of EUR 200,000 was criticized as wrong.
On 6 October 2011 also this private expert report was sent to F.S. for further considerations and amendments if there was a need to do so.
On 14 October 2011 F.S. commented on the ‘private’ expert report introduced by the applicant and came to the conclusion that there was no need to alter his findings. This was also submitted to J.M.
On 16 December 2011 the Landesholding submitted another expert report from a private limited company ordered by the supervisory board of the Landesholding on a private basis. It his expert report, the liability of the members of the board under civil law was examined and the conclusion drawn that the applicant and H.M. could not be held liable for their actions under civil law.
On 19 December 2011 H.M. commented on this expert report.
On 21 March 2012 the public prosecutor filed a bill of indictment charging the applicant and H.M. for breach of trust under Article 153 of the Criminal Code and J.M. and D.B. for adding and abetting to breach of trust. Based on the expert’s report of F.S., the public prosecutor contested that J.M. and D.B. knew that a fee of a maximum of EUR 240,000 was reasonable for the assistance of D.B. to the negotiation process but the suspects had the Landesholding in order to distribute the fee of EUR 6,000,000. Therefore they had caused a damage of EUR 5,760,000.
The Klagenfurt Regional Court sent out summons and appointed F.S. as official expert.
The applicant, H.M., J.M and D.B. filed statements disputing the contentions of the public prosecutor but none appealed against the bill of indictment. H.M. submitted eleven reports by private experts ordered by the accused in the investigation proceedings and asked to summon two of these experts as official experts to the trial.
On 4 July 2012 the trial started.
After several hearings D.B. confessed on 11 July 2012 that his services to the negotiation process did not correspond to a fee of EUR 6,000,000 and that the findings of the official expert were correct.
J.M. and the co-accused disputed the confession of D.B. and argued that the fee paid to him was reasonable.
On 18 July 2012 the applicant asked the court to not accept to the file the expert report of F.S. and argued that F.S. had to be treated as a witness of the prosecution and not as an impartial expert assisting the court. If the court should not appoint another official expert for the trial, the applicant requested that the presented private expert reports be accepted to the file and to question the drafting experts as official experts of the trial. H.M. and J.M. joined these requests. The court dismissed them.
The public prosecutor extended the charge claiming that the damage caused by the accused was EUR 6,000,000.
On 25 July 2012 D.B. confessed that in 2007, after the fee note had been paid by the Landesholding, J.M. had asked him to share the money between him, D.B. and J.H. D.B. had also handed over parts of the money paid to J.M. Other leading members of the Alliance for the Future of Austria party had asked for parts of the money as well.
In the same hearing J.M. confessed that after the deal with the B.Bank was concluded, he and J.H. had decided that parts of the fees of D.B. should be used to finance the Austrian Peoples’ Party in Carinthia and the Alliance for the Future of Austria party. He further confessed that he had received parts of the money from D.B.
The applicant and H.M. insisted on their statements and claimed to have acted in good faith without knowing that the fees of D.B. were not reasonable.
On 9 August 2012 the expert F.S. was heard by the court. He gave a brief summary of his written expert report and answered the questions raised by the court and the parties to the trial. There is no indication that F.S. took part in any other hearing or put questions to witnesses or the accused.
After the questioning of F.S., J.M. and his co-accused reiterated their request to appoint another official expert. In their view, the answers given by F.S. had shown deficits in his expert report. They further argued that the appointment of a further expert was necessary because F.S. had to be seen as a witness of the prosecution and not as an impartial expert assisting the court.
The court dismissed these requests.
On 1 October 2012 the Klagenfurt Regional Court gave its judgement. It convicted the applicant and the co-accused as charged and sentenced the applicant to 2 years’, H.M. to 3 years’, J.M. to 5½ years’ and D.B. to 3 years’ imprisonment. Moreover, they were ordered to pay back EUR 4,765,193 plus interests to the Landesholding. The Regional Court found that the services of D.B. to the negotiation process would only correspond to fees in the amount of EUR 300,000 and that H.M. and the applicant had been aware of this fact but breached their obligation of diligence by authorising the payment of EUR 6,000,000 to D.B. As J.M. had asked them to authorise the distribution he had abetted their action.
The applicant, J.M. and H.M. filed pleas of nullity and appeals against sentence. D.B. filed an appeal against the sentence. The public prosecutor appealed against the sentence of the applicant, H.M. and D.B.
In their pleas of nullity the applicant and his co-accused, relying on Article 281 Z 4 of the Code of Criminal Proceedings, stated that the Regional Court should have had appointed another official expert. The proceedings had made clear that there were deficits in F.S.’s expert report. F.S. had been appointed by the public prosecutor and had delivered the basis for the bill of indictment. This fact would show him as biased in the trial. F.S. had to be seen as a witness of the prosecution and not as an impartial expert assisting the court. Moreover, they submitted that according to Article 126 § 4 of the Code of Criminal Proceedings a challenge for bias against an official expert could not be based on the reason that he had previously been appointed as official expert in the preliminary investigations. They argued that this provision was not in line with the right to a fair trial under Article 6 of the Convention, as they did not have a real chance to counter F.S.’s expert report. This was aggravated by the fact that the expert reports ordered by J.M. and his co-accused and submitted in trial were not accepted to the file and the requested persons not summoned. Because of this, they asked the Supreme Court for requesting a review of the constitutionality of Article 126 § 4 of the Code of Criminal Proceedings by the Constitutional Court.
On 11 March 2014 the Supreme Court dismissed the pleas of nullity and the appeals of H.M. and of the public prosecutor but partly granted the appeals of the applicant, J.M. and D.B. The sentence of the applicant was transformed into an additional sentence to another conviction of 2 February 2013 and the sentences of J.M. and of D.B. reduced to 4½ years’, and 2½ years’ imprisonment respectively.
With regards to the alleged violation of Article 6 of the Convention the Supreme Court found that in general Article 126 § 4 of the Code of Criminal Proceedings should ensure that not two different official experts had to be appointed in the investigation and the trial as this would result in delays within proceedings. Article 126 § 4 of the Code of Proceedings did not exclude a challenge for bias, beside the argument that the expert had been appointed previously in the investigation proceedings.
Moreover, the neutrality of the expert was ensured as the expert was obliged by law to act in an objective manner. His or her findings had to be based on facts established under scientific methods and principles. Criminal law (perjury) as well as the provisions on challenge for bias would ensure that his or her findings and conclusions were in accordance with the law. The experts were not part of the public prosecutors’ office. The results of the proceedings had no effect on their payment. In case of dispute between the public prosecutor and the accused about the amount of the expert’s fees it is up to the court to fix the amount and to pay the expert.
In preliminary investigations as well as in trial an accused can address written questions to the official expert and has the possibility to ask questions the appointed expert in court. Thereby, he or she can be assisted by a ‘private’ expert. In this way the accused has the possibility to show that the official expert’s report contains errors or shortcomings. If they cannot be corrected by the appointed official expert, the court has to dismiss him or her and appoint another expert to obtain a report. Moreover, the findings and conclusions of the official expert can be challenged even before the stage of trial by filing an objection (Einspruch) against the bill of indictment. Under these considerations the Supreme Court had no doubts that the right to equality of arms in trial was maintained.
In the present case, the applicant and his co-accused had not used the possibility to question the competence of F.S. or object to his appointment in the preliminary investigations. In trial F.S. had been appointed and summoned by the Regional Court. The requests of the applicant and of his co-accused to appoint another expert were not dismissed by the court on the grounds of Section 126 § 4 of the Code of Criminal Proceedings but for other reasons. In fact, it had dismissed the requests because the applicant and his co-accused did not show valid reasons for bias. A close relation to the public prosecutor that would cast doubts on the objectivity of the expert had not been shown. Moreover, the Regional Court had not based its findings and decision on the expert report but on the confession of D.B. Quoting the Courts case law (Brandstetter v. Austria, 28 August 1991, Series A no. 211, Bönisch v. Austria, 6 May 1985, and C.B. v. Austria, no. 30465/06, 4 April 2013) the Supreme Court found that J.M.s had had sufficient possibilities to question F.S. in the hearing of 9 August 2012.
B. Relevant domestic law and practice
1. The Code of Criminal Proceedings (Strafprozessordung 1975) in force until 1 January 2008
Until 31 December 2007 the criminal proceedings under the Code of Criminal Proceedings could be divided into judicial preliminary investigations, the trial proceedings and the appeal proceedings. Normally, criminal information was filed with the public prosecutors’ office which had to examine if preliminary inquiries (Vererhebungen) should be carried out by courts, the case should be closed or whether the opening of judicial investigations (Voruntersuchungen) by the investigating judge should be requested (Section 87ff of the Code of Criminal Proceedings).
When the public prosecutor asked for the opening of judicial investigations, the case was transferred to the investigating judge at the Regional Court, who had to collect and secure evidence against and in favour of the accused. In doing so, he was not bound by any requests of the public prosecutor (Article 96 of the Code of Criminal Proceedings). The public prosecutor himself did not investigate or collect evidence (Article 97 § 2) but had access to all evidences collected by the court. He, as well as the accused, could request the taking of evidences through the court. It was up to the public prosecutor to monitor the activities of the investigating judge and if he discovered shortcomings or errors he had to take legal measures to counter these irrespective if these were in favour or against the accused (Article 34 § 3 of the Code of Criminal Proceedings, ‘... auf gesetzliche Weise deren Abstellung zu veranlassen’).
According to Article 119 § 1 of the Code of Criminal Proceedings, the investigating judge should appoint an expert during the proceedings if the subject matter made it necessary. The court had to appoint two experts only in case the subject matter to be examined was particularly difficult (see Article 118). According to the case-law of the criminal courts an allegation that an expert had reached the wrong conclusion did not mean that the subject matter was ‘particularly difficult’ within the meaning of this provision (see judgement of the Supreme Court of 12 June 1996, 13 Os 83/96). Such difficulty could arise where an appointed expert was unable to answer a question put before him, and if another expert would in all probability be able to answer it.
Even if the parties had no right to formally object to the appointment of an expert in judicial preliminary investigations, Article 120 of the Code of Criminal Proceedings provided that the parties should be informed of the planned appointment of an expert. If the parties brought forward objections regarding the appointment of the expert in a timely manner, the court could appoint another expert.
Articles 125 and 126 of the Code of Criminal Proceedings provided for measures to be taken in the event that a deficient report had been submitted by an expert: If an expert report was contradictory or inconclusive, or if two expert reports clearly differed from each other and an oral examination of the experts could not eliminate the doubts as to the conclusions they had reached in their reports, a new expert had to be appointed by the court.
As it was the aim of the judicial investigations to examine the accusations against a specific person and to secure the evidences to be used later at the trial (Article 91 § 2 of the Code of Criminal Proceedings) it was the established practice that the expert appointed by the investigating judge for the judicial investigations also took part in the trial proceedings.
In a judgment of 21 November 1989 (15 Os 130/89), the Supreme Court summarised the general practice under Austrian domestic law on criminal Proceedings as regards private experts’ opinions:
‘As regards the procedural objection, it should be made clear from the outset that private expert opinions on the facts of the case, of the kind commissioned by the applicant and submitted with a request for the taking of evidence, can properly serve only to provide the accused and his or her defence counsel with expert knowledge on important aspects of the case and thereby enable them to put pertinent questions to the court-appointed experts; where applicable, they may also serve as grounds for obtaining an additional expert opinion (ordered by the court) ... As evidence, however, they have ... by law no procedural significance, since they lack in particular the guarantees of impartiality and judicial supervision of their preparation. Accordingly, they are not to be read out during the trial either.’
Furthermore the Supreme Court stated in its case-law, with reference to the minimum rights of an accused under Article 6 § 3 (d) of the Convention, that in order to ensure that the defence was able to question effectively an expert during the hearing, he or she could make use of the professional support of a privately commissioned expert, and such an expert could not be refused permission to sit next to counsel in the hearing room, albeit without having the right to question the court-appointed expert directly (see judgment of the Supreme Court of 19 December 2005, 14 Os 129/05k, and judgment of the Supreme Court of 29 September 2001, 13 Os 34/01).
2. The new Code of Criminal Proceedings, entered into force on 1 January 2008
On 1 January 2008 a federal law by which the Code of Criminal Proceedings was substantially modifies entered into force (Federal Act for the Reform of the Code of Criminal Proceedings, Federal Law Gazette I, No. 19/2004 [Bundesgesetz, mit dem die Strafprozessordnung 1975 neu gestaltet wird, Strafprozessreformgesetz, BGBl. I 19/2014]).
This reform replaced the system of judicial investigation under the control of an investigating judge by a system of preliminary investigation controlled by the public prosecution. It is now up to the public prosecutor to run investigations and to decide on the collection and securing of evidence against and in favour of the accused. Specific measures of collection of evidences may be ordered by the public prosecutor (for example the securing of objects to take evidence, Article 110) or, if they constitute a particularly serious interference with a person’s rights, by a court upon a request by the public prosecutor (for example the seizure of goods, Article 115). Only few measures as the recapitulation on a crime scene (Article 150, Tatrekonstruktion) or the hearing of a victim of a crime as witness under special circumstances (Kontradiktorische Vernehmung, Article 165) are conducted by the Court itself upon request.
An aggrieved person may file an objection to court if he or she claims that there is an unlawful interference within his/her rights caused by an order of the public prosecutor (Einspruch gegen Rechtsverletzung, Article 106).
According to Article 126 § 1 of the Code of Criminal Proceedings an expert shall be appointed by the public prosecutor, if expert knowledge is needed for the investigation or the evaluation of evidences which the public prosecutor’s office, specialised institutes or the court do not have.
The authorities shall normally choose an expert from a register held by the President of the Regional Court in accordance with the Federal Act for the certifying and declaration on oath of experts and interpreters, Federal Law Gazette No. 137/1975 (Bundesgesetzes über die allgemein beeideten und gerichtlichen zertifizierten Sachverständigen und Dolmetscher – SDG, BGBl. Nr. 137/1975). By choosing the expert and defining the extent of his or her appointment authorities shall be guided by the objectives of austerity and economic expediency (Grundsätze der Sparsamkeit und Wirtschaftlichkeit, Article 126 § 2c)
During preliminary investigation the expert has to be appointed by the public prosecutor. The court has to appoint the expert in case of a recapitulation on a crime scene and for the trial. The accused has a right to object to the appointment of a specific expert within a period not exceeding one week fixed by the deciding authority.
According to Section 126 § 4 the provisions on challenge for bias of judges also apply to experts. If the expert is biased or doubts as to his or her competence arise, he or she has to be discharged by the public prosecutor or – if appointed by the court – by the court (ex officio or because well founded objections have been raised). The appointment in preliminary investigation itself is no reason for assuming that an expert appointed to the trial is biased.
The expert has to give his opinion based on his best knowledge and conscience as well as in accordance with the rules of science (Article 127 § 2).
The provisions of former Articles 125 and 126 of the Code of Criminal Proceedings (concerning the appointment of additional experts) were taken over in Article 127 § 3 Code of Criminal Proceedings.
There is no explicit provision that would allow the accused to rely on the professional support of a privately commissioned expert. The Supreme Court declared, however, that its rulings in the judgement 14 Os 129/05k of 19 December 2005 are still applicable under the modified system of the Code of Criminal Proceedings (judgement of 5 November 2008, 13 Os 132/08y).
The Federal Law of 11 August 2014 (Official Gazette [Bundesgesetzblatt] no. 71/2014) which entered into force on 1 January 2015 amended Article 126 of the Code of Criminal Proceedings adding a fifth paragraph which gives the accused the right to file a request for the discharge of the appointed expert within 14 days if a reason for bias occurs or doubts as to the expert’s knowledge arise. The accused may propose an expert. Furthermore, the accused may ask for the taking of evidence by a court appointed expert under the control of the court. In this case, the public prosecutor has to transfer the file to the court which appoints an expert.
In its decision of 10 March 2015, no. G180/2014, the Constitutional Court dealt with the question if Article 126 § 4 of the Code of Criminal Proceedings was in accordance with Article 6 of the Convention and stated as follows:
‘A provision which prohibits an accused in trial in general to challenge for bias the expert who has previously been appointed in the investigation proceedings by the public prosecutor in case of objective indications that he is not acting neutral in connection with his concrete conduct during the investigation proceedings violates the principle of equality of arms under Article 6 § 3 lit.d of the Convention.
Neither the Supreme Court’s case law which grants the accused the possibility to challenge the expert for bias in investigation proceedings and in trial for reasons other than his acting in the investigation proceedings nor that he has the right to ask questions supported by a ‘private’ expert in trial can bring the accused into a position which is in accordance with the principle of equality of arms.
As the Code of Criminal Proceedings excludes an accused’s right to the appointment of another (neutral) expert in case of an alleged objective bias, the wording ‘expert or’ in Article 126 § 4 of the Code of Criminal Proceedings before amendment of 11 August 2014 had violated the principle of equality of arms set out in Article 6 § 3 lit.d of the Convention.’
The Constitutional Court further stated, that this did not mean that an expert who had been appointed by the public prosecutor must always be excluded because of this. In fact, the courts would have to examine the alleged bias on its factual grounds on a case to case basis.
COMPLAINT
The applicant complains under Article 6 § 1 and 6 § 3 (d) of the Convention that the criminal proceedings were unfair. F.S. who was appointed as official expert for the trial had also acted as an expert appointed by the public prosecutor at the stage of the preliminary investigation. Therefore, he could not be seen as impartial but as a witness of the public prosecution against the accused. As there was no possibility for the defence to have summoned a private expert or to submit to the case file a written report by a private expert the principle of equality of arms had been violated.
QUESTIONS TO THE PARTIES
1. Was the equality of arms, as one of the elements of the broader concept of fair trial guaranteed under Article 6 § 1 taken together with Article 6 § 3 (d) respected in the present case, in particular when the official expert, who was appointed by the public prosecutor, was appointed official expert in trial and the applicant, J.M. and H.M. were not allowed to introduce their private experts as witnesses or written reports of these experts in favour of the applicant in the proceedings?
2. Has the decision of 10 March 2015 of the Constitutional Court, G180/2014 et alia, an implication within the case at hand?
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