CASE OF J.M. AND OTHERS v. AUSTRIA
(Applications nos. 61503/14 and 2 others - see appended list)
1 June 2017
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of J.M. and Others v. Austria,
The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:
Lәtif Hüseynov, judges,
and Milan Blaško, Deputy Section Registrar,
Having deliberated in private on 9 May 2017,
Delivers the following judgment, which was adopted on that date:
1. The case originated in three applications (nos. 61503/14, 61673/14 and 64583/14) against the Republic of Austria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by three Austrian nationals, Mr J.M., Mr Hans Jörg Megymorez and Mr Gert Xander (“the applicants”), on 10 September 2014, 4 September 2014 and 24 September 2014 respectively. The President of the Section acceded to the first applicant’s request not to have his name disclosed (Rule 47 § 4 of the Rules of Court).
2. The first applicant was represented by Mr R. Kilches and the second applicant by Mr M. Nemec, both lawyers practising in Vienna. The third applicant was represented by Mr G. Murko, a lawyer practising in Klagenfurt. The Austrian Government (“the Government”) were represented by their Agent, Ambassador H. Tichy, Head of the International Law Department at the Federal Ministry for European and International Affairs.
3. The applicants complained of unfair proceedings. In particular, they argued that the court-appointed expert should have been regarded as a witness for the prosecution and that they had not had a real opportunity to introduce their own experts as witnesses or to present written reports prepared by those experts in favour of the defence in the proceedings.
4. On 18 June 2015 the complaint concerning Article 6 § 1 taken together with Article 6 § 3 (d) was communicated to the Government and the remainder of the applications was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.
5. The first applicant was born in 1959. From 2004 until 16 January 2012 he was Minister (Landesrat) of the Regional Government of Carinthia (Kärntner Landesregierung). He was also 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.
6. The second applicant was born in 1970 and lives in Klagenfurt-Wölfnitz. He studied law and worked as a lawyer before becoming an employee of the Landes-und Hypothekenbank (“H. Bank”) in 1999. In 2004 he became a board member of that bank. In 2007 he became a member of the board of Kärntner Landes- und Hypothekenbank-Holding (hereinafter referred to as “Landesholding”).
7. The third applicant 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 was appointed head of that department. In 2005 he became a member of the board of the Landesholding.
I. THE CIRCUMSTANCES OF THE CASE
A. Background of the case
8. The Landesholding is a corporate body governed by public law (Anstalt öffentlichen Rechts). It was set up to manage the estate of the Land of Carinthia considering its interests (unter Berücksichtung der Interessen des Landes). The Land of Carinthia is liable as a guarantor in the event of Landesholding’s insolvency.
9. The Landesholding is governed by a board of management (Vorstand), consisting of two people, which represents it. The board is supervised by a supervisory body (Aufsichtsrat), which appoints the board’s members and participates 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 regional parliament (Landtag).
10. It is the task of one member of the regional government - the commissioner (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 run counter to the interests of the Land.
11. On 1 January 1991 the H. Bank was disjoined from Landesholding and became a public limited company (Aktiengesellschaft). The majority of its shares were held by Landesholding until 2006. Following an increase in capital stock at the end of 2006, Landesholding still owned 44.91% of the shares.
12. From 1999 to 2008 Regional Governor and Head of the Regional Government of Carinthia was J.H.
13. In 2007, as Governor of Carinthia, J.H. was the commissioner. The first applicant was chairperson of the supervisory board of the Landesholding.
14. After careers as managers in H. Bank, the second applicant and the third applicant were appointed as members of the board of management of Landesholding.
15. In 2007 B. Bank showed an interest in taking over H. Bank by buying a certain number of its shares. The ensuing negotiations involved J.H. and the first applicant as the political leaders of the Regional Government of Carinthia, the head of the management board of H. Bank, the head of another shareholder, as well as an investors group. The main negotiations were carried out by investment banks and law firms. J.H. and the first applicant appointed D.B., an accountant and financial consultant (Wirtschaftsprüfer und Steuerberater) based in Villach, Austria, to take part in and supervise the negotiations.
16. The board of management of Landesholding itself was not informed and did not participate in the negotiation process. Not only did it not appoint D.B. but it was not informed about his mandate. It was informed about the negotiation process just a short time before the signing of the contract. D.B.’s mandate was not communicated to it.
17. The Landesholding management board had to sign the contract for the transfer of the shares and the supervisory board had to authorise the transaction in advance. On 21 May 2007 the supervisory board was informed by the first applicant on behalf of the management board, and the deal was confirmed by four votes to three. The contract was signed on 22 May 2007.
18. On 9 October 2007 all the legal arrangements necessary for finalising the transaction were completed. B. Bank bought around 25% of the shares previously held by Landesholding for 809,544,534 euros (EUR).
19. In a plenary debate of the Carinthian Regional Parliament on 9 August 2007, J.H. stated that the costs of the consultation service connected to the share deal would not exceed EUR 250,000.
20. In February 2008 the first applicant and J.H. informed the second applicant that they had entrusted D.B. with supervising the negotiations on behalf of Landesholding and that he was entitled to a fee of 1.5% of the total sales profit (EUR 12,143,168). They said that Landesholding should pay that fee. The second applicant informed the third applicant, and on 12 February 2008 they both presented D.B.’s claim for fees as reasonable to the supervisory board of Landesholding. The lawfulness of the claim was a matter of discussion at the supervisory board meeting. No final conclusion was reached in that regard.
21. After the meeting of the supervisory board, the media reported on D.B.’s claim and expressed doubts as to his contribution to the negotiation process and the amount of the fee. Following the media coverage and the discussion at the supervisory board’s meeting, the Landesholding management board (the second applicant and the third applicant) commissioned lawyers and legal experts and asked them to confirm the appropriateness and reasonability of the claim for fees.
22. Three external legal experts examined the case put before them. They assessed the risk of civil claims being raised and the potential consequences under criminal law, under the explicit assumption that the bill for D.B.’s services was reasonable. The core question - whether D.B.’s claim for fees was reasonable - was to be answered by another three external experts. One of those experts, however, informed the second applicant, the third applicant and their lawyers that he would not conclude that the claim for fees was reasonable. According to a note of 7 March 2008 written by a lawyer appointed by the second and the third applicant, they tried to persuade the privately commissioned expert in a telephone conversation to make several changes to his report and to declare that the fees were reasonable. The expert refused to do so. In the end, he agreed to delete one paragraph which had stated that the services provided by D.B. were not equivalent to those of an investment bank.
23. As the media controversy did not cease and the expert had not confirmed the reasonableness of the fee, D.B. agreed in talks with J.H. and the first applicant to reduce his claim for fees by half. The expert was then asked to amend his report and in March 2008 he concluded that a fee of EUR 6,000,000 could be considered reasonable considering the fees generally charged by investment banks.
24. Based on this expert’s report, the supervisory board discussed the payment of the fee at its meetings held on 25 April and 29 May 2008 and finally agreed to the payment by four votes to three.
25. On 4 June 2008 the third applicant ordered the payment of EUR 4,500,000 to D.B. On 17 December 2009 the second applicant and the third applicant ordered the payment of the remaining amount to D.B.
26. The share deal was the subject of intense debate within the Carinthian Regional Parliament and the Bavarian Regional Parliament, as B. Bank’s head office was in Munich. That led to parliamentary enquiries (Untersuchungsausschuss) in both parliaments.
B. First set of criminal proceedings
27. The Carinthian branch of the Social Democratic Party of Austria (SPӦ Kärnten) and R.H., a Member of the Carinthian Regional Parliament, lodged separate criminal complaints (Strafanzeige) against J.H., the first applicant and D.B. In March 2008 the public prosecutor opened preliminary proceedings against J.H., the first applicant and D.B. for breach of trust and fraud.
28. On 21 June 2008 the second applicant and the third applicant submitted four expert reports indicating that the fees claimed by D.B. for his services in the negotiation process had been appropriate and reasonable.
29. J.H., the first applicant and D.B. gave statements to the public prosecutor and refuted the accusations.
30. On 2 September 2008 the second applicant and the third applicant gave statements and submitted a contract of 28 April 2008 concluded between J.H., the first applicant, Landesholding and D.B. in which D.B. had reduced his claim for fees from EUR 12,143,168 to EUR 6 million.
31. On 19 January 2009 the Klagenfurt public prosecutor closed the preliminary proceedings. The investigations against J.H. were closed because he had died on 11 October 2008. The preliminary proceedings against the first applicant and D.B. for breach of trust were closed because a new contract had been concluded fixing a lower fee and the expert reports submitted by the accused had indicated that the claim for fees was appropriate and reasonable. The proceedings against the first applicant for perjury (Falsche Beweisaussage) committed at a hearing of the parliamentary enquiry carried out by the Carinthian Regional Parliament were closed because it could not be proved that he had intended to commit that crime.
32. On 13 February 2009 R.H. filed a request for the reopening of the preliminary proceedings.
33. On 17 September 2009 the Graz Court of Appeal rejected the request for the reopening of the preliminary proceedings.
C. Second set of criminal proceedings
34. On 1 March 2010, eleven people lodged criminal complaints with the Procurator General’s Office (Generalprokuratur). They accused all of the Klagenfurt public prosecutors of abuse of authority. They asked for the reopening of the preliminary proceedings and the transfer of the case to another public prosecutor’s office. The Procurator General’s Office transferred the file to the Public Prosecutor’s Office for Crimes of Corruption (Korruptionsstaatsanwaltschaft) (“the KStA”). The KStA conducted an investigation, closed the preliminary proceedings against the public prosecutors and transferred the file to the Klagenfurt public prosecutor’s office, proposing the reopening of the preliminary proceedings.
35. On 19 January 2011 the public prosecutor reopened the proceedings against the first applicant and D.B. On 9 February 2011 the investigations were extended to the second applicant and the third applicant for breach of trust.
36. On 6 April 2011 the public prosecutor appointed F.S. as an expert in the preliminary proceedings 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 similar circumstances
- what fee was appropriate and reasonable for the services D.B. had provided.”
37. The accused were informed about the appointment of the expert and told that they could object to his appointment within three days. The applicants did not object. At an unspecified date the case file was transferred to F.S.
38. On 28 June 2011 F.S. delivered his expert report. The report stated that the services provided by D.B. were not comparable to the services of an investment bank and that a fee of EUR 200,000 would be appropriate and reasonable for the services provided by D.B.
39. The report was served on the applicants.
40. On 19 September 2011, the second applicant submitted reports by two court-approved experts which he had commissioned on a private basis. The private expert reports stated that fees of 1.5% of the sum of the transaction were reasonable for the services provided by an investment bank when negotiating a share deal in a similar situation. 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 the activities normally carried out by an investment bank. Those expert reports were transmitted to F.S. for further consideration.
41. On 28 September 2011 F.S. commented on the private expert reports submitted by the second applicant. He said that he had examined carefully the findings of the two experts and that the methods used to assess which activities D.B. had been involved in within the negotiations were not plausible. F.S.’s comment was served on the accused.
42. On 5 October 2011 the third applicant submitted another expert report by a court-approved expert which he had commissioned on a private basis to counter the findings of F.S. The expert report stated that F.S. had overstepped his competence by weighting the evidence. He had also not fulfilled the formal requirements of an expert report. The calculation of EUR 240,000 as a reasonable fee was criticised as wrong.
43. On 6 October 2011 that expert report was sent to F.S. for further consideration and, if necessary, amendment of his report.
44. On 14 October 2011 F.S. commented on the expert report commissioned by third applicant and concluded that there was no need to alter his findings. His comment was submitted to the accused.
45. On 16 December 2011 Landesholding submitted another expert report which its supervisory board had commissioned from a private limited company. The report examined the liability of the board members under civil law and concluded that the second applicant and the third applicant could not be held liable for their actions under civil law.
46. On 19 December 2011 the second applicant commented on that expert report.
47. On 21 March 2012 the public prosecutor filed a bill of indictment, charging the second applicant and the third applicant for breach of trust under Article 153 of the Criminal Code and the first applicant and D.B. for aiding and abetting in breach of trust. Based on the expert’s report prepared by F.S., the public prosecutor claimed that the applicants and D.B. knew that only a fee of a maximum of EUR 240,000 was reasonable for D.B.’s assistance in the negotiation process, but had nevertheless instructed Landesholding to pay a fee of EUR 6 million. Therefore they had caused damage amounting to EUR 5,760,000.
48. The Klagenfurt Regional Court sent out summonses and appointed F.S. as official expert to the trial.
49. All the applicants and D.B. submitted statements disputing the contentions of the public prosecutor but none of them appealed against the bill of indictment. The second applicant submitted eleven reports by private experts commissioned by the accused in the preliminary proceedings and requested that two of those experts be summoned as official experts to the trial.
50. On 4 July 2012 the trial started.
51. After several hearings D.B. conceded on 11 July 2012 that the findings of the official expert, F.S., were correct inasmuch as his services to the negotiation process had not corresponded to a fee of EUR 6 million but only to a fee of EUR 300,000. He further stated that, in his view, the second applicant and the third applicant had known at the relevant time that his fee was inappropriate and unreasonable. Also, his bill had been established together with the second applicant in February 2007 when the latter had stated that he needed documentation to present to the supervisory board of Landesholding.
52. The applicants disputed D.B.’s confession and argued that the fee paid to him had been reasonable.
53. On 18 July 2012 the third applicant asked the court not to include the expert report of F.S. in the case file. He argued that F.S. had to be treated as a witness for the prosecution and not as an impartial expert assisting the court. Moreover, F.S. was a professional lawyer and university professor in Germany and not registered in Austria as an expert for book-keeping, cost accounting or financial auditing in the list of court appointed experts and therefore lacked the necessary expert knowledge for assessing whether the remuneration of D.B. had been appropriate. Lastly he submitted that F.S. had been biased because in the course of the preliminary investigations he had answered questions of assessment of evidence and questions of law. Should the court not appoint another official expert for the trial, the third applicant requested that the privately commissioned expert reports presented to the court be included in the file. He also requested that the experts who had drawn up those reports be summoned for questioning as official experts in the trial. The other applicants joined those requests.
54. The Regional Court dismissed all the requests. As regards the challenge for bias of F.S. and the request not to hear him as expert or to read out his report, it found that from the case file and the evidence collected hitherto it did not appear that there were reasons for considering him as being biased. Since F.S. had been summoned to the hearing by the trial court, he had at the same time been appointed as expert by that court. As regards the argument that he had answered questions of assessment of evidence and questions of law in the preliminary proceedings, the court found that, even assuming that this had been the case, such statements had to be disregarded by the court. As regards the private experts commissioned by the applicants as court appointed experts the Regional Court pointed out that only after having examined and discussed the report by the court appointed expert, the necessity of appointing other experts could be decided.
55. The public prosecutor extended the charge, claiming that the damage caused by the accused amounted to EUR 6 million.
56. On 25 July 2012, D.B. confessed that in 2007, after his bill had been paid by Landesholding, the first applicant had asked him to share the money with him and J.H. D.B. had handed over part of the payment to the first applicant. Other leading members of the Alliance for the Future of Austria party had asked for money as well.
57. At the same hearing, the first applicant conceded that after the deal with B. Bank had been concluded, he and J.H. had decided that part of D.B.’s fee 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 a portion of the fee from D.B.
58. The second applicant and the third applicant maintained their initial statements and claimed that they had acted in good faith without knowing that D.B.’s fees were not reasonable.
59. On 9 August 2012 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. While F.S. was being questioned, an expert commissioned by the defence sat next to the applicants’ lawyers and advised them but was not allowed to question F.S. on his own. There is no indication that F.S. took part in any other hearing or put questions to witnesses or the accused.
60. After the questioning of F.S., the applicants and their co-accused reiterated their request to appoint another official expert. In their view, the answers given by F.S. had shown that his expert report was deficient. They further argued that the appointment of another expert was necessary because F.S. had to be considered as a witness for the prosecution and not as an impartial expert assisting the court.
61. The court dismissed those requests.
62. On 1 October 2012 the Klagenfurt Regional Court reached a verdict. It convicted the accused as charged and sentenced the first applicant to five and a half years, the second applicant to three years, the third applicant to two years and D.B. to three years of imprisonment. In addition, they were ordered to repay EUR 4,765,193 plus interest to Landesholding for compensation. The Regional Court found that the services provided by D.B. in the negotiation process only corresponded to fees in the amount of EUR 300,000 and that the second applicant and the third applicant had been aware of that fact but had breached their obligation of diligence by authorising the payment of EUR 6 million to D.B. As the first applicant had asked them to authorise the payment, he was guilty of abetting them.
63. The applicants lodged pleas of nullity and appeals against the sentence. D.B. also lodged an appeal against the sentence. The public prosecutor appealed against the sentences imposed on the second applicant, the third applicant. and D.B.
64. In their pleas of nullity the applicants, relying on Article 281 sub-paragraph 4 of the Code of Criminal Proceedings (Strafprozessordnung, hereinafter referred to as CCP), stated that the Regional Court should have appointed another official expert. The proceedings had made it clear that F.S.’s expert report had been deficient. F.S. had been appointed by the public prosecutor and had delivered the basis for a bill of indictment, which showed that he was biased. F.S. had to be considered as a witness for the prosecution and not as an impartial expert assisting the court. Moreover, under Article 126 § 4 of the CCP a challenge for bias against an official expert could not be made on the grounds 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 commissioned by the applicants and their co-accused and submitted to the trial court had not been admitted to the file and the experts had not been summoned as requested. They therefore asked the Supreme Court to request a review of the constitutionality of Article 126 § 4 of the CCP by the Constitutional Court.
65. On 11 March 2014 the Supreme Court dismissed the applicants’ pleas of nullity and the appeals of the second applicant and of the public prosecutor, but partly granted the appeals of the first applicant, the third applicant and D.B. The sentence imposed on the third applicant was added to a sentence previously imposed on him on of 2 February 2013 (Zusatzstrafe), and the sentences imposed on the first applicant and D.B. were reduced to four and a half years and two and a half years of imprisonment respectively.
66. With regard to the alleged violation of Article 6 of the Convention, the Supreme Court found that Article 126 § 4 of the CCP should in general ensure that two different official experts were not appointed in the preliminary proceedings and the trial, as this would result in delays in the proceedings. Article 126 § 4 of the CCP did not exclude a challenge for bias, except when it was merely argued with the fact that the expert had been appointed previously in the preliminary proceedings. The requests to appoint another expert had been dismissed by the court not on the grounds of Article 126 § 4 of the CCP but for other reasons. In fact, it had dismissed the requests because the applicants had not given valid reasons for their bias challenge. It had not been shown that the expert had a close relationship with the public prosecutor that would cast doubts on his objectivity.
67. Moreover, the neutrality of the expert was ensured as he or she was obliged by law to act in an objective manner. His or her findings had to be based on facts established using 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 expert was not part of the public prosecutor’s office, and the results of the proceedings had no effect on his or her payment. In the event of a dispute between the public prosecutor and the accused about the amount of the expert’s fees, it was up to the court to fix the amount and to pay the expert.
68. The Supreme Court also reasoned that in preliminary proceedings as well as in a trial, an accused could address written questions to the official expert and question him or her in court and, in so doing, the accused could be assisted by a privately appointed expert. The Supreme Court noted that the applicants had made use of this opportunity. In that way, the accused had an opportunity to show that the official expert’s report contained errors or shortcomings. If those errors or shortcomings could not be corrected by the official expert, the court had to dismiss him or her and appoint another expert to draw up a report. Furthermore, the findings and conclusions of the official expert could be challenged even before the trial stage by lodging an objection (Einspruch) against the bill of indictment, but this had not been done in the case at hand (see paragraph 50 above).
69. The Supreme Court rejected as inadmissible the first applicant’s complaint that contacts between the public prosecutor and F.S. had influenced the latter and rendered him biased vis-à-vis the accused as this complaint had not been submitted following the proper proceedings. It added, however that such a complaint was in any event ill-founded, since the initial contact between the public prosecutor and F.S. merely had the purpose of clarifying under which conditions F.S. would accept the task of drawing up an expert report and subsequent contacts consisted in supplementing the case file which had been transmitted to F.S. for drawing up the report. Thus, it could not be seen how this kind of contact could give rise to doubts as to the neutrality of the expert.
70. The Supreme Court held further that the applicants in the present case had not used their opportunity to question the competence of F.S. or to object to his appointment in the preliminary proceedings. Moreover, the Regional Court had based its findings and decision primarily not on the expert report, but on D.B.’s confession. Citing the Court’s case-law (Brandstetter v. Austria, 28 August 1991, Series A no. 211; Bönisch v. Austria, 6 May 1985, Series A no. 92; and C.B. v. Austria, no. 30465/06, 4 April 2013), the Supreme Court found that the applicants had had sufficient opportunities to question F.S. during the hearing of 9 August 2012. Consequently, the Supreme Court had no doubt that the right to equality of arms in the trial had been maintained.
71. The written decision of the Supreme Court was served on the applicants on 27 March 2014.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. CCP 1975 (Strafprozessordung 1975) in force until 31 December 2007
72. Until 31 December 2007 criminal proceedings conducted under the CCP could be divided into judicial preliminary investigations, the trial and the appeal proceedings. Normally, criminal information was filed with the public prosecutor’s office, which had to decide whether preliminary inquiries (Vorerhebungen) should be carried out by the courts, whether the case should be closed or whether the opening of judicial investigations (Voruntersuchungen) by the investigating judge should be requested (Article 87ff CCP).
73. If the public prosecutor asked for judicial investigations to be opened, 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 CCP). The public prosecutor himself did not investigate or collect evidence (Article 97 § 2) but had access to all evidence collected by the court. He, as well as the accused, could request the taking of evidence 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 them, irrespective of whether they were in favour of or against the accused (Article 34 § 3 CCP, “... auf gesetzliche Weise deren Abstellung zu veranlassen”).
74. Article 119 § 1 CCP provided that if the subject matter of the case so required, the investigating judge should appoint an expert during the proceedings, who thereby becomes the official expert. The court could appoint two experts only if 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 judgment 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 to him, and if another expert would, in all probability, be able to answer it.
75. Even if the parties had no right to formally object to the appointment of an expert in preliminary judicial investigations, Article 120 CCP provided that the parties should be informed of the intention to appoint an expert. If the parties raised objections regarding the appointment of the expert in a timely manner, the court could appoint another expert.
76. Articles 125 and 126 CCP 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 were clearly contradictory 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.
77. As the aim of judicial investigations was to examine the accusations against a specific person and to secure evidence to be used later at the trial (Article 91 § 2 CCP), it was the established practice that the expert appointed by the investigating judge for the judicial investigations would also take part in the trial.
78. In a judgment of 21 November 1989 (15Os130/89), the Supreme Court summarised the general practice under Austrian criminal law as regards the opinions of privately commissioned experts:
“As regards procedural objections, it should be made clear from the outset that the opinions of private experts 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.”
79. 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 an expert effectively during the hearing, he or she could make use of the professional support of a privately commissioned expert. 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 (judgment of the Supreme Court of 19 December 2005, 14Os129/05k, and judgment of the Supreme Court of 29 September 2001, 13Os34/01).
B. New CCP, in force since 1 January 2008
80. On 1 January 2008 a federal law substantially amending the CCP 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]).
81. At the same time, Article 90a was introduced in the Federal Constitutional Act (Bundes-Verfassungsgesetz), stating that public prosecutors are functionaries of the judiciary (Gerichtsbarkeit). They represent the investigation and prosecution in cases for acts carrying a penalty by a court.
82. That reform replaced the system of judicial investigation under the control of an investigating judge by a system of preliminary investigation proceedings controlled by the public prosecution (see Article 4 CCP). It is now up to the public prosecutor to conduct investigations and to decide on the collection and securing of evidence against and in favour of the accused, and whether to file a bill of indictment. Specific measures for the collection of evidence may be ordered by the public prosecutor (for example, the securing of objects as evidence, Article 110) or, if they constitute a particularly serious interference with a person’s rights, by a court order at the request of the public prosecutor (for example, the seizure of goods, Article 115). Only a few measures, such as the reconstruction of a crime scene (Article 150, Tatrekonstruktion) or the hearing of a victim of a crime as a witness under special circumstances (Article 165, Kontradiktorische Vernehmung) are conducted by the court itself upon request.
83. An aggrieved person may lodge an objection with the court if he or she feels that there has been an unlawful interference with his or her rights caused by an order issued by the public prosecutor (Einspruch gegen Rechtsverletzung, Article 106).
84. Pursuant to Article 126 § 1 CCP an expert will be appointed if expert knowledge is needed for the investigation or the evaluation of evidence which the public prosecutor’s office, specialised institutes or the court do not have. In accordance with paragraph 3 of that provision, the expert is appointed by the public prosecutor in preliminary proceedings and by the court in the trial.
85. The authorities 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). In choosing the expert and defining the extent of his or her appointment, the authorities must be guided by the objectives of austerity and economic expediency (Grundsätze der Sparsamkeit und Wirtschaftlichkeit, Article 126 § 2c). The expert who is appointed by the court is the official expert of the proceedings (as opposed to a privately commissioned expert, who is chosen by the accused; see parapraph 78 above). He has a special status in the trial, in particular he is allowed to question witnesses and the accused on his own.
86. During preliminary proceedings the expert has to be appointed by the public prosecutor. The court has to appoint the expert in the event of a reconstruction of the crime scene and for the trial. The accused has the right to object to the appointment of a specific expert within a period not exceeding one week fixed by the deciding authority (Article 126 § 3).
87. Pursuant to Article 126 § 4 CCP on challenging public prosecutors for bias also apply to experts. If it is established that the expert is biased or if 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 fact that the same expert was appointed in the preliminary proceedings and the trial is no reason for assuming that he or she is biased.
88. The expert’s opinion has to be based on his best knowledge in accordance with the rules of science, and on his conscience (Article 127 § 2).
89. The provisions of former Articles 125 and 126 CCP (concerning the appointment of additional experts) are covered by the new Article 127 § 3.
90. 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 judgment 14Os129/05k of 19 December 2005 (see paragraph 79 above) are still applicable under the amended CCP (judgment of 5 November 2008, 13Os132/08y).
91. Pursuant to Article 210 CCP, trial proceedings under the control of the court start when the public prosecutor files a bill of indictment. The public prosecutor then becomes a party to the trial proceedings.
92. Pursuant to Article 254 CCP, the presiding judge in the trial has the authority to question witnesses and experts without a request from the parties, if he requires clarification of a substantial question of fact. In this regard, he may appoint new experts or order the examination of different evidence by an expert.
93. During the trial, the accused must be granted the right to take the floor after every witness, expert or co-accused has been questioned. For the purpose of questioning the expert, the accused may call a person with specialist knowledge, who sits next to the accused’s lawyer. This person may assist the lawyer but does not have the right to question the expert himself (Article 248 and Article 249 § 3 CCP).
94. The Federal Law of 11 August 2014 (Official Gazette [Bundesgesetzblatt] no I 71/2014), which entered into force on 1 January 2015, amended Article 126 CCP. It deleted the last sentence of § 3 (see paragraph 86 above) and added a fifth paragraph giving the accused within the preliminary proceedings the right to apply for the withdrawal of the appointed expert within fourteen days of his or her appointment if a reason for bias occurred or if doubts as to the expert’s knowledge arose. The accused may propose the appointment of a second expert by the public prosecutor. Furthermore, the accused may ask for the taking of evidence by a court-appointed expert under the control of the court. If the public prosecutor opposes to the request for a change of the expert or the taking of expert evidence under the control of court is requested, the public prosecutor has to transfer the file to the court which decides on the matter.
95. Following a request by the Supreme Court of 28 October 2014 in another case, no. 11Os86/14b, the Constitutional Court reviewed, in its decision no. G 180/2014 of 10 March 2015, whether Article 126 § 4 CCP (before it was amended by Federal Law of 11 August 2014, see paragraph 87 above) was in accordance with Article 6 of the Convention. It based its assessment on the Supreme Court’s new interpretation, as given in the request, that the provision in question would not allow the accused to lodge a challenge for bias, even in the event of indications that the expert was not neutral, judging from his actual conduct during the investigation proceedings in the case he or she had been entrusted by the public prosecutor to undertake investigations (in particular in the form of “fishing expeditions” - Erkundungsbeweis) and the bill of indictment was based “primarily” on his or her report.
96. The Constitutional Court found Article 126 § 4 CCP, in this interpretation, unconstitutional. In fact, the courts would have to examine the alleged bias on factual grounds on a case-by-case basis. Since in the Supreme Court´s new interpretation this case by case examination was legally excluded, the wording “expert or” in Article 126 § 4 CCP in the version before the amendment of 11 August 2014 was contrary to the Constitution and therefore nullified.
97. Based on the Constitutional Court’s findings the Supreme Court concluded in a subsequent decision (decision of 2 June 2015, 11Os51/15g) that the dismissal of a challenge on grounds of bias because of the expert’s function within the investigation proceedings would breach the accused’s rights under Article 6 § 3 (d) of the Convention under two cumulative conditions: (i) if the expert (on the order of the public prosecutor or on his own) had undertaken investigations in the form of a “fishing expedition” and (ii) the court had based its judgment “primarily” on such expert report. In the case at hand, the Supreme Court then examined the conduct of the expert when working on his report. It held that he had not investigated, neither on the prosecutor’s order, nor on his own initiative. It was therefore not necessary to examine whether the court had based its statement of facts “primarily” on his report. Therefore, the Supreme Court found, the court could rely on this expert report, even if the expert had been appointed by the public prosecutor at the stage of the investigation proceedings.
I. JOINDER OF THE APPLICATIONS
98. In view of the connection between the applications as regards the facts and the substantive questions that they raise, the Court considers it appropriate to join them in accordance with Rule 42 § 1 of the Rules of Court.
II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
99. The applicants complained that the criminal proceedings had been unfair. F.S., who had been appointed as official expert for the trial, had also acted as an expert appointed by the public prosecutor at the stage of the preliminary proceedings. Therefore, he could not be considered as impartial but as a witness for the public prosecution against the accused. As there had been no possibility for the defence to have a private expert summoned or to have a written report by a private expert admitted to the case file, the principle of equality of arms, as provided for in Article 6 §§ 1 and 3 (d) of the Convention, had been violated. This provision reads as follows:
“1. In the determination of his civil rights and obligations or 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...
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 ...”
100. The Court notes that the applications are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.
1. The parties’ submissions
(a) The applicants
101. The applicants complained that they had been convicted in proceedings which were unfair as they had not been given a reasonable opportunity to present their arguments concerning the appointment of F.S. as sole court-appointed expert to the trial. This had placed them at a substantial disadvantage vis-à-vis the public prosecutor. F.S. had to be seen as an extended arm of the public prosecutor (verlängerter Arm der Anklagebehörde) but not as an independent and impartial expert.
102. F.S. had been appointed as an expert in the preliminary investigations by the public prosecutor and not by a court. Since the amendment of the CCP in 2008 (see paragraphs 80-93 above), it was up to the public prosecutor to organise and conduct preliminary investigation proceedings. It was the prosecutor who decided which expert to appoint. Consequently, the expert had a certain economic dependence on the public prosecutor’s office. Even though the public prosecutor was required by law to be objective, he was not independent and could be removed from office at any time. Under no circumstances, therefore, was his status equal to that of a judge. There was evidence that F.S. had investigated on his own and without an order by the public prosecutor. In any event, there were no transparent guidelines setting out the extent to which F.S. should work independently or in coordination with the public prosecutor. Based on the expert’s report, the public prosecutor had filed a bill of indictment. Those facts made F.S. a witness for the prosecution and not an independent expert in the trial.
103. Neither in the preliminary investigations, nor in the trial had the applicants had proper means at their disposal to counter the appointment of F.S. and his findings. The period granted by the public prosecutor in the preliminary proceedings to lodge objections against F.S. had been inadequate, as F.S. was not known in Austria and there had been no information at hand to ascertain his views. Furthermore, the applicants did not have the right to question an expert in advance in a hearing or to suggest the appointment of another expert. The reasons which positioned F.S. on the public prosecutor’s side only emerged afterwards, during the investigation proceedings. Even if the applicants had had the possibility of lodging an appeal against the bill of indictment, that remedy was not a proper means of preventing a future violation from occurring because of the appointment by the trial court.
104. Referring to the Constitutional Court’s decision no. G 180/2014 of 10 March 2015 (see paragraphs 95-96 above), the applicants stated that the domestic courts in their decisions of 1 October 2012 and 11 March 2014 had not examined the case in the light of that court’s findings concerning the involvement of F.S. in the investigation process. The national courts had dismissed their requests that F.S. be withdrawn from his position on the basis of Article 126 § 4 CCP.
105. The report drawn up by F.S. had become the sole, decisive, unassailable basis for the conviction. Also, it was the strong influence of F.S.’s expert report on the proceedings that had led to D.B.’s confession.
106. In contrast, the defence had been unable to present to the court an opinion diverging from the one submitted by F.S., who represented the view of the prosecution. Neither of the private expert reports commissioned by the applicants had been taken into consideration, nor had the request to question those experts been granted. Most of those experts were registered for court proceedings. That disadvantage was not compensated for by the fact that in the preliminary proceedings, F.S. had commented on the private experts’ reports and those comments had been taken into consideration by the courts. Even though one of the private experts had been present during the trial, he did not have the same rights as the court-appointed expert. F.S. was granted special status in the trial, as he could question witnesses and the accused on his own. The private expert, on the other hand, had no right to question the accused, the witnesses or F.S. on his own. F.S.’s status as a witness for the prosecution in the proceedings had not therefore been counterbalanced by the granting of equivalent rights of defence to the applicants.
(b) The Government
107. The Government stated that in the proceedings under consideration the applicants’ rights under Article 6 §§ 1 and 3 (d) of the Convention had not been violated, as F.S. had been an independent and impartial court-appointed expert in the trial.
108. The Government explained that under the new CCP, which had entered into force on 1 January 2008, public prosecutors were organs of the judiciary and the public prosecutor’s office conducted investigation proceedings independently. Like judges, public prosecutors were under an obligation to be impartial and unprejudiced, and to avoid any appearance of bias. At trial, the public prosecutor was not the “opponent” of the accused but had a neutral position.
109. In the present case, F.S. had been appointed exclusively by the presiding judge of the trial. At that stage, F.S. had thus made available his special expert knowledge to the court. In the preliminary proceedings, F.S. had not been part of the public prosecutor’s office; he was a professor of law at a university in Germany and - apart from his expertise in that specific field - had been appointed as an expert because he neither worked nor lived in Austria, so that a possible close (political) relationship regarding the occurrences to be clarified by the court could be excluded from the outset. F.S. had been entrusted not with the task of carrying out investigations but merely with the preparation of an opinion on the basis of clearly defined questions. He had not carried out independent investigatory measures, gone on a “fishing expedition” or taken evidence.
110. Experts were under an obligation to be objective, regardless of which organ had appointed them and at which stage of the criminal proceedings they had been appointed. If there were reasons to fear that the impartiality of the expert’s assessment had been affected by motives that were not connected to the subject matter, for example, if the expert had already prepared a private expert opinion against payment for a party to the proceedings on the subject matter of those proceedings, the expert would have to be dismissed. Moreover, their objectivity was secured by criminal law but also by the regulations on the entitlement to charge fees, which were always paid from public funds irrespective of the outcome of the proceedings. In this respect, court-appointed experts differed considerably from privately commissioned experts, in respect of whom there was no guarantee of impartiality and objectivity since the latter acted on behalf of a party to the proceedings. Because of this risk of partiality, privately appointed experts were not “experts” within the meaning of the CCP.
111. When the public prosecutor first appointed F.S. as an expert on 6 April 2011, the applicants could have challenged him for bias. His appointment would thus have been the subject of a comprehensive judicial examination. Furthermore, by lodging an objection the applicants could have requested a judicial examination of the bill of indictment and the expert opinion adjoined to it. However, they did not make use of those opportunities.
112. In order for a court-appointed expert to be regarded as impartial, it was not necessary to appoint every expert proposed by a party to the proceedings, or to admit every private expert in addition to the court-appointed expert, as Article 6 did not give the defence an absolute right to have a specific expert heard. It was for the domestic judge to decide whether an expert was qualified, and whether his or her participation in the trial would contribute to the resolution of the case.
113. Article 6 did not require that the private experts commissioned by the applicants be given the same procedural position as the court-appointed expert. Against this background, the Austrian courts had merely to safeguard the equality of arms with regard to the expert opinion prepared by F.S. At the trial, the applicants had the opportunity to question the appointment of F.S. On 18 July 2012 they requested that F.S.’s expert report be excluded from the file and that F.S. be heard as a witness for the prosecution and not as an expert. The reasons they gave for that request were the inadequacy of the findings and the opinion of F.S. They claimed that he was not professionally qualified to answer questions for assessing the reasonableness of the fee claimed by D.B. After examining the submissions, the Regional Court refused their request, holding that given the content of the file and the results obtained so far in the trial, it had not been established that the expert was biased. The Supreme Court also considered in detail the appointment and activities of F.S. and upheld the Regional Court’s decision in that regard. The applicants had had sufficient opportunities to question the report prepared by F.S. with the help of the private experts they had commissioned. The opinions of a private expert commissioned by the applicants had been transmitted to F.S. in the preliminary proceedings. The expert’s detailed comments became part of the court’s case file. The content of the private expert’s opinions was thus included in the proceedings without being formally included in the case file or read out at the trial hearing. During the trial, F.S. answered questions put to him by the applicants on 9 August 2012 for more than two and a half hours regarding issues of methodology and discussed with them the content of his report. Sufficient time had been made available for the preparation of those questions. The applicants relied on the assistance of private experts providing them with the necessary expert knowledge and indicating possible problematic aspects of the expert report during the questioning of F.S.
114. In any event, the expert opinion prepared by F.S. did not play a decisive role in the outcome of the proceedings at issue, since the Regional Court essentially relied on the confession of D.B.
2. The Court’s assessment
(a) General Principles
115. The Court reiterates that the guarantees in paragraph 3 (d) of Article 6 are specific aspects of the right to a fair trial set forth in paragraph 1 of this provision; it will therefore consider the applicants’ complaints under both provisions taken together (see Brandstetter, cited above, § 42; C.B. v. Austria, cited above; § 38, Schatschaschwili v. Germany [GC], no. 9154/10, § 100, ECHR 2015).
116. Article 6 § 3 (d) refers to “witnesses”, and, if interpreted strictly, should not be applied to other evidence. However, this term must be given an autonomous interpretation. It can also include victims (see A.H. v. Finland, no. 46602/99, § 41, 10 May 2007), expert witnesses (see Doorson v. the Netherlands, 26 March 1996, §§ 81-82, Reports of Judgments and Decisions 1996-II) and other persons testifying before the court (Mirilashvili v. Russia, no. 6293/04, § 158, 11 December 2008). Although Article 6 does not go as far as requiring that the defence be given the same rights as the prosecution in taking evidence, the accused should be entitled to seek and produce evidence “under the same conditions” as the prosecution (see Mirilashvili, cited above, § 225; see also Perić v. Croatia, no. 34499/06, § 19, 27 March 2008). Clearly, those “conditions” cannot be exactly the same in all respects; thus, for example, the defence cannot have the same search and seizure powers as the prosecution. However, as follows from the text of Article 6 § 3 (d) the defence must have an opportunity to conduct an active defence - for example, by calling witnesses on its behalf or adducing other evidence (Khodorkovskiy and Lebedev v. Russia, nos. 11082/06 and 13772/05, § 728, 25 July 2013).
117. The Court considers, at the outset, that it is not its task to review the relevant legislation in the abstract. Instead, it must confine itself, as far as possible, to examining the issues raised by the case before it (see, among many authorities, Schwarzenberger v. Germany, no. 75737/01, § 37, 10 August 2006; Schatschaschwili, cited above, § 109; Taxquet v. Belgium [GC], no. 926/05, § 83, ECHR 2010).
118. The Court further reiterates that the Contracting States enjoy considerable freedom in the choice of the means calculated to ensure that their judicial systems are in compliance with the requirements of Article 6. Its primary concern under Article 6 § 1 is to evaluate the “overall fairness” of the criminal proceedings (see, for example, Schatschaschwili, cited above, § 101; Taxquet, cited above, § 84; Edwards v. the United Kingdom, 16 December 1992, § 34, Series A no. 247-B).
119. The principle of equality of arms, one of the elements of the broader concept of a “fair hearing” within the meaning of Article 6 § 1 of the Convention, requires that each party must be afforded a reasonable opportunity to present his or her case under conditions that do not place him at a substantial disadvantage vis-à-vis his opponent or opponents (see Avotiņš v. Latvia [GC], no. 17502/07, § 119, ECHR 2016; Andrejeva v. Latvia [GC], no. 55707/00, § 96, ECHR 2009 with further references).
120. The Court has examined in a number of cases the issue of the appointment of experts in court proceedings (Bönisch, cited above, §§ 31- 32; Brandstetter, cited above, § 44; Stoimenov v. the former Yugoslav Republic of Macedonia, no. 17995/02, § 38, 5 April 2007, Duško Ivanovski v. the former Yugoslav Republic of Macedonia, no. 10718/05, § 57, 24 April 2014, Miilashvili, cited above, §§ 177-79, C.B. v. Austria, cited above, § 38). In the case of Poletan and Azirovik v. the former Yugoslav Republic of Macedonia, (nos. 26711/07 et al., 12 May 2016), the most recent authority on this issue, it summed up the case-law as follows:
“94. The Court reiterates that the appointment of experts is relevant in assessing whether the principle of equality of arms has been complied with. The mere fact that the experts in question are employed by one of the parties does not suffice to render the proceedings unfair. Although this fact may give rise to apprehension as to the neutrality of the experts, such apprehension, while having a certain importance, is not decisive. What is decisive, however, is the position occupied by the experts throughout the proceedings, the manner in which they performed their functions and the way the judges assessed the expert opinion. In ascertaining the experts’ procedural position and their role in the proceedings, one must not lose sight of the fact that the opinion given by any court-appointed expert is likely to carry significant weight in the court’s assessment of the issues within that expert’s competence (see Shulepova v. Russia, no. 34449/03, § 62, 11 December 2008).
95. Furthermore, the requirement of a fair trial does not impose on a trial court an obligation to order an expert opinion or any other investigative measure merely because a party has requested it. Where the defence insists on the court hearing a witness or taking other evidence (such as an expert report, for instance), it is for the domestic courts to decide whether it is necessary or advisable to accept that evidence for examination at the trial. The domestic court is free, subject to compliance with the terms of the Convention, to refuse to call witnesses proposed by the defence, for instance on the grounds that the court considers their evidence unlikely to assist in ascertaining the truth (see Khodorkovskiy and Lebedev, cited above, §§ 718 and 721, and Huseyn and Others v. Azerbaijan, nos. 35485/05, 45553/05, 35680/05 and 36085/05, § 196, 26 July 2011).”
This case concerned criminal proceedings in which at the stage of the investigation three experts employed by the Criminal Investigations Bureau at the Ministry of the Interior submitted expert reports which were transmitted to the public prosecutor, thereby setting in motion the criminal proceedings against the applicants. In the ensuing trial the same experts were appointed as experts by the trial court and drew up a further report. While the applicants complained about a breach of the principle of equality of arms, the Court declared this complaint inadmissible as manifestly ill-founded. It considered that the fact that an expert was a member of the police and had links with the prosecution might have given rise to apprehension as to the neutrality of the experts, but these doubts could not be held objectively justified. The Court noted that the experts had given evidence under oath and had expressly denied having received instructions from anyone. Further, the applicants and their lawyers, who had attended the trial hearing, had had the opportunity to see and hear the experts and to question them in order to reveal any possible conflicts of interest or flaws in the methods of examination. The applicants had also failed to produce any evidence that the experts had performed their duties in a way which was not impartial and objective.
121. Thus, in substance the Court has found that if a bill of indictment is based on the report of an expert who was appointed in the preliminary investigations by the public prosecutor, the appointment of the same person as expert by the trial court entails the risk of a breach of the principle of equality of arms, which however can be counterbalanced by specific procedural safeguards.
(b) Application to the present case
122. As regards the procedural position of F.S., the Court notes that F.S. was appointed by the public prosecutor as expert in the preliminary proceedings. He was instructed to submit a report dealing with two questions: firstly, whether the services provided by D.B. were comparable to services normally offered by an investment bank in similar circumstances; and secondly, what remuneration would be appropriate and reasonable for the services D.B. had provided. F.S. had submitted his expert report and commented on the reports submitted by the private experts commissioned by the defence. On the basis of his findings, the public prosecutor had filed a bill of indictment. In the trial the Klagenfurt Regional Court also appointed F.S. as expert (Article 126 § 1 CCP). On the question of whom to appoint as an expert, the court was not bound by any request from the parties (see Article 254 CCP). Nor was there any provision requiring the court to appoint as an expert someone who had already been involved in the preliminary proceedings.
123. The Court observes that that the applicants’ nourished doubts about the impartiality of F.S. However, it remains to be examined whether those doubts were objectively justified.
124. Firstly, the Court notes that F.S. was not employed by the public prosecutor’s office or a Ministry, but was a professor of law at a university in Germany. The applicants have not shown evidence that F.S. was working on a regular basis for the public prosecutor. On the contrary, they did not contest the Government’s argument that F.S. had been chosen precisely because he had not previously been involved in legal and political disputes in Austria. Nor did F.S.’s remuneration depend on whether the accused were convicted or not. F.S. was not, economically or otherwise, dependent on the public prosecutor’s office. Above all, the applicants did not object to his appointment.
125. Secondly, the Court notes that F.S. was present at the hearing of 9 August 2012, when he gave a brief summary of his written report and answered questions raised by the court and the parties. Although the legal regulation granted the officially appointed expert a special status in the trial and allowed him to question witnesses and the accused on his own, he did not play any active role in the trial (see para. 59). The applicants had also been free to rely on assistance by private experts for support in the trial, for example when questioning the expert. One private expert was present at the trial, sitting at the defence’s bench and could support the applicants in their questioning of the court appointed expert. Furthermore, the applicants did not show that F.S.’s conduct in the trial gave reasons to doubt his impartiality.
126. Thirdly, the Court observes that F.S. was under a strict legal obligation to be objective and could have been challenged for bias if there had been relevant reasons for raising doubts as to his full impartiality and objectivity. Therefore the fact that he had been appointed by the prosecutor and that the indictment had been based on his expert report did not mean that he would side with the prosecution.
127. Fourth, as regards the possibility of challenging the expert F.S. for bias, it appears that the Regional Court did not merely reject the applicants’ challenge on the ground of Article 126 § 4 CCP. Rather, it examined the allegations as to the bias of F.S. and his lack of competence in the concrete case but eventually dismissed them as unfounded. Only insofar as the applicants relied on the simple fact that F.S. had, in the preliminary investigations been appointed by the Public Prosecutor, the Regional Court rejected the challenge on the basis of Article 126 § 4 CCP. The Court therefore considers that the applicants had the possibility to challenge the expert F.S. for bias if, judging from the concrete steps taken in the preliminary investigations, any doubt was cast on his impartiality. As far as they made use of this possibility, the Klagenfurt Regional Court examined their allegations in substance and dismissed them as unfounded (see paragraph 54 above). Further, there is no indication that in the present case F.S. had been instructed by the Public Prosecutor to carry out any investigations in the course of the preliminary investigations, nor does it appear that he had done so on his own initiative. The applicants have failed to substantiate their allegations in this respect. For these reasons the Court considers that the decision by the Constitutional Court of 10 March 2015 (see paragraphs 95-96 above), on which the applicants rely as argument, cannot prompt it to arrive at a different conclusion.
128. In conclusion, the Court considers that the applicants’ doubts as to F.S.’ impartiality were not objectively justified. Moreover, the fact that the defence was able to rely on the assistance of privately commissioned experts when questioning the court-appointed expert in the trial or formulating requests for the taking of evidence did provide it with sufficient means for effectively defending the applicants’ case. Thus, the applicants did have a reasonable opportunity to present their case and were not placed at a substantial disadvantage vis-à-vis the prosecution. Finally, his evidence was not decisive for the conviction (see paragraph 70 above). Thus in the circumstances of the case, there was no breach of the principle of equality of arms in the criminal proceedings conducted against the applicants.
129. Accordingly, there has been no violation of Article 6 §§ 1 and 3 (d) of the Convention.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Decides to join the applications;
2. Declares the applications admissible;
3. Holds that there has been no violation of Article 6 §§ 1 and 3 (d) of the Convention.
Done in English, and notified in writing on 1 June 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Milan Blaško Angelika
Deputy Registrar President
Dr. Gernot MURKO