In the case of C.B. v. Austria,
The European Court of Human
Rights (First Section), sitting as a Chamber composed of:
Isabelle Berro-Lefèvre, President,
Elisabeth Steiner,
Khanlar Hajiyev,
Mirjana Lazarova Trajkovska,
Julia Laffranque,
Linos-Alexandre Sicilianos,
Erik Møse, judges,
and Søren Nielsen, Section Registrar,
Having deliberated in private on 12 March 2013,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
30465/06) 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 an Austrian national, Mr C.B. (“the applicant”),
on 18 July 2006. The President of the Section acceded to the applicant’s
request not to have his name disclosed (Rule 47 § 3 of the Rules of Court).
The applicant was represented by Mr H. Graupner,
a lawyer practising in Vienna. The Austrian Government (“the Government”) were
represented by their Agent, Ambassador H. Tichy, Head of the International Law
Department at the Federal Ministry of European and International Affairs.
The applicant complained of unfair proceedings
and alleged, in particular, that the refusal to admit a private expert opinion
into the criminal proceedings conducted against him, the refusal to allow the
private expert to testify as a witness, and the refusal to allow three further
witnesses to testify in the same proceedings violated his rights under Article
6 §§ 1 and 3 (d) of the Convention.
On 10 November 2010 the application was
communicated to the Government. It was also decided to rule on the
admissibility and merits of the application at the same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1966 and lives in Maria
Enzersdorf.
In 2005 the Krems a.d. Donau Regional Court (Landesgericht
Krems a.d. Donau) conducted criminal proceedings against the applicant, who
was accused of both attempted and actual sexual abuse of minors and juveniles,
and of offences under the Drug Offences Act.
During the proceedings, the Regional Court
appointed a neurological and psychiatric expert to examine the applicant, to
establish, inter alia, whether the applicant fulfilled the conditions
for referral to an institution for mentally ill offenders (Anstalt für
geistig abnorme Rechtsbrecher) pursuant to Article 21 § 2 of the Criminal
Code (Strafgesetzbuch). The applicant does not appear to have objected
to the choice of expert or to the subject matter on which the report was to be
obtained. On 4 March 2005 the expert submitted his written opinion,
establishing that the applicant was fully criminally responsible and diagnosing
a disorder of sexual preferences, paedophilia and narcissistic personality
disorder. The opinion was based on an examination of the applicant, the
criminal files and the results of an MMPI-2 personality test. The expert found
that the applicant’s disordered conduct had progressed, in view of the
decreasing age of his victims. The opinion concluded that there was a very high
risk that the applicant would relapse, with severe consequences. Subsequently,
the opinion was served on the applicant’s counsel for comments.
On 8 June 2005 the applicant’s counsel commented
on the expert’s opinion, submitted the opinion of a private expert, a
psychiatrist and neurologist, and requested the court to have it read out to
the court-appointed expert at the oral hearing and to appoint another expert in
the event that the court-appointed expert did not concur with the private
expert’s opinion.
The opinion of the private expert, dated 12 May
2005, also found that the applicant suffered from homosexual paedophilia, a
disorder of his sexual preferences and a sexual maturity crisis. He found,
however, that there was no indication of a narcissistic disorder. As regards
the prognosis, the expert concluded that there was a low to moderate risk of
the applicant reoffending as regards non-violent sexual abuse of children. The
private expert commented on the court-appointed expert’s opinion and criticised
his methods, considering in particular that the factual statements he had made
were unclear and were not accompanied by sufficient explanation. Finally, he
also questioned the court-appointed expert’s interpretation of those factual
statements.
On 22 June 2005 the court-appointed expert
supplemented his opinion in writing and commented on every observation made by
the private expert.
On 30 June 2005 the Regional Court held an oral
hearing in which the court-appointed expert summarised and supplemented his
opinion. During the hearing, the applicant’s counsel questioned the
court-appointed expert at length. The court did not, however, allow questions
to be put by counsel which referred to the private expert opinion, or general
questions regarding the court-appointed expert’s education and competencies.
Counsel also made applications for the admission of the private expert opinion
to the proceedings and for the private expert to be allowed to testify as a
witness. According to the record of the hearing, counsel requested, in
particular,
“... that evidence be heard from Dr W.B., a psychiatric
specialist at the D. Clinic, on the subject of the requirements of Article 21 §
2 of the Criminal Code in the context of a psychiatric assessment and case
history carried out after the assessment by the court-appointed expert and at a
time when the accused’s detention for five weeks in an individual cell, a
situation which was new to him and to which he was wholly unaccustomed, had
come to an end ...
He requested that a further expert opinion be sought on the
basis of the provisions of Article 429 § 2 (2) of the Code of Criminal
Procedure (“CCP”), which made express reference to the need to seek the opinion
of at least one psychiatric expert, and on the basis of Article 439 § 2 of the
CCP, according to which at least one expert had to be called in the
proceedings, failing which they would be declared null and void. Even after the
additional questioning of the court-appointed expert there were grounds to
assert that the conditions laid down in Articles 125 and 126 of the CCP had not
been met, with the result that no reliable prognosis could be made as to the
dangerousness of the accused without a further expert report.
He reiterated his request for Dr W.B.’s expert report and
additional observations, contained in the file, to be read out and for B.S.,
J.H. and A.U. to be called as witnesses to testify that the accused had no
difficulty forming relationships, had sufficient empathy and had no
pathological need to control others. The appearance of those witnesses was also
sought in order to testify that the facts on which the court-appointed expert
based his opinion were partly inaccurate and incomplete, and thus defective
overall.
The public prosecutor objected to the request. As far as the
taking of evidence from Dr W.B. was concerned, this was a means of introducing
a private expert opinion into the proceedings and served no other apparent
purpose. The other witnesses were to be asked to testify on medical matters
that should be assessed by an expert, and were therefore unsuited to that
purpose. Matters relating to the psychiatric assessment should also be
determined by the expert; an expert opinion was available which, even after
several hours’ questioning, still appeared consistent. The public prosecutor
was therefore also opposed to a second expert opinion being sought. He
repeatedly expressed his opposition to having the private expert opinion of Dr
W.B. read out in court.”
The Regional Court dismissed counsel’s requests
at the hearing and reasoned the dismissal as follows:
“Decision refusing the requests
(1) As regards the taking of evidence from Dr W.B.
concerning the requirements of Article 21 § 2 of the Criminal Code: it is not
clear, first, in what capacity Dr W.B. might be examined. The requirements of
Article 21 § 2 of the Criminal Code are a legal issue, to be determined solely
by the court with the assistance of a court-appointed psychiatric expert.
Witnesses are individuals who have to give their own observations regarding
facts relevant to the taking of evidence: their role is in no sense to make
statements concerning legal or empirical evidence or to speculate, express
opinions, make value judgments or draw conclusions. As to the possibility of
examining Dr W.B. as a witness on the subject of his psychiatric assessment, it
must be pointed out that such assessments are not a matter for witnesses. Since
Dr W.B. has prepared a private expert opinion in the present case, he cannot
also be regarded as an expert for the purpose of the proceedings, and any
statements he might make as a witness concerning the psychiatric assessment
would not constitute valid evidence.
(2) As far as obtaining a further expert opinion is
concerned: neither provision can be interpreted as imposing a requirement to
call a further expert in the proceedings concerning the accused’s compulsory
psychiatric admission. Here again, then, reference must be made to the
provisions of Article 118 § 2 and Articles 125 and 126 of the CCP, according to
which the calling of a further expert is required only if the existing findings
and opinion are incomplete and inconclusive. This may arise in the event of
difficulties in observing the patient and making an assessment; this in turn
will arise only if the court-appointed expert is unable to reply with
certainty, or at all, to the questions put to him, in which case the
possibility of the questions being answered by another expert cannot be ruled
out. In the instant case Dr R.B. answered the questions put to him with certainty
from the outset. During today’s hearing, and especially during questioning by
the defence, no important points were left unanswered. It cannot therefore be
argued that the expert did not answer the questions conclusively and with
certainty. As a result, the criteria laid down in Article 118 § 2, in
particular read together with Articles 125 and 126 of the CCP, certainly do not
apply and the request must be refused.
(3) As regards Dr W.B.’s private expert opinion and
additional observations: the public prosecutor opposed the reading-out of the
report. Hence, the conditions laid down in Article 252 § 1 (4) of the CCP do
not apply, nor, in any sense, do those of Article 252 § 1 (1).
(4) As to the taking of evidence from witnesses
B.S., J.H. and A.U.: the request does not explain why the witnesses in question
might possess this knowledge. Furthermore, the assessment of whether an
individual has difficulty forming relationships, is lacking in empathy and has
a pathological need to control others can only be carried out by an expert,
especially since witnesses may not draw conclusions from what they observe. It
is not clear why these witnesses should know that the facts were inaccurately
or incompletely conveyed by the expert in his opinion, nor has it been
explained why they should have anything to contribute on the subject; hence,
their evidence is not valid in this regard.“
Upon a repeated request by counsel to allow the
private expert to testify as a witness, the Regional Court decided
“...to refuse the request for Dr W.B. to testify as a witness
on the subject of the psychiatric assessment conducted by him, since this was
carried out after the assessment by the court-sworn expert. According to
Article 134 of the CCP, where there are doubts as to an individual’s mental
incapacity or a mental disorder is suspected, an assessment of his mental or
psychological state by one or, if need be, two doctors must be ordered. This
clearly refers to court-appointed experts. This provision and, of course, the
remaining provisions concerning the establishment of findings unambiguously
provide that the examination or assessment is a matter exclusively for a
court-appointed expert. It follows that Dr W.B., as a private expert, cannot
have made any findings within the meaning of the law or, more specifically, of
the provisions concerning expert evidence, with the result that his
observations as a witness concerning such findings do not constitute valid
evidence.”
On the same day, the Krems a.d. Donau Regional
Court, sitting as a panel composed of two professional and two lay judges (Schöffengericht),
convicted the applicant of both attempted and actual sexual abuse of minors and
juveniles and of offences under the Drug Offences Act, and sentenced him to two
years’ imprisonment. He was also admitted to an institution for mentally ill
offenders pursuant to Article 21 § 2 of the Criminal Code.
The applicant was found to have sexually abused
a minor born in 1992 by sustained touching of his sexual organs on at least ten
occasions between 2003 and 2004, and to have enticed two juveniles born in 1988
to carry out sexual acts on approximately twenty-six occasions between 2003 and
2004 by offering them money. He was further found to have provided two
juveniles with hashish five times between 1999 and 2002.
As regards the psychological expert opinions,
the Regional Court found in its reasoning concerning the assessment of the
evidence that
“... at the hearing and even beforehand the accused gave the
court and Dr R.B., an experienced expert in neurology and psychiatry, a
relatively full account of his life ...
On the basis of these extensive materials, Dr R.B. first produced
his written opinion, which he presented during the hearing and added to at
length and in detail ...
... at the hearing Dr R.B. gave reasons for his opinion in
comprehensible, logical and consistent fashion. It is clear even to a lay
person that the accused’s problems, which have been well established, are of
such severity as to constitute a serious personality disorder, even though some
of his problems (such as masochistic masturbation) do not necessarily result in
criminal behaviour ...
... The expert also confirmed that the accused does not have
violent tendencies in the sense of using physical violence. However, it must be
borne in mind that, particularly in the sphere of psychology and psychiatry,
psychological violence plays an important role. The accused repeatedly abused
young people as a result of his disposition, whether by giving them alcohol,
showing them pornographic films, offering them money or using his position in
society. The expert and, accordingly, the court therefore concluded that it was
likely that the accused, on account of his mental disorder and in particular
his paedophile tendencies, would commit further offences of the kind with which
he has been charged.
The accused and his counsel attempted at first to call the
expert’s qualifications into question. However, in view of his training and
professional experience, these were beyond doubt.
A request was then made for the private expert opinion of Dr
W.B. to be read out in court. This request was refused by the court because the
parties did not agree on that point and none of the grounds provided for by
Articles 125 and 126 of the CCP applied. The defence then had the terms
“abnormal sexual preferences” and “perversion” explained to them and the expert
reiterated in this context too that the accused showed no signs of sadistic
tendencies. The defence subsequently tried to undermine Dr R.B.’s opinion by
claiming that he had not used all the available methods, which had apparently
been used by the private expert. After Dr R.B. had answered all the questions
asked by the defence in consistent, comprehensible and, above all,
comprehensive terms, the request for the private expert’s opinion to be read
out was repeated. This request was rejected on the same grounds and also, in
particular, on the grounds that it was for experts themselves to decide which
methods they used to substantiate their opinion, based on the present state of
scientific knowledge. Only shortcomings in the procedure described in Articles
125 and 126 of the CCP or circumstances indicating particular difficulties in
making a diagnosis or preparing the opinion could justify calling in a further
court-sworn expert.
The request to circumvent these provisions by the taking of
witness evidence from a private expert also had to be refused, since the latter
did not and could not make observations concerning the alleged facts, and the
findings are to be established exclusively by the court-appointed expert.
For the same reason, the request for B.S., J.H. and A.U. to testify was also superfluous,
especially since no specific subjects were even mentioned and, in particular,
it was not made clear which of the facts (findings) presented by the expert had
supposedly been incomplete or defective...
In sum, it was thus demonstrated that there was no call to
question the statements of the expert Dr R.B. regarding the severity of the
accused’s disorder and his dangerousness, with the result that the court was
justified in basing its decision on those statements.”
On 28 October 2005 the applicant lodged a plea
of nullity (Nichtigkeitsbeschwerde) and an appeal (Berufung)
against the judgment.
On 22 December 2005 the Supreme Court (Oberster
Gerichtshof) rejected the plea of nullity and referred the appeal to the
Vienna Court of Appeal (Oberlandesgericht Wien). As regards the expert
opinions, that court found as follows:
“The refusal of the request for a ‘a further expert opinion
[to] be sought on the basis of the provisions of Article 429 § 2 (2) of the
Code of Criminal Procedure (“CCP”), which made express reference to the need to
seek the opinion of at least one psychiatric expert, and on the basis of
Article 439 § 2 of the CCP, according to which at least one expert had to be
called in the proceedings, failing which they would be declared null and void’
- which was further based on the assertion that ‘[e]ven after the additional
questioning of the court-appointed expert there were grounds to assert that the
conditions laid down in Articles 125 and 126 of the CCP had not been met, with
the result that no reliable prognosis could be made as to the dangerousness of
the accused without a further expert report’ - did not adversely affect the
rights of the defence. The panel of professional and lay judges correctly
pointed out in its decision based on Article 238 § 1 of the CCP that there were
no grounds for calling in a second expert either on account of difficulty in
observing the patient or making an assessment, as referred to in Article 118 §
2 of the CCP (which was also applicable to the committal proceedings), or on
account of shortcomings in the findings or the opinion of the court-appointed
expert (Articles 125 and 126 of the CCP), as the latter had answered all the
questions ‘conclusively and with certainty’.
For the same reason - and also because it was patently
concerned only with an examination that was inadmissible during the hearing -
the request for the private expert Dr W.B. to testify as a witness ‘on the
subject of the requirements of Article 21 § 2 of the Criminal Code in the
context of a psychiatric assessment and case history carried out after the
assessment by the court-appointed expert and at a time when the accused’s
detention for five weeks in an individual cell, a situation which was new to
him and to which he was wholly unaccustomed, had come to an end’ and ‘on the
subject of factual observations in connection with the psychiatric assessment
of the accused, carried out after the assessment by the court-appointed expert’
was correctly rejected, with reference to the settled case-law concerning the
content of witness statements and the inadmissibility of statements made by
private individuals concerning the legal subject-matter of the proceedings.
The same applies to the refusal of the request for the reading
out of the private expert opinion of Dr W.B., which is of no significance in
terms of the criminal proceedings.
Likewise, on the basis of the circumstances of the case, which
in medical terms is only moderately difficult, and of the additional
questioning of the court-appointed expert for over three hours, during which
time the defence had sufficient opportunity to explore the issues raised in the
private expert opinion, to which they had access, there can be no question of
an infringement of the fairness requirement (Article 6 ECHR).
Lastly, the accused has not been adversely affected by the
refusal of the request to hear evidence from witnesses B.S., J.H. and A.U. The
request did not specify the “facts” on which these persons were supposed to
give evidence; hence, the subject to which it related could not be clearly
identified. Furthermore, the request did not explain why the persons concerned
should be expected to provide information concerning circumstances relevant to the
accused’s guilt or the legal characterisation; this request therefore (also)
related to inadmissible evidence.”
On 30 March 2006 the Vienna Court of Appeal
dismissed the applicant’s appeal as unfounded. It stated that the expert’s
prognosis that there was a risk of the applicant relapsing was convincing and
stated further:
“As regards the criticism and the repeated request for the
private expert opinion of Dr W.B., obtained by the accused, to be admitted in
the proceedings and for a further expert opinion to be sought, these must be
rejected first of all on the basis of the findings of the Supreme Court in its
decision on the plea of nullity. Even after an in-depth study of the opinion of
Dr R.B., the expert appointed by the first-instance court - whose opinion,
incidentally, addressed all the criticisms raised in Dr W.B.’s opinion and
countered convincingly and in detail all the defence’s criticisms based on the
private expert opinion - the Court of Appeal could find no grounds for the
appointment of another expert in accordance with the provisions of Article 125
or 126 of the CCP. Accordingly, the request for a further expert opinion must
be rejected in the first place for lack of legal basis.”
That appeal judgment was served on the applicant’s
counsel on 30 May 2006.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Placement in an institution for mentally ill
offenders (preventive measures)
Article 21 of the Austrian Criminal Code (Strafgesetzbuch)
provides as follows:
"1. If a person commits
an offence punishable by a term of imprisonment exceeding one year, and if he
cannot be punished for the sole reason that he committed the offence under the
influence of a state of mind excluding responsibility (Article 11) resulting
from a serious mental or emotional abnormality, the court shall order him to be
placed in an institution for mentally ill offenders if, in view of his personality, his condition and the nature
of the offence it is to be feared that he will otherwise, under the influence
of his mental or emotional abnormality, commit a criminal offence with
serious consequences.
2. If such a fear exists, an
order for placement in an institution for mentally ill offenders shall also be made in respect of a person who, while not
lacking criminal responsibility, commits an offence punishable by a term of
imprisonment exceeding one year under the influence of severe mental or
emotional abnormality. In such a case the placement is to be ordered at the
same time as the sentence is passed."
B. The provisions of the Code of Criminal Procedure,
as in force at the relevant time, regarding expert opinions
The Code of Criminal Procedure (Strafprozeßordnung),
as in force at the relevant time, provided that a court, during the proceedings
and if the subject matter warranted it, should appoint an expert. The court had
to appoint two experts only if the subject matter to be examined was
particularly difficult (see Article 118 of the Code of Criminal Procedure).
Domestic case-law determined that an allegation that an expert opinion had
reached the wrong conclusion was not to be considered to render the subject
matter “particularly difficult” within the meaning of the provision
(EvBl 1996/125). Such difficulty could arise where an appointed expert was
unable to answer a question put before him, if another expert would in all
probability be able to answer it.
At the relevant time, an expert was appointed at
the investigative stage by the investigative judge, or by the court. There was
no right for the parties to formally object to the appointment of an expert.
However, Article 120 of the Code of Criminal Procedure 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.
In its Articles 125 and 126, the Code of
Criminal Procedure provided for procedural steps to be taken in the event of a
deficient expert opinion in criminal proceedings: the main principles deriving
from those provisions were that in the event of an expert opinion being contradictory
or inconclusive, or in the event that two expert opinions clearly differed from
each other and another oral examination of the experts could not eliminate the
doubts with regard to the conclusions of their opinions, a new expert was to be
appointed by the court.
A citation from the domestic jurisprudence
summarises the general view of Austrian domestic law on criminal procedure as
regards private experts’ opinions: in a judgment of 21 November 1989
(15Os130/89), the Supreme Court, deciding on a plea of nullity, stated:
“As regards the procedural objection, it should be made clear
from the outset that private expert opinions related to 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 clarification 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.”
At the material time the Code of Criminal
Procedure did not yet include an explicit provision allowing privately
commissioned experts to be present at the oral hearing and to thereby assist
defendants and their counsel in questioning the court-appointed experts during
the hearing. Such a provision was introduced into the Code of Criminal
Procedure in 2008 with its new Article 249 § 3. However, also before the reform
of the Code of Criminal Procedure, the Austrian Supreme Court had stated in its
case-law, with reference to a defendant’s rights under Article 6 § 3 (d) of the
Convention, that to ensure that the defendant could question an expert
effectively during the hearing, he or she could make use of the professional
support of a privately commissioned expert, and that 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
14Os129/05k of the Supreme Court of 19 December 2005, and judgment 13Os34/01 of
the Supreme Court of 29 September 2001).
C. Witnesses
According to the Code of Criminal Procedure at
the material time, a witness testified before the court on his or her
perception of the subject matter at issue (see Article 150 of the Code of
Criminal Procedure). Again, the amended Code of Criminal Procedure of 2008
codified the principles deriving from the Supreme Court’s jurisprudence in the
matter and stated in its Article 154 that a witness was a person having
directly or indirectly perceived relevant facts regarding the subject matter of
the investigation or the proceedings and who should thus testify on those
perceptions.
D. Procedural rules on referral to an institution for
mentally ill offenders
The referral of a defendant to an institution
for mentally ill offenders under Article 21 § 2 of the Criminal Code had in
principle to be ordered at the same time as the sentence was imposed (see
Article 435 of the Code of Criminal Procedure). However, such a referral was
null and void if the defendant had not been represented by counsel throughout
the proceedings and if the order had been made without hearing at least one
psychiatric expert on the matter (see Article 439 in conjunction with Article
429 § 2 no. 2 of the Code of Criminal Procedure).
E. General provisions regarding the reading of
documents in criminal proceedings
Finally, Article 252 of the Code of Criminal
Procedure provided at the material time, inter alia, that witness
statements or expert opinions were only permitted to be read out in the
criminal proceedings if - among other things - both the defendant and the
public prosecutor agreed.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE
CONVENTION
The applicant complained that he had not had a
fair trial. In support of this he maintained firstly that the domestic courts
had wrongly assessed the court-appointed expert’s opinion. He further
complained that the refusal to admit the private expert opinion to the
proceedings as evidence and the refusal to allow the private expert and B.S.,
J.H. and A.U. to testify as witnesses violated the principle of equality of
arms as provided in Article 6 §§ 1 and 3 (d) of the Convention, which 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 ...”
The Government contested that argument.
A. Admissibility
The Court notes that this complaint is not
manifestly ill-founded within the meaning of Article 35 § 3 (a) of the
Convention. It further notes that it is not inadmissible on any other grounds.
It must therefore be declared admissible.
B. Merits
1. The parties’ submissions
The applicant alleged in general that the
quality and the conclusions of the court-appointed expert’s opinion had been
wrongly assessed by the domestic courts. As to the private expert opinion, he considered
that the fact that the court-appointed expert had been made aware of the
private expert’s comments did not suffice for the respect of the principles of
a fair hearing, but that the court itself ought to have examined the private
opinion in substance and taken a reasoned decision on which opinion to follow
in its judgment. However, in the present case the domestic court had refused to
admit the private expert opinion into the proceedings as evidence. The
applicant also observed that the possibility for a private expert to assist a
defendant and counsel during the hearing had only been introduced into the
amended Code of Criminal Procedure in 2008. Further, the applicant claimed that
allowing the private expert opinion would not have led to a repetition of
evidence. The applicant alleged that the private expert was more experienced
and had submitted a more extensive opinion based on his examination of him. He
also asserted that in view of the unfair decision regarding the private expert
opinion by the domestic court, the dismissal of the request to admit B.S., J.H.
and A.U. as witnesses to testify regarding the applicant’s character had been
especially unjust. Lastly, the applicant complained that the Regional Court had not allowed him to put “numerous questions” to the court-appointed expert
in the course of the oral hearing.
The Government, on the other hand, asserted that
the principle of equality of arms had been respected in the criminal
proceedings conducted against the applicant. They referred to the detailed
opinion submitted by the court-appointed psychiatric expert and the fact that
the applicant and his counsel had been afforded the possibility to question the
expert at length during the oral hearing. Moreover, the court-appointed expert
had supplemented his opinion during the oral hearing and had responded in
substance to the criticism voiced by the private expert. The domestic court had
further thoroughly reasoned its dismissal of the request for a second expert opinion
on the grounds of the conclusiveness of the opinion of the court-appointed
expert. To allow an applicant in domestic proceedings to call a private expert
as a witness would only lead to an unnecessary repetition of evidence with the
goal of obtaining a more beneficial outcome for the defendant. Furthermore, the
private expert could in any event assist the defendant and his counsel during
the proceedings and guide them through the questioning of the court-appointed
expert. While it was true that this possibility had only been introduced into
the law with the criminal procedural reform in 2008, that particular provision
had been the codification of what had already been the practice of the Supreme
Court. The Government further stated that any decisions dismissing witness
requests had been thoroughly and convincingly reasoned by the domestic courts.
2. The Court’s assessment
Turning first to the applicant’s complaint that
the domestic courts had wrongly assessed the quality and the conclusions of the
court-appointed expert’s opinion, the Court reiterates that, according to
Article 19 of the Convention, its duty is to ensure the observance of the
engagements undertaken by the Contracting Parties to the Convention. In
particular, it is not its function to deal with errors of fact or law allegedly
committed by a national court unless and in so far as they may have infringed
rights and freedoms protected by the Convention.
Moreover, while Article 6 of the Convention guarantees the right to a fair
hearing, it does not lay down any rules on the admissibility of evidence or the
way it should be assessed, which are therefore primarily matters for regulation
by national law and the national courts (see Schenk v. Switzerland,
12 July 1988, §§ 45-46, Series A no. 140, and García
Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999-I).
However, the Court observes that the applicant
lodged further complaints in relation to a private expert opinion and witness requests.
In this regard, the Court identifies three main complaints that are essentially
linked: the first one relates to the refusal of the domestic courts to admit a
privately commissioned psychiatric expert’s opinion into the criminal
proceedings. The second complaint contests the domestic court’s refusal to
admit a privately commissioned psychiatric expert as a witness in the
proceedings after his written opinion had been refused as evidence. And
finally, the third complaint concerns the domestic courts’ refusal to admit the
witnesses B.S., J.H. and A.U. to testify on the applicant’s behalf in the
course of the criminal proceedings.
The Court reiterates that the principle of
equality of arms - which is one of the elements of the broader concept of fair
trial - requires each party to be given a reasonable opportunity to present his
or her case under conditions that do not place him or her at a substantial
disadvantage vis-à-vis his or her opponent (see, among other authorities, G.B.
v. France, no. 44069/98, § 58, ECHR 2001-X).
. Bearing in mind that the
requirements of paragraph 3 (d) of Article 6 of the Convention amount to
specific elements of the right to a fair trial guaranteed under paragraph 1 of
that Article, the Court will examine the complaints under both provisions taken
together (see Brandstetter v. Austria, 28 August 1991, § 42,
Series A no. 211, mutatis mutandis, G.B. v. France, cited above, §
57, and Aigner v. Austria,
no. 28328/03, § 34, 10 May 2012).
The Court further observes that it is not within
its province to substitute its own assessment of the facts and of the evidence
for that of the domestic courts and, as a general rule, it is for those courts
to assess the evidence before them. The Court’s task is to ascertain whether
the proceedings in their entirety, including the way in which evidence was
taken, were fair (see, among many other authorities, Vidal v. Belgium,
22 April 1992, § 33, Series A no. 235-B; G.B. v. France,
cited above, § 59, and, more recently, Gregačević v. Croatia,
no. 58331/09, § 63, 10 July 2012).
. An expert in general assists in
solving a question or problem raised in the proceedings that a judge is unable
to solve by him- or herself. How the domestic authorities organise their system
for the admission of evidence into criminal proceedings is essentially left to
the member States. It is not the Court’s role to impose one system over
another, but to ensure that the existing system in a given member State
provides for sufficient safeguards to guarantee fair proceedings and respect
for the equality of arms of the parties involved (see Al-Khawaja and
Tahery v. the United Kingdom [GC], nos. 26766/05 and 22228/06,
§ 118, ECHR 2011, and Gäfgen v. Germany [GC], no. 22978/05, § 162, ECHR
2010, with further references). As regards
its findings on expert opinions in criminal proceedings and the principle of
equality of arms, the Court has summarised the relevant criteria as follows
(see Mirilashvili v. Russia, no. 6293/04, §§ 189 et seq,
11 December 2008):
“189. The Court reiterates in this connection that
Article 6 does not impose on domestic courts an obligation to order an expert
opinion to be produced or any other investigative measure to be taken solely
because it is sought by a party. It is primarily for the national court to
decide whether the requested measure is relevant and essential for deciding a
case (see, mutatis mutandis, H. v. France, judgment of
24 October 1989, Series A no. 162-A, p. 23, §§ 60-61).
190. However, if the court decides that an expert
examination is needed (as in the present case), the defence should have an
opportunity to formulate questions to the experts, to challenge them and to
examine them directly at the trial. In certain circumstances the refusal to
allow an alternative expert examination of material evidence may be regarded as
a breach of Article 6 § 1 (see Stoimenov v. the former Yugoslav Republic of Macedonia, no. 17995/02, §§ 38 et seq., 5 April 2007).
191. Still, the exercise of these rights by the
defence should be counterbalanced by the interests of proper administration of
justice. Article 6 § 1 read in conjunction with § 3 (d) of the Convention
does not give the defence an absolute right to the hearing of specific expert evidence. It is for the domestic judge to
decide whether an expert proposed by the defence is qualified, and whether his
inclusion in the expert team would contribute to the resolution of the case.”
Applying those principles to the present case,
the Court will examine the three identified complaints in turn.
As regards the formal admission of the private
expert’s opinion as evidence into the criminal proceedings against the applicant,
the Court firstly observes that the official expert in the proceedings was
appointed by the court, and not by the public prosecutor. Thus, the
court-appointed expert must be considered not as appearing for one of the
parties to the proceedings, but as an independent expert supporting the court
in questions that the court - and its judges - was not able to answer for
itself. The Court also notes that the applicant did not find any reason in the
domestic proceedings to object to the court-appointed expert on principle.
When examining the proceedings as they were
conducted in the present case, the Court further observes that the problem
areas highlighted by the private expert opinion as regards the methods used by
the court-appointed expert and the conclusions he drew were first submitted to
the court-appointed expert for his written comments. The court-appointed expert
subsequently responded to the criticism voiced by the private expert and
addressed each issue raised in an addendum to the written expert opinion. As a
result, the points of criticism and the arguments responding to them found
their way into the body of evidence of the proceedings and therefore also into
the decision-making process of the domestic courts. Furthermore, the
court-appointed expert was made available for questioning by the applicant and
his counsel for more than three hours during an oral hearing. The private
expert opinion had prepared the applicant and his counsel for this questioning,
had provided them with the necessary specific knowledge on the subject matter
and had raised their awareness of possible problem areas in the court-appointed
expert’s opinion. The applicant and his counsel were therefore adequately
prepared to challenge the court-appointed expert’s opinion in court. Finally,
the Court notes that the domestic courts explained at length why they found
that the court-appointed expert’s opinion - as submitted in writing and with
the additional information obtained in the oral hearing - was comprehensive and
conclusive; that the court-appointed expert had managed to dispel any doubts
raised by the private expert regarding the basis on which the court-appointed
expert’s opinion had finally been accepted by the courts as it stood and taken
as a decisive factor for the Regional Court’s decision as regards the referral
of the applicant to an institutional for mentally ill offenders. The material
before the Court does not allow it to come to a different conclusion.
As regards the second complaint raised by the
applicant, concerning the domestic court’s refusal to allow the private expert
to testify in the proceedings as a witness, the Court notes that the domestic
courts carefully and comprehensively reasoned their decision to refuse the
applicant’s request in this regard. The Court observes that allowing the
request would indeed have admitted the private expert opinion into the
proceedings by an alternative route and would therefore have circumvented the
prior decision not to admit the private expert opinion into the proceedings as
evidence. The Court has stated above that it is not its task to organise the
domestic system for admitting evidence in a given member State but to ensure
that there are sufficient safeguards available for the applicant to have access
to overall fair proceedings (see paragraphs 39 and 40 above). Considering in
particular that the court-appointed expert had addressed the alleged problem
areas raised by the private expert in writing and orally, and that the
applicant and his counsel had had considerable opportunity to question the
court-appointed expert, to refer to the alleged problem areas raised by the
private expert and to raise any possible doubts as regards the quality and
conclusions of the court-appointed expert’s opinion, the Court is satisfied
that the applicant had ample opportunity to challenge the court-appointed
expert, to submit any arguments in his defence and to guarantee his right to
equality of arms. The - thoroughly reasoned - refusal to allow the private
expert to testify can therefore not have curtailed the applicant’s right to a
fair hearing.
The same is true for the complaint regarding the
refusal to allow the witnesses B.S., J.H. and A.U. to testify in the
proceedings. In this context, the Court reiterates that, as a general rule, it
is for the national courts to assess the evidence before them as well as the
relevance of the evidence which the defendants seek to adduce. More
specifically, it is for them to assess whether it is appropriate to call
witnesses. However, in the event that the national courts decide to reject a
request for evidence or a witness request on behalf of a defendant, they need
to reason their decisions accordingly (see, mutatis mutandis, Vidal,
cited above, §§ 33 and 34). It is not the Court’s function to express an
opinion on the relevance of the evidence offered and rejected, but to supervise
whether the proceedings were fair overall, for which it must ascertain whether
the rejection of the witness request by the national courts was based on
sufficient reasons (see, mutatis mutandis, Vidal, cited above,
ibid). As regards the present case, the Court notes that the relevant decision
was thoroughly reasoned by the Krems a.d. Donau Regional Court during the oral
hearing (see paragraph 12 above) and in the judgment (see paragraph 16 above).
Moreover, the Supreme Court took careful note of the applicant’s complaint in
this regard and brought forward sufficient arguments in support of the refusal
of the request referring in particular to the vague nature of the request and
its lack of substantiation (see paragraph 18 above). Furthermore, even if the
Court took it upon itself to assess the quality of the witness request, it
would refer to its findings that a witness request must be reasoned, and that a
party requesting a witness must also be prepared to explain why the witness is
in a position to make a statement concerning a certain question (see for
example Perna v. Italy [GC], no. 48898/99, § 29, ECHR 2003-V).
In the present case the Court would find that the request to allow B.S., J.H.
and A.U. to testify was not sufficiently reasoned by the applicant.
Lastly, the Court observes that with regard to the
applicant’s complaint that his request to put “numerous questions” before the
court-appointed expert was refused, he failed to substantiate which questions
he had been prohibited to ask the court-appointed expert, in what way these
questions had been important to him and how they would have helped to establish
the truth (see again Perna, cited above, ibid).
In view of the above, the Court finds that the
refusal to admit the private expert opinion into the proceedings, the refusal
to allow the private expert to testify as a witness, the refusal of the
requests for additional witnesses and the refusal to put certain unspecified
questions to the court-appointed expert did not put the applicant in a more
unfavourable position than the opposing party and thus did not violate the
principle of equality of arms in the criminal proceedings against him. The
proceedings conducted against the applicant were therefore fair overall and
there was no violation of Article 6 §§ 1 and 3 (d) of the Convention.
II. FURTHER ALLEGED VIOLATION OF THE CONVENTION
The applicant further invoked Article 5 of the
Convention, but failed to substantiate his complaint under this provision.
Thus, in the light of all
the material in its possession, and in so far as the matter complained of is
within its competence, the Court finds that it does not disclose any appearance
of a violation of the rights and freedoms set out in the Convention and its
Protocols. It follows that this part of the application is manifestly
ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4
of the Convention.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declares the complaints under Article 6 of
the Convention admissible, and the remainder of the application inadmissible;
2. 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 4 April 2013,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Isabelle Berro-Lefèvre
Registrar President
