AS TO THE ADMISSIBILITY OF

                      Application No. 12876/87
                      by B.
                      against Austria


        The European Commission of Human Rights sitting in private
on 10 July 1989, the following members being present:

              MM. C.A. NØRGAARD, President
                  J.A. FROWEIN
                  S. TRECHSEL
                  F. ERMACORA
                  G. SPERDUTI
                  E. BUSUTTIL
                  G. JÖRUNDSSON
                  A.S. GÖZÜBÜYÜK
                  A. WEITZEL
                  J.-C. SOYER
                  H.G. SCHERMERS
                  H. DANELIUS
                  G. BATLINER
                  J. CAMPINOS
                  H. VANDENBERGHE
             Mrs.  G.H. THUNE
             Sir  Basil HALL
             MM.  F. MARTINEZ
                  C.L. ROZAKIS
             Mrs.  J. LIDDY
             Mr.  L. LOUCAIDES

             Mr.  H.C. KRÜGER, Secretary to the Commission

        Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;

        Having regard to the application introduced on 13 March 1987
by B. against Austria and registered on 21 April 1987 under file
No. 12876/87;

        Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;

        Having regard to:

      - the Commission's decision of 15 July 1988 to bring the
        application to the notice of the respondent Goverment and
        invite them to submit written observations on its
        admissibility and merits;

      - the observations submitted by the respondent Government
        on 17 November 1988 and the observations in reply submitted
        by the applicant on 19 April 1989;

        Having deliberated;

        Decides as follows:

THE FACTS

        The applicant is an Austrian citizen born in 1939 who resides
at Hadres, Lower Austria.  He is represented by Dr.  Werner Sporn, a
lawyer practising in Vienna.

        The facts as submitted by the parties may be summarised as
follows:

        The applicant has introduced a previous application concerning
criminal proceedings (No.11170/84) which the Commission declared
admissible on 14 July 1987.  In that application he complained of a
conviction of adulteration (Verfälschung) of wine by dilution with
water under Section 45 para. 1 a) of the Wine Act 1961.  The judgment
pronounced by the District Court (Bezirksgericht) of Haugsdorf on
14 February 1984 was confirmed on appeal by a judgment of the Regional
Court (Kreisgericht) of Korneuburg on 7 May 1984.

        Two further criminal proceedings were subsequently instituted
against the applicant.  One of these proceedings concerned a charge
under Section 293 of the Penal Code (Strafgesetzbuch), namely that
he had manipulated certain pieces of evidence (Fälschung von
Beweismitteln), i.e. officially seized wine in two tanks and
counter-samples (Gegenproben) left to him when the wine in these tanks
was inspected on 16 May 1983 in connection with the above criminal
proceedings under the Wine Act.

        On that date, three types of samples had been taken from the
applicant's wine tanks which had then been officially seized
(beschlagnahmt) and sealed:

-       first samples whose subsequent analysis by the
        Federal Agricultural Chemical Control Institute
        (Landwirtschaftlich - chemische Bundesanstalt) led
        to the above criminal proceedings under the Wine Act
        (Anzeigeproben);

-       counter-samples (Gegenproben) left to the applicant
        who later had two of them analysed by an expert N. of
        the Federal Institute for Food Control and Research
        (Bundesanstalt für Lebensmitteluntersuchung und -forschung);

-       control-samples (Reserveproben) kept for the purpose of
        a possible second official analysis which was actually
        carried out by the Federal Agricultural Chemical Control
        Institute under the authority of an expert B. who in
        the above criminal proceedings under the Wine Act had
        been appointed as the Court's official expert.  The applicant
        submits that this was done in conformity with Section 30
        para. 10 of the Wine Act, while the Government deny that
        this provision was applied.

        The three analyses produced different results but the expert,
B., of the Federal Agricultural Chemical Control Institute came to the
conclusion that those relating to the control-samples in essence
confirmed the unfavourable results of the analysis of the first
samples by the same institute, while the analysis of the
counter-samples by the other institute must have been wrong.  The
courts dealing with the case under the Wine Act refused the taking of
new samples from the sealed tanks as requested by the applicant, and
also his request to hear the expert of the latter institute.

        After the applicant's conviction on the basis of the above
expert opinion, he intended to bring an official liability action
(Amtshaftungsklage) against the expert B. of the Federal
Agricultural Chemical Control Institute on the ground that he had
submitted a wrong expert opinion.  In connection with these
proceedings he made an application under Section 384 of the Code
of Civil Procedure (Zivilprozessordnung) for securing evidence
(Beweissicherungsantrag) by the taking of new samples from the sealed
wine tanks.  This application was first rejected by the District Court
of Haugsdorf on 22 May 1984, but subsequently allowed, on the
applicant's appeal (Rekurs), by the Regional Court (Kreisgericht) of
Korneuburg on 12 June 1984.  The District Court then appointed another
employee F. of the Federal Agricultural Chemical Control Institute,
who had not been involved in the proceedings under the Wine Act, as
its official expert in the proceedings for securing evidence.  The
expert was entrusted with the supervision of the taking of new samples
from the sealed tanks, which took place on 16 August 1984, and with
the preparation of a report based on the analysis of these new
samples, which he submitted on 27 September 1984.  The Government
claim that this was merely a report on factual findings (Befund); the
applicant claims that it was in fact an expert opinion (Gutachten).

        In this report F. found that the new samples were not
identical with those taken on 16 May 1983 and analysed by the Federal
Agricultural Chemical Control Institute, even taking into account the
changes in the composition of the wine which had to be expected in
view of the lapse of time and of judicially authorised conservation
measures which had in the meantime been carried out.  In his opinion
the difference could only be explained by the addition of substances
likely to increase the extract content.

        F. informed the District Court of these findings on
25 September 1984, two days before the official submission of his
report.  The applicant claims that this constituted the laying of
criminal information by the expert.  On the same day the District
Court ex officio opened criminal proceedings against the applicant on
the suspicion of his having manipulated a piece of evidence (Section
293 of the Penal Code) by the addition of substances to the wine
samples in question.  In these criminal proceedings it appointed the
same expert F. who had been consulted in the civil proceedings for
securing evidence.  In his expert opinion of 23 October 1984 F.
confirmed his earlier finding that the differences of analysis
between, on the one hand, the initial samples and the control-samples
taken on 16 May 1983 and, on the other, the new samples taken on
16 April 1984 could only be explained by the addition of substances
(alcohol, glycerine, and mineral substances).  He further stated that
the composition of the new samples was similar to that of the
counter-samples taken on 16 May 1983 which had been analysed by the
Federal Institute for Food Control and Research.

        On the basis of this expert opinion the prosecution requested
the conviction of the applicant under Section 293 para. 2 of the Penal
Code, on the ground that he had manipulated evidence by adding
substances to the wine in the sealed tanks and to the counter-samples
in the time between 16 May 1983 and 16 August 1984 and by using this
evidence in the proceedings for securing evidence.  The case was tried
by the Regional Court of Korneuburg on 4 July and 12 September 1985.

        The applicant submitted in his defence

-       that in the time between 16 May 1983 and 3 July 1983, i.e. the
day before the counter-samples were sent to the Federal Institute for
Food Control and Research, he had been absent from his enterprise and
therefore unable to manipulate the counter-samples as alleged;

-       that the counter-samples which he had intended to send to the
Provincial Agricultural Chemical Control Institute (Landwirtschaftlich-
chemische Landes-Versuchs- und Untersuchungsanstalt) in Graz had been
broken during the transport, but that the bottle neck of one had been
preserved and showed that the seal had not been broken;

-       that the expert N. of the Federal Institute for Food Control
and Research who had examined two of the counter-samples could confirm
that the seals of those counter-samples had been intact.  (The
applicant also requested the appointment of N. as a further expert in
the current proceedings, but this request was rejected and N. was only
heard as a witness.  In this capacity he confirmed that the seals of
the counter-samples submitted to him had not been broken according to
the findings made at the relevant time, but that the possibility of
manipulations could not be entirely excluded as it was not the
practice to carry out a criminalistic examination.);

-       that the measures taken for the conservation of the wine in
the sealed tanks had been carried out in the presence and under the
supervision of the Federal Cellar Inspector who had drawn the initial
samples, and that therefore a manipulation of the wine in these tanks
was excluded.

        By judgment of 12 September 1985 the Regional Court found the
applicant guilty as charged and fixed an unconditional sentence of 3
months' imprisonment.  The Court followed the opinion of expert F.
according to which the striking differences of analysis could only be
explained by the use of additives.  It found this expert opinion
unobjectionable, logical and convincing and did not doubt its
correctness, in particular as it confirmed the finding of expert B.,
arrived at in the earlier proceedings under the Wine Act.  As regards
the applicant's argument that the addition of substances to the
counter-samples was impossible in the circumstances the Court referred
to "notorious methods" (gerichtsbekannte Methoden) by which the
contents of sealed bottles could be replaced (heating the bottle and
careful removal of the seal and cork, injection of substances through
the cork with a syringe).  The fact that one bottle of the
counter-samples had been broken could be due to an attempt to carry
out such manipulations.

        The applicant's appeal (Berufung) against this judgment was
rejected by the Vienna Court of Appeal (Oberlandesgericht) on 24
September 1986.  It considered that the Regional Court had not
disregarded the evidence submitted by the applicant, namely the broken
bottle-neck of one counter-sample whose seal was intact.  The Court of
Appeal inspected the broken bottle-neck and made findings, observing
that the counter-sample in question had not been analysed and
therefore could not provide any proof.  The result of the analysis of
the counter-samples which had been examined by the Federal Institute
for Food Control and Research was contradicted by the analysis of the
official samples by the Federal Agricultural Chemical Control
Institute, and according to the convincing expert opinion of F. this
contradiction could only be explained by the addition of substances to
the counter-samples.  The Regional Court had also had regard to the
identical results arrived at by expert B. in the earlier proceedings
and to the statements of witness N. (the applicant's private expert)
according to which a manipulation of a sealed bottle was possible.
The Regional Court further had explained the notorious method by which
this could be effected.  Likewise, the Regional Court had given
sufficient reasons for its finding that the applicant had manipulated
the wine tanks.  The Court of Appeal considered that the consultation
of a further expert, as requested by the applicant, was not necessary
since the conditions of Section 126 of the Code of Criminal Procedure
were not met.  The Court of Appeal finally confirmed the sentence
pronounced by the Regional Court.

        The applicant subsequently served 31 days of the prison
sentence imposed on him.  The remainder was conditionally suspended by
an amnesty of the Federal President.

COMPLAINTS

        The applicant now complains that the requirements of "fair
trial" (Article 6 para. 1 of the Convention) were disregarded: the
Regional Court failed to deal with his submission that, having been
absent from his enterprise at the relevant time, he could not
manipulate the counter-samples as alleged; concerning the argument
that the seals of the counter-samples had not been broken, the
Regional Court relied on "notorious methods" of manipulation which the
defence was given no opportunity to discuss; finally the Regional
Court admitted no further expert evidence to control the reliability
of the results of the Federal Agricultural Chemical Control Institute
whose experts had been the only ones to be called in all proceedings.

        The applicant further complains that the presumption of
innocence (Article 6 para. 2) was violated in that the Regional Court,
without further evidence, assumed the applicant's guilt exclusively on
the basis of the expert opinion according to which substances must
have been added to the wine.

PROCEEDINGS

        The application was introduced on 13 March and registered on
21 August 1987.

        On 15 July 1988 the Commission decided, pursuant to Rule 42
para. 2 (b) of its Rules of Procedure, to give notice of the
application to the respondent Government and to invite them to submit
before 4 November 1988 observations in writing on its admissibility
and merits.  At the Government's request, the time-limit was
subsequently extended until 15 November 1988.

        The Government submitted their observations on 17 November
1988 and the applicant was invited to submit observations in reply
before 2 January 1989.  On 30 December 1988 he requested an extension
of this time-limit until 31 March 1989.  On 6 January 1989 the
President of the Commission ruled that the extension should only be
granted until 6 March 1989.  On 3 March 1989 the applicant again
applied for an extension until 31 March 1989, however this was refused
by a ruling of the President on 8 March 1989.  The applicant submitted
observations in reply to the Government's observations after the
expiration of the time-limit, on 19 April 1989.

        On 16 December 1988 the Commission decided to grant free legal
aid to the applicant.

THE LAW

        The applicant complains that in the criminal proceedings
at issue Article 6 (Art. 6) of the Convention has been violated in several
respects.  The relevant parts of this Article read as follows:

        "1.   In the determination of ... any criminal charge against
        him, everyone is entitled to a fair ... hearing ...

        2.   Everyone charged with a criminal offence shall be
        presumed innocent until proved guilty according to 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 applicant's principal complaint is that it was unfair to
appoint only an expert from the Federal Agricultural Chemical
Institute, whose experts had already been consulted in the previous
proceedings, and to admit no other expert evidence.  The Government
submit that the applicant did not object to the appointment of
expert F. from the above Institute, and that therefore he has failed
to exhaust the domestic remedies in conformity with the requirements
of Article 26 (Art. 26) of the Convention.  The Commission notes,
however, that the applicant claims to have learnt of the fact that the
expert belonged to the same Institute only on 1 October 1984, long
after his appointment, when F. had almost completed his expert
opinion.  At this moment it was practically impossible to challenge
the expert.  The applicant does not only complain of the appointment
of this expert but also of the refusal of his request to hear other
experts after experts from the same Institute had been consulted in
the earlier proceedings and although the suspicion of the offence at
issue in the new proceedings was based on F.'s findings who allegedly
dominated the proceedings.  In this latter respect the applicant has
exhausted the domestic remedies by including relevant arguments in his
appeal.  His above complaint therefore cannot be rejected under
Article 27 para. 3 (Art. 27-3) of the Convention for non-exhaustion of
domestic remedies.  The possibility of raising objections against
expert F. will be considered in connection with the examination of the
substance of the applicant's above complaint.

        In this respect the Government have submitted that F. belonged to
another department of the Institute, separated from the department of the
experts consulted in the previous proceedings.  He had not been appointed
through the Institute but in his personal capacity and without there being a
legal requirement for the Regional Court to appoint an expert precisely from
this Institute.  Furthermore, he had not initiated the new criminal proceedings
against the applicant which were instituted ex officio on the basis of a report
submitted by F. in civil proceedings.  In the subsequent criminal proceedings
the expert had been charged with the preparation of an opinion on a subject
different from that discussed by the Institute's experts in the earlier
criminal proceedings against the applicant.  He had done so in full
independence and had submitted a conclusive report so that the legal conditions
for the appointment of further experts were not met. F. had not dominated the
trial and no further expert was therefore required.  The applicant's private
expert had also been heard as a witness, and his position in this capacity had
not been fundamentally different from that of F., the Court's official expert.
The Government consider that the case differs from the Bönisch case (Eur. Court
H.R., judgment of 6 May 1985, Series A no. 92) and that there has been no
violation of Article 6 para. 1 (Art. 6-1) of the Convention.

        The Commission has considered these arguments but finds that the
applicant's complaint cannot be rejected as being manifestly ill-founded within
the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.  It raises
complex issues of law and fact under Article 6 para. 1, read in conjunction
with para. 3 (d), (Art. 6-1+6-3-d) of the Convention, which require a
determination on the merits.

        The applicant's further complaints under Article 6 paras. 1
and 2 (Art. 6-1, 6-2) of the Convention are so closely related to the
above issue that they cannot be separated.  It follows that they must
also be examined on their merits.

        The Commission finally notes the close link between the
present case and Application No. 11170/84 pending before the
Commission.  The Commission considers it appropriate to join the
present case to Application No. 11170/84.

        For these reasons, the Commission

1.      DECLARES THE APPLICATION ADMISSIBLE,
        without prejudging the merits of the case;

2.      Decides to join the present application to
        Application No. 11170/84.



  Secretary to the Commission            President of the Commission




         (H.C. KRÜGER)                         (C.A. NØRGAARD)