CASE OF C.B.  v. AUSTRIA
Remainder inadmissible;No violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Equality of arms) (Article 6-3-d - Examination of witnesses;Witnesses;Article 6 - Right to a fair trial)
Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska
5. The applicant was born in 1966 and lives in Maria Enzersdorf. 6. 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. 7. 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. 8. 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. 9. 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. 10. On 22 June 2005 the court-appointed expert supplemented his opinion in writing and commented on every observation made by the private expert. 11. 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.” 12. 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.“ 13. 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 courtsworn 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.” 14. 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. 15. 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. 16. 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 courtappointed 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.” 17. On 28 October 2005 the applicant lodged a plea of nullity (Nichtigkeitsbeschwerde) and an appeal (Berufung) against the judgment. 18. 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 courtappointed 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. 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.” 19. 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.” 20. That appeal judgment was served on the applicant’s counsel on 30 May 2006. 21. 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." 22. 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. 23. 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. 24. 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. 25. 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.” 26. 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). 27. 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. 28. 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). 29. 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.