CASE OF BÖNISCH v. AUSTRIA
Violation of Art. 6-1;Not necessary to examine Art. 6-2;Just satisfaction reserved
7. The applicant, who is a citizen of the Federal Republic of Germany born in 1936, lives in Vienna. He runs a firm that specialises in meat smoking. He bought the production plant from the firm Krizmanich GmbH, which was thereafter called Bönisch GmbH, following the death of Mr. Krizmanich in 1975. 8. Mr. Krizmanich had been reported under the then applicable legislation to the prosecuting authorities by the Federal Food Control Institute (Bundesanstalt für Lebensmitteluntersuchung - "the Institute") for suspected offences resulting from the technique he used for smoking meat. In 1973, during the course of these proceedings, the Medical Faculty of the University of Vienna had been asked to draw up an expert report (Fakultätsgutachten). In this report, the maximum quantity permissible in smoked meats of a carcinogenic substance called benzopyrene 3.4 was stated to be one part per (American) billion ("ppb"). 9. After Mr. Bönisch had bought the firm, similar complaints were lodged with the prosecuting authorities. These led to the prosecution of the applicant before the District Criminal Court of Vienna (22 May 1975 and 27 January 1977) and before the Regional Court of Vienna (28 October 1976). Basing themselves mainly on the expert opinions of the Director of the Institute (see paragraph 20 below), these courts came to the conclusion that the products prepared with the impugned smoking technique were dangerous to health because they contained an excessive quantity - more than one ppb - of benzopyrene 3.4 and that their distribution consequently constituted an infringement of section 56(2) of the Food Act 1975 ("the 1975 Act"). It was further found that the products were adulterated (verfälscht) by reason of an excessive water content not apparent to the consumer, whereby they also contravened section 63 (1), no. 1, of the 1975 Act. Mr. Bönisch was accordingly convicted. His appeals against these decisions, which are not in issue in the present case, were unsuccessful. 10. In October 1976, the Market Office of the City of Vienna drew two samples of smoked meat from the production of the Bönisch company, leaving two counter-samples from the same pieces to the applicant (see paragraph 20 below). The Institute was entrusted with carrying out the analysis of these samples. In its analysis, which was carried out on 19 October 1976, the Institute found a benzopyrene concentration of 2.7 and 3.0 ppb respectively and an excessive water content. The samples were therefore described as being dangerous to health and adulterated. This opinion by the Institute, which had been drafted on 28 November 1976 by the Director of the Institute, amounted to the lodging of a complaint (Anzeigegutachten); it was transmitted by the Market Office to the prosecuting authorities with a view to the institution of criminal proceedings. 11. The case came before the same judge of the Regional Court who in 1976 had dealt with an earlier case against the applicant (see paragraph 9 above). Pursuant to section 48 of the 1975 Act, he again appointed the Director of the Institute as expert in order to hear him in connection with the opinion submitted. On 17 April 1978, Mr. Bönisch challenged both the judge and the expert; in his contention, the conduct of the proceedings had shown that both were biased against him and resolved to disregard his rights of defence, in particular the right - guaranteed by Article 6 (art. 6) of the Convention - to the attendance and examination of witnesses and experts for the defence under the same conditions as those for the prosecution. In addition, the applicant asked for the hearing of several experts. On 26 April 1978, the President of the Regional Court rejected the challenge concerning the investigating judge on the ground that it was unfounded. However, he did not formally examine the challenge concerning the expert, who in fact took part in the proceedings. 12. On 29 June 1978, at the request of Mr. Bönisch, the Regional Court heard as witness Mr. Prändl, the Director of the Institute for Meat Hygiene and Technology of the Veterinary University of Vienna. According to written evidence submitted by this Institute after analysis of the two counter-samples, the concentration of benzopyrene was only 0.75 ppb and 0.12 ppb respectively, and there was accordingly no reason for any objections. In reply to questioning by both the judge and the expert, the witness explained in detail the method of analysis applied by his Institute, which was very similar to that used by the German Federal Institute for Meat Research. The expert thereafter developed his personal opinion. As regards the benzopyrene concentration, he pointed out that the method employed by the Federal Food Control Institute was subject to criteria which were especially stringent and rigorously controlled; its degree of accuracy was maximised and the margin of error did not exceed 20 per cent. On the other hand, he criticised the method used by the witness; in his view, the margin of error had to be considerable as the results obtained from each of the two counter-samples differed greatly, whereas the Institute’s analysis showed analogous results in both instances. He emphasised that the products made by Mr. Bönisch’s firm showed a water content of 3.6 per cent, whereas, according to the Food Code (Codex Alimentarius Austriacus), it should not have exceeded 1.8 per cent. On his side, Mr. Bönisch, who was not represented by a lawyer, stated that a water content below 1.8 per cent was technically unattainable and requested the hearing of a meat and sausage expert on this point. The Regional Court however refused this, on the ground that black smoking was forbidden if the water content could not be limited to the required level. 13. In a judgment delivered the same day (29 June 1978), the Regional Court found the applicant guilty of offences under section 56(1), nos. 1 and 2, and section 63(1), no. 2, of the 1975 Act and accordingly sentenced him to two months’ imprisonment. It particularly stressed that, at the time of the takeover of the firm, the Institute had informed Mr. Bönisch of the requirements of the Food Code, that the applicant was aware of the criminal proceedings instituted against his predecessor and that, moreover, he too had been the subject of criminal proceedings for the same reasons but had nonetheless continued his production without changing method. The Regional Court considered that the expert opinion of the Director of the Institute was conclusive and that there were no doubts as to the reliability of his findings. It shared his view that the different results at which the Institute for Meat Hygiene and Technology of the Veterinary University had arrived were erroneous. Even allowing for a margin of error of 20 per cent in the Institute’s findings, it held that the concentration of benzopyrene in the applicant’s products was by far in excess of the permissible level (1 ppb). The carcinogenic effects of this substance were found to have been established by the Medical Faculty (see paragraph 8 above); the evidence to the contrary adduced by the applicant - in particular letters from two German experts and a publication written by three other experts - did not seem convincing to it. 14. Mr. Bönisch appealed. In essence, he took issue with the Director of the Institute for not having adhered to the opinion of his colleagues, which - in Mr. Bönisch’s view - nevertheless reflected the prevailing view, and submitted that the Director was biased. He also raised objections of principle against the appointment as court expert of the very person who had reported the case to the prosecuting authorities, and complained that this person had been heard as a court expert whereas Mr. Prändl had appeared as a mere defence witness; this seemed to him contrary to the requirements of Article 6 (art. 6) of the Convention. In addition, he requested the hearing of several experts. The Vienna Court of Appeal rejected the appeal on 19 December 1978. As to the carcinogenic effects of benzopyrene, it noted that the Regional Court had based its decision on the opinion of the Medical Faculty, which, according to settled case-law, could not be contested. Apart from that, the Regional Court had extensively dealt with all relevant aspects of the case before holding that the products made by the applicant were adulterated and dangerous to health. The findings of the Regional Court were not open to doubt as they were based on the detailed explanations of the expert. As the latter had already refuted Mr. Bönisch’s arguments, it was not necessary to take any additional evidence on the adulterated and dangerous character of the said products. In particular, the Court of Appeal ruled out the hearing of a counter-expert since the expert opinion obtained in the first-instance proceedings was not tainted with any defects (Articles 125 and 126 of the Code of Criminal Procedure). Finally, it rejected the challenge of the Director of the Institute as expert (Article 120 of the same Code). 15. Following analysis of samples taken in October 1977 and May 1978 from products made by the applicant’s firm, the Institute once more found an excessive concentration of benzopyrene (6.1 ppb) and an undeclared high water-content. Criminal proceedings were accordingly instituted against the applicant before the Vienna Regional Court. The case came before the same judge as before, who again appointed the Director of the Institute as expert pursuant to section 48 of the 1975 Act. 16. Hearings were held on 20 September 1979. Invoking Article 6 (art. 6) of the Convention, Mr. Bönisch unsuccessfully challenged the expert. The Regional Court pointed out that the 1975 Act required the appointment of an expert from the staff of the Institute; it added that even though the Director had previously given opinions unfavourable to applicant, this did not substantiate the challenge. The expert then presented his report. When the Regional Court examined him on recent research said to support the views of the applicant, he acknowledged that this research had arrived at less emphatic results on the carcinogenic effects of benzopyrene; but, according to him, this did not cause the opinion of the Medical Faculty to lose any of its validity in the particular circumstances. In reply to defence counsel’s questions, he explained the method for analysing foodstuffs used by the Institute, which made it possible to detect 80 per cent of benzopyrene; he conceded that this method differed from the one used by the German Institute, but declared himself not to be bound by the findings of a foreign authority. The defence asked for the hearing of witnesses on the subject; the Regional Court did not accede to this request, considering itself sufficiently informed through the opinions of the Medical Faculty and the expert from the Institute. 17. On the same day (20 September 1979), the Regional Court found the applicant guilty of offences against sections 56 and 63 of the 1975 Act. For reasons almost identical to those stated in the judgment of 29 June 1978 (see paragraph 13 above), it sentenced him to one month’s imprisonment. 18. Mr. Bönisch appealed from this decision on grounds similar to those pleaded in the first proceedings (see paragraph 14 above). The Vienna Court of Appeal dismissed the appeal on 20 May 1980. In its view, the appointment of a particular person as expert was not prohibited unless the person lacked competence to give evidence as a witness (Article 152(1), no. 1, of the Code of Criminal Procedure); apart from this, the applicant had failed to adduce any reasons casting doubt on the impartiality and professional qualifications of the Director of the Institute. Whilst the Director had admittedly already formulated opinions unfavourable to the applicant on several occasions, this did not warrant his being challenged, as the Regional Court had rightly noted. As regards the alleged violation of Article 6 para. 1 (art. 6-1) of the Convention, the Court of Appeal emphasised that section 48 of the 1975 Act required that the official of the Institute who had analysed the samples taken or drawn up the report should be appointed as expert. Rejecting the request for counter-expertise made by Mr. Bönisch, the Court of Appeal reiterated, as far as the remaining issues were concerned, the reasoning contained in its judgment of 19 December 1978 (see paragraph 14 above). 19. On 28 February 1984, the Federal President, exercising his power to grant a pardon, commuted the two prison sentences imposed on the applicant to fines of 30,000 and 15,000 Schillings (see paragraphs 13 and 17 above). 20. Under the terms of the 1975 Act, the Market Office of a city shall periodically draw samples of foodstuffs and send them for analysis to the Institute (section 43), making available a sealed counter-sample to be used by any private expert that the firm subjected to control might wish to consult. This expert must possess special professional qualifications and have a special authorisation from the Federal Ministry of Health (sections 47 and 50). Several members of the Institute’s staff are involved in the examination of the samples, for which purpose standard scientific techniques are employed. The various results are submitted to the Director of the Institute, who draws up a report. If the Institute has cause to suspect the commission of an offence, it must state so in its report and notify the responsible authorities (section 44). In practice, the report (Anzeigegutachten) is sent to the Market Office, which in such cases transmits it to the public prosecutor’s department. The prosecuting authorities have to decide whether or not criminal proceedings should be brought, but they usually adhere to the Institute’s opinion. 21. Whilst the provisions of the Code of Criminal Procedure are applicable in such cases, section 48 of the 1975 Act involves a derogation from them in so far as expert evidence is concerned: "If the court has doubts concerning the findings or the opinion of a Federal Food Control Institute or if it considers that such findings or opinion need to be amplified or if justifiable objections have been raised in respect thereof, it shall hear as expert the official of the said Institute who carried out the analysis or drew up the report for the purpose of explaining and supplementing the findings or the report ... In all other respects, expert evidence shall be governed by the provisions of the Code of Criminal Procedure ..." Under Article 120 of the said Code, the prosecuting authorities and the accused are to be informed of the names of the experts appointed by the court; should they raise valid objections, other experts are to be consulted. Thus, the court is bound to appoint one of the Institute’s officials who carried out the analysis or formulated the opinion. This official may be the person who drew up the report which served as the complaint prompting the criminal proceedings; such a circumstance is not capable of giving cause for a challenge. Should there be other grounds, such as a personal bias against the accused, the expert may be replaced by another official of the Institute who took part in the analysis and in the drafting of the opinion. If any doubts persist or if the findings of these experts "are unclear, vague, contradictory", etc. (Articles 125 and 126 of the Code of Criminal Procedure), the court may call another expert. Under the terms of Article 149 of the same Code, only the prosecutor and the defence counsel or the accused are entitled to put questions to witnesses and experts. Nevertheless, the court may authorise experts to examine witnesses and the accused. Witnesses, on the contrary, do not have this possibility. 22. The provisions of the 1975 Act, as well as certain practices followed by the courts and the Institutes, have been the subject of controversy in academic writings and on the occasion of an enquiry organised in 1977 by the Federal Ministry of Justice. The matter was debated in Parliament prior to the passing of the Act and subsequently in 1978 when a proposed amendment to section 48 was examined (see paragraph 21 above). This amendment, which was not in fact adopted, provided that both the Institute’s expert and any private expert called by the accused were to be heard only as witnesses and that, in case of doubt, an independent expert should be appointed. The receipt by Institute officials of certain bonus payments also gave rise to some discussion which subsequently provoked their discontinuance (see paragraphs 64-66, 74, 81-83 and 122-125 of the Commission’s report, paragraph 7 of the applicant’s memorial and point C of the Government’s memorial).