CASE OF BRANDSTETTER v. AUSTRIA
Preliminary objection rejected (non-exhaustion of domestic remedies);Violation of Art. 6-1;No violation of Art. 6-1+6-3-d;No violation of Art. 6-3-c;Pecuniary damage - claim dismissed;Non-pecuniary damage - claim dismissed;Costs and expenses award - Convention proceedings
C. Russo
9. Mr Karl Brandstetter is an Austrian wine merchant residing at Hadres (Lower Austria). 10. On 16 May 1983 a Federal Inspector of Cellars (Bundeskellereiinspektor) visited the applicant’s undertaking to carry out an inspection under section 27 of the 1961 Wine Act, as amended (Weingesetz no. 187/1961, "the Wine Act"). He took three types of samples from two tanks of 1982 white wine. The tanks were sealed and officially seized (section 28, see paragraph 35 below). After having left the two counter-samples (Gegenproben) with the applicant, he sent the two official samples (Anzeigeproben) to the Federal Agricultural Chemical Research Institute (Landwirtschaftlich-chemische Bundesversuchsanstalt, "the Agricultural Institute") to be examined (section 30 of the Wine Act). Each sample consisted of two bottles. In addition, he drew from each of the tanks a reserve sample (Reserveprobe), for use should a further analysis prove necessary. 11. On 9 June 1983 the Agricultural Institute drew up a report containing the results of a chemical analysis of the samples, which revealed an abnormally low level of natural extracts and mineral substances. It also set out the conclusions reached by an official wine quality control panel (amtliche Weinkostkommission, see paragraph 35 below). This panel had found on 25 May 1983 that the wine in the samples had been diluted with water. As the levels were below those required by the Wine Ordinance (Weinverordnung), the Agricultural Institute suspected Mr Brandstetter of contravening section 45(1) (a) and (b) of the Wine Act in conjunction with section 44(1) (f) and section 43(3) (relating, inter alia, to the offering for sale to the public of "imitation wine" and adulterated wine). 12. On 8 June 1983 the Agricultural Institute had informed the Haugsdorf District Court (Bezirksgericht) of its suspicions in accordance with section 30(9) of the Wine Act (see paragraph 35 below), whereupon the District Prosecutor (Bezirksanwalt) instituted proceedings against Mr Brandstetter under section 45 of the Wine Act. 13. In order to prepare his defence, the applicant had the counter-samples analysed in Vienna by Mr Niessner of the Federal Food Control and Research Institute (Bundesanstalt für Lebensmitteluntersuchung und -forschung, "the Food Institute"). On 9 August 1983 Mr Niessner reported that the level of natural extracts and mineral substances was not below the required minimum. However, the tasting of the samples by a quality control panel on 14 July 1983 had confirmed that water had been added to at least one of them (by six votes out of seven), but had been unable to establish with certainty whether this was so for the other (five votes out of seven). 14. At a first hearing on 4 October 1983 Mr Brandstetter pleaded not guilty and requested the District Court to take expert evidence with a view to establishing that his wine was not "imitation wine" and had not been adulterated. Accordingly, the District Court instructed Mr Bandion of the Agricultural Institute to carry out an expert examination. Mr Bandion had not been involved in the first analysis of the official samples by the Agricultural Institute, or in the drawing up of its report. 15. On 22 November 1983, at the second hearing, the court took evidence from Mr Bandion. According to him, the difference between the results of that examination and the results obtained by Mr Niessner showed that in at least one of the analyses a grave error had been committed; he recommended that the reserve samples should be analysed in order to clarify the position. The court directed him to draw up a report on this matter. Mr Brandstetter maintained that the difference in the findings could also be explained by a circumstance to which he had already drawn the attention of the police on 22 July 1983. This was that the Inspector of Cellars had used a dirty bucket to draw the samples and had poured them into bottles in which there had been a residue of water. The Inspector had emptied the remaining bottles only after the applicant had protested. The applicant’s wife and two sons, who were called as witnesses, confirmed his statements. The Inspector and his assistant, who were also heard as witnesses, claimed on the other hand that the bucket had been clean and that the liquid which remained in the bottles had been wine used to rinse them. The Inspector had explained this to Mr Brandstetter when the latter had complained and, moreover, he had subsequently emptied the bottles in question. 16. The analysis of the reserve samples was carried out at the Agricultural Institute on 21 December 1983 under the supervision of Mr Bandion. It resulted in similar conclusions to those concerning the first samples, but there was no tasting by a quality control panel. In his report of 17 January 1984 Mr Bandion stated that the new analysis had corroborated the first examination carried out by the Agricultural Institute and therefore raised serious doubts with regard to the examination effected by Mr Niessner, of the Food Institute. The scientific findings corresponded to the conclusions of the quality control panels which had identified the addition of water in all the samples except one. As with the results of the tasting, they revealed the prohibited addition of water and sugar, and a level of natural extracts and substances below that required by the Wine Ordinance. The applicant’s products could not, however, be classified as "imitation wine". Various statements by Mr Brandstetter and members of his family during the hearing (see paragraph 15 above) must have been wrong in view of the results of the chemical analysis, in particular statements concerning the use of a dirty bucket by the Inspector of Cellars. Furthermore it was impossible to determine from the outside whether the liquid residue in the green bottles was wine or water. 17. A new hearing was held on 14 February 1984. The applicant’s lawyer criticised Mr Bandion’s opinion because the latter’s close links with the Agricultural Institute deprived him of the necessary objectivity in relation to the first analysis and could have led him to defend the results of that examination against those reported by Mr Niessner. In addition, the expert had exceeded his duties by expressing a view on questions of fact and of law instead of merely carrying out a chemical analysis. Consequently, the defence requested further investigative measures, namely the drawing of new samples from the two tanks which had been seized, the taking of evidence from several other experts, including Mr Niessner, and the consultation of the minutes of the quality control panel. The defence also alleged that the rules laid down for a tasting had not been complied with. Again, the court-appointed expert had not explained the differences between the conclusions of the two institutes. He had merely expressed his view that those of the Food Institute were erroneous and that those of his own Institute were correct. 18. On the same day the District Court convicted Mr Brandstetter of adulterating wine (section 45(1) (a) of the Wine Act) and fined him 5,600 schillings. It also ordered the forfeiture of the wine contained in the two tanks seized - a total of 27,000 litres - (section 46(1)) and the publication of the judgment (section 45(3)). Its judgment was based for the main part on Mr Bandion’s opinion. It cited long passages from that opinion which were in its view conclusive because they revealed a convincing, detailed, precise and exhaustive examination of the differences in analysis of the two institutes. However, the court refused to take into account certain of the expert’s statements which improperly dealt with questions of law and the assessment of evidence. In determining sentence, the court regarded the fact that Mr Brandstetter had made false allegations as to the manner in which the Inspector had carried out his duties as an aggravating circumstance. 19. In addition, the District Court rejected the application for further investigative measures. The court did not consider it to be relevant in so far as it concerned the tasting procedure, because the results of this procedure did not constitute conclusive evidence. The drawing of new samples would in its view be superfluous, in particular as it could not be ruled out that the wine, which in the meantime had remained in the sealed tanks, had undergone an alteration with regard to its composition. The same was true of the request to hear new experts, because no doubts existed as to the reliability of the Agricultural Institute’s conclusions, which had in part been confirmed by those of the Food Institute, or as to Mr Bandion’s objectivity. 20. Mr Brandstetter appealed. He repeated his request for further investigative measures and argued that by dismissing it the District Court had disregarded the rights of the defence. 21. On 7 May 1984 the Korneuburg Regional Court (Kreisgericht) upheld the contested decision. It noted that the applicant had not raised objections to the expert when he had first been appointed, but only on seeing his report. Mr Bandion’s objectivity was not in doubt. He was especially experienced and conscientious and had in no way been involved in the analysis of the first samples, had criticised the conclusions not only of the Food Institute but also, in certain respects, those of his own Institute, and had explained in detail the differences between the two reports. The citation of extracts from the expert’s opinion in the judgment could not be criticised. As it was a conclusive opinion, it was not necessary to seek new evidence (see paragraphs 17 and 19 above). Nor was it necessary to inspect the minutes of the quality control panel’s meeting since the Food Institute’s report contained a summary of the tasting procedure, which moreover could provide only indicative evidence of a subsidiary nature in relation to the evidence resulting from the chemical analysis. 22. On his conviction becoming final, Mr Brandstetter had intended to bring an action for damages against the Republic of Austria alleging its liability for the unacceptable procedural errors (Verfahrensfehler) which had been made by the courts in the proceedings concerning the quality of the wine. In order to ensure that the evidence was preserved (Beweissicherungsantrag, Article 384 of the Code of Civil Procedure), he requested that additional samples be taken from the sealed tanks. His request was dismissed by the Haugsdorf District Court on 22 May 1984, but on his appeal the Korneuburg Regional Court reversed this decision on 12 June. 23. The District Court appointed as expert Mr Flack, who was a member of the staff of the Agricultural Institute’s branch in Burgenland and who had not been involved in the proceedings concerning the quality of the wine. It instructed him to supervise, on 16 August 1984, the drawing of new samples from the tanks, and then to analyse them. In his report of 27 September, Mr Flack found differences between the results of his analysis of these new samples and the results of the analyses by the Agricultural Institute of the official samples and the reserve samples obtained on 16 May 1983 (see paragraph 10 above). These differences could, in his opinion, not be explained by alterations in the composition of the wine with the passing of time, or by the effects of measures to preserve the wine authorised by the court. They were in his view due to the addition of substances capable of increasing the natural extract content (alcohol, glycerine, minerals). 24. On 25 September 1984, two days before officially submitting his report, Mr Flack had informed the District Court of his conclusions. The court, of its own motion, instituted criminal proceedings against Mr Brandstetter on a charge of tampering with evidence (Article 293 of the Criminal Code). Mr Flack was appointed as expert by the court and submitted his report on 23 October 1984. He confirmed the earlier findings and noted that the composition of the new samples was similar to that of the counter-samples drawn on 16 May 1983 and analysed by the Food Institute (see paragraph 13 above). 25. On the basis of this expert opinion, the public prosecutor’s office sought Mr Brandstetter’s conviction for tampering with evidence under Article 293 of the Criminal Code. 26. Hearings were held before the Korneuburg Regional Court on 4 July and 12 September 1985. The accused contended that it had been physically impossible for him to interfere with the counter-samples taken on 16 May 1983, because he had been absent from his business premises before they had been sent to the Food Institute. He stated that all the measures taken to preserve the wine in question had been carried out in the presence of and had been monitored by the Inspector of Cellars who had drawn the first samples. Mr Brandstetter affirmed that some of the bottles containing the counter-samples, which he had sent to the Regional Agricultural Chemical Research Institute (Landwirtschaftlich-chemische Landesversuchs-und Untersuchungsanstalt) at Graz, had been broken during transport, but the bottleneck, which had remained intact, of one of them showed clearly that the seals had not been disturbed. He maintained that Mr Niessner, the expert who had analysed the counter-samples (see paragraph 13 above), could attest to this. He asked that Mr Niessner be called as a witness in order to prove that the seals fixed by the Federal Inspector of Cellars on the counter-samples had been undisturbed when these samples had been given to the Food Institute and that the wine examined by Mr Niessner was identical to the wine examined by the Agricultural Institute. The latter’s first findings were therefore not correct and the quality of the wine at the time when the first samples were drawn in May 1983 had been identical to that of the wine analysed by Mr Flack in the course of the proceedings for securing evidence. The defence further requested that Mr Niessner be appointed as a second expert in order to report on the quality of the wine he had analysed. The court granted the first request, but refused the second. Accordingly, at the second hearing, Mr Niessner was called as a witness. He confirmed that the seals had been intact in so far as he had been able to judge at the time, but stated that the possibility of interference could not be completely ruled out because it was not the usual practice to carry out a detailed forensic examination. However, no question was put to the witness either by the prosecution or by the defence concerning the quality of the applicant’s wine, or in respect of another possible explanation for the above-mentioned differences. 27. On 12 September 1985 the Regional Court found the applicant guilty and sentenced him to three months’ imprisonment. The court accepted Mr Flack’s opinion that only the subsequent addition of substances could explain the significant differences in the analyses. It considered the latter’s opinion to be logical and convincing, in particular because it was consistent with Mr Bandion’s conclusions in the proceedings conducted under the Wine Act (see paragraphs 15 and 16 above). As regards the physical impossibility alleged by the applicant, the court referred to "notorious methods" (gerichtsbekannte Methoden) which consisted of replacing the contents of a sealed bottle by heating the container and carefully removing the seal and the cork or by injecting substances with a syringe through the cork. The fact that one of the bottles had been broken might indeed have been due to the failure of such attempted interference. The court ruled that there was no need to appoint Mr Niessner as a second expert, because he had already submitted a report on the quality of the wine, which he had analysed as a private expert, and because the results of his analysis had already been thoroughly discussed in Mr Bandion’s report. 28. On 24 September 1986 the Vienna Court of Appeal (Oberlandesgericht) dismissed Mr Brandstetter’s appeal (Berufung) against that judgment. In its view, the Regional Court had not disregarded the evidence submitted by the applicant, namely the broken bottle neck of one of the counter-samples, whose seal was intact; moreover the sample in question could not be used as evidence because it had not been analysed. The results of the examination of the counter-samples by the Food Institute were contradicted by those of the analysis of the official samples by the Agricultural Institute and, according to the convincing opinion of Mr Flack, this discrepancy could be explained only by the fact that substances had been added to the counter-samples. The Regional Court had also taken into account the identical conclusions which Mr Bandion had reached in the earlier proceedings, and the testimony of the witness Mr Niessner on the possibility of interfering with a sealed bottle. It had also described the notorious methods for carrying out such operations. It had therefore based its conclusion on sufficient reasons. Consequently, the Court of Appeal did not consider it necessary to consult a new expert as the accused had requested, since the conditions laid down in Article 126 of the Code of Criminal Procedure were not satisfied (see paragraph 36 below). 29. Mr Brandstetter served 31 days of his sentence. The remaining term was suspended following a pardon granted by the President of the Republic. 30. On 20 August 1984 criminal proceedings had been instituted at the request of the public prosecutor against Mr Brandstetter for defamation. According to the public prosecutor’s office he had wrongly accused the Inspector of Cellars of irregularities in taking the first samples on 16 May 1983 (see paragraph 15 above). In so doing he had exposed the latter to the risk of disciplinary sanctions. 31. On 29 October 1984 the Korneuburg Regional Court sentenced the applicant to a suspended term of three months imprisonment for defamation on account of the following statement made by him to the police on 22 July 1983 (see paragraph 15 above) and taken down at his express request: "[The Inspector of Cellars] also used for this purpose [for drawing the wine samples] a bucket which was rather dirty. When the bottles were being filled up, I noticed that they contained water, which presumably had been left over after rinsing. However, he told me that this was of no importance." These assertions, which were false and which he knew to be false, could have led to the opening of disciplinary proceedings against the Inspector, because they gave the impression that he had not emptied the bottles when the applicant had asked him to do so; in fact the contrary had been established. The court based its findings on the evidence adduced in the proceedings concerning the quality of the wine and in particular on the expert opinion and testimony of Mr Bandion, the statements of the Inspector and his assistant, the statements of the applicant and the members of his family and the judgment of 14 February 1984 (see paragraphs 15 and 18 above). 32. On 23 April 1985 the Vienna Court of Appeal dismissed the applicant’s appeal and upheld the Regional Court’s judgment in its entirety. In so far as Mr Brandstetter had claimed that the impugned statement (see paragraph 31 above) was justified in the exercise of the rights of the defence (Articles 199 and 202 of the Code of Criminal Procedure) and could not therefore constitute criminal defamation, the court referred to well-established case-law and academic opinion, according to which such rights could not extend to conduct which did not merely serve an accused’s defence, but also adversely affected the rights of another person through allegations of such a nature as to amount to a new criminal offence. As the applicant had consciously aroused false suspicions in respect of the Inspector, Article 297 of the Criminal Code was applicable. The court also took the view that the public prosecutor’s office had not tacitly waived its right to institute proceedings, even though it had not acted immediately. Finally, it found no procedural defect in the way in which the Regional Court had assessed the evidence. The latter court had examined the findings of the proceedings in detail, in a logical and coherent manner in relation to the evidence, and had drawn plausible conclusions concerning the subjective element. The appeal court regarded it as decisive that the bottles, irrespective of whether they had been rinsed with water or wine, could not contain a significant quantity of liquid once they had been emptied in the way described in a credible and convincing manner by the Inspector of Cellars. 33. On an application by Mr Brandstetter, the Attorney-General (Generalprokurator) lodged a plea for a declaration of nullity in the interests of the law (Nichtigkeitsbeschwerde zur Wahrung des Gesetzes) directed against the composition of the Court of Appeal. The Supreme Court (Oberster Gerichtshof) allowed the appeal on 28 January 1987 and remitted the case to the Court of Appeal. At the hearing on 24 March 1987 the defence alleged that one of the judges present had already participated in the first appeal proceedings and should therefore withdraw. The court adjourned the hearing until 28 April 1987 when it sat in a composition that was in conformity with the law; it confirmed the judgment of 23 April 1985 in its entirety (see paragraph 32 above). 34. The applicant subsequently asked the Attorney-General to lodge a further application for a declaration of nullity in the interests of the law, but unsuccessfully. At this time he discovered that the judgments of 23 April 1985 and 28 April 1987 reproduced almost word for word the observations (the "croquis") of the Vienna Senior Public Prosecutor (Oberstaatsanwalt) filed with the Court of Appeal on 29 March 1985, which had not been served on him and of which he himself had had no knowledge at the time. 35. According to the Wine Act, a Federal Inspector of Cellars may draw samples from wine tanks of the firm inspected and send them for analysis to the Agricultural Institute. A sealed counter-sample must be left with the firm in question. Furthermore, a reserve sample must be drawn, for use should a further analysis be necessary. The tanks may subsequently be sealed (sections 27 and 28). The Agricultural Institute analyses the official samples and draws up a report setting out its findings, as well as the results of a tasting by the official wine quality control panel (section 30(3)). The panel is composed of a Chairman (the Director of the Agricultural Institute) and at least five expert tasters appointed by the Federal Ministry of Agriculture and Forestry. It decides, by a qualified majority (five out of five or six, six out of seven, etc), whether the quality of the wine corresponds to its designation. The tasting, the conditions of which are laid down in internal rules, is not conducted in public. The identity of its members - who are under a duty of confidentiality - is not disclosed (section 30(4) to (8)). If the results of the analysis provide grounds for suspecting that a criminal offence has been committed, the Agricultural Institute must report this to the competent public prosecutor or court (section 30(9)). 36. As regards expert evidence in court, section 30(10) stated at the time: "If the court has doubts concerning the findings or the opinion of the Agricultural Institute, or if it considers that the findings or the opinion require elaboration, or if reasonable objections are raised against them, it must take expert evidence from an official of the Institute who has been involved in the preparation of the analysis or the opinion in question so that he may explain or discuss in greater detail the conclusions or opinion of that Institute". In all other aspects the provisions of the Code of Criminal Procedure are applicable. In particular if any doubts persist or if the findings of an expert "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.