CASE OF J.M. AND OTHERS v. AUSTRIA
No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Equality of arms;Article 6-3-d - Examination of witnesses)
André Potocki;Angelika Nußberger;Mārtiņš Mits;Nona Tsotsoria;Yonko Grozev;Gabriele Kucsko-Stadlmayer
5. The first applicant was born in 1959. From 2004 until 16 January 2012 he was Minister (Landesrat) of the Regional Government of Carinthia (Kärntner Landesregierung). He was also head of the Austrian Peoples’ Party in Carinthia (Österreichische Volkspartei Kärnten – ÖVP Kärnten), which was coalition partner of the Alliance for the Future of Austria (Bündnis Zukunft Ӧsterreich, BZӦ) under the leadership of J.H. 6. The second applicant was born in 1970 and lives in KlagenfurtWölfnitz. He studied law and worked as a lawyer before becoming an employee of the Landes-und Hypothekenbank (“H. Bank”) in 1999. In 2004 he became a board member of that bank. In 2007 he became a member of the board of Kärntner Landes- und Hypothekenbank-Holding (hereinafter referred to as “Landesholding”). 7. The third applicant was born in 1964 and lives in Maria Wörth. He studied law and worked as a lawyer before becoming an employee of the law department of the H. Bank in 1999. In 2001 he was appointed head of that department. In 2005 he became a member of the board of the Landesholding. 8. The Landesholding is a corporate body governed by public law (Anstalt öffentlichen Rechts). It was set up to manage the estate of the Land of Carinthia considering its interests (unter Berücksichtung der Interessen des Landes). The Land of Carinthia is liable as a guarantor in the event of Landesholding’s insolvency. 9. The Landesholding is governed by a board of management (Vorstand), consisting of two people, which represents it. The board is supervised by a supervisory body (Aufsichtsrat), which appoints the board’s members and participates in special commercial transactions specified by the law. The supervisory body itself is appointed by the Regional Government of Carinthia and is composed of representatives of the political parties to the regional parliament (Landtag). 10. It is the task of one member of the regional government – the commissioner (Aufsichtskommissär), a position defined by the relevant law – to monitor the supervisory board. He or she has the power to appeal against decisions of the supervisory board if they run counter to the interests of the Land. 11. On 1 January 1991 the H. Bank was disjoined from Landesholding and became a public limited company (Aktiengesellschaft). The majority of its shares were held by Landesholding until 2006. Following an increase in capital stock at the end of 2006, Landesholding still owned 44.91% of the shares. 12. From 1999 to 2008 Regional Governor and Head of the Regional Government of Carinthia was J.H. 13. In 2007, as Governor of Carinthia, J.H. was the commissioner. The first applicant was chairperson of the supervisory board of the Landesholding. 14. After careers as managers in H. Bank, the second applicant and the third applicant were appointed as members of the board of management of Landesholding. 15. In 2007 B. Bank showed an interest in taking over H. Bank by buying a certain number of its shares. The ensuing negotiations involved J.H. and the first applicant as the political leaders of the Regional Government of Carinthia, the head of the management board of H. Bank, the head of another shareholder, as well as an investors group. The main negotiations were carried out by investment banks and law firms. J.H. and the first applicant appointed D.B., an accountant and financial consultant (Wirtschaftsprüfer und Steuerberater) based in Villach, Austria, to take part in and supervise the negotiations. 16. The board of management of Landesholding itself was not informed and did not participate in the negotiation process. Not only did it not appoint D.B. but it was not informed about his mandate. It was informed about the negotiation process just a short time before the signing of the contract. D.B.’s mandate was not communicated to it. 17. The Landesholding management board had to sign the contract for the transfer of the shares and the supervisory board had to authorise the transaction in advance. On 21 May 2007 the supervisory board was informed by the first applicant on behalf of the management board, and the deal was confirmed by four votes to three. The contract was signed on 22 May 2007. 18. On 9 October 2007 all the legal arrangements necessary for finalising the transaction were completed. B. Bank bought around 25% of the shares previously held by Landesholding for 809,544,534 euros (EUR). 19. In a plenary debate of the Carinthian Regional Parliament on 9 August 2007, J.H. stated that the costs of the consultation service connected to the share deal would not exceed EUR 250,000. 20. In February 2008 the first applicant and J.H. informed the second applicant that they had entrusted D.B. with supervising the negotiations on behalf of Landesholding and that he was entitled to a fee of 1.5% of the total sales profit (EUR 12,143,168). They said that Landesholding should pay that fee. The second applicant informed the third applicant, and on 12 February 2008 they both presented D.B.’s claim for fees as reasonable to the supervisory board of Landesholding. The lawfulness of the claim was a matter of discussion at the supervisory board meeting. No final conclusion was reached in that regard. 21. After the meeting of the supervisory board, the media reported on D.B.’s claim and expressed doubts as to his contribution to the negotiation process and the amount of the fee. Following the media coverage and the discussion at the supervisory board’s meeting, the Landesholding management board (the second applicant and the third applicant) commissioned lawyers and legal experts and asked them to confirm the appropriateness and reasonability of the claim for fees. 22. Three external legal experts examined the case put before them. They assessed the risk of civil claims being raised and the potential consequences under criminal law, under the explicit assumption that the bill for D.B.’s services was reasonable. The core question – whether D.B.’s claim for fees was reasonable – was to be answered by another three external experts. One of those experts, however, informed the second applicant, the third applicant and their lawyers that he would not conclude that the claim for fees was reasonable. According to a note of 7 March 2008 written by a lawyer appointed by the second and the third applicant, they tried to persuade the privately commissioned expert in a telephone conversation to make several changes to his report and to declare that the fees were reasonable. The expert refused to do so. In the end, he agreed to delete one paragraph which had stated that the services provided by D.B. were not equivalent to those of an investment bank. 23. As the media controversy did not cease and the expert had not confirmed the reasonableness of the fee, D.B. agreed in talks with J.H. and the first applicant to reduce his claim for fees by half. The expert was then asked to amend his report and in March 2008 he concluded that a fee of EUR 6,000,000 could be considered reasonable considering the fees generally charged by investment banks. 24. Based on this expert’s report, the supervisory board discussed the payment of the fee at its meetings held on 25 April and 29 May 2008 and finally agreed to the payment by four votes to three. 25. On 4 June 2008 the third applicant ordered the payment of EUR 4,500,000 to D.B. On 17 December 2009 the second applicant and the third applicant ordered the payment of the remaining amount to D.B. 26. The share deal was the subject of intense debate within the Carinthian Regional Parliament and the Bavarian Regional Parliament, as B. Bank’s head office was in Munich. That led to parliamentary enquiries (Untersuchungsausschuss) in both parliaments. 27. The Carinthian branch of the Social Democratic Party of Austria (SPӦ Kärnten) and R.H., a Member of the Carinthian Regional Parliament, lodged separate criminal complaints (Strafanzeige) against J.H., the first applicant and D.B. In March 2008 the public prosecutor opened preliminary proceedings against J.H., the first applicant and D.B. for breach of trust and fraud. 28. On 21 June 2008 the second applicant and the third applicant submitted four expert reports indicating that the fees claimed by D.B. for his services in the negotiation process had been appropriate and reasonable. 29. J.H., the first applicant and D.B. gave statements to the public prosecutor and refuted the accusations. 30. On 2 September 2008 the second applicant and the third applicant gave statements and submitted a contract of 28 April 2008 concluded between J.H., the first applicant, Landesholding and D.B. in which D.B. had reduced his claim for fees from EUR 12,143,168 to EUR 6 million. 31. On 19 January 2009 the Klagenfurt public prosecutor closed the preliminary proceedings. The investigations against J.H. were closed because he had died on 11 October 2008. The preliminary proceedings against the first applicant and D.B. for breach of trust were closed because a new contract had been concluded fixing a lower fee and the expert reports submitted by the accused had indicated that the claim for fees was appropriate and reasonable. The proceedings against the first applicant for perjury (Falsche Beweisaussage) committed at a hearing of the parliamentary enquiry carried out by the Carinthian Regional Parliament were closed because it could not be proved that he had intended to commit that crime. 32. On 13 February 2009 R.H. filed a request for the reopening of the preliminary proceedings. 33. On 17 September 2009 the Graz Court of Appeal rejected the request for the reopening of the preliminary proceedings. 34. On 1 March 2010, eleven people lodged criminal complaints with the Procurator General’s Office (Generalprokuratur). They accused all of the Klagenfurt public prosecutors of abuse of authority. They asked for the reopening of the preliminary proceedings and the transfer of the case to another public prosecutor’s office. The Procurator General’s Office transferred the file to the Public Prosecutor’s Office for Crimes of Corruption (Korruptionsstaatsanwaltschaft) (“the KStA”). The KStA conducted an investigation, closed the preliminary proceedings against the public prosecutors and transferred the file to the Klagenfurt public prosecutor’s office, proposing the reopening of the preliminary proceedings. 35. On 19 January 2011 the public prosecutor reopened the proceedings against the first applicant and D.B. On 9 February 2011 the investigations were extended to the second applicant and the third applicant for breach of trust. 36. On 6 April 2011 the public prosecutor appointed F.S. as an expert in the preliminary proceedings and instructed him to submit a report dealing with the following questions: “- whether the services of D.B. as described in a letter of April 2007 and the progress report of 20 February 2008 were comparable to the services normally offered by an investment bank in similar circumstances - what fee was appropriate and reasonable for the services D.B. had provided.” 37. The accused were informed about the appointment of the expert and told that they could object to his appointment within three days. The applicants did not object. At an unspecified date the case file was transferred to F.S. 38. On 28 June 2011 F.S. delivered his expert report. The report stated that the services provided by D.B. were not comparable to the services of an investment bank and that a fee of EUR 200,000 would be appropriate and reasonable for the services provided by D.B. 39. The report was served on the applicants. 40. On 19 September 2011, the second applicant submitted reports by two court-approved experts which he had commissioned on a private basis. The private expert reports stated that fees of 1.5% of the sum of the transaction were reasonable for the services provided by an investment bank when negotiating a share deal in a similar situation. The services provided by D.B. could in part be seen as those of an investment bank. The second expert certified that D.B. had carried out 43% of the activities normally carried out by an investment bank. Those expert reports were transmitted to F.S. for further consideration. 41. On 28 September 2011 F.S. commented on the private expert reports submitted by the second applicant. He said that he had examined carefully the findings of the two experts and that the methods used to assess which activities D.B. had been involved in within the negotiations were not plausible. F.S.’s comment was served on the accused. 42. On 5 October 2011 the third applicant submitted another expert report by a court-approved expert which he had commissioned on a private basis to counter the findings of F.S. The expert report stated that F.S. had overstepped his competence by weighting the evidence. He had also not fulfilled the formal requirements of an expert report. The calculation of EUR 240,000 as a reasonable fee was criticised as wrong. 43. On 6 October 2011 that expert report was sent to F.S. for further consideration and, if necessary, amendment of his report. 44. On 14 October 2011 F.S. commented on the expert report commissioned by third applicant and concluded that there was no need to alter his findings. His comment was submitted to the accused. 45. On 16 December 2011 Landesholding submitted another expert report which its supervisory board had commissioned from a private limited company. The report examined the liability of the board members under civil law and concluded that the second applicant and the third applicant could not be held liable for their actions under civil law. 46. On 19 December 2011 the second applicant commented on that expert report. 47. On 21 March 2012 the public prosecutor filed a bill of indictment, charging the second applicant and the third applicant for breach of trust under Article 153 of the Criminal Code and the first applicant and D.B. for aiding and abetting in breach of trust. Based on the expert’s report prepared by F.S., the public prosecutor claimed that the applicants and D.B. knew that only a fee of a maximum of EUR 240,000 was reasonable for D.B.’s assistance in the negotiation process, but had nevertheless instructed Landesholding to pay a fee of EUR 6 million. Therefore they had caused damage amounting to EUR 5,760,000. 48. The Klagenfurt Regional Court sent out summonses and appointed F.S. as official expert to the trial. 49. All the applicants and D.B. submitted statements disputing the contentions of the public prosecutor but none of them appealed against the bill of indictment. The second applicant submitted eleven reports by private experts commissioned by the accused in the preliminary proceedings and requested that two of those experts be summoned as official experts to the trial. 50. On 4 July 2012 the trial started. 51. After several hearings D.B. conceded on 11 July 2012 that the findings of the official expert, F.S., were correct inasmuch as his services to the negotiation process had not corresponded to a fee of EUR 6 million but only to a fee of EUR 300,000. He further stated that, in his view, the second applicant and the third applicant had known at the relevant time that his fee was inappropriate and unreasonable. Also, his bill had been established together with the second applicant in February 2007 when the latter had stated that he needed documentation to present to the supervisory board of Landesholding. 52. The applicants disputed D.B.’s confession and argued that the fee paid to him had been reasonable. 53. On 18 July 2012 the third applicant asked the court not to include the expert report of F.S. in the case file. He argued that F.S. had to be treated as a witness for the prosecution and not as an impartial expert assisting the court. Moreover, F.S. was a professional lawyer and university professor in Germany and not registered in Austria as an expert for book-keeping, cost accounting or financial auditing in the list of court appointed experts and therefore lacked the necessary expert knowledge for assessing whether the remuneration of D.B. had been appropriate. Lastly he submitted that F.S. had been biased because in the course of the preliminary investigations he had answered questions of assessment of evidence and questions of law. Should the court not appoint another official expert for the trial, the third applicant requested that the privately commissioned expert reports presented to the court be included in the file. He also requested that the experts who had drawn up those reports be summoned for questioning as official experts in the trial. The other applicants joined those requests. 54. The Regional Court dismissed all the requests. As regards the challenge for bias of F.S. and the request not to hear him as expert or to read out his report, it found that from the case file and the evidence collected hitherto it did not appear that there were reasons for considering him as being biased. Since F.S. had been summoned to the hearing by the trial court, he had at the same time been appointed as expert by that court. As regards the argument that he had answered questions of assessment of evidence and questions of law in the preliminary proceedings, the court found that, even assuming that this had been the case, such statements had to be disregarded by the court. As regards the private experts commissioned by the applicants as court appointed experts the Regional Court pointed out that only after having examined and discussed the report by the court appointed expert, the necessity of appointing other experts could be decided. 55. The public prosecutor extended the charge, claiming that the damage caused by the accused amounted to EUR 6 million. 56. On 25 July 2012, D.B. confessed that in 2007, after his bill had been paid by Landesholding, the first applicant had asked him to share the money with him and J.H. D.B. had handed over part of the payment to the first applicant. Other leading members of the Alliance for the Future of Austria party had asked for money as well. 57. At the same hearing, the first applicant conceded that after the deal with B. Bank had been concluded, he and J.H. had decided that part of D.B.’s fee should be used to finance the Austrian Peoples’ Party in Carinthia and the Alliance for the Future of Austria party. He further confessed that he had received a portion of the fee from D.B. 58. The second applicant and the third applicant maintained their initial statements and claimed that they had acted in good faith without knowing that D.B.’s fees were not reasonable. 59. On 9 August 2012 F.S. was heard by the court. He gave a brief summary of his written expert report and answered the questions raised by the court and the parties to the trial. While F.S. was being questioned, an expert commissioned by the defence sat next to the applicants’ lawyers and advised them but was not allowed to question F.S. on his own. There is no indication that F.S. took part in any other hearing or put questions to witnesses or the accused. 60. After the questioning of F.S., the applicants and their co-accused reiterated their request to appoint another official expert. In their view, the answers given by F.S. had shown that his expert report was deficient. They further argued that the appointment of another expert was necessary because F.S. had to be considered as a witness for the prosecution and not as an impartial expert assisting the court. 61. The court dismissed those requests. 62. On 1 October 2012 the Klagenfurt Regional Court reached a verdict. It convicted the accused as charged and sentenced the first applicant to five and a half years, the second applicant to three years, the third applicant to two years and D.B. to three years of imprisonment. In addition, they were ordered to repay EUR 4,765,193 plus interest to Landesholding for compensation. The Regional Court found that the services provided by D.B. in the negotiation process only corresponded to fees in the amount of EUR 300,000 and that the second applicant and the third applicant had been aware of that fact but had breached their obligation of diligence by authorising the payment of EUR 6 million to D.B. As the first applicant had asked them to authorise the payment, he was guilty of abetting them. 63. The applicants lodged pleas of nullity and appeals against the sentence. D.B. also lodged an appeal against the sentence. The public prosecutor appealed against the sentences imposed on the second applicant, the third applicant. and D.B. 64. In their pleas of nullity the applicants, relying on Article 281 subparagraph 4 of the Code of Criminal Proceedings (Strafprozessordnung, hereinafter referred to as CCP), stated that the Regional Court should have appointed another official expert. The proceedings had made it clear that F.S.’s expert report had been deficient. F.S. had been appointed by the public prosecutor and had delivered the basis for a bill of indictment, which showed that he was biased. F.S. had to be considered as a witness for the prosecution and not as an impartial expert assisting the court. Moreover, under Article 126 § 4 of the CCP a challenge for bias against an official expert could not be made on the grounds that he had previously been appointed as official expert in the preliminary investigations. They argued that this provision was not in line with the right to a fair trial under Article 6 of the Convention, as they did not have a real chance to counter F.S.’s expert report. This was aggravated by the fact that the expert reports commissioned by the applicants and their co-accused and submitted to the trial court had not been admitted to the file and the experts had not been summoned as requested. They therefore asked the Supreme Court to request a review of the constitutionality of Article 126 § 4 of the CCP by the Constitutional Court. 65. On 11 March 2014 the Supreme Court dismissed the applicants’ pleas of nullity and the appeals of the second applicant and of the public prosecutor, but partly granted the appeals of the first applicant, the third applicant and D.B. The sentence imposed on the third applicant was added to a sentence previously imposed on him on of 2 February 2013 (Zusatzstrafe), and the sentences imposed on the first applicant and D.B. were reduced to four and a half years and two and a half years of imprisonment respectively. 66. With regard to the alleged violation of Article 6 of the Convention, the Supreme Court found that Article 126 § 4 of the CCP should in general ensure that two different official experts were not appointed in the preliminary proceedings and the trial, as this would result in delays in the proceedings. Article 126 § 4 of the CCP did not exclude a challenge for bias, except when it was merely argued with the fact that the expert had been appointed previously in the preliminary proceedings. The requests to appoint another expert had been dismissed by the court not on the grounds of Article 126 § 4 of the CCP but for other reasons. In fact, it had dismissed the requests because the applicants had not given valid reasons for their bias challenge. It had not been shown that the expert had a close relationship with the public prosecutor that would cast doubts on his objectivity. 67. Moreover, the neutrality of the expert was ensured as he or she was obliged by law to act in an objective manner. His or her findings had to be based on facts established using scientific methods and principles. Criminal law (perjury) as well as the provisions on challenge for bias would ensure that his or her findings and conclusions were in accordance with the law. The expert was not part of the public prosecutor’s office, and the results of the proceedings had no effect on his or her payment. In the event of a dispute between the public prosecutor and the accused about the amount of the expert’s fees, it was up to the court to fix the amount and to pay the expert. 68. The Supreme Court also reasoned that in preliminary proceedings as well as in a trial, an accused could address written questions to the official expert and question him or her in court and, in so doing, the accused could be assisted by a privately appointed expert. The Supreme Court noted that the applicants had made use of this opportunity. In that way, the accused had an opportunity to show that the official expert’s report contained errors or shortcomings. If those errors or shortcomings could not be corrected by the official expert, the court had to dismiss him or her and appoint another expert to draw up a report. Furthermore, the findings and conclusions of the official expert could be challenged even before the trial stage by lodging an objection (Einspruch) against the bill of indictment, but this had not been done in the case at hand (see paragraph 50 above). 69. The Supreme Court rejected as inadmissible the first applicant’s complaint that contacts between the public prosecutor and F.S. had influenced the latter and rendered him biased vis-à-vis the accused as this complaint had not been submitted following the proper proceedings. It added, however that such a complaint was in any event ill-founded, since the initial contact between the public prosecutor and F.S. merely had the purpose of clarifying under which conditions F.S. would accept the task of drawing up an expert report and subsequent contacts consisted in supplementing the case file which had been transmitted to F.S. for drawing up the report. Thus, it could not be seen how this kind of contact could give rise to doubts as to the neutrality of the expert. 70. The Supreme Court held further that the applicants in the present case had not used their opportunity to question the competence of F.S. or to object to his appointment in the preliminary proceedings. Moreover, the Regional Court had based its findings and decision primarily not on the expert report, but on D.B.’s confession. Citing the Court’s case-law (Brandstetter v. Austria, 28 August 1991, Series A no. 211; Bönisch v. Austria, 6 May 1985, Series A no. 92; and C.B. v. Austria, no. 30465/06, 4 April 2013), the Supreme Court found that the applicants had had sufficient opportunities to question F.S. during the hearing of 9 August 2012. Consequently, the Supreme Court had no doubt that the right to equality of arms in the trial had been maintained. 71. The written decision of the Supreme Court was served on the applicants on 27 March 2014.