In a recently published decision, the Austrian Supreme Court ("OGH") clarified and strengthened the rights of suspects in criminal proceedings. It overturned the lower courts' decisions denying suspects the right to be present at a meeting between the expert witness appointed by the court and the prosecutor.
Legal Background on the Right to Have Expert Witnesses Appointed by the Court
By means of the Criminal Procedure Law Amendment Act 2014 (StPRÄG 2014), in effect of 1.1.2015, the legislator introduced new provisions regarding the appointment of expert witnesses in preliminary criminal proceedings (Ermittlungsverfahren). This amendment was deemed necessary to protect rights offered by Art 6 (3) ECHR, after the OGH (OGH 23.1.2014, 12 Os 90/13x) had denied that such protection was sufficiently given. The decision was rendered with regard to the prosecutors' practice to appoint expert witnesses to establish the facts of the case and thus to act as the prosecutors' extended arm instead of as neutral experts solely rendering an expert opinion based on already established suspicion (Ris-Justiz RS0129286).
Based on the current system, under Sec. 126 ACCP expert witnesses are appointed by prosecutors in preliminary criminal proceedings. However, a suspect is alternatively entitled to request the appointment of an expert witness by the court. Procedurally, such an appointment is undertaken as a component part of the suspect's request for the taking of evidence by the court (Beweisantrag im Rahmen gerichtlicher Beweisaufnahme). In such scenario, this request is addressed at the court; the prosecutor does not have competence to rule on such matter and is thereby rendered not competent to prevent the court's expert appointment.
In the recent decision, the OGH ruled for the first time on the application of such rules in an actual case.
Safeguarding Equality of Arms
As can be derived from the published decision (OGH 25.6.2018, 17 Os 7/18k (17 Os 13/18t, 17 Os 14/18i)), the matter concerned white-collar crime (business crime) proceedings against various suspects due to allegations of embezzlement and other criminal offences.
In the course of the preliminary criminal proceedings, suspects requested for the expert witness to be appointed by the court. This request was granted, as was the prosecutor's subsequent request for a meeting with the expert witness to discuss open issues of the expert witness' assignment in presence of the court. However, the suspects were not granted the right to be present at the meeting neither by the Regional Court for Criminal Matters Vienna nor by the Higher Regional Court Vienna as court of appeal. In essence, the courts reasoned that:
- No rights of suspects to be present at meetings between the court and the expert witness are stipulated in the Austrian Code of Criminal Procedure (ACCP);
- The prosecutor's presence would be purposeful to ensure an efficient conduct of the proceedings; and
- There could be no violation of the principle of fair trial / equality of arms due to the court's presence at the meeting.
However, the OGH overturned the lower courts' decision and took a different stance:
Referring to literature by scholars, it unambiguously stated that in case of the expert witness having been appointed by the court upon request by the suspect, suspect and prosecutor are to be considered equal parties being granted the same rights. Both are entitled to address open questions and request amendments to the expert report under the same conditions and both have the identical right to be heard. In order for this not to be put into jeopardy and the court to be able to fulfill its obligation as authority overseeing the work of the expert witness, the OGH requires communication with the expert witness to be undertaken via the court.
Consequently, granting the prosecutor the right to discuss the expert witness' instructions without in turn granting the same right to suspects constituted an infringement of suspects' rights.
The OGH also took inspiration from Sec. 270(3) ACCP, according to which the president of a criminal tribunal is entitled to correct typing errors, miscalculations and irregularities of form contained in a decision without consulting the parties to the proceedings. However, it constitutes established case-law (Ris-Justiz RS0123183) that upon consultation of either party, the right to be heard has to apply to the other party equally. Such reasoning was explicitly stated in OGH 21.4.2009, 11 Os 34/09y (11 Os 35/09w, 11 Os 36/09t) concerning the consultation of the tribunal's president with the prosecutor but in absence of the suspect.
A Further Step Towards Fair Trial
The OGH's decision might be seen as hardly surprising, given that in the past scholars have already convincingly argued that amendments introduced in 2015 would be stripped of their meaning, should prosecutors continue to be entitled to hold talks with expert witnesses without the presence of suspects.
A different approach than the one by the OGH would indeed thwart the idea behind the current system introduced to ensure equality of arms. It would again result in expert witnesses appearing as the prosecutor's extended arm and would consequently lead to a suspicion of the expert witness' bias, as prosecutors would uphold a greater sphere of influence over the expert witnesses. This is not to say that prosecutors generally exercise improper influence over expert witnesses, however, as the guiding principle established nearly 100 years ago in R v Sussex Justices, Ex parte McCarthy ( 1 KB 256,  All ER Rep 233 goes: "Not only must Justice be done; it must also be seen to be done." The amendments by the legislator to ensure that the expert witness does not just act as neutral person of evidence (Beweisperson) but is also seen as such, would otherwise be circumvented.
Therefore, the OGH's decision is certainly welcome, particularly so for its clarity. While it is relevant to all types of criminal proceedings, its relevance in particular for white collar crime proceedings cannot be understated, as such proceedings are often heavily influenced by expert witnesses' opinions. The decision, itself, establishes case-law providing clear guidance for courts, prosecutors and suspects regarding rights and obligations concerning the conduct of proceedings if the expert witness is appointed by the court upon request of suspects. It also demonstrates the necessity for a defendant to affirmatively exercise rights offered by the ACCP and to understand those rights. Should a suspect opt not to request the expert witness' appointment by the court, such suspect is deprived of this defensive weapon equivalent to those of the prosecutor.
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