FOURTH SECTION
CASE OF GAGGL v. AUSTRIA
(Application no. 63950/19)
 
 
JUDGMENT
Art 34 • Locus standi • Applicant’s conviction for the attempted murder of her husband • Albeit the victim of the crime, surviving husband, with legitimate interest in the circumstances in pursuing application in late wife’s stead
Art 6 § 1 (criminal) • Fair hearing • Trial court’s refusal of applicant’s application to commission a third and decisive expert opinion concerning her mental state at the time of offence, despite two available expert opinions opposed on that factual issue, significantly impaired defence rights • Applicant deprived of opportunity to challenge decisive expert evidence effectively • Overall fairness of trial undermined
 
STRASBOURG
8 November 2022
 
FINAL
 
08/02/2023
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Gaggl v. Austria,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
 Tim Eicke, President,
 Gabriele Kucsko-Stadlmayer,
 Faris Vehabović,
 Iulia Antoanella Motoc,
 Armen Harutyunyan,
 Pere Pastor Vilanova,
 Jolien Schukking, judges,
and Ilse Freiwirth, Deputy Section Registrar,
Having regard to:
the application (no. 63950/19) against the Republic of Austria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Austrian national, Ms Hildegard Gaggl (“the applicant”), on 3 December 2019;
the decision to give notice to the Austrian Government (“the Government”) of the application;
the decision to grant the application priority under Rule 41 of the Rules of Court;
the parties’ observations;
Having deliberated in private on 11 October 2022,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The present case concerns the applicant’s complaints under Articles 5 and 6 of the Convention that the criminal trial against her and her conviction for the attempted murder of her husband was unfair and the detention resulting from it unlawful. In particular, she complained about not having been provided with the opportunity to understand the reasons on which the jury had based her conviction given that the conclusions of the two expert opinions on her mental state at the time of the offence were diametrically opposed and that the domestic courts dismissed her application to obtain a third and decisive expert opinion. THE FACTS
2. The applicant was born in 1940 and died on 12 October 2021. Her husband, Mr Alois Gaggl, expressed his wish as next of kin to continue the proceedings before the Court in the applicant’s stead, indicating that the continuation was both in the interest of his deceased wife and of him personally, in particular since, although he had been the victim of the criminal offence, he was still convinced that his wife had acted in a state of insanity. The applicant was represented by Mr A. Todor-Kostic, a lawyer practising in Velden am Wörthersee. 3. The Government were represented by their Agent, Ambassador H. Tichy, Head of the International Law Department at the Federal Ministry for European and International Affairs. 4. The facts of the case, as submitted by the parties, may be summarised as follows. The incident of 3 January 2018 and the investigation thereof
5. In the early morning hours of 3 January 2018, the applicant repeatedly stabbed and attempted to kill her husband. On the same day, the Klagenfurt public prosecutor’s office (Staatsanwaltschaft) initiated an investigation during which it was established, and not disputed by the applicant, that the then seventy-seven-year-old applicant had attempted to kill her then eighty‑four-year-old husband, to whom she had been married for over fifty‑two years. After having repeatedly stabbed him with two kitchen knives, she waited several hours for his death before contacting her niece (who later called the ambulance). Her husband suffered four stab wounds. The applicant testified that she had intended to first kill her husband and then to commit suicide, because she had wished for both of them, given their advanced age and state of health, to move to a nursing home, and her husband had not agreed. The investigation did not establish any other motive, and her husband described their marriage as very normal and consisting of a good relationship. He did not join the criminal proceedings as a private party and specifically renounced his right to compensation during the trial. He further renounced his right to refuse testimony against a family member and testified during the trial hearing in his wife’s favour, stating that he was not upset with her for what she had done. 6. On 4 January 2018 the applicant was arrested and, on 31 January 2018, placed in provisional detention (vorläufige Anhaltung) in a public hospital for mental illnesses, in accordance with Article 429 of the Code of Criminal Procedure (hereinafter, “the CCP” – see paragraph 29 below). 7. On 5 January 2018 the public prosecutor’s office ordered an expert opinion from Dr W., a specialist in psychiatry and neurology, to assess the applicant’s soundness of mind and her dangerousness for the purposes of Article 21 §§ 1 and 2 of the Criminal Code (hereinafter, “the CC” – see paragraph 23 below). Dr W. submitted his expert opinion on 19 January 2018 and, at the request of the public prosecutor’s office, supplemented it on 2 February 2018. He concluded that the applicant suffered from a delusional disorder and a mild cognitive impairment and that her ability to understand the wrongfulness of her actions (Diskretionsfähigkeit) had been suspended in relation to the alleged offence, in other words that she had no longer been able to act in accordance with reality and to comprehend the punishable nature of her act, or to consider rational alternatives or an alternative course of action. He further held that her delusional disorder corresponded to the concept of mental illness within the meaning of Article 11 of the CC (see paragraph 22 below), and that she could not be held criminally responsible (nicht zurechnungsfähig) for her acts in the night of 3 January 2018. Criminal proceedings against the applicant
8. On 9 April 2018 the public prosecutor’s office made an application to the Klagenfurt Regional Court (Landesgericht), in connection with the attempted murder of her husband, for the applicant’s confinement in an institution for mentally ill offenders in accordance with Article 21 § 1 of the CC, which foresees confinement as a preventive measure for persons who have committed an offence but cannot be punished for the sole reason of having done so under the influence of a state of mind which excludes criminal responsibility resulting from a serious mental or emotional disorder (see paragraph 23 below), in conjunction with Article 429 § 1 of the CCP (see paragraph 29 below). 9. At the request of the Regional Court, Dr W. submitted another expert opinion on 2 July 2018, confirming his diagnosis as set out in his first expert opinion (see paragraph 7 above). He considered the risk of the applicant committing another offence in the future to be very low under the treatment and care conditions at that time and deemed it possible to suspend the preventive measure by replacing it with less severe measures. He recommended a placement in a centre for psychosocial rehabilitation, with continued nursing and medical care, and continued medication and psychotherapy and psychiatric checks at least monthly. 10. On 19 July 2018 the Regional Court, sitting as an assize court, held a first oral hearing, questioning among others Dr W., who maintained his expert opinion in full. At the request of the jurors, who indicated that this expert opinion was not conclusive (nicht nachvollziehbar) to them, the court, after rehearing Dr W., ordered another expert opinion from a specialist in psychiatry to assess the applicant’s soundness of mind at the time of the events. According to the court, Dr W. had not been able to show compellingly (nicht zwingend darstellen können) the extent to which the applicant’s acts had resulted from her mental illness, a delusional disorder, that he had certified. For this reason, the jurors needed “a further basis for their decision” (eine weitere Entscheidungsgrundlage). It appears from the record of the trial hearing that the Regional Court postponed the continuation of the trial pending obtaining a supplementary expert opinion by another expert (ergänzendes Sachverständigengutachten). 11. On 6 September 2018 Dr H., also a specialist in psychiatry and neurology and possessing a venia docendi (authorisation to teach at a university based on a postdoctoral lecturing qualification), submitted his expert opinion, concluding that the applicant suffered from a persistent delusional disorder and a depressive-anxious adjustment disorder. As regards Dr W.’s expert opinion, Dr H. considered that his diagnosis was “altogether quite conclusive” (insgesamt gut nachvollziehbar), and that his line of reasoning led to a deduction that was possible (mögliche Schlussfolgerung). However, in Dr H.’s opinion, the delusional disorder had been overemphasised by Dr W. In conclusion, Dr H. considered that there were no indications that the applicant had suffered from a mental disturbance within the meaning of Article 11 of the CC (see paragraph 22 below) during the time of the events; therefore, she could be held criminally responsible. In other words, the applicant had had the ability to understand the wrongfulness of her actions and to act in accordance with that understanding (Dispositions- und Diskretionsfähigkeit). 12. During the oral hearing of 18 October 2018, Dr H. was questioned and maintained his expert opinion in full. He considered that the diagnosis made by Dr W. was correct, that he himself had arrived at the same conclusion after his own analysis, and that the respective deductions made had differed in particular in their evaluations and related conclusions about the significance of the delusional disorder. Dr W., who had also been summoned, in turn stated that he agreed with Dr H.’s statements with regard to the diagnosis but maintained his own opinion with respect to the deductions made concerning the applicant’s criminal liability. 13. The applicant subsequently made an application that a third and decisive expert opinion (Obergutachten) be obtained under Article 127 § 3 of the CCP (see paragraph 24 below), as she considered the two expert opinions to be contradictory. The public prosecutor’s office concurred with her application, which was, however, dismissed by the Regional Court after further questioning of Dr H. The court found that the defence and the public prosecutor’s office had failed to demonstrate that Dr H.’s expert opinion was inconsistent or deficient. The fact that the experts had ascertained the same facts but had arrived at different results only because of diverging scientific views did not necessarily imply that the expert opinions were deficient. Furthermore, under the second half-sentence of Article 127 § 3 of the CCP (see paragraph 24 below), the appointment of Dr H. had already constituted the appointment of a decisive expert, which is why the appointment of a further expert was excluded ex lege. 14. During the next and last oral hearing of 3 December 2018, both experts were present and in general maintained their respective assessments. The applicant again made an application for the commission of a third and decisive expert opinion, with the public prosecutor’s office again concurring. The Regional Court once again dismissed the application, for the same reasons as those given in relation to the first such application (see paragraph 13 above). 15. The court then concluded the procedure for taking evidence and read out the questions to be answered by the jurors, which were, in so far as relevant, as follows:
“(1) Main question:
Did Hildegard GAGGL try to kill her husband in K. on 3 January 2018 ... by repeatedly stabbing him with two knives, each with a blade length of approximately 15 cm, in the neck, in the area of the heart under the left nipple, in the area under the left collarbone in the upper chest region and in the area of the anterior axillary fold on the left ribcage, thus inflicting four stab wounds? (2) Additional question (to be answered if the answer to the main question is affirmative):
Was Hildegard GAGGL, at the time of the offence, incapable of understanding the wrongfulness of her actions or of acting in accordance with this understanding because of a mental disorder, a mental disability, a serious disturbance of consciousness or because of another serious psychological disorder equivalent to one of these conditions, namely a delusional disorder?”
16. In accordance with Article 321 of the CCP (see paragraph 25 below), the court provided the jurors with written instructions on legal issues (Rechtsbelehrung). The applicant submitted that she had not received a copy thereof. The Government stated that she had had unrestricted access to the case file at all stages of the proceedings and was therefore able to find out about the directions on legal issues, as they had been attached to the transcript of the trial hearing in accordance with Article 321 of the CCP (see paragraph 25 below). 17. After secret deliberations, the eight jury members answered the main question with eight votes in favour, and the additional question with eight votes against. It appears from the Governments’ submissions (see paragraph 46 below) that the jury stated in a short note (Niederschrift) the considerations on the basis of which they answered the questions put to them in accordance with Article 331 § 3 of the CCP (see paragraph 26 below). The Regional Court convicted the applicant of attempted murder and sentenced her to twelve years’ imprisonment. Judicial review proceedings
18. Both the applicant and the public prosecutor’s office (in support of the applicant) lodged a plea of nullity (Nichtigkeitsbeschwerde) with the Supreme Court (Oberster Gerichtshof), citing as the main reason the fact that the Regional Court had unlawfully dismissed their application for the appointment of a third and decisive expert. 19. An opinion (croquis) of the Attorney General (Generalprokuratur) of 7 March 2019 recommended rejecting the pleas of nullity. It considered that Dr H. had been appointed in accordance with the first sentence of Article 127 § 3 of the CCP (see paragraph 24 below). Consequently, for a third expert to be appointed, it would have been necessary to identify a deficiency in the second expert’s findings. Such a deficiency had not, however, been identified and, therefore, the Regional Court had correctly dismissed the applications of the applicant and the public prosecutor’s office to appoint a third and decisive expert. 20. On 21 May 2019 the Supreme Court dismissed the plea of nullity and referred the case to the Graz Court of Appeal (Oberlandesgericht) for a decision on the appeals (Berufungen). As regards ordering a third and decisive expert opinion, the Supreme Court considered that Dr H. had been appointed in accordance with the first sentence of Article 127 § 3 of the CCP (see paragraph 24 below) because the first expert opinion provided by Dr W. had been found to be deficient by the first-instance court, even after a procedure to remedy the deficiencies had been carried out. Furthermore, in his expert opinion (as discussed at the trial hearing on 18 October 2018 and essentially upheld on 3 December 2018 on the basis of more extensive information for the assessment being available – see paragraphs 12 and 14 above), Dr H. had concluded that the delusional disorder – diagnosed in concurrence with Dr W. – had not resulted in the applicant not being able to understand the wrongfulness of her actions and to act in accordance with that understanding at the time of committing the offence. The Supreme Court held that an application to obtain another expert opinion would thus only have a chance of success if it pointed out a deficiency in the expert opinion of Dr H., who had been consulted in the context of eliminating the deficiencies in Dr W.’s opinion. As those deficiencies were not substantiated in the application, the Supreme Court considered that it ultimately amounted to a “fishing expedition” (Erkundungsbeweisführung), which it held to be inadmissible. 21. On 10 July 2019 the Graz Court of Appeal dismissed the appeals by both the applicant and the public prosecutor’s office against the sentence, essentially on the grounds that the punishment imposed by the first-instance court was proportionate to the seriousness of the crime and the perpetrator’s fault and thus did not require any adjustment. It therefore confirmed the punishment of twelve years’ imprisonment. RELEVANT LEGAL FRAMEWORK AND PRACTICE
Criminal Code
22. Article 11 of the CC concerns the issue of incapacity in relation to criminal responsibility and reads, in so far as relevant, as follows:
“A person who, at the time of the offence, is incapable of recognising the wrongfulness of his or her act or of acting on the basis of such recognition because of mental illness, mental disability, profound disturbance of consciousness or another serious mental disorder equivalent to one of these conditions, does not act culpably.”
23. Confinement in an institution for mentally ill offenders as a preventive measure is dealt with in Article 21 of the CC, the relevant parts of which read as follows:
“(1) If a person commits an offence punishable with a term of imprisonment exceeding one year, and if the person cannot be punished for the sole reason that he or she committed the offence under the influence of a state of mind that excludes responsibility (Article 11) resulting from a serious mental or emotional disorder, the court shall order his or her confinement in an institution for mentally ill offenders, if in view of his or her mental state and condition, and the nature of the offence it is to be feared that he or she will otherwise, under the influence of the mental or emotional disorder, commit a criminal offence with serious consequences. (2) If such a fear exists, an order for confinement in an institution for mentally ill offenders shall also be made in respect of a person who, while not lacking responsibility, commits an offence punishable by a term of imprisonment exceeding one year under the influence of his or her severe mental or emotional disorder. In such a case the confinement shall be ordered at the same time as the sentence is passed.”
Code of Criminal Procedure
24. Article 127 of the CCP, concerning expert opinions, reads, in so far as relevant, as follows:
“(2) Experts shall give their findings and expert opinion lege artis and according to the best of their knowledge and conscience. They shall obey summonses from the public prosecutor’s office and the court, and answer questions during trials, questionings and reconstructions of the criminal act. (3) If the findings are inconclusive or the expert opinion is contradictory or otherwise deficient, or if the statements of two experts on the facts observed by them or the conclusions drawn from their observations are significantly contradictory, and the concerns cannot be resolved through questioning, a further expert shall be commissioned. In the event that it concerns the examination of psychological conditions and developments, an expert opinion shall be obtained by an expert with an authorisation to teach at a domestic or foreign university.”
In the practice of the domestic courts, an expert opinion requested under Article 127 § 3 of the CCP is often referred to as a decisive expert opinion (Obergutachten). 25. Article 321 of the CCP deals with instructions on legal issues (Rechtsbelehrung) and reads as follows:
“(1) After consultation with the other members of the jury court, the presiding judge shall draw up the instructions on legal issues to be given to the jurors. The document shall be signed by the presiding judge and attached to the record of the main hearing. (2) The instructions on legal issues shall contain – separately for each question – a statement of the legal characteristics of the offence to which the main or contingent question is directed, as well as an explanation of the legal terms in the individual questions, and shall clarify the relationship of the individual questions to each other as well as the consequences of an affirmative or negative answer to each question.”
26. The obligation to state in a short note (Niederschrift) the considerations on the basis of which the jurors have answered the questions put to them is detailed in Article 331 § 3 of the CCP, and reads as follows:
“(3) After the voting has ended, the foreman shall state in a short note, separately for each question, the considerations which the majority of the jurors have taken into account in answering that question. The notes shall be drawn up in agreement with the jurors and signed by the foreman.”
27. In accordance with Article 332 § 6 of the CCP, the notes detailing the jurors’ considerations as regards their answers to the questions put to them and referred to in Article 331 § 3 (see paragraph 26 above) shall be attached to the record of the main hearing. They must not be referred to in the verdict, in accordance with Article 342 of the CCP. 28. Article 344 of the CCP concerns legal remedies against verdicts of jury trials, which are pleas of nullity (to the Supreme Court) and appeals (against the sentence to the Court of Appeal). 29. Article 429 of the CCP concerns the procedure for the confinement of mentally ill criminal offenders in an institution under Article 21 § 1 of the CC (see paragraph 23 above) and reads, in so far as relevant, as follows:
“(1) If there are sufficient grounds for finding that the requirements of Article 21 § 1 of the Criminal Code are met, the public prosecutor’s office shall lodge an application for confinement in an institution for mentally ill criminal offenders ...
... (4) ... if the person concerned cannot remain at liberty without danger to himself or herself, or to others, or if medical observation is required, his or her temporary detention in an institution for mentally ill criminal offenders or admission to a public hospital for mental illnesses shall be ordered ...”
Domestic practice
30. According to the Supreme Court’s case-law relating to Article 127 § 3 of the CCP (see paragraph 24 above), in the event of diverging expert opinions, not only with regard to the methodological approach, but also to the deductions made from the findings, the trial court is obliged to eliminate the contradictions by questioning the experts and, in the event that the attempt to remedy deficiencies is unsuccessful, obtain a further expert opinion (see decision 11Os198/08i, 24 March 2009). 31. In addition, when requesting the involvement of a third expert, it is necessary to explain the points on which the information provided by the two experts has significantly differed, and to explain that a procedure to remedy the deficiencies has been unsuccessful (see decision 14Os19/19d, 9 April 2019). 32. However, this does not apply if the second expert opinion has already been obtained because of a deficiency in the first expert opinion resulting from the vagueness of the findings or from an inconsistency or other causes – which deficiency cannot be remedied by attempting the relevant procedure to do so (which must be carried out beforehand) – and no deficiency in the findings or the expert opinion of the second expert has been shown (see decision 12Os29/19k, 27 June 2019)
THE LAW
Preliminary question of locus standi
33. Mr Alois Gaggl, the late applicant’s husband and legal heir expressed his wish to continue the proceedings before the Court in the applicant’s stead (see paragraph 2 above). He submitted that he had a personal interest of his own that the proceedings before the Court be continued, in particular since he himself had been involved in the criminal offence and was still convinced that his wife had been in a state of insanity. 34. The Government did not dispute the standing of the applicant’s husband to pursue the application in her stead. 35. The Court notes that in various cases in which an applicant has died in the course of the Convention proceedings, it has taken into account the statements of the applicant’s heirs or of close family members expressing the wish to pursue the proceedings before the Court (see, among other authorities, Jėčius v. Lithuania, no. 34578/97, § 41, ECHR 2000‑IX; Pisarkiewicz v. Poland, no. 18967/02, §§ 30-33, 22 January 2008; and Ergezen v. Turkey, no. 73359/10, §§ 27-30, 8 April 2014). The Court has accepted that the next of kin or heir may in principle pursue the application, provided that he or she has sufficient interest in the case (see, for instance, Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 97, ECHR 2014). It is not only material interests which the successor of a deceased applicant may pursue by his or her wish to maintain the application. Human rights cases before the Court generally also have a moral dimension and persons near to an applicant may thus have a legitimate interest in ensuring that justice is done, even after the applicant’s death (see Malhous v. the Czech Republic (dec.) [GC], no. 33071/96, ECHR 2000-XII). In view of the above and having regard to the circumstances of the present case, in particular also the fact that although being the victim of the crime, Mr Alois Gaggl did not join the criminal proceedings at issue as a private party and specifically renounced his rights to compensation and to refuse testimony and instead testified in his wife’s favour (see paragraph 5 above), the Court accepts that he has a legitimate interest in pursuing the application in his late wife’s stead. However, for reasons of convenience, the text of this judgment will continue to refer to Ms Hildegard Gaggl as “the applicant” (see, for instance, Dalban v. Romania [GC], no. 28114/95, § 1, ECHR 1999 VI). ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
36. The applicant complained that she was criminally convicted on the basis of two contradictory expert opinions and that the domestic courts should thus have granted her application to obtain a third expert opinion and that she was not in a position to understand the reasons why the jury had followed one expert opinion but not the other, rendering her trial unfair. She also maintained that jury trials in Austria are incompatible per se with the Convention. Lastly, she complained that, in its decision on her plea of nullity, the Supreme Court had reproduced the opinion given by the Attorney General almost verbatim, arguing that this demonstrated that the Supreme Court was biased. The applicant relied on Article 6 § 1 of the Convention, the relevant part of which reads as follows:
“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal ...”
Admissibility
37. The Court will examine each complaint raised under Article 6 § 1 of the Convention separately. 38. First, as regards the applicant’s contention that jury trials in Austria are incompatible per se with the Convention, the Court observes that several Council of Europe member States have a lay jury system, guided by the legitimate desire to involve citizens in the administration of justice, particularly in relation to the most serious offences. The jury exists in a variety of forms in different States, reflecting each State’s history, tradition and legal culture; variations may concern the number of jurors, the qualifications they require, the way in which they are appointed and whether or not any forms of appeal lie against their decisions (see Taxquet v. Belgium [GC], no. 926/05, §§ 43-60, ECHR 2010). This is just one example among others of the variety of legal systems existing in Europe, and it is not the Court’s task to standardise them. A State’s choice of a particular criminal justice system is in principle outside the scope of the supervision carried out by the Court at European level, provided that the system chosen does not contravene the principles set forth in the Convention (see Taxquet, cited above, § 83, and Achour v. France [GC], no. 67335/01, § 51, ECHR 2006‑IV). Furthermore, in cases arising from individual petitions, the Court’s task is not to review the relevant law and practice in abstracto, but to determine whether the manner in which they affected the applicant gave rise to a violation of the Convention (see, among many other authorities, N.C. v. Italy [GC], no. 24952/94, § 56, ECHR 2002‑X). 39. The Court has thus already held that the institution of the lay jury as such cannot be called into question. The Contracting States enjoy considerable freedom in the choice of the means calculated to ensure that their judicial systems are in compliance with the requirements of Article 6 of the Convention. The Court’s task is to consider whether the method adopted to that end has led in a given case to results which are compatible with the Convention, while also taking into account the specific circumstances, the nature and the complexity of the case. In short, it must ascertain whether the proceedings as a whole were fair (see Taxquet, cited above, § 84, with further references). 40. It follows that the applicant’s complaint about the alleged non-compliance of jury trials in Austria with the Convention per se is manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and must be rejected in accordance with Article 35 § 4 of the Convention. 41. The Court will now turn to the applicant’s complaint that, in its decision on her plea of nullity, the Supreme Court was not impartial and independent as it had followed almost verbatim the opinion given by the Attorney General. The Court refers to its well-established case-law regarding the requirements of independence and impartiality of tribunals (see, among other authorities, Guðmundur Andri Ástráðsson v. Iceland [GC], no. 26374/18, §§ 218-234, 1 December 2020, and Findlay v. the United Kingdom, 25 February 1997, § 73, Reports of Judgments and Decisions 1997‑I). It notes that the applicant merely alleged that the Supreme Court had not formed its own opinion of her case, but did not produce any evidence in this respect. In the absence of other elements, the mere fact that the Supreme Court has agreed with and endorsed the position of the Attorney General cannot be seen as proof of bias; the applicant has therefore failed to demonstrate that her plea of nullity had not been duly considered by an independent and impartial tribunal. Consequently, this complaint is unsubstantiated and must be rejected as manifestly ill-founded in accordance with Article 35 §§ 3 (a) and 4 of the Convention. 42. Lastly, as regards the applicant’s complaint that her conviction was based on two contradictory expert opinions and that a third expert opinion should thus have been obtained and that the judgment lacked reasons as to why the jury had followed one expert opinion but not the other, rendering her trial unfair, the Court notes that this complaint is neither manifestly ill‑founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible. MeritsSubmissions by the parties

(a)   The applicant
43. The applicant maintained that her criminal trial had been unfair, as there had been two expert opinions which, although both confirming the same diagnosis attesting to the fact that she suffered from a delusional disorder, had however come to diametrically opposite conclusions as to whether she could be held criminally liable at the time of the events. Consequently, there was insufficient evidence to resolve the factual questions which were essential to the lay jurors’ decision. The domestic courts were thus under an obligation, under the first sentence of Article 127 § 3 of the CCP (see paragraph 24 above) to obtain a third expert opinion. However, in the present case, the domestic courts had interpreted the above-mentioned domestic law provision to the applicant’s detriment, while at the same time impairing the rights of the defence by taking the position that the public prosecutor’s office and defence counsel had not made sufficient objections to the expert opinion of Dr H., and that it had thus been correct for the domestic court to follow Dr H.’s view, without engaging a senior expert. 44. The applicant further submitted that that situation was aggravated by the domestic system of jury trials. She reiterated that she had not been given a copy of the written instructions on legal issues, as prepared by the professional judges for the lay jurors (see paragraph 16 above). Furthermore, lay jurors were not obliged to give reasons for their verdict. The applicant insisted that she had therefore not been in a position to understand the reasons for her conviction. In her view, neither of the two expert opinions had been shown to have been deficient, and consequently, a third and decisive expert opinion should have been ordered by the domestic courts. (b)   The Government
45. The Government argued that the second expert had been appointed in accordance with Article 127 § 3 of the CCP (see paragraph 24 above) after the attempt to remedy the deficient first expert opinion had failed. No objections having been raised in this regard, the domestic courts only had to ensure equality of arms with regard to the expert opinion prepared by Dr H. The Government contended that the applicant had had sufficient opportunity to challenge Dr H.’s expert opinion. Most importantly, she had had the opportunity to request a procedure to remedy any deficiencies in respect of the second expert opinion and, subsequently, to request the appointment of a third expert in the event that the second expert opinion was deficient or inconsistent. While she had indeed availed herself of that opportunity, she had failed to demonstrate such a deficiency in the second expert opinion. 46. As regards the applicant’s complaint concerning the lack of reasons in judgments given in jury trials, the Government submitted that there are sufficient procedural guarantees in place to ensure Convention compliance. They referred to the questions put to the lay jurors and the related written instructions on legal issues (see paragraphs 15-16 above), which were attached to the transcript of the trial hearing, as prescribed by law (see paragraph 25 above), and were thus accessible to the applicant. Furthermore, the two expert opinions and the differences between them were extensively addressed during the trial hearings, and the courts had explained the reasons for which the application for a third and decisive expert opinion had been dismissed. Given that Dr H.’s expert opinion had been the only one without deficiencies in the present case, it should have been clear to the applicant that the jurors would concur with his conclusions regarding her criminal liability. Moreover, the notes detailing the jurors’ considerations were clear, leaving no room for doubt as to their reasoning, and had been accessible to the applicant (see Articles 331 § 3 and 332 § 6 of the CCP, quoted in paragraphs 26-27 above). While the Government provided the Court with a copy of these notes, they also insisted that they be kept confidential and excluded from the general access to the file.

Outcome for Article 6: violation