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issued by the Registrar of the Court   ECHR 176 (2017)   01.06.2017   Defence rights of a politician and two bank managers were not breached   in criminal proceedings brought against them for breach of trust   In today’s Chamber judgment1 in the case of J.M. and Others v. Austria (nos. 61503/14, 61673/14,   and 64583/14) the European Court of Human Rights held, unanimously, that there had been:   no violation of Article 6 §§ 1 and 3 (d) (right to a fair trial and right to obtain attendance and   examination of witnesses) of the European Convention on Human Rights.   The case concerned the sale of shares of an Austrian bank and the subsequent proceedings brought   against a politician and two managers of the bank (the applicants) for breach of trust consisting of a   six million euro payment made to a financial consultant for his role in the sale. The sale was at the   centre of much media controversy in Austria and led to parliamentary enquiries.   The applicants essentially argued that the proceedings leading to their convictions had been unfair.   They submitted in particular that the only official expert who had given evidence at their trial had   been biased because of his involvement in the preliminary investigation against them, meaning that   he had effectively been a witness for the prosecution and that they had been placed at a   disadvantage during the proceedings (in breach of the principle of equality of arms).   The Court found that the applicants’ doubts as to the impartiality of the official expert had not been   justified. Any risk of a breach of the principle of equality of arms had been counterbalanced by   specific procedural safeguards. In particular, the applicants had had the possibility to challenge the   expert for bias and have their allegations examined in substance, even if they had ultimately been   dismissed as unfounded. Moreover, the defence had been able to rely on the assistance of privately   commissioned experts when questioning the expert during the applicants’ trial or formulating   requests for the taking of evidence. Thus, the applicants had had a reasonable opportunity to   present their case and had not been placed at substantial disadvantage vis-à-vis the prosecution. As   concerned the expert himself, he was a professor of law who was not employed by the public   prosecutor’s office and who had had no active role in the trial. Finally, it had not been his evidence   that had been decisive for the applicants’ conviction, but a confession by the financial consultant.   Principal facts   The applicants are J.M., Hans Jörg Megymorez, and Gert Xander. They are Austrian nationals born in   1959, 1970, and 1964 respectively and live in Klagenfurt-Wölfnitz (Austria) (Mr Megymorez) and   Maria Wörth (Austria) (Mr Xander). Between 2004 and 2012, J.M. was Minister of the Regional   Government of Carinthia. Mr Megymorez and Mr Xander were managers of Landes-und   Hypothekenbank, and board members of Hypothekenbank-Holding, a holding company that owned   shares in the bank.   In 2007, Hypothekenbank-Holding sold a significant portion of its shares in Landes-und   Hypothekenbank to another bank. A financial consultant was given a contract for taking part and   1. Under Articles 43 and 44 of the Convention, this Chamber judgment is not final. During the three-month period following its delivery,   any party may request that the case be referred to the Grand Chamber of the Court. If such a request is made, a panel of five judges   considers whether the case deserves further examination. In that event, the Grand Chamber will hear the case and deliver a final   judgment. If the referral request is refused, the Chamber judgment will become final on that day.   Once a judgment becomes final, it is transmitted to the Committee of Ministers of the Council of Europe for supervision of its execution.   Further information about the execution process can be found here: www.coe.int/t/dghl/monitoring/execution.   supervising the negotiations of the sale. The applicants were involved in the consultant’s   appointment and the payment to him of what eventually amounted to six million euros.   As there was a suspicion that that sum did not correspond to what the consultant had actually   contributed to the negotiation process, criminal proceedings were subsequently opened against the   consultant and the applicants for breach of trust and fraud. During the ensuing preliminary   investigation the public prosecutor appointed an expert to submit a report on what would have   been a reasonable payment for the consultant’s services. The expert concluded that no more than   200,000 euros (EUR) would have been justified for the consultant’s work. In 2012 the public   prosecutor thus drew up a bill of indictment against the consultant and the applicants charging them   with breach of trust.   During the applicants’ ensuing trial the same expert from the preliminary investigation was   appointed an official expert. He submitted a written report and was questioned by the trial court   and the parties. During this questioning, an expert commissioned by the defence sat next to the   applicants’ lawyers and advised them, but was not allowed to question the expert on his own. The   applicants requested that private experts be heard to counter the findings of the official expert, but   their requests were rejected. They also challenged the official expert for bias, without success. In   particular, their allegations as to his bias and lack of competence in their case were examined but   dismissed as unfounded. After several hearings, the financial consultant, agreeing with the findings   of the official expert, confessed that his services had not been worth the amount paid and that both   Mr Megymorez and Mr Xander had been aware that his fee had been unreasonable.   In October 2012 the Klagenfurt Regional Court found that the applicants had been party to a breach   of trust, essentially on the basis of the consultant’s confession. The court held that the true value of   the consultant’s services had been 300,000 euros. The Regional Court thus convicted Mr Megymorez   and Mr Xander for breach of trust for authorising the payment, and convicted J.M. for abetting   breach of trust by ordering the payment. The applicants and their co-accused were given jail terms   and ordered to repay EUR 4,765,193 plus interest to the holding company.   The applicants’ plea of nullity was ultimately dismissed by the Supreme Court in 2014.   Complaints, procedure and composition of the Court   Relying on Article 6 §§ 1 and 3 (d) (right to a fair trial and right to obtain attendance and examination   of witnesses), all of the applicants complained that they had been subjected to an unfair trial. They   argued that the only official expert who had given evidence at trial had been the expert who had   identified alleged wrongdoing by them in the preliminary investigation and, as such, he had been a   witness for the prosecution. The applicants further argued that they had not been allowed to adduce   their own expert evidence, or effectively challenge the court appointed expert for bias: meaning that   the principle of equality of arms had been breached.   The applications were lodged with the European Court of Human Rights in September 2014.   Judgment was given by a Chamber of seven judges, composed as follows:   Angelika Nußberger (Germany), President,   Nona Tsotsoria (Georgia),   André Potocki (France),   Yonko Grozev (Bulgaria),   Mārtiņš Mits (Latvia),   Gabriele Kucsko-Stadlmayer (Austria),   Lәtif Hüseynov (Azerbaijan),   and also Milan Blaško, Deputy Section Registrar.   Decision of the Court   The Court reiterated that if a bill of indictment was based on the report of an expert appointed in   the preliminary investigations by the public prosecutor, the appointment of the same person as   expert by the trial court, as in the applicants’ case, could risk a breach of the principle of equality of   arms.   However, the applicants’ doubts as to the impartiality of the official expert had not been objectively   justified because any risk of a breach of the principle of equality of arms had been counterbalanced   by specific procedural safeguards.   In particular, as concerned the official expert himself: a professor of law at a university in Germany,   he was not employed by the public prosecutor’s office, his remuneration did not depend on whether   the accused were convicted or not, he did not play any active role in the trial and he was under a   strict legal obligation to be objective. Nor did the applicants object to his appointment or show that   his conduct in the trial gave reason to doubt his impartiality. Finally, it had not been his evidence   that had been decisive for the applicants’ conviction, but the consultant’s confession.   Furthermore, the applicants had had the possibility to challenge the expert for bias and have their   allegations examined in substance, even if they had ultimately been dismissed as unfounded.   Moreover, the defence had been able to rely on the assistance of privately commissioned experts   when questioning the official expert during the trial or formulating requests for the taking of   evidence; there had therefore been sufficient means to effectively defend the applicants’ case. Thus,   the applicants had had a reasonable opportunity to present their case and had not been placed at   substantial disadvantage vis-à-vis the prosecution.   Accordingly, there had been no breach of the principle of equality of arms in the criminal   proceedings brought against the applicants and no violation of Article 6 §§ 1 and 3 (d).   The judgment is available only in English.   This press release is a document produced by the Registry. It does not bind the Court. Decisions,   judgments and further information about the Court can be found on www.echr.coe.int. To receive   the Court’s press releases, please subscribe here: www.echr.coe.int/RSS/en or follow us on Twitter   @ECHRpress.   Press contacts   [email protected] | tel.: +33 3 90 21 42 08   Tracey Turner-Tretz (tel: + 33 3 88 41 35 30)   Denis Lambert (tel: + 33 3 90 21 41 09)   Inci Ertekin (tel: + 33 3 90 21 55 30)   George Stafford (tel: + 33 3 90 21 41 71)   The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member   States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights.   3