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.  
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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.  
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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.  
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