AS TO THE ADMISSIBILITY OF

                      Application No. 26999/95

                      by R. W.-L.

                      against Austria

     The European Commission of Human Rights (First Chamber) sitting

in private on 14 January 1998, the following members being present:

           MM    M.P. PELLONPÄÄ, President

                 N. BRATZA

                 E. BUSUTTIL

                 A. WEITZEL

                 C.L. ROZAKIS

           Mrs   J. LIDDY

           MM    L. LOUCAIDES

                 B. MARXER

                 B. CONFORTI

                 I. BÉKÉS

                 G. RESS

                 A. PERENIC

                 C. BÎRSAN

                 K. HERNDL

                 M. VILA AMIGÓ

           Mrs   M. HION

           Mr    R. NICOLINI

           Mrs   M.F. BUQUICCHIO, Secretary to the Chamber

     Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

     Having regard to the application introduced on 22 March 1995 by

R. W.-L. against Austria and registered on 7 April 1995 under file

No. 26999/95;

     Having regard to:

-    the reports provided for in Rule 47 of the Rules of Procedure of

     the Commission;

-    the observations submitted by the respondent Government on

     8 January 1997 and the observations in reply submitted by the

     applicant on 10 March 1997;

     Having deliberated;

     Decides as follows:

THE FACTS

     The applicant, born in 1953, is an Austrian national, residing

in Vienna. In the proceedings before the Commission, he is represented

by Mr. M. Gnesda, a lawyer practising in Vienna.

     The facts of the case, as submitted by the parties, may be

summarised as follows.

A.   Particular circumstances of the case

     Since 1974 the applicant was working as a civil servant in the

technical services department of the Vienna Municipality. Since 1980

he was deployed to the Vienna Transport Authority (Verkehrsamt Wien)

where he served as an examiner for the drivers test.

     In 1993 the Vienna Regional Criminal Court (Landesgericht für

Strafsachen) opened criminal proceedings against the applicant on the

suspicion of abuse of authority (Amtsmißbrauch) and of accepting

presents as a civil servant (Geschenkannahme durch Beamte). He was

accused, together with others, of having received money for allowing

the driving instructors of two driving schools to manipulate the exam

papers for the drivers test in a way which allowed their candidates to

obtain the questions which they had chosen beforehand. Further, he was

accused of having taken money and other presents for drivers tests

which had been carried out correctly. In these and the following

proceedings the applicant was represented by counsel.

     On 22 February 1993 the Public Prosecutor's Office

(Staatsanwaltschaft) filed the indictment charging the applicant with

abuse of authority by having carried out manipulated drivers tests

between early 1991 and 15 January 1993 and of having received presents

as a civil servant during the same period of time. The total sum of

money received in relation to these charges was estimated at

ATS 96,000.

     On 19 January 1994 the Vienna Regional Criminal Court, sitting

as a court of two professional and two lay judges (Schöffengericht),

opened the trial against the applicant.

     At the beginning of the hearing the applicant admitted that he

had received money from driving instructors after having carried out

drivers tests. However, upon being questioned by the presiding judge,

he denied that the amount received was as high as he had previously

admitted. Thereupon, the presiding judge informed him that a confession

was an important mitigating circumstance and that the sentence in case

of a conviction could be so severe that it would entail his removal

from office (Amtsverlust). The applicant maintained his statement.

     According to the minutes, the presiding judge thereupon stated

that, thus, the applicant risked to be removed from office.

     According to the applicant, the presiding judge stated "In that

case, you will have to go polish shoes" ("Dann werden Sie Schuhe putzen

gehen müssen"). The Government refer to the formulation in the Regional

Court's decision of 30 May 1994 on the applicant's request for a

rectification of the minutes (see below), namely that "the presiding

judge had stated, that the applicant risked 'to go polish shoes'".

However no such remark was entered in the minutes.

     Immediately after the above statement, the applicant's counsel

challenged the presiding judge for bias. After having discussed the

matter in private for a few minutes, the court dismissed this motion

finding that the presiding judge was not biased.

     In the further course of the hearing the applicant's counsel

requested the taking of evidence, inter alia in order to show that the

applicant, when serving as an examiner at the Vienna Transport

Authority, had to be considered as an independent technical expert and

not as a civil servant or, in the alternative, that he was not aware

that he was acting as a civil servant and had, thus, not acted

intentionally. The court dismissed these requests.

     On 18 March 1994 the applicant filed a request for rectification

of the minutes. He claimed in particular that the presiding judge, in

the context of the retraction of his full confession, had told him that

he risked a sentence which was so severe that he would be removed from

office and that "in that case, he will have to go polish shoes".

However, the minutes did not record this statement.

     On 21 March 1994 the Regional Court held a further hearing.

Towards the end of the hearing the applicant's counsel repeated his

requests for the taking of evidence and also requested the hearing of

one further witness.

     In this context, the presiding judge stated that he was

"increasingly gaining the impression that defence counsel had not

understood the indictment". According to the minutes, the applicant's

counsel requested that the respective statement be recorded and

challenged the presiding judge for bias on the ground that such a

statement was contrary to an impartial way of conducting the

proceedings.

     After having deliberated in private for five minutes the court

dismissed this motion finding that there was no appearance that the

presiding judge was biased. Further, it dismissed the applicant's

requests for the taking of evidence.

     At the close of the hearing, the Vienna Regional Criminal Court

found the applicant guilty of the above charges and convicted him of

abuse of authority and of having accepted presents as a civil servant

and sentenced him to fourteen months' imprisonment, of which eleven

months were suspended on probation. Further, it noted that the

applicant had received altogether ATS 65,000 in the context of these

offences but - for reasons of equity - found that the imposition of a

fine of ATS 50,000 was sufficient.

     The court found that a civil servant within the meaning of the

Criminal Code (Strafgesetzbuch) was anyone, who was appointed as an

organ of the State and had to carry out acts of State jurisdiction. The

carrying out of drivers tests was such an act. The applicant, when

serving as an examiner, had to decide whether a candidate had shown the

required faculties for being granted a drivers licence. He had abused

his authority in that he had allowed driving instructors of two driving

schools to manipulate the exam papers in a way that their candidates

obtained questions they had chosen beforehand. Moreover, he had also

accepted money and other presents for drivers tests which had been

carried out correctly. When fixing the sentence, the court considered

as a mitigating circumstance the applicant's confession before the

police. However, it noted that no particular weight was to be attached

to this confession as the applicant had retracted it at the trial and

had constantly held the view that he had not received money for

manipulating exams but only because he was a lenient and fair examiner.

As he thereby displayed a lack of consciousness of guilt, only part of

the sentence was suspended on probation.

     On 30 May 1994 the Regional Court dismissed the applicant's

request for rectification of the minutes. It noted that the minutes

were not a verbatim record of the statements made but only had to

reflect their contents. It was correct that the presiding judge had

stated that the applicant risked "to have to go polish shoes", however,

this colloquial explanation had been meant to make it clear to the

applicant in a graphic manner what kind of a sentence he risked in case

of his conviction without the mitigating circumstance of a full

confession.

     On 29 June 1994 the applicant lodged a plea of nullity and an

appeal (Nichtigkeitsbeschwerde und Berufung) against the above

judgment. He claimed in particular that the presiding judge had been

biased. He had, on 19 January 1994, at the very beginning of the trial,

when the applicant had repeated his earlier confession as regards the

fact of having received money, but had retracted it as regards the

amounts received, told the applicant that he would have to polish

shoes, meaning that without the mitigating circumstance of a full

confession he risked a sentence which would entail his removal from

office. In these circumstances the statement was not only lacking

objectiveness, but was likely to intimidate the applicant. On

21 March 1994 the presiding judge had, after the applicant's counsel

had made a request for the taking of evidence, stated that he

increasingly had the impression that the latter had not understood the

indictment. Moreover, the applicant complained that the court had

dismissed his motions challenging the presiding judge for bias without

giving reasons. Further, the applicant complained that the court had

dismissed his requests for the taking of evidence.

     On 22 September 1994 the Supreme Court (Oberster Gerichtshof)

dismissed the applicant's plea of nullity and his appeal.

     It found that the refusal of the applicant's motions challenging

the presiding judge for bias did not necessitate lengthy explanations.

The contested statements were not suited to cast doubt on the presiding

judge's impartiality. The caution that the retraction of a confession

removed an important mitigating circumstance and might lead to a

severer sentence was as such legitimate, although the graphic wording

was contrary to S. 52 para. 2 of the Rules of Procedure for the Courts

of First and Second Instance (Geschäftsordnung der Gerichte erster und

zweiter Instanz - hereinafter Courts' Rules of Procedure). The

statement directed towards the applicant's counsel had been impolite

and was also contrary to the said provision, but did not warrant the

conclusion that the presiding judge was biased.

     As regards the refusal of the applicant's requests for the taking

of evidence, the Supreme Court found that they had concerned questions

of law, namely the question whether he was a civil servant, which had

to be decided by the court. As far as the applicant had wanted to prove

that he was not aware of being a civil servant and had thus not acted

intentionally, the request was irrelevant. For acting intentionally,

it was sufficient that the applicant was aware that the granting of

drivers licences was an act of State jurisdiction and that he as an

examiner held an official function. The Regional Court's findings of

fact supported the conclusion that the applicant had acted

intentionally.

     On 26 September 1994 the Vienna Municipality, referring to

S. 27 para. 1 of the Criminal Code (Strafgesetzbuch), took a

declaratory decision stating that the applicant had been removed from

office as of 22 September 1994. It noted that the applicant had been

convicted and sentenced to fourteen months' imprisonment and that the

judgment had become final on 22 September 1994.

B.   Relevant domestic law

Criminal Code (Strafgesetzbuch)

     S. 27 para. 1 provides that the pronouncement by a domestic court

of a sentence of imprisonment of more than one year for having

intentionally committed one or several offences shall, in the case of

a civil servant, entail his removal from office.

Rules of Procedure for the Courts of First and Second Instance

(Geschäftsordnung der Gerichte erster and zweiter Instanz)

     S. 52 para. 2 states that parties shall be dealt with in a

strictly impartial way, unless controversies shall be terminated by

reference to the tasks incumbent upon the court. The judge is not

supposed to enter into any arguments with the parties and their

representatives, to issue reprimands which are unrelated to procedural

behaviour, nor to express value judgments or make mocking remarks. It

is prohibited to make any statements about the possible outcome of a

case outside the hearings. During the hearing the judge shall refrain

from making remarks about the prospective contents of the decision; the

legal opinion of the judge and his view about the evidence may

transpire from the way of formulating questions, from suggestions to

reach a settlement; in such case, however, it must always be

perceivable that the judge is prepared to rectify his opinion in the

light of what turns out in the further course of the hearing.

COMPLAINTS

     The applicant complains under Article 6 of the Convention that

he did not have a fair trial by an impartial tribunal. He submits in

particular that the presiding judge at the Vienna Regional Criminal

Court told him at the beginning of the trial on 19 January 1994 that

he would have to go polish shoes, if he did not fully uphold his

confession, meaning that without the mitigating circumstance of a full

confession he risked a sentence which would entail his removal from

office. This statement was likely to intimidate an accused and created

the impression that the result of the proceedings had already been

determined. The presiding judge's statement directed to his counsel at

the hearing of 21 March 1994, namely that he had the impression that

the latter had not understood the indictment, also raised doubts as to

his impartiality. The applicant also claims that these statements were

in conflict with the presumption of innocence. Further, the applicant

complains that the Vienna Regional Criminal Court and the Supreme Court

failed to give reasons as regards the refusal of his motions

challenging the presiding judge for bias. Finally, he complains about

the refusal of his requests for the taking of evidence and that he has,

thus, been unable to show that he had not acted as a civil servant.

PROCEEDINGS BEFORE THE COMMISSION

     The application was introduced on 22 March 1995 and registered

on 7 April 1995.

     On 16 October 1996 the Commission decided to communicate the

applicant's complaint concerning the alleged lack of the presiding

judge's impartiality and his related complaint about a violation of the

presumption of innocence by certain statements made by the presiding

judge to the respondent Government.

     The Government's written observations were submitted on

8 January 1997. The applicant replied on 10 March 1997.

THE LAW

1.   The applicant raises a number of complaints under Article 6

(Art. 6) of the Convention relating to the criminal proceedings against

him. Firstly, he complains  that the presiding judge made statements

which cast doubt on his impartiality and violated the presumption of

innocence. Further, he submits that the courts failed to give reasons

as regards the refusal of his motions challenging the presiding judge

for bias. Finally, he complains about the refusal of his requests for

the taking of evidence.

     Article 6 (Art. 6), so far as relevant, reads as follows:

     "1.   In the determination of ... any criminal charge against

     him, everyone is entitled to a fair ... hearing ... by an

     independent and impartial tribunal ...

     2.    Everyone charged with a criminal offence shall be presumed

     innocent until proved guilty according to law. "

2.   As to the applicant's complaint about the alleged lack of the

presiding judge's impartiality, the Government submit that the impugned

statements were not suited to raise doubts as to the complete

impartiality of the presiding judge.  As to the first statement, the

Government argue that the judge only discharged his duties when

cautioning the applicant that the withdrawal of a confession would

remove a mitigating circumstance and might thus lead to a sentence

which would entail his removal from office. They submit that the

graphic wording chosen, though inappropriate and in breach of

S. 52 para. 2 of the Courts' Rules of Procedure, was only intended to

make the applicant vividly aware of this possibility. As to the second

statement, directed against counsel for the defence, the Government

again concede that it was impolite and contrary to the Courts' Rules

of Procedure, but argue that it has to be seen in the context of the

justified refusal of counsel's requests for the taking of evidence. In

conclusion, the Government, referring to case-law of the Convention

organs, argue that a derogatory remark or a statement anticipating the

outcome of the proceedings does not constitute a violation of Article 6

(Art. 6) as long as the accused is not prevented from conducting his

defence. They argue that the applicant, despite the graphic warning,

pleaded not guilty and defence counsel was able to carry out his

defence unimpeded. Moreover, the presiding judge did nothing in the

proceedings which would justify the conclusion that he had already

determined the result of the proceedings beforehand.

     As to the alleged violation of the presumption of innocence, the

Government submit that Article 6 para. 2 (Art. 6-2) relates to the

attitude in which judges carry out their task. In particular, they

should not approach their task with the assumption that the accused

actually committed the crime he is charged with. In the present case,

they argue, that there is no indication that the presiding judge

nourished such an assumption. Despite its graphic wording, the

statement relating to the possible consequence of removal from office

has to be understood as a conditional clause, i.e. that in case of a

conviction, the determination of the sentence would be influenced by

the fact whether the confession had been maintained or retracted.

Moreover, the Government point out that the judgment evaluated the

evidence, including the applicant's confession and its partial

retraction, in an impartial manner.

     The applicant contests the Government's view as regards the

question of the presiding judge's impartiality. He emphasizes that the

first statement was made immediately after he had admitted to having

received money in the context of drivers tests but had retracted his

confession as regards the amounts. He considers that the announcement

that in that case he would have to go polish shoes, had nothing to do

with a correct caution of an accused by the judge but was an outright

threat that if he did not fully uphold his confession including the

exact sum of money received, he would with certainty receive a sentence

which would entail his removal from office. The applicant also points

out that the sum finally established in the judgment was considerably

lower than in the indictment and that he nevertheless received a

sentence which resulted in his removal from office. This confirmed his

impression which had been created by the presiding judge's first

statement, namely that the result of the proceedings had already been

determined at their very beginning. He also claims that this statement

in fact put severe pressure on him and impeded his defence throughout

the whole trial.

     The applicant equally contests the Government's view as regards

the alleged violation of the presumption of innocence, arguing that it

is meant to protect the accused inter alia against a judge's

partiality. He argues that the presiding judge's remark not only showed

contempt for him but contained the threat that, in case he did not

maintain his full confession, he would receive a sentence which would

entail his removal from office. Thus, it showed that the presiding

judge was convinced of his guilt from the very beginning of the

proceedings and, therefore, was contrary to the presumption of

innocence.

     The Commission considers, in the light of the parties'

submissions, that this part of the case raises complex issues of law

and of fact under the Convention, the determination of which should

depend on an examination of the merits. The Commission concludes,

therefore, that this part of the application is not manifestly ill-

founded, within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention. No other grounds for declaring it inadmissible have been

established.

3.   The applicant further complains that the courts failed to give

reasons for their rejection of his motion challenging the presiding

judge for bias.

     The Commission recalls that while Article 6 para. 1 (Art. 6-1)

obliges the courts to give reason for their judgments, it cannot be

understood as requiring a detailed answer to every argument adduced

(Eur. Court HR, Helle v. Finland judgment of 19 December 1997, para.

55, to be published in Reports 1997; No. 10938/84, Dec. 9.12.86, D.R.

50, p. 98 at p. 114; No. 10857/84, Dec. 15.7.86, D.R. 48, p. 106 at

p. 150).

     In the present case, the Regional Court upon rejecting the

applicant's motions, only stated that it found no appearance of bias

on part of the presiding judge. However, the Supreme Court, dealing

with each of the two impugned statements separately, briefly stated

reasons for its opinion that neither of these statements supported the

conclusion that the presiding judge was biased. In these circumstances

the Commission finds that the courts gave sufficient reasons for

rejecting the applicant's motions of bias.

     It follows that this part of the application is manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

4.   Finally, the applicant complains about the refusal of certain

requests for the taking of evidence.

     The Commission recalls that the admissibility of evidence is

primarily governed by the rules of domestic law, and as a general rule

it is for the national courts to assess the evidence before them,

whereas it is for the Convention organs to ascertain whether the

proceedings considered as a whole, including the way in which the

evidence was submitted, were fair (Eur. Court HR, Lüdi v. Switzerland

judgment of 15 June 1992, Series A no. 238, p. 20, para. 43).

     The Commission notes that the applicant's requests for the taking

of evidence were aimed at showing that he, when serving as an examiner

for the drivers test had not acted as a civil servant. They were

rejected on the ground that they concerned questions of law. There is

not indication that the applicant, assisted by counsel, could not duly

forward evidence in his defence or that the proceedings were otherwise

unfair.

     It follows that this part of the application is also manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

     For these reasons, the Commission, unanimously,

     DECLARES ADMISSIBLE, without prejudging the merits, the

     applicant's complaints that the presiding judge made statements

     which cast doubt on his impartiality and violated the presumption

     of innocence;

     DECLARES INADMISSIBLE the remainder of the application.

  M.F. BUQUICCHIO                              M.P. PELLONPÄÄ

     Secretary                                    President

to the First Chamber                         of the First Chamber