AS TO THE ADMISSIBILITY OF

                      Application No. 29808/96

                      by Erich WITT

                      against Austria

     The European Commission of Human Rights (First Chamber) sitting

in private on 4 July 1997, the following members being present:

           Mrs. J. LIDDY, President

           MM.  E. BUSUTTIL

                A. WEITZEL

                C.L. ROZAKIS

                L. LOUCAIDES

                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 7 November 1995

by Erich WITT against Austria and registered on 15 January 1996 under

file No. 29808/96;

     Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

     Having deliberated;

     Decides as follows:

THE FACTS

     The applicant is an Austrian national, born in 1918 and residing

in Vienna. Before the Commission he is represented by MM. Toth, Themmer

and Prunbauer, lawyers practising in Vienna.

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

summarised as follows.

     The applicant was one of three managing directors of the Sch.

private company (Gesellschaft mit beschränkter Haftung). This company

was founded by the applicant and his wife - the latter representing

another company of the Sch. Group - in the beginning of April 1988 with

a share capital of ATS 1 million. Subsequently the applicant held 95%

of the shares as a trustee for a holding company.

     On 29 April 1988 the Sch. company - as a leaseholder - concluded

a lease contract with the Sch.K. private company - as a lessor - owned

by the applicant and his family, concerning the lease of production and

distribution facilities. This contract obliged the Sch. company to pay

yearly a fixed rent of ATS 5 million as well as a turnover related rent

and to make yearly investments of ATS 3 million. Furthermore the Sch.

company acquired the existing stocks for which it had to pay

ATS 19,4 millions.

     At the starting up of its operation the Sch. company was granted

a credit of ATS 8 million by an Austrian bank. When it became evident

that the Sch. company would suffer a loss in the first year, the

managing director B.W. initiated a new credit arrangement with the same

bank. In the beginning of November 1988 the Sch. company and three of

its sister companies guaranteed mutually a maximum credit of

ATS 30 million and declared themselves jointly and severally liable.

     Soon thereafter the Sch. company faced again financial

difficulties and suffered continuous losses. On 28 November 1989 the

bank cancelled the credit contract of November 1988 in accordance with

its general conditions on credits (Allgemeine Kreditbedingungen).

     On 14 December 1989 bankruptcy proceedings were commenced against

the Sch. company. The total claims of the creditors amounted to

ATS 130 million, of which ATS 40 million were recognised by the trustee

in bankruptcy (Konkursverwalter).

     On 22 March 1990 a creditor reported the applicant to the Vienna

Public Prosecutor's Office. Subsequently the Public Prosecutor's Office

conducted preliminary investigations against the applicant on the

suspicion of having committed the offence of ordinary bankruptcy

(fahrlässige Krida). The applicant was questioned by the police which

filed its report on 26 July 1990.

     On 9 November 1990, in the course of judicial preliminary

investigations (Voruntersuchung), the applicant was questioned by an

investigating judge at the Vienna Regional Criminal Court

(Landesgericht für Strafsachen).

     On 29 September 1991 the court expert A.S., a tax consultant and

accountant, submitted his report.

     On 18 December 1992 the Public Prosecutor's Office filed a bill

of indictment (Strafantrag) against all three managing directors of the

Sch. company, charging them with ordinary bankruptcy.

     On 3 March 1993, 12 May 1993, 1 December 1993 and 15 December

1993 hearings in the trial against the applicant and his co-accused

took place before the Vienna Regional Criminal Court. The court heard

the three accused, a number of witnesses, including the applicant's

wife and former employees of the Sch. company, as well as the court

expert A.S. In these and the subsequent proceedings the applicant was

assisted by counsel.

     At the hearing of 1 December 1993 the witness M.K. was heard, who

had been the tax consultant of the companies leasing the production and

distribution facilities prior to and subsequent to the Sch. company.

The applicant and the court expert questioned the witness extensively

on the average operating results of the predecessor companies. When the

applicant's counsel asked the witness whether the years 1984/1985

quoted in the expert opinion represented an atypical operating result,

the judge excluded this question on the ground that it referred to the

conclusions of the court expert and that M.K. was heard as a witness,

but not as an expert. For the same reason the judge did not admit

documentary evidence submitted by the applicant, which contained a list

of the operating results of the predecessor companies. This list had

been drawn up by M.K. and formed part of a private expert opinion,

which the judge had already earlier refused to admit. A further set of

questions put to the witness concerned the financial obligations

resulting from the lease contract of the predecessor companies as well

as the investments made by these companies. The court refused, however,

to admit any questions concerning the successor company as being

irrelevant to the proceedings.

     According to the minutes, the applicant's counsel thereupon

challenged the judge for bias on the ground that he had stated that he

was "not interested in these questions" and had, thus, displayed an

unobjective attitude against the applicant. The applicant further

alleges that the judge announced that he would withdraw from him the

right to put questions, when his counsel tried to explain the

importance of the questions at issue.

     The next witness heard was W.W., who had prepared a private

expert opinion for the applicant. The applicant asked what conclusions

he drew from the facts as established by the court expert and whether

the rent paid by the Sch. company was adequate. The judge refused to

admit these questions on the ground that W.W. was heard as a witness

and not as an expert.

     Subsequently, the court expert A.S. was heard. He summarized his

written expert opinion and supplemented it on the basis of the

questions asked during the hearing. He came to the conclusion that the

Sch. company had from the beginning of its operations had no positive

prospects of existence, as it lacked sufficient resources of its own,

had entered into a lease contract the conditions of which were too

strict and had had unrealistic and unfounded expectations as regards

turnover. The judge as well as counsel for the defence questioned the

court expert extensively on the factual basis of his opinion as well

as on the conclusions drawn. Further, the applicant's counsel

confronted him with the applicant's defence, according to which the

Sch. company had never been insolvent. He argued that, as its sister

companies belonging to the same group had guaranteed the credit granted

by the bank, this credit or rather the claims of the sister companies

had to be considered as "shareholder credit replacing own resources"

(eigenkapitalersetzendes Gesellschafterdarlehen), i.e. as claims which

are excluded as claims in bankruptcy. However, the judge refused to

admit any questions concerning the notion of "shareholder credit

replacing own resources" on the ground that these referred to the legal

assessment of the facts to be made by the court. Since the judge did

not admit any questions in this respect and interrupted the applicant's

counsel several times when formulating the questions, the latter again

challenged the judge for bias.

     The judge did not decide during the hearing on the motions

challenging him for bias. After terminating the taking of evidence he

decided to adjourn the hearing in order to await the decision by the

President of the Vienna Regional Criminal Court. He fixed 15 December

1993 as date for the pronunciation of the judgment, dismissing the

applicant's request for postponement.

     On 9 December 1993 the Acting President of the Regional Court

dismissed the motion challenging the judge for bias. He noted the

applicant's allegations that the judge had stated that he was not

interested in the questions asked by the applicant's counsel and that

the judge disregarded the case-law of the Supreme Court regarding the

principles on "shareholder credit replacing own resources". He also

noted the applicant's further complaints about the refusal of his

request to postpone the hearing, the refusal to admit certain questions

and to take documentary evidence and the judge's reasoning in a

decision dismissing the applicant's request for a rectification of the

record, namely that "the defence had obviously got hold of a version

of the record which did not correspond to the official version as

authorised by the judge". He further noted that the judge did not

consider himself to be biased. In particular the judge had stated that

the reasons for refusing questions were given in the minutes and that

the applicant's counsel had tried to explain his motives for several

questions "off the record", whereupon he had told him that explanations

which were not meant to be recorded could not interest the court.

Further, he had refused to postpone the hearing of 15 December 1993 as

the proceedings had already lasted for a considerable time.

     The Acting President of the Regional Court found that there was

no appearance of bias in the present case. The wording in the decision

of 13 October 1993 relating to the request for rectification of the

record may not have been polite, but was not directed against the

applicant and did not bear out a challenge of bias. Further, it was in

the judge's discretion to refuse questions or evidence which he

considered irrelevant. In case he held a wrong legal view, this point

could be raised in the appeal proceedings. Finally, given the work load

of the courts and the need to conduct proceedings speedily, the fact

that the judge had refused to postpone a hearing was not such as to

cast doubt on his impartiality.

     On 15 December 1993 the Regional Court convicted the applicant

of ordinary bankruptcy, finding that he had negligently caused the

insolvency of the Sch. company by starting the business without

sufficient equity capital and by disproportionately raising credit and

that he had negligently failed to file a bankruptcy petition in time.

Further it convicted him of fraudulent preference of creditors

(Gläubigerbegünstigung). The Court sentenced the applicant to nine

months' imprisonment suspended on probation for three years. The

written judgment was served on 16 December 1993.

     On 30 December 1993 the applicant filed an appeal on questions

of law and fact and against sentence (Berufung wegen Nichtigkeit,

Schuld und Strafe) with the Vienna Court of Appeal (Oberlandesgericht).

     In his appeal on questions of law the applicant complained, in

particular, that the judge at the Vienna Regional Court had been biased

against him. In addition to the reasons already relied on, he claimed

that the judge had already proved to be biased before the hearing of

1 December 1993. For instance, the expert opinion of A.S. had been

published in an Austrian magazine, in February 1992, before the

applicant knew of it. Nevertheless the appointment of a second expert

was refused. The judge had refused to admit the private expert opinion

of W.W. although it had already been taken to the file and the court

expert had referred to it when supplementing his opinion. He had

equally refused to admit a legal expert opinion on the question of

"shareholder credit replacing own resources". Besides this the judge

dismissed a request to postpone a hearing in March 1993. When the

applicant's counsel had, in May 1993, wanted to make notes of a

telephone conversation with the judge, the judge had rudely stated that

this was not necessary and that he was not obliged to have telephone

conversations with the applicant's counsel. At the hearing of 12 May

1993 the judge had refused a number of questions and finally he had

refused his subsequent request for rectification of the record. The

applicant further submitted that the President of the Regional Court,

who had dismissed his motion challenging the judge for bias was not

competent to decide on this motion. Besides this he claimed that the

judge's refusal to admit several questions and some documentary

evidence, including a private expert opinion, had violated his right

to a fair trial.

     In his appeal on questions of fact the applicant contested, in

detailed submissions, the Regional Court's finding of fact.

     On 9 May 1995 the Court of Appeal confirmed the judgment of the

Regional Court as to the conviction for ordinary bankruptcy, but

quashed the judgment as to fraudulent preference of creditors and

sentenced the applicant to seven months' imprisonment suspended on

probation for three years.

     As regards the alleged lack of impartiality of the judge, the

Court of Appeal found that this did not constitute a ground of nullity

under the Code of Criminal Procedure (Strafprozeßordnung). In any case,

the complaint was unjustified on the merits as the applicant had not

substantiated in which way the alleged conduct of the judge would have

been capable of casting doubt on his impartiality and objectivity. The

Court admitted that not the President of the Regional Court but the

challenged judge himself would have been competent to decide on a

motion for bias made in the course of the hearing. The Court

nevertheless found that the infringement of this procedural requirement

had no impact on the final outcome of the decision dismissing the

motion, as the judge had stated that he did not consider himself to be

biased.

     As regards the court's refusal to admit several questions and

documentary evidence the Court of Appeal stated that the refusal had

not impaired the applicant's defence rights, since the questions and

document at issue did not concern any relevant facts. In particular,

as regards the questions in relation to the predecessor and successor

companies asked to the witness M.K., the Court of Appeal noted that the

Regional Court had admitted all questions as far as they concerned the

relevant facts and had rightly excluded questions concerning

conclusions to be made by the court expert or hypothetical questions.

The court expert A.S. had been in the possession of all relevant

documents to make the necessary conclusions and had supplemented his

opinion on the basis of the questions asked during the hearing. Also

the refusal to accept as evidence an opinion established by the private

expert W.W. and to admit the corresponding questions did not impair the

applicant's rights of defence. In particular, A.S. had conclusively

explained differences between his approach and the approach of W.W. at

the trial. As to the refusal to admit questions and an expert opinion

concerning the so-called "shareholder credit replacing own resources",

the Court of Appeal found that the Regional Court had rightly

considered them to be legally irrelevant.

     As regards the appeal on questions of fact, the Court of Appeal,

examining in detail the applicant's submissions, found that the

Regional Court had correctly assessed all the evidence before it.

COMPLAINTS

1.   The applicant complains under Article 6 of the Convention about

the criminal proceedings against him. Firstly, he submits that his

defence rights were unduly restricted. In particular, at the hearing

of 1 December 1993 the court excluded several questions to be put to

the witnesses M.K. and W.W. and to the court expert A.S. Further, it

did not admit as evidence a legal expert opinion, an opinion

established by a private expert and documentary evidence established

by the witness M.K. Secondly, the applicant complains that the judge

at the Regional Court was biased against him. He refers again to the

refusal to admit questions and evidence at the hearing of

1 December 1993, claiming that the judge stated that he was not

interested in the applicant's questions, interrupted the defence when

formulating questions and announced several times that he would

withdraw from the applicant the right to put questions. He also recalls

his further complaints relating to events prior to the hearing of

1 December 1993 as submitted in his appeal. Further, he complains that

the judge refused to postpone the hearing of 15 December 1993.

Moreover, he complains that the decision dismissing his motions

challenging the judge for bias had not been taken by the competent

body, that is by the challenged judge himself, but by the President of

the Regional Court.

2.   The applicant also complains under Article 6 of the Convention

that the criminal proceedings against him lasted unreasonably long.

THE LAW

1.   The applicant complains under Article 6 (Art. 6) of the

Convention that the criminal proceedings against him concerning charges

of ordinary bankruptcy were unfair and that the judge at the Regional

Court lacked impartiality.

     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 within a reasonable

     time by an independent and impartial tribunal established by law.

     ...

     3.    Everyone charged with a criminal offence has the following

     minimum rights:

           ...

           d.   to examine or have examined witnesses against him and

     to obtain the attendance and examination of witnesses on his

     behalf under the same conditions as witnesses against him."

a.   The applicant submits that the court restricted his right to put

questions to several witnesses and to the court expert and refused to

admit certain pieces of documentary evidence proposed by him.

     The Commission recalls in this respect 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. The Convention organs' task is to ascertain whether the

proceedings, considered as a whole, were fair. The Commission further

recalls that the requirements of paragraph 3 of Article 6 (Art. 6-3)

represent particular aspects of the right to a fair trial guaranteed

in paragraph 1. It will therefore examine the complaint from the point

of view of these two provisions taken together (Eur. Court HR, Lüdi v.

Switzerland judgment of 15 June 1992, Series A no. 238, p. 20,

para. 43).

     The Commission notes that the Regional Court took as evidence the

opinion of a court expert and heard a number of witnesses. The

applicant, assisted by defence counsel, had adequate opportunity to

examine the witnesses and the court expert, who dealt with the

questions raised during the trial and supplemented his opinion

accordingly. The court found the expert opinion conclusive. It refused

to appoint a further expert and to admit a private expert opinion. As

far as questions were excluded or documentary evidence not taken the

court gave reasons as to why it considered them irrelevant from a

factual or legal point of view. The Court of Appeal, dealing with the

applicant's arguments in detail, found that the Regional Court's taking

of evidence had been correct and also confirmed its assessment of

evidence.

     Having regard to all the circumstances of the case, the

Commission finds no reasons to conclude that the trial court's taking

of evidence was incompatible with Article 6 (Art. 6) of the Convention.

b.   The applicant complains further that the judge at the Regional

Court was biased against him and that the decision dismissing his

motions challenging the judge for bias was not taken by the competent

organ.

     The Commission recalls that the existence of impartiality for the

purpose of Article 6 para. 1 (Art. 6-1) must be determined according

to a subjective test, that is on the basis of the personal conviction

of a particular judge in a given case, and also according to an

objective test, that is ascertaining, whether the judge offered

guarantees sufficient to exclude any legitimate doubt in this respect

(Eur. Court HR, Fey v. Austria judgment of 24 February 1993, Series A

no. 255-A, p. 12, para. 28).

     The applicant submits again that the judge, at the hearing of

1 December 1993 refused several questions to be put to the witnesses

and the court expert and did not admit certain pieces of documentary

evidence. Having regard to its above findings, the Commission considers

that these submissions do not suffice to put the impartiality of the

judge into doubt. The applicant's further allegations, namely that the

judge stated that he was not interested in the applicant's questions,

interrupted his counsel when formulating questions and announced that

he would withdraw the right to put questions from him have to be seen

in this context. The fact that the judge prevented the defence from

putting or repeating questions he refused to admit cannot, in the

Commissions view, bear out a challenge of bias. Nor are the applicant's

further submissions relating to events prior to the hearing of

1 December 1993 and to the judge's refusal to postpone the hearing of

15 December 1993 such as to cast doubt on the judge's impartiality.

     Finally, the applicant complains that the decision concerning his

motions challenging the judge for bias was taken by the President of

the Regional Court and not by the challenged judge himself. The

Commission notes the decision by the Court of Appeal, finding that the

infringement of this procedural requirement had no impact on the result

of the decision. As the applicant did not show in what respect this

decision entailed any negative consequences, the Commission finds that

also this part of the complaint does not raise any concerns as to the

impartiality of the judge or the fairness of the proceedings as a

whole.

     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.

2.   The applicant complains under Article 6 (Art. 6) of the

Convention that the criminal proceedings against him lasted

unreasonably long.

     The Commission considers it cannot, on the basis of the present

state of the file, determine the admissibility of this complaint and

that it is necessary, in accordance with Rule 48 para. 2 (b) of the

Rules of Procedure, to give notice of the complaint concerning the

length of these proceedings to the respondent Government.

     For these reasons, the Commission

     DECIDES TO ADJOURN the examination of the applicant's complaint

     concerning the length of the criminal proceedings against him

     and,

     unanimously,

     DECLARES INADMISSIBLE the remainder of the application.

     M.F. BUQUICCHIO                             J. LIDDY

        Secretary                                President

   to the First Chamber                     of the First Chamber