AS TO THE ADMISSIBILITY OF

                      Application No. 28867/95

                      by M. K.

                      against Austria

     The European Commission of Human Rights (First Chamber) sitting

in private on 2 July 1997, the following members being present:

           Mrs.  J. LIDDY, President

           MM.   M.P. PELLONPÄÄ

                 E. BUSUTTIL

                 A. WEITZEL

                 C.L. ROZAKIS

                 L. LOUCAIDES

                 B. CONFORTI

                 N. BRATZA

                 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 23 August 1995 by

M. K. against Austria and registered on 5 October 1995 under file

No. 28867/95;

     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 citizen, born in 1957 and residing

in Vienna. He is at present unemployed. Before the Commission he is

represented by Mr. G. Grone, a lawyer practising in Vienna.

     The facts of the case, as they have been submitted by the

applicant, may be summarised as follows.

a.   The pre-trial stage

     On 8 August 1993 the Investigating Judge at the Vienna Regional

Court (Landesgericht) questioned the applicant, who was suspected of

having had sexual relations with a boy, R.R., born in 1980 and of

having intimidated another person, W.K. The applicant admitted that

R.R. had visited him in his apartment on several occasions but denied

having had sexual relations with him.

     On 13 August 1993 the Investigating Judge heard W.K. as a

suspect. He stated that he had had sexual contacts with R.R. and also

with his sister A.R, born in 1983. Furthermore, on various occasions

in the applicant's flat and at an indoor swimming pool he had witnessed

sexual contact between the applicant and R.R.

     On the same day the Investigating Judge questioned R.R. and his

sister A.R. According to the transcript of the hearing it had not been

possible to question R.R. as he acted aggressively and left the court

room. A.R. stated that at the applicant's apartment she had had sexual

relations with W.K., while the applicant had such relations with R.R.

     Subsequently, the Vienna Public Prosecutor's Office

(Staatsanwaltschaft) drew up a bill of indictment against the

applicant. It charged him with sexual abuse of persons under fourteen

years of age (Unzucht mit Unmündigen) under Section 207 of the Penal

Code and compulsion (Nötigung) under Section 105 of the Penal Code.

b.   The trial

     On 15 November 1993 the trial against the applicant commenced

before the Vienna Regional Court. The Court first heard the applicant

who pleaded not guilty. It then heard R.R.'s mother, who stated, inter

alia, that her son was in a hospital for psychiatric treatment and

would stay there until February 1994. The Court read out a letter dated

29 October 1993 by the head of the paediatric department for

psychosomatic medicine of the hospital where R.R. was treated.

According to this letter R.R. was under psychiatric treatment and at

the present time it would be harmful for his mental health to appear

at the trial. When questioned by the Court, the court-appointed medical

expert confirmed this view. The Court then heard W.K. and adjourned the

trial for the taking of further evidence.

     On 1 December 1993 the trial continued. The Court heard the

psychiatric expert who had meanwhile, on 24 November 1993, examined

R.R. at the hospital. The expert stated that R.R. had given him a

detailed account of his sexual activities with the applicant. The trial

was adjourned to 15 December 1993 because one of the lay judges fell

ill.

     On 15 December 1993 a further court hearing took place. As one

of the lay judges had been replaced, the Court decided to restart the

trial. Again the court heard the applicant. It further heard police

officers M., V., L. on the circumstances of the questioning of W.K. by

the police, as it had been submitted by the defence that undue pressure

had been exercised on W.K. in order to obtain a statement incriminating

the applicant. The Court further heard W.K. as witness and the

Investigating Judge who had questioned W.K. on 13 August 1993. At the

end of the hearing the applicant requested the court to take further

evidence, namely to hear the victim R.R. and his sister A.R., Ms. I.W.

and Ms. E.E.S. The Court dismissed the request to hear the two children

but granted the other requests for taking of evidence and adjourned the

trial.

     On 23 December 1993 a further court hearing took place. The Court

heard further witnesses, inter alia, Ms. I.M. and Ms. E.E.S, two

witnesses requested by the defence. The latter stated that she was not

aware of any homosexual relationships of the applicant. At the end of

the court hearing the applicant requested the taking of further

evidence, namely the hearing of Ms. G.H. who would state that R.R. had

told her that he had not talked to the psychiatric court expert about

sexual relations with the applicant and Ms. T.K. who would state that

the applicant had told her that he had never had homosexual relations.

This request was rejected by the Court as it found that both persons

would merely be hearsay witnesses.

c.   The Regional Court's judgment

     On 23 December 1993 the Regional Court convicted the applicant

of sexual abuse of persons under fourteen years of age (Section 207 of

the Penal Code) and compulsion (Section 105 of the Penal Code) and

sentenced him to eighteen months' imprisonment.

     The Court found that in May 1991 the applicant had become

acquainted with R.R., who had been 11 years old at that time, and

started a sexual relationship with the boy which lasted until 1993. In

1992 the applicant had met W.K., who previously had a sexual

relationship with R.R. and W.K. became aware of the applicant's sexual

relationship with R.R. When the applicant realised that criminal

proceedings for suspicion of sexual abuse of minors had been instituted

against him, he threatened W.K. with acts of violence in order to

prevent the latter from making incriminating statements.

     As regards the assessment of evidence, the Court noted that the

victim R.R. could not be heard by the court. However, the psychiatric

expert, who had examined the victim, had been heard and had been able

to make clear and exact statements on the applicant's relationship with

R.R. His statements coincided with the statements of the victim's

parents and in particular with the statement of W.K. Although the

latter initially had been hesitant to incriminate the applicant he then

confirmed his previous statements made before the police and before the

Investigating Judge. The court added that during the questioning of

W.K. it had got the clear impression that the applicant had tried to

influence this witness. As regards the applicant's allegation that

police officers had exercised undue pressure in order to extort

incriminating statements from W.K., the Court found that such

allegations were not credible. They had not been maintained by W.K. and

the police officer, whom the applicant had indicated had not even been

on duty at the time the statements were taken by the police.

d.   Appeal proceedings

     On 25 March 1994 the applicant filed a plea of nullity and an

appeal against the sentence. He submitted that the witness W.K. had

given evidence at the trial although he had not been duly informed of

his right not to give evidence. The Regional Court had refused to hear

witnesses requested by the defence, namely R.R., A.R., G.H. and T.K.

The Regional Court had not dealt sufficiently with his defence that he

merely had a friendship relationship with R.R. and that no sexual acts

had occurred. Furthermore, according to the results of the taking of

evidence, the victim R.R. had started a sexual relationship with the

applicant on his own initiative and had expressed sympathy for the

applicant throughout the criminal investigations. In such circumstances

there could be no question of abuse as any sexual contacts had taken

place with the consent of R.R.

     On 15 December 1994 the Supreme Court (Oberster Gerichtshof)

dismissed the applicant's plea of nullity. As regards the sentence it

ordered that twelve months of the applicant's sentence be suspended for

a probationary period of three years.

     The Supreme Court noted that the Regional Court had relied on the

statements of the psychiatric expert who had been heard at the trial

and to whom the victim R.R. had given a detailed account of his sexual

relationship with the applicant. The Regional Court had also relied on

other witnesses who had incriminated the applicant, namely the victim's

parents, the witness W.K., police officers conducting the preliminary

investigations and the Investigating Judge.

     As regards the applicant's complaint that W.K. had been heard

although this witness could have relied on a right not to give

evidence, the Supreme Court found that W.K. could not have invoked any

right not to give evidence, as the provisions of the 1993 Amendment of

the Code of Criminal Procedure, which granted such a right to persons

against whom criminal proceedings were pending at the time they had the

obligation to give evidence, only entered into force in January 1994,

while the trial against the applicant had taken place earlier.

     The Supreme Court found that the Regional Court had acted

correctly when refusing to hear the witnesses requested by the defence.

     As regards the request to hear R.R. as witness, it noted that a

court may refuse to hear as a witness the minor victim of a sexual

offence if that court, on the basis of concrete elements and in

particular the expert opinion of a child psychiatrist, is convinced

that the hearing of the victim could lead to irreparable psychological

harm, even if the questioning were carried out with the utmost

delicacy. In such circumstances the accused's right to question the

victim exceptionally must give way to the interests of the minor

victim. In the present case the letter of the head of the paediatric

department for psychosomatic medicine of 29 October 1993 and the oral

statements of the court-appointed expert on 15 November 1993 and

1 December 1993 had shown that R.R. had been under psychiatric

treatment because he suffered from a serious trauma and that a

confrontation with the events at issue in court would have seriously

harmed his now positive psychological development. In such

circumstances the interests of the victim R.R. prevailed over the

interests of the applicant in questioning him.

     Moreover, R.R. had refused to make any statements before the

police and before the Investigating Judge, and it could have been

reasonably expected that he would do the same before the trial court.

Nevertheless, the applicant had not even alleged that there had been

reasons to assume that R.R. would be willing to give evidence before

the trial court.

     For the same reasons the Regional Court had also to refused to

hear his sister A.R. as witness. According to the file also she had

been the victim of sexual abuse, was in psychiatric care at a hospital

and it was apparent that a new hearing as witness on the sexual

practices which were the subject of the present criminal proceedings

before the trial court would have had a damaging effect on her. Thus,

the same objections spoke against the hearing of her by the trial court

as were relevant for her brother.

     Moreover, in the circumstances of the case it would have been up

to the applicant to show for what reasons it could be expected that

A.R., who had stated before the Investigating Judge that she had

witnessed sexual acts between her brother and the applicant, would make

statements to the contrary. From the other evidence taken there were

no indications that, as implicitly alleged, her previous statements had

been wrong. The request to hear her as witness thus amounted to an

inadmissible "fishing expedition" (Erkundungsbeweis).

     Contrary to the applicant's opinion the impossibility to hear

R.R. and A.R. as witnesses did not render the trial unfair within the

meaning of Article 6 of the Convention, as Article 6 paras. 1 and 3 (d)

did not give the accused an unlimited right to have witnesses heard on

his behalf and it was sufficient that there was sufficient

corroborating evidence to verify statements of persons who could not

be heard directly by the court. In this respect the Supreme Court

referred to the Asch judgment of the European Court of Human Rights

(Eur. Court HR, Asch v. Austria 26 April 1991, Series A no. 203).

     Also the Regional Court's refusal of the applicant's request to

hear T.K. and G.H. as witnesses did not infringe his defence rights.

It had been irrelevant to the proceedings whether the applicant had

stated to T.K. that he did not have any homosexual experience, as such

general remarks to third persons could not form the basis of a reliable

conclusion as to the true sexual orientation of the applicant. G.H. had

been requested to be heard as a witness to give evidence that R.R. had

told her that he had not talked to the court-appointed expert as to his

sexual experiences with the applicant. Even if she would have made such

a statement this would not tell anything about the truthfulness of

R.R.'s statements made to her.

     Insofar the applicant complained that his conviction was unlawful

as the victim R.R. had been consenting and had accepted sexual contacts

with the applicant of his own will, which excluded an "abuse", the

Supreme Court found that abuse within the meaning of Section 207 of the

Penal Code consisted in profiting from the low age of the minor whose

lack of sexual maturity to form his own free will was presumed by the

law. Whether the victim under the age of 14 years was consenting or not

was therefore irrelevant under the law.

COMPLAINTS

     The applicant complains about his conviction, the sentence

imposed and the alleged unfairness of the criminal proceedings leading

thereto. He invokes Article 3, Article 5 para. 1 (a) and Article 6

paras. 1, 2 and 3 (d) of the Convention.

     He submits that the Regional Court had not correctly assessed the

evidence before it; that the Regional Court had relied on the

statements of W.K., although this witness had not been informed of his

right to refuse to give evidence; that the Regional Court had failed

to hear A.R., R.R., T.K. and G.H. as witnesses and that although the

composition of the Regional Court changed on 15 December 1993, some

witnesses, the court expert and the mother of A.R. and R.R., were not

heard again but their statements made at the previous court hearing

were merely read out.

     Under Article 8 and 14 of the Convention the applicant complains

that his conviction of sexual abuse of minors violated his right to

private life and was discriminatory since it was apparent that R.R.,

who had considerable sexual experience, was consenting.

THE LAW

1.   The applicant complains about his conviction, the sentence

imposed and the alleged unfairness of the criminal proceedings leading

thereto. He invokes Article 3 (Art. 3), Article 5 para. 1 (a) and

Article 6 paras. 1, 2 and 3 (d) (Art. 5-1-a, 6-1, 6-2, 6-3-d) of the

Convention.

a.   Insofar the applicant complains about his conviction and the

sentence imposed the Commission recalls that under Article 19 (Art. 19)

of the Convention its sole task is to ensure observance of the

engagements undertaken by the High Contracting Parties in the

Convention. It is not competent to examine applications concerning

errors of fact or law allegedly committed by the competent national

authorities, to whom it falls, in the first place, to interpret and

apply domestic law (No. 11826/85, Dec. 9.5.89, D.R. 61, p. 138; No.

19890/92, Dec. 3.5.93, D.R. 74, p. 234).

b.   Insofar the applicant complains about the alleged unfairness of

the proceedings the Commission finds that these complaints fall to be

considered under Article 6 (Art. 6) of the Convention. It further finds

that it is appropriate to examine these submissions from the angle of

paragraph 1 taken together with the principles inherent in paragraph 2

and 3 of Article 6 (Art. 6-2, 6-3), as the guarantees in paragraph 2

and 3 are specific aspects of the general concept of fair trial set

fourth in paragraph 1 (Eur. Court HR, Unterpertinger v. Austria

judgment of 24 November 1986, Series A no. 110, p. 14, para. 29;

Doorson v. the Netherlands judgment of 26 March 1996, para. 66, to be

published in Reports 1996-I).

     Article 6 paras. 1 and 3 (d) (Art. 6-1, 6-3-d) of the Convention,

insofar as relevant, read as follows:

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

     him, everyone is entitled to a fair and public hearing ... 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 ..."

     The Commission recalls that as a general rule it is for the

national courts, and in particular the courts of first instance, to

assess the evidence before them as well as the relevance of the

evidence which the accused seeks to adduce (Eur. Court HR, Barbera,

Messegue and Jabardo v. Spain judgment of 6 December 1988, Series A

no. 146, p. 31, para. 68). More specifically, Article 6 para. 3 (d)

(Art. 6-3-d) leaves it to them, again as a general rule, to assess

whether it is appropriate to call witnesses, in the autonomous sense

given to that word in the Convention system; it does not require the

attendance and examination of every witness on the accused's behalf

(cf. Eur. Court HR, Bricmont v. Belgium judgment of 7 July 1989, Series

A no. 158, p. 31, para. 89; Vidal v. Belgium judgment of 22 April 1992,

Series A no. 235-B, pp. 32-33, para. 33).

     With regard to the hearing of witnesses, a distinction should be

made between witnesses against and witnesses for the accused. In

respect of the former, an accused should, as a rule, be given an

adequate and proper opportunity to challenge and question a witness

against him, either at the time the witness was making the statement

or at some later stage. In respect of the witnesses on behalf of the

accused, only exceptional circumstances could lead the Convention

organs to conclude that a refusal to hear such witnesses violated

Article 6 (Art. 6) of the Convention (cf. Vidal v. Belgium, Comm.

Report 14.1.91, Series A no. 235-B, pp. 38-39, paras. 47-49; Bricmont

v. Belgium judgment, op. cit., p. 31, para. 89). Thus, the complete

silence in a judgment as to why the court rejected the hearing of a

witness for the defence is not consistent with the concept of a fair

trial which is the basis of Article 6 (Art. 6) of the Convention (Vidal

v. Belgium judgment, op. cit. pp. 32-33, paras. 33-34).

     The applicant submits that the Regional Court had failed to hear

A.R., R.R., T.K. and G.H. as witnesses.

aa.  As regards the failure to hear R.R. as witness the Commission

observes that at the time of the applicant's trial R.R. had been in

intensive psychiatric care at a hospital. After having obtained

information on R.R.'s state of health, and after having questioned the

court-appointed expert on this issue, the Regional Court decided not

to call him as a witness for reasons of health. In its judgment of

15 December 1994 the Supreme Court carefully examined whether the

failure to summon R.R. as a witness infringed the applicant's defence

rights but answered this question in the negative. The Supreme Court

found that a court may only refuse to hear as a witness the minor

victim of a sexual offence if that court, on the basis of concrete

elements and in particular the expert opinion of a child psychiatrist,

is convinced that the hearing of the victim could lead to irreparable

psychological harm, even if the questioning were carried out with the

utmost care. It found that in the proceedings at issue the Regional

Court, relying on expert advice, had come to the conclusion that R.R.

could not be expected to appear at the trial because a confrontation

with the events at issue could seriously harm his psychological

development.

     In this respect the Commission recalls further that the interests

of witnesses and victims are in principle protected by the Convention,

in particular Article 8 (Art. 8), which imply that Contracting States

should organise their criminal proceedings in such a way that those

interests are not unjustifiably imperilled. Against this background,

principles of fair trial also require that in appropriate cases the

interests of the defence be balanced against those of witnesses or

victims called to testify (Eur. Court HR, Doorson v. the Netherlands

judgment, op. cit., para. 70; Baegen v. the Netherlands, Comm. Report

20.10.94, para. 77; Finkensieper v. the Netherlands, Comm. Report

17.5.95, para. 66).

     The Commission finds that in the particular circumstances of the

case the Regional Court and the Supreme Court have properly weighed the

interests of R.R. against the applicant's interests and have given

sufficient reasons why R.R. could not be expected to give evidence at

the trial.

     The Commission notes, however, that the Regional Court, after

having decided that R.R. could not be summoned as witness, instructed

the court-appointed expert to examine R.R. The expert did so and on

1 December 1993 presented the result of his examination at the trial.

The statements of the expert also contained an account of R.R.'s

statements about his sexual relationship with the applicant.

     The Commission therefore finds that the statements of R.R. as

related to the court by the expert had been of some importance to the

proceedings, as the Regional Court based the applicant's conviction

inter alia on the statements of the expert. In such a situation it

might have been preferable to hear R.R. in person, but for the reasons

pointed out above the Austrian courts considered that R.R. could not

be expected to give evidence at the trial. Subject to the rights of the

defence being respected, it was therefore open to the national court

to have regard to the expert's statements on his examination of R.R.,

in view of the fact that it could consider it to be corroborated by

other evidence before it (see Eur. Court HR, Asch v. Austria judgment

of 26 April 1991, Series A no. 203, pp. 10-11, para. 28). The Regional

Court relied on the statements of W.K., who had been present when the

applicant had met R.R. in his apartment. W.K. appeared in court, gave

evidence and could be questioned by the applicant and his lawyer. The

applicant, who was aware of the identity of R.R., had also been present

when the expert was heard and his lawyer questioned him as well.

Furthermore, the applicant did not object to the court's instruction

to have R.R. examined and interviewed by the expert, did not request

that his lawyer be present on this occasion and did not object to the

expert making his statement at the trial. Moreover, the Regional Court

relied on the statements of further witnesses, who all had been heard

at the trial.

bb.  As regards the failure to hear A.R. the Commission observes that

also she, who was three years younger than her brother, was in

intensive psychiatric care as being the victim of sexual abuse. The

Regional Court refused to summon her as a witness for the same reasons

as it had refused to summon R.R.

     The Commission finds that in respect of this requested witness

also the Austrian courts have given sufficient reasons why she could

not be expected to give evidence at the trial.

cc.  As regards the failure to hear T.K and G.H., the Commission notes

that the applicant at the last court hearing, on 23 December 1993,

requested the hearing of these witnesses. This requests was refused by

the Regional Court as it found that both persons would merely be

hearsay witnesses. In its judgment of 15 December 1994 the Supreme

Court confirmed this approach and found that the evidence of T.K. and

G.H. had been irrelevant to the proceedings.

     Also in this respect the Commission finds that the Austrian

courts have given sufficient reasons why the hearing of these persons

as witnesses had not been relevant for the proceedings.

dd.  As regards the applicant's submission that the Regional Court had

relied on the statements of W.K., although this witness had not been

informed on his right to refuse to give evidence, the Commission finds

that the possibility not to give evidence is a privilege afforded to

a person who is called upon to give evidence and which has the purpose

of avoiding that this person, in particular when he or she is a member

of the accused's family, be put in a moral dilemma (see Eur. Court HR,

Unterpertinger v. Austria judgment of 24 November 1986, Series A

no. 110, p. 14, para. 30). It is not a privilege designed to facilitate

the accused's defence.

     In the present case W.K. appeared at the trial and gave evidence.

The applicant does not argue that he could not properly question this

person. Rather, as is apparent from the transcripts of the court

hearings, the applicant could and did question this witness.

     Accordingly the failure to hear the witnesses requested by the

applicant and the hearing of W.K. as a witness did not unduly restrict

the rights of the defence, and did not render the proceedings,

considered as a whole, unfair.

     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.

3.   The applicant further complains that the criminal proceedings

against him had been unfair in that notwithstanding a change in the

composition of the Regional Court in the hearing of 15 December 1993,

some witnesses, the court expert and the mother of A.R. and R.R., were

not heard again but their statements made at the previous court hearing

merely were read out.

     However, the Commission is not required to decide whether the

above facts alleged by the applicant disclose any appearance of a

violation of the applicant's rights under Article 6 (Art. 6) of the

Convention as, under Article 26 (Art. 26) of the Convention, it may

only deal with a matter after all domestic remedies have been exhausted

according to the generally recognised rules of international law.

     The Commission recalls that in order to have exhausted domestic

remedies an applicant must have expressly raised before the national

authorities the complaint brought before the Commission (No. 24722/94,

Dec. 10.4.95, D.R. 81, p. 130).

     The Commission notes that at the hearing on 15 December 1993 the

applicant did not request that these witnesses be heard again by the

Regional Court in its new composition, nor did he oppose the reading

out of their previous statements by the Regional Court. Furthermore,

he did not raise the complaint he is now bringing before the Commission

in his plea of nullity.

     The Commission therefore finds that the applicant has failed to

exhaust domestic remedies as required by Article 26 (Art. 26) of the

Convention.

     It follows that this part of the application must be rejected

under Article 27 para. 3 (Art. 27-3) of the Convention.

4.   Under Articles 8 and 14 (Art. 8, 14) of the Convention the

applicant complains that his conviction of sexual abuse of minors

violated his right to private life and was discriminatory since it was

apparent that R.R., who had considerable sexual experience, was

consenting.

     Article 8 (Art. 8) of the Convention reads as follows:

     "1.   Everyone has the right to respect for his private and

     family life, his home and his correspondence.

     2.    There shall be no interference by a public authority with

     the exercise of this right except such as is in accordance with

     the law and is necessary in a democratic society in the interests

     of national security, public safety or the economic well-being

     of the country, for the prevention of disorder or crime, for the

     protection of health or morals, or for the protection of the

     rights and freedoms of others."

     The Commission recalls that the prohibition of homosexual acts,

even in the absence of any criminal proceedings, constitutes an

interference with the rights under Article 8 (Art. 8) of the Convention

of the persons concerned (cf. Eur. Court HR, Dudgeon v. the United

Kingdom judgment of 22 October 1981, Series A no. 45, p. 18, para. 41;

Norris v. Ireland judgment of 26 October 1988, Series A no. 142, pp.

17-18, paras. 35-38; Modinos v. Cyprus judgment of 22 April 1993,

Series A no. 259, pp. 10-11, paras. 17-24). A fortiori, a criminal

conviction would constitute an interference with these rights.

     The Commission recalls further that in two previous cases it has

found that Section 209 of the Austrian Criminal Code, which prohibits

homosexual relations between a person who has attained the age of

nineteen with a person who has attained the age of fourteen but not the

age of nineteen years, constitutes a measure necessary in a democratic

society. The Commission had regard in particular to the fact that this

provision did not refer to homosexual activities between consenting

male adults but between adults and minors within age brackets which the

Commission found acceptable having regard to the State's margin of

appreciation (cf. No. 17272/90, Zuckrigl v. Austria, Dec. 13.5.92,

unpublished; No. 22646/93, Dec. 26.6.95, unpublished).

     In the present case the applicant's conviction was based on

Section 207 of the Austrian Penal Code which prohibits sexual abuse of

persons under fourteen years of age. The Commission finds that his

conviction constitutes a measure which may be regarded as necessary in

a democratic society for the "protection of the rights and freedoms of

others" and the "protection of morals". In view of the low age of the

persons protected by the law, less than fourteen years, the Commission

finds that the fact that the relevant law considers any alleged consent

of the protected person to be irrelevant to a conviction, cannot render

the measure disproportionate or discriminatory.

     Accordingly there is no appearance of a violation of the

applicant's rights under Article 8 (Art. 8) of the Convention alone or

in conjunction with Article 14 (Art. 8+14) of the Convention.

     It follows that also this part of the application is manifestly

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

Convention.

     For these reasons, the Commission, unanimously,

     DECLARES THE APPLICATION INADMISSIBLE.

     M.F. BUQUICCHIO                              J. LIDDY

        Secretary                                 President

   to the First Chamber                      of the First Chamber