AS TO THE ADMISSIBILITY OF

                      Application No. 27025/95

                      by P. ST.

                      against Austria

     The European Commission of Human Rights (First Chamber) sitting

in private on 16 October 1996, the following members being present:

           Mrs.  J. LIDDY, President

           MM.   M.P. PELLONPÄÄ

                 E. BUSUTTIL

                 A. WEITZEL

                 B. MARXER

                 G.B. REFFI

                 N. BRATZA

                 G. RESS

                 A. PERENIC

                 C. BÎRSAN

                 K. HERNDL

                 M. VILA AMIGÓ

           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 20 February 1995

by P. ST.  against Austria and registered on 12 April 1995 under file

No. 27025/95;

     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, born in 1961, is an Austrian national. He is

currently detained at Josefstadt prison in Vienna. In the proceedings

before the Commission he is represented by Mr. F. Knöbl, a lawyer

practising in Vienna.

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

summarised as follows.

     On 27 February 1993 the applicant was taken into detention on

remand on the suspicion of having, since 1988, sexually abused his

daughter, born in 1980. In these and the following proceedings the

applicant was represented by counsel.

     On 8 March 1993, in the course of the preliminary investigation

(Voruntersuchung), the applicant requested that a medical examination

of his daughter be carried out in order to clarify whether anal

intercourse had taken place as alleged by her. On 15 March 1993 he

repeated this request and added that it would be ascertainable if such

an act had been carried out between an adult man and a girl aged

between eight and thirteen. Further, he submitted that his daughter had

obtained her knowledge about the alleged sexual acts by watching

pornographic videos, which he kept in the apartment.

     On 26 July 1993 the trial against the applicant was opened before

the Vienna Regional Criminal Court (Landesgericht für Strafsachen),

sitting as a court of two professional and two lay judges

(Schöffengericht). The applicant pleaded not guilty. Then the court

heard the applicant's daughter as a witness. It also heard the

applicant's wife and a number of other members of his family as well

as the police officer to whom his daughter had made her statement.

Further, it heard an expert in youth psychiatry as regards the ability

of the applicant's daughter to testify and as regards the possibility

that she had been influenced by watching pornographic videos. The

defence put a number of questions to the applicant's daughter, the

expert and some of the other witnesses.

     Subsequently, the applicant requested that a medical examination

of his daughter be carried out as she would have sustained injuries as

a consequence of the anal intercourse alleged by her. He also requested

that the opinion of a medical expert be taken in order to prove that

his daughter would necessarily have sustained injuries from such

intercourse and that these injuries would still be ascertainable and

to take the opinion of an expert in the field of homosexuality in this

context. Further, he requested a medical examination of his penis as

it showed a particularity, namely a birth mark, which his daughter must

have noticed if the alleged acts had actually taken place.  The court

dismissed the first request and reserved its decision as regards the

others. The hearing was adjourned.

     On 23 September 1993 the applicant requested that one of the

pornographic videos which he kept in the apartment be shown at the

trial in order to prove that it contained scenes which were similar to

the incidents described by his daughter. He further requested that the

psychiatric expert be questioned as to how far his daughter could have

been influenced by watching such a film. He also repeated the requests

for the taking of evidence on which the court had not yet decided.

     According to the applicant, his counsel, prior to the hearing,

requested the presiding judge to make the necessary arrangements for

showing the pornographic video in court. However, the presiding judge

told him that he would dismiss the respective request for the taking

of evidence.

     On 10 November 1993 the Vienna Regional Criminal Court continued

the trial. The applicant again pleaded not guilty. The court then heard

the school-friend of the applicant's daughter, to whom she had first

mentioned that she had been abused by her father as well as the school

psychologist, to whom she had subsequently given an account of the

events. The defence put a number of questions to both witnesses.

     At the end of the questioning, the defence made further requests

for the taking of evidence. According to the minutes defence counsel

repeated his request as regards a medical examination of the

applicant's daughter. Further, he requested that the pornographic video

in question be shown to the psychiatric expert and that he extend his

opinion to the question whether the applicant's daughter, inspired by

this film, had invented her allegations against him. The court

dismissed all requests for the taking of further evidence as being

irrelevant.

     At the close of the hearing the Regional Court convicted the

applicant of sexual abuse of a minor (Unzucht mit Unmündigen) and abuse

of his parental authority (Mißbrauch eines Autoritätsverhältnisses) and

sentenced him to two years' imprisonment, of which sixteen months were

suspended on probation.

     The court found that the applicant had repeatedly, from 1988

until January 1993 sexually abused his daughter, born in 1980, in that

he had called her to the bathroom of the apartment and had forced her

to satisfy him either with her hand or orally. In 1990 he had once

penetrated her anally but had stopped after a few movements. A second

time he had intended to carry out anal intercourse but desisted in view

of the girl's resistance. Finally, in the beginning of 1993 the

applicant had forced his daughter to take a bath with him and had put

his finger into her vagina.

     In establishing the facts the court relied primarily on the

statement of the applicant's daughter. It found that the account she

had given of the events at issue was credible. Having regard to the

personal impression she had made, the court found that she was not

capable of wrongly accusing her father. In assessing her statements the

court pointed out in particular that she had made her submissions

repeatedly and that she had described details of the sexual acts which

she could not know at her age unless she had actually been the victim

of these acts. The court described the applicant's daughter as shy and

reserved. Consequently, she had first confided her story to her school-

friend, had then given the first detailed description of the events to

the school psychologist and had repeated these statements before a

female police officer and the investigating judge. At the trial she had

made her statement in tears but had confirmed her earlier submissions.

Further, the court relied on the expert opinion of the youth

psychiatrist, according to which she was capable of realizing the

consequences of her statements, and did not show any tendency to invent

things or to act for the sake of attracting attention.

     As regards the applicant's defence that his daughter had obtained

her knowledge about the alleged sexual acts by watching some

pornographic videos, the court noted in particular that the youth

psychiatrist had excluded the possibility that the allegations against

her father were only a projection of what she might have seen in a

film. The applicant's daughter had denied seeing such films. Further,

the court noted that the presiding judge had looked through the videos

at issue. However, they did not contain any scenes similar to the

incidents described by the applicant's daughter. Further, the court

noted the applicant's argument that there had always been other persons

in the apartment who would have noticed the incidents at issue.

However, from the statements of the witnesses heard it could not be

inferred that the applicant and his daughter were never alone in the

apartment. Moreover, it was possible that the applicant was in the

bathroom with her while other persons, in particular children, were

present.

     Further, the court dealt with the applicant's requests for the

taking of evidence. As to the request for a medical examination of his

daughter, the court noted that the incident at issue had taken place

more than three years ago and that the applicant's daughter had stated

that she had not been injured. Thus, no traces would be ascertainable

any more. As to the applicant's request for examination of his penis,

the court noted that his daughter had made use of her right to refuse

an answer to this question. Finally, it was not clear, why the

applicant had requested that an expert for homosexuality be heard.

     On 1 March 1994 the applicant filed a request for rectification

of the minutes. He claimed that several requests for the taking of

evidence had not been entered in the minutes. He claimed that, at the

second hearing, he had requested a medical examination of his penis,

as it showed particularities, in order to prove that his daughter did

not know them and had never even seen him naked. His request for a

medical examination of his daughter had been recorded incompletely. He

had requested an examination in order to clarify the question whether

anal intercourse with a girl of about nine years, was possible without

injuries. Finally, he had requested that the psychiatric expert amend

his opinion.

     On 2 March 1994 the applicant filed a plea of nullity and an

appeal (Nichtigkeitsbeschwerde und Berufung). He referred in particular

to his requests for the taking of evidence of 15 March and

23 September 1993. Moreover, he claimed that he had requested a medical

examination of his penis. Finally, he had requested that the

psychiatric expert amend his opinion as regards the possible influence

of the said pornographic videos on his daughter's statement. He

complained that all his requests, some of which had not been entered

in the minutes, had been dismissed. Further, the applicant complained

that the court had exclusively relied on his daughter's statements

which it found credible although she had not been able to answer

relevant questions at the hearing.

     On 19 April 1994 the Regional Court dismissed the applicant's

requests for the rectification of the minutes. It noted that it had

obtained a statement of the keeper of the minutes (Schriftführer).

According to her statement and the recollection of the presiding judge

the requests at issue had not been made as claimed by the applicant and

the minutes were, thus, correct.

     On 10 August 1994 the Supreme Court (Oberster Gerichtshof)

dismissed the applicant's plea of nullity.

     The Supreme Court found that the formal requirements for raising

a plea of nullity were not met as regards any requests for the taking

of evidence which had not been made or repeated at the hearing at which

the judgment was given. According to the minutes, the applicant had

only made two requests at the hearing of 10 November 1993, namely that

a medical examination of his daughter be carried out and that the

pornographic videos be shown to the psychiatric expert who should then

extend his opinion to the question of a possible influence of such

films on the statements of the applicant's daughter. As to the first

request the Supreme Court found that, given the lapse of time a lack

of ascertainable traces would not exclude that anal intercourse had

taken place. Moreover, such intercourse had only been carried out once

with a few movements and had been attempted a second time. As regards

the second request, the Supreme Court found that the psychiatric

expert, at the hearing of 26 July 1993, had dealt with the applicant's

arguments as regards the possible influence of pornographic videos on

his daughter's statements. The applicant had failed to show why a

further questioning of the expert would have been necessary. The

Supreme Court concluded that the applicant's defence rights had not

been violated by the refusal of his requests for the taking of

evidence. The applicant's further submissions were an attempt to

challenge the Regional Court's assessment of evidence and were as such

inadmissible.

     On 13 October 1994 the Vienna Court of Appeal (Oberlandesgericht)

dismissed the applicant's appeal against the sentence. Upon the Public

Prosecutor's appeal and having regard to a further conviction of

27 May 1993 by the Donaustadt District Court (Bezirksgericht) which had

found the applicant guilty of having assaulted his wife, the court

changed the sentence to three years' imprisonment, not suspended on

probation.

COMPLAINTS

     The applicant complains under Article 6 about the unfairness of

the criminal proceedings against him. He complains in particular that

his requests for the taking of evidence were dismissed. Further, he

submits that some of his requests for the taking of evidence were not

recorded in the minutes. The applicant also complains that the

presiding judge was biased. In this respect he alleges that the latter

told him before the hearing of 10 November 1993 that he would dismiss

his request to show a particular pornographic video in court. The

applicant claims that a motion challenging the judge for bias, which

is in principle available under the Code of Criminal Procedure, would

not have offered prospects of success.

THE LAW

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

Convention that the criminal proceedings against him were unfair and

that the presiding judge at the Regional Court was biased.

     Article 6 para. 1 (Art. 6-1), so far as relevant, reads as

follows:

     "In the determination of ... any criminal charge against him,

     everyone is entitled to a fair and public hearing ... by an

     independent and impartial tribunal ... ."

a.   As to the applicant's complaint that his requests for the taking

of evidence were dismissed, 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

asses the evidence before them. The Commission's task is to ascertain

whether the proceedings, considered as a whole, were fair (Eur. Court

HR., Lüdi v. Switzerland judgment of 15 June 1992, Series A no. 238,

p. 20, para. 43).

     In the present case the Supreme Court found that the applicant

had failed to fulfil the formal requirements for raising a plea of

nullity as regards any requests for the taking of evidence which had

not been made or repeated at the hearing at which the judgment was

given, i.e. the one on 10 November 1993. The Commission finds that, in

this regard, the applicant has failed to exhaust domestic remedies in

accordance with Article 26 (Art. 26) of the Convention (cf. No.

13467/87, Dec. 10.7.89, D.R. 62 p. 269). As regards the two requests

for the taking of evidence, which the applicant, according to the

minutes, had made at the hearing of 10 November 1993, the Supreme Court

gave detailed reasoning for finding that the first one was irrelevant

and that the second one had essentially been dealt with. It concluded

that the applicant had not been unduly restricted in his defence rights

by their rejection.

     The Commission notes that the Regional Court dealt extensively

with the question of the credibility of the applicant's daughter. Apart

from the personal impression, which she had made, the court had regard

to the fact that, at the trial, she had confirmed the statements which

she had made earlier to various persons, including her school-friend,

the school psychologist and a police officer. All of these persons as

well as the applicant's daughter were heard as witnesses and the

applicant, assisted by counsel, had the possibility to question them.

Further the court heard a psychiatric expert, who dealt inter alia with

the question raised by the defence, whether the allegations by the

applicant's daughter could have been influenced by watching a

pornographic video.

     The Commission further notes the applicant's related complaint

that some of his requests for the taking of evidence were not entered

in the minutes. The Commission observes that a remedy was available to

the applicant in this respect, namely a request for the rectification

of the minutes. However, the Regional Court dismissed the said request

by decision of 19 April 1994, stating that according to the

recollection of the keeper of the minutes and the presiding judge the

requests at issue had not been made as claimed by the applicant.

     In the circumstances of the case, the Commission finds that the

applicant failed to show that the taking of evidence was arbitrary and

therefore contrary to Article 6 para. 1 (Art. 6-1) of the Convention.

b.   As to the applicant's complaint that the presiding judge at the

Regional Court was biased, the question arises whether the applicant

has exhausted domestic remedies as required by Article 26 (Art. 26) of

the Convention.

     The Commission recalls that a remedy within the meaning of this

Article must be effective, that is capable of rectifying directly the

situation complained of (cf. No. 18079/91, Dec. 4.12.91, D.R. 72

p. 263). The applicant claims that a motion challenging the presiding

judge for bias, though available in principle, would not have been

effective. However, the Commission is not required to decide upon this

question, as the complaint is inadmissible for the following reasons.

     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 alleges that the presiding judge at the Regional

Court told him before the hearing of 10 November 1993 that he would

dismiss his request to show the pornographic video in court. However,

having regard to its above findings concerning the taking of evidence,

the Commission considers that the applicant's submissions do not

suffice to put the personal impartiality of the presiding judge into

doubt. The applicant failed to submit any other facts. His fear that

the said judge lacked impartiality can, therefore, not be regarded as

objectively justified.

     It follows that 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