AS TO THE ADMISSIBILITY OF

                       Application No. 24406/94

                       by Johann ZWETTLER

                       against Austria

     The European Commission of Human Rights (First Chamber) sitting

in private on 12 April 1996, the following members being present:

           Mr.   C.L. ROZAKIS, President

           Mrs.  J. LIDDY

           MM.   E. BUSUTTIL

                 A. WEITZEL

                 M.P. PELLONPÄÄ

                 B. MARXER

                 B. CONFORTI

                 N. BRATZA

                 I. BÉKÉS

                 E. KONSTANTINOV

                 G. RESS

                 A. PERENIC

                 C. BÎRSAN

                 K. HERNDL

           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 31 May 1994 by

Johann ZWETTLER against Austria and registered on 15 June 1994 under

file No. 24406/94;

     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 facts of the case as they have been submitted by the

applicant, may be summarised as follows.

     The applicant, born in 1925, is an Austrian national and resident

in Linz.

     In 1989 criminal investigations were started against the

applicant and other managers of an aircraft industries company on the

suspicion of having committed bankruptcy offences.

     In the criminal proceedings against him, the applicant was

assisted by defence counsel.

     On 2 July 1992 the Linz Regional Criminal Court (Landesgericht

für Strafsachen) convicted the applicant of simple bankruptcy

(fahrlässige Krida), pursuant to S. 159 para. 1 of the Austrian Penal

Code (Strafgesetzbuch), and sentenced him to three months'

imprisonment.  Three further accused were also convicted of simple

bankruptcy and sentenced to three or four months' imprisonment,

respectively.  The execution of their sentences was suspended on

probation.  The accused were also ordered to pay compensation to the

private parties (Privatbeteiligte).  Furthermore, the costs of the

proceedings were awarded against, inter alia, the applicant.

     In its judgment, the Regional Criminal Court found that the

applicant, as member of the supervisory board (Aufsichtsrat) of the

above company, had known about its insufficient capital means and

solvency, but failed to urge for an long-term financial strategy and

market investigation.  He had further agreed to imprudent raising of

money and had on the whole insufficiently supervised the management of

the company concerned.  The Court stated that its factual findings, in

particular as regards the applicant's knowledge of the financial

situation of the company concerned, were based partly upon the

applicant's statements and the statements of members of the managing

board and the supervisory board as well as of other witnesses.  Having

regard to all circumstances and in particular the applicant's position,

the Court did not accept his defence that he had not known about the

difficulties in raising the financial means for the purposes of an

increase of capital.  The Court also proceeded from two technical

expert opinions, prepared in the context of the preliminary

investigations, as well as from the opinion of an auditor.  The Court

dismissed the requests, by one of the co-accused, to take a private

expert opinion into account, and not to consider one of the above

expert opinions and to have further expert opinions prepared.  In this

respect, the Court observed that the Code of Criminal Procedure

(Strafprozeßordnung) did not require the trial court to take private

expert opinions into account.  Furthermore, the expert opinions

prepared in the context of the proceedings were on the whole conclusive

and covered all relevant matters.

     On 9 December 1993 the Linz Court of Appeal (Oberlandesgericht),

upon inter alia the applicant's appeal (Berufung), amended the Regional

Court judgment as regards its compensation order to the effect that the

decision on this issue was referred to the civil courts.  The Court of

Appeal confirmed the findings of the Regional Criminal Court.  It also

dismissed the complaints by the applicant and his co-accused about the

refusal to take further expert advice, finding that the relevant

questions were not particularly difficult and that the expert opinions

available did not disclose any shortcomings.

     The judgment was served on 27 January 1994.

COMPLAINTS

     The applicant complains about his conviction and the alleged

unfairness of the criminal proceedings against him.  He considers in

particular that the Austrian courts wrongly found him guilty, and

incorrectly applied the relevant legal provision on bankruptcy in the

circumstances of his case.  In particular, the Linz Regional Criminal

Court should have taken the private expert opinion into account.

Furthermore, according to the applicant, the Linz Regional Criminal

Court's judgment was not duly reasoned, in particular not sufficiently

considered and referred to the legal literature.  He also submits that

his conviction amounted to discrimination on the ground that other

former members of the company's supervisory board were not prosecuted.

He finally complains that he had to bear the costs of the criminal

proceedings against him as well as his own legal expenses.  He invokes

Article 6 paras. 1 and 2, and Articles 7 and 14 of the Convention as

well as Article 1 of Protocol No. 1.

THE LAW

1.   The applicant complains about his conviction and also of the

criminal proceedings against him.

a.   With regard to the judicial decision of which the applicant

complains, the Commission recalls that, in accordance with Article 19

(Art. 19) of the Convention, its only task is to ensure the observance

of the obligations undertaken by the Parties to the Convention. In

particular, it is not competent to deal with an application alleging

that errors of law or fact have been committed by domestic courts,

except where it considers that such errors might have involved a

possible violation of any of the rights and freedoms set out in the

Convention (cf. No. 21283/93, Dec. 5.4.94, D.R. 77 p. 81; Eur. Court

H.R., Van de Hurk judgment of 19 April 1994, Series A no. 288, p. 20,

para. 61; Klaas judgment of 22 September 1993, Series A no. 269, p. 17,

para. 29).

b.   The applicant complains that his conviction amounted to a

violation of Article 7 (Art. 7) of the Convention.

     According to Article 7 para. 1 (Art. 7-1), first sentence, "no

one shall be held guilty of any criminal offence on account of any act

or omission which did not constitute a criminal offence under national

or international law at the time when it was committed".

     The Commission considers that the applicant's submissions in this

respect are limited to the allegation of factual and legal errors in

the Linz Regional Criminal Court's finding, as confirmed by the Linz

Court of Appeal, that he had committed the offence of simple

bankruptcy, pursuant to the relevant provision of the Austrian Penal

Code.  They do not disclose any appearance of a violation of Article 7

para. 1 (Art. 7-1) of the Convention.

c.   The applicant further raised various complaints about the

criminal proceedings against him.  The Commission finds appropriate it

to examine these submissions from the angle of paragraph 1 taken

together with the principles inherent in paragraphs 2 and 3 of

Article 6 (Art. 6), as the guarantees in paragraphs 2 and 3 are

specific aspects of the general concept of a fair trial set forth in

paragraph 1 (cf. mutatis mutandis, Eur. Court H.R., Unterpertinger

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

     With regard to the applicant's complaints about the Regional

Criminal Court's taking and assessment of evidence, the Commission

recalls that, as a general rule, it is for the national courts to

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

evidence which the defendants seek to adduce.  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 H.R., Bricmont judgment of 7 July

1989, Series A no. 158, p. 31, para. 89; Vidal judgment of 22 April

1992, Series A no. 235-B, pp. 32-33, para. 33).  However, it is the

task of the Convention organs to ascertain whether the taking and

assessment of evidence rendered the proceedings as a whole unfair.  In

this respect, the Commission also recalls that all the evidence must

normally be produced in the presence of the accused at a public hearing

with a view to adversarial argument (cf. Eur. Court H.R., Asch judgment

of 26 April 1991, Series A no. 203, p. 10, paras. 26-27).

     In the present case, the applicant submits in particular that the

Regional Criminal Court did not take the private expert opinion into

account.  In this respect, the Commission notes that the Regional

Criminal Court observed that the Code of Criminal Procedure did not

require the trial court to accept private expert opinions as evidence.

Moreover, the Regional Criminal Court considered that the expert

opinions prepared in the context of the proceedings were on the whole

conclusive and covered all relevant matters.  The Court of Appeal

confirmed this approach.  Having regard to all material before it, the

Commission finds no sufficient grounds to conclude that the failure to

take the private expert opinion into account was incompatible with

Article 6 (Art. 6).

     As regards the applicant's complaint that the Linz Regional

Criminal Court's judgment was not duly reasoned, the Commission recalls

that Article 6 para. 1 (Art. 6-1) obliges the courts to give reasons

for their judgments, but cannot be understood as requiring a detailed

answer to every argument.  The extent to which this duty to give

reasons applies may vary according to the nature of the decision (Eur.

Court H.R., Ruiz Torija and Hiro Balani judgments of 9 December 1994,

Series A no. 303 -A and B, p. 12, para. 29, and pp. 29-30, para. 27).

However, the Convention organs are not called upon to examine whether

arguments are adequately met (see above and Eur. Court H.R., Van De

Hurk judgment of 19 April 1994, Series A no. 288, p. 20, para. 61).

The Commission, having considered the Regional Criminal Court's

reasoning in its judgment of 2 July 1992, finds no indication that the

court failed to fulfil its obligation to state reasons.

     In sum, taken individually none of the matters complained of by

the applicant discloses any appearance of a violation of the rights of

the defence under Article 6 (Art. 6) of the Convention.  Furthermore,

the Commission finds that, taken cumulatively, the alleged procedural

deficiencies did not result in rendering unfair, for the purposes of

Article 6 (Art. 6), the criminal proceedings considered as a whole.

d.   The applicant also complains that further persons who had been

members of the company's supervisory board were not prosecuted and

convicted for bankruptcy.  The Commission, having examined this issue

under Article 14, in conjunction with Article 6 (Art. 14+6), of the

Convention, finds that in principle it is not its function to compare

different decisions of national authorities, even if taken in

apparently similar circumstances proceedings, unless there is a denial

of justice or a manifest abuse.

     The applicant's submissions do not permit a finding of this sort.

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

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

2.   The applicant finally complains under Article 1 of Protocol No. 1

(P1-1) that he had to bear the costs of the criminal proceedings

against him as well as his own legal expenses.  The Commission

considers that the Austrian court decisions on this point are justified

under paragraph 2 of this provision which entitles the State "to

enforce such laws as it deems necessary ... to secure the payment of

taxes or other contributions or penalties".  It follows that this part

of the application is likewise manifestly ill-founded within the

meaning of Article 27 para. 2 (Art. 27-2).

     For these reasons, the Commission, by a majority,

     DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber        President of the First Chamber

     (M.F. BUQUICCHIO)                        (C.L. ROZAKIS)