AS TO THE ADMISSIBILITY OF

                      Application No. 24154/94

                      by Heinz RABENSEIFNER

                      against Austria

     The European Commission of Human Rights (First Chamber) sitting

in private on 28 February 1996, the following members being present:

           Mr.   C.L. ROZAKIS, President

           Mrs.  J. LIDDY

           MM.   E. BUSUTTIL

                 A.S. GÖZÜBÜYÜK

                 A. WEITZEL

                 M.P. PELLONPÄÄ

                 B. MARXER

                 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 20 August 1993 by

Heinz RABENSEIFNER against Austria and registered on 18 May 1994 under

file No. 24154/94;

     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 1948, is an Austrian national.  When

lodging his application, he was detained in a prison at Hollabrunn.

     In 1988 criminal investigations were started against the

applicant on the suspicion of his having committed theft and fraud.

     On 24 August 1989 the Vienna Public Prosecutor's Office

(Staatsanwaltschaft) drew up the bill of indictment against the

applicant charging him with thirty-three counts of theft, including

twenty-seven counts of theft of cars, as well as of two counts of

fraud.  The Prosecutor's Office, referring to the relevant provisions

of the Penal Code (Strafgesetzbuch), considered that between January

1986 and April 1988 the applicant, as a member of a gang operating from

Hungary, had been involved in the theft of further specified cars in

Vienna.  Moreover, between June and December 1988 he had broken into

cars and stolen various objects and also committed fraud.  The

Prosecutor's Office stated that the applicant had admitted his guilt

except for the charges relating to theft of cars.

     In the criminal proceedings against him, the applicant was

assisted by defence counsel.

     On 8 February 1990 the Vienna Regional Criminal Court

(Landesgericht für Strafsachen) convicted the applicant of altogether

seventeen counts of receiving stolen cars, of four counts of theft and

of two counts of fraud and sentenced him to four years' imprisonment.

The applicant was acquitted of the remainder of the charges.  The Court

found that between March 1986 and May 1988 the applicant had driven

seventeen stolen cars from Austria to Hungary and must have been aware

of the possibility that these cars had been stolen.  The Court noted

the applicant's defence according to which he had not stolen the cars

himself and had thought that the cars had been lawfully acquired.  The

Court considered that the applicant's defence according to which he had

not stolen the cars himself could not be refuted.  However, taking into

account the circumstances in which the various cars were handed over

to the applicant, the Court was convinced that the applicant must have

been aware of the possibility that the cars had been stolen.  The Court

dismissed the applicant's requests for the hearing of further witnesses

on the grounds that the applicant had admitted having transported

seventeen cars to Hungary and that the witnesses could not give any

evidence regarding the question whether or not he had known that the

cars had been stolen.

     On 17 May 1990 the Austrian Supreme Court (Oberster Gerichtshof),

upon the applicant's plea of nullity (Nichtigkeitsbeschwerde), quashed

his conviction of receiving stolen cars and his sentence and, to this

extent, referred the case back to the Regional Criminal Court.  The

remainder of the applicant's plea of nullity was dismissed.  The

Supreme Court found that the Criminal Court had incorrectly refused the

applicant's requests for the taking of further evidence.  The Supreme

Court noted that the witnesses named by the defence were the

applicant's alleged business partners and could possibly give evidence

as to whether the applicant had known about the fact that the cars

concerned had been stolen.

     On 31 August 1990 the Vienna Regional Criminal Court, in

proceedings separated from the main proceedings, fixed a sentence of

two and a half months' imprisonment in respect of the applicant's

conviction to the extent that it had been confirmed by the Supreme

Court.

     In the resumed main proceedings the Vienna Regional Court

arranged for the hearing of a witness in Luxembourg in proceedings

under letters rogatory.  The witness G., one of the Hungarian

accomplices having received the cars concerned in Hungary, was

questioned by an Investigating Judge in the presence of a sworn

interpreter of Hungarian origin and also in the presence of a Public

Prosecutor and the applicant.  According to the record of the

questioning, the applicant put questions to the witness concerned.

     On 10 November 1992, in the resumed main proceedings, the Vienna

Regional Criminal Court convicted the applicant of seventeen counts of

receiving stolen cars and, taking the sentence imposed on

31 August 1990 into account, sentenced him to a further eighteen

months' imprisonment.

     The Court found that between March 1986 and May 1988 the

applicant had driven seventeen stolen cars from Austria to Hungary.

However, it could not be established that the applicant had himself

stolen these cars.  The Court proceeded on the basis of the applicant's

statements according to which he had transported seventeen cars from

Vienna to Hungary.  As regards his defence that he had believed that

these cars were lawfully acquired and not stolen, the Court noted that

G., one of the accomplices having received the cars concerned in

Hungary, had stated that they had never raised the issue of the origin

of the cars in their conversations.  Nevertheless, having regard to the

rather doubtful circumstances of the trips, the Court came to the

conclusion that the applicant must have been aware of the possibility

that the cars concerned had been stolen.

     In its judgment, the Court dismissed the applicant's request to

produce the Hungarian files concerning criminal proceedings against an

accomplice prosecuted in Hungary which could, according to the

applicant, disclose further members of the gang as possible witnesses

on the question of whether the origin of the cars concerned had been

disguised by the persons involved in the events.  In this respect, the

Court noted that the facts to be proven had already been established

on the basis of the applicant's statements and the testimony of the

witness heard in proceedings under letters rogatory.  The applicant's

similar request to produce the criminal files concerning a person

involved in the above activities of the gang was dismissed for the same

reasons.  The applicant's request to investigate with a view to hear

as a witness a Hungarian accomplice was dismissed on the ground that

the applicant's statements on this witness were too vague to enable his

identity and whereabouts to be established.   The applicant's request

to hear the Hungarian accomplice L. was dismissed on the ground that

L. had absconded in order to evade prosecution and his whereabouts were

unknown.  The applicant's request to hear G. again as a witness was

dismissed on the ground that there were no indications to support the

applicant's allegations of procedural shortcomings on the occasion of

G.'s hearing in proceedings under letters rogatory.  As regards the

applicant's request to produce L.'s Hungarian criminal file in order

to prove that L. had often made false statements incriminating others,

the Court noted that translations of the relevant parts of the files

concerned were already available and that its judgment was not based

on any of L.'s statements incriminating the applicant.

     On 27 May 1993 the Supreme Court dismissed the applicant's plea

of nullity.  The Supreme Court found in particular that the Regional

Criminal Court's decisions to dismiss the applicant's various requests

for the taking of further evidence or for further investigation had not

violated his defence rights.  As regards the witnesses I.M. and L. the

Supreme Court noted that both were out of reach and that any attempt

to hear them was therefore bound to fail.  As regards the request to

produce the L.'s criminal files, the Supreme Court considered that the

applicant's conviction was not based on L.'s incriminating statements,

and that the question of L.'s credibility was therefore irrelevant.

The Supreme Court also confirmed the Regional Criminal Court's

reasoning that the applicant must have been aware of the possibility

that the cars concerned had been stolen.

     On 22 July 1993 the Vienna Court of Appeal dismissed the

applicant's appeal against sentence (Berufung).

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 of

receiving stolen cars.  Moreover, in the bill of indictment, he had

been charged with theft - rather than with receiving stolen cars - and

he had, therefore, not been able properly to prepare his defence

against those charges.  Furthermore, he complains about the taking and

assessment of evidence, in particular that he had not been able to put

any questions to L.  He relies on Article 6 paras. 1 and 3 (a) and (d)

of the Convention.

THE LAW

1.   The applicant complains about his conviction and the alleged

unfairness of the criminal proceedings against him.  He relies on

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

Convention.

     Article 6 (Art. 6) of the Convention, so far as relevant,

provides 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 established by law. ...

     ...

     3.    Everyone charged with a criminal offence has the following

     minimum rights:

           a.    to be informed promptly, in a language which he

     understands and in detail, of the nature and cause of the

     accusation against him;

     ...

           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.

     ..."

     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).

     The applicant has lodged various complaints about the

proceedings.  The Commission finds appropriate it to examine these

submissions from the angle of paragraph 1 (Art. 6-1) taken together

with the principles inherent in paragraph 3 of Article 6 (Art. 6-3),

as the guarantees in paragraph 3 are specific aspects of the general

concept of a fair trial set forth in paragraph 1 (Art. 6-1) (Eur. Court

H.R., Unterpertinger judgment of 24 November 1986, Series A no. 110,

p. 14, para. 29).

     As regards the applicant's complaint that he had not been duly

informed about the charge of receiving stolen goods, the Commission

recalls that Article 6 para. 3 (a) (Art. 6-3-a) gives an accused person

the right to be adequately informed of the cause and the nature of the

accusation in order to enable him to prepare his defence accordingly

(Eur. Court H.R., Brozicek judgment of 19 December 1989, Series A no.

167, pp. 18-19, paras. 38-42; No. 10857/84, Dec. 15.7.86, D.R. 48, p.

106).

     The Commission notes that, in the bill of indictment of 1989, the

applicant was charged with, inter alia, having stolen numerous cars in

Austria which he had later driven to Hungary.  Following the first set

of trial proceedings, the Vienna Regional Criminal Court, in its

judgment of 1990, found that there was no sufficient proof in respect

of the charge that he had stolen the cars concerned.  However,

according to the findings of the Court, the facts that he had

transported the stolen cars to Hungary and must have been aware of the

possibility that they had been stolen, constituted the offence of

receiving stolen cars.  The Supreme Court quashed this conviction on

the ground that the applicant's requests to take evidence on the

question of whether he had known of the unlawful origin of the cars had

been unduly dismissed. In the second set of proceedings following the

applicant's successful plea of nullity, the charges of numerous counts

of theft remained the principal charges against the applicant.

However, the subsidiary question of whether he had committed receiving

stolen cars was, in the light of the Supreme Court judgment, also

pursued in these proceedings, and in particular in the applicant's

defence.

     The Commission considers that the bill of indictment, to the

extent that it addressed the factual elements constituting the offence

of receiving stolen goods merely as part of the principal charge of

theft, might not be regarded as adequate information within the meaning

of Article 6 para. 3 (a) (Art. 6-3-a).  However, already in the course

of the first set of trial proceedings, the applicant's defence covered

not only the principal charges of theft, but also the subsidiary

offence of receiving stolen cars.  Following his successful plea of

nullity against his conviction of receiving stolen cars in 1990, the

applicant pursued his defence against the subsidiary charge of

receiving.  There is no indication that the applicant, assisted by

defence counsel, had not been informed adequately about the nature and

cause of the accusations against him to the extent necessary to prepare

his defence and exercise his defence rights.

     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 he

could not put questions to the witness L.  However, the Commission

notes that the Regional Criminal Court dismissed the applicant's

request to hear the Hungarian accomplice L. on the ground that L. had

absconded in order to evade prosecution and his whereabouts were

unknown.  Furthermore, his request to produce the Hungarian criminal

file regarding L. in order to prove that L. had often made wrong

statements incriminating others, was dismissed on the grounds that

translations of the relevant parts of the files concerned were already

available and that the Regional Criminal Court's judgment was not based

on any of L.'s statements incriminating the applicant.  The Supreme

Court confirmed that the applicant's defence rights had not been

disregarded, considering in particular that two witnesses L. were out

of reach and that the applicant's conviction was not based on L.'s

incriminating statements.

     Having regard to all material before it, the Commission finds no

sufficient grounds to conclude that the failure to hear further

witnesses or to investigate further with a view to identify further

witnesses was incompatible with Article 6 (Art. 6).

     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.

     It follows that the application is 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)