AS TO THE ADMISSIBILITY OF

                      Application No. 20161/92

                      by Eckhard Heinrich TAPPE

                      against Austria

     The European Commission of Human Rights (Second Chamber) sitting

in private on 29 November 1995, the following members being present:

           Mr.   H. DANELIUS, President

           Mrs.  G.H. THUNE

           MM.   G. JÖRUNDSSON

                 J.-C. SOYER

                 H.G. SCHERMERS

                 F. MARTINEZ

                 L. LOUCAIDES

                 J.-C. GEUS

                 M.A. NOWICKI

                 I. CABRAL BARRETO

                 J. MUCHA

                 D. SVÁBY

                 P. LORENZEN

                 K. HERNDL

           Ms.   M.-T. SCHOEPFER, 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 13 March 1992 by

Eckhard Heinrich TAPPE against Austria and registered on 16 June 1992

under file No. 20161/92;

     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, a German citizen, born in 1948, is presently

detained at the Stein prison in Krems (Austria).

     Before the Commission he is represented by Mr. Albert Heiss, a

lawyer practising in Innsbruck.

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

summarised as follows.

     On 20 September 1989 the applicant was arrested by the French

police in Nice in the company of S., a German citizen.

     The police discovered in S.'s car traveller cheques and a

firearm. A search of the applicant's car and hotel room was at first

without result.

     On 21 September 1989, the Interpol Office in Vienna transmitted

to the French authorities a request of the investigating judge at the

Innsbruck Regional Court (Landesgericht) to order the applicant's

provisional detention. The applicant was suspected of having been

involved in armed robberies committed in Austria in 1987.

     Criminal investigations were also pending against the applicant

and S. in Germany.

     On 22 September 1989 the Innsbruck Regional Court issued a

warrant of arrest against the applicant on the grounds that there was

a strong suspicion that together with accomplices he had committed

aggravated robberies on 2 October 1987 in Seekirchen and on

14 October 1987 in St. Johann and an attempted aggravated robbery on

15 October 1987 in Saalfelden. The Regional Court pointed out that

stolen traveller cheques had been found in the applicant's and S.'s

possession and that on 6 October 1987 a witness had recognised the

applicant as one of the offenders. According to the Regional Court

there was also a danger of the applicant absconding and a danger of

collusion.

     On the same day the French authorities were informed of this

warrant of arrest and of the intention of the Austrian Government to

submit a formal request for the applicant's extradition through the

diplomatic channel.

     According to a procès-verbal of the German Federal Criminal

Office (Bundeskriminalamt) of 4 October 1989, traveller cheques and a

firearm had been discovered during a further search of the applicant's

car carried out on 26 September 1989 in Nice by French policemen in the

presence of two members of the Federal Criminal Office.

     On 13 December 1989 the indictment chamber of the Court of Appeal

of Aix-en-Provence authorised the applicant's extradition to Austria.

     On 8 August 1991 the applicant was extradited to Austria.

     On 9 August 1991 the Innsbruck Regional Court ordered the

applicant's detention on remand on the grounds that there was a strong

suspicion that he had committed armed robberies and that the danger of

his absconding and the danger of collusion persisted.

     On 12 September 1991 the applicant asked the Innsbruck Regional

Court to order his release as he had been arrested on 20 September 1989

in France without any reasonable grounds. His arrest and following

detention were therefore unlawful. Further, it was not justified to

assume that there was a risk of collusion four years after the offences

had been committed.

     By a decision of 12 September 1991 the Review Chamber

(Ratskammer) at the Innsbruck Regional Court decided that the

applicant's detention be continued on the grounds that there was a

strong suspicion that he had committed criminal offences, that there

was a danger of his absconding and that it resulted from letters

addressed to his girl-friend that there was also a risk of collusion.

The Court refused to examine the question of the lawfulness of the

applicant's arrest in France in 1989.

     The applicant appealed against this decision.

     On 16 October 1991 the Innsbruck Court of Appeal (Oberlandes-

gericht) dismissed the applicant's appeal. It confirmed that there were

serious grounds for suspecting the applicant of having committed

criminal offences and that the risk of his absconding still persisted.

However, with regard to the time which had elapsed since his arrest,

the Court found that the risk of collusion could no longer be relied

upon.

     On 5 March 1992 a German undercover agent was heard as a witness

before the police in Fürstenfeldbruck (Germany) and declared that he

had seen the traveller cheques which the applicant and S. had in their

possession and had later hidden in their cars.

     On 28 October 1992 the Innsbruck Public Prosecutor filed an

indictment charging the applicant and S. with aggravated robbery and

attempted aggravated robbery.

     Thereafter the applicant challenged the presiding judge of the

Court of Assizes (Geschworenengericht) on the ground that he had

officiated as investigating judge for part of the preliminary

proceedings. He maintained that the presiding judge was excluded by

operation of law from participation at the trial. In fact, Article 68

para. 2 of the Code of Criminal Procedure (Srafprozessordnung) provided

that " a person shall be disqualified  (ausgeschlossen) from

participating or deciding in the trial proceedings if he has acted as

investigating judge in the same case ...".

     On 28 December 1992 the President of the Innsbruck Regional Court

decided that the presiding judge of the Court of Assizes was not

precluded from involvement by Article 68 para. 2 of the Code of

Criminal Procedure. The various acts carried out by him prior to the

trial in replacement of the investigating judge consisted in the

transmission of documents and the fixing of expert fees and could not

be considered as the exercise of functions of an investigating judge

excluding him from participation.

     On 15 April 1993 the German Federal Ministry of the Interior

refused to authorise the German undercover agent to disclose his

identity and to appear as a witness before the Innsbruck Regional Court

for reasons of his personal safety.

     At a hearing of 24 June 1993 before the Court of Assizes the

applicant's defence counsel contested the reading out of the German

undercover agent's declaration at the trial.

     On 30 June and 1 July 1993 the trial was held before the Court

of Assizes at the Innsbruck Regional Court, sitting with three judges

and eight jurors. On 1 July 1993 the jury returned a verdict by which

the applicant and his accomplice S. were found guilty of two aggravated

robberies committed on 2 October 1987 in Seekirchen and on 14 October

1987 in St. Johann and of one attempted aggravated robbery committed

on 15 October 1987 in Saalfelden.

     The members of the jury answered the questions as follows:

     "Main question No. 1

     Is S. guilty of having taken on 2 October 1987 from H. Z.

     as the responsible person of the savings bank

     (Raiffeisenkasse) in Seekirchen am Wallersee money in an

     amount of 2 352 000 AS as well as 4 golden bracelets of a

     value of 6 300 AS in order to retain unlawful possession of

     these items for himself or a third person, offence

     intentionally committed in association (Section 12 of the

     Criminal Code) with Heinrich Tappe, as a member of a

     criminal association with the participation (Section 12 of

     the Criminal Code) of another member of a criminal

     association, by using threats with actual danger for the

     physical integrity and life (Section 89 of the Criminal

     Code) and by using arms (so-called pump guns)?

     (eight) yes

     Main question No. 2

     Is Heinrich Tappe guilty of having taken from H. Z. as the

     responsible person of the savings bank (Raiffeisenkasse) in

     Seekirchen am Wallersee money in an amount of 2 352 000 AS

     as well as 4 golden bracelets of a value of 6 300 AS in

     order to retain unlawful possession of these items for

     himself or a third person, offence intentionally committed

     in association (Section 12 of the Criminal Code) with S.,

     as a member of a criminal association with the

     participation (Section 12 of the Criminal Code) of another

     member of a criminal association, by using threats with

     actual danger for the physical integrity and life (Section

     89 of the Criminal Code) and by using arms (so-called pump

     guns)?

     7 (seven) yes, 1 (one) no"

     The same questions were put to the members of the jury with

regard to a robbery committed on 16 July 1987 in St. Johann in Tirol

and with regard to an attempted robbery committed on 15 October 1987

in Saalfelden. The replies of the jury were identical.

     The following reasons for the jury's verdict were stated in the

memorandum (Niederschrift) on the jury's deliberations, prepared in

accordance with  Section 331 para. 3 of the Code of Criminal Procedure:

     With regard to S.

     "Robberies committed the same way as in Germany. Possession of

     part of the robbed items. Forgery of documents. Possession of VW

     bus. Fleeing to Brazil. Testimony of policeman."

     With regard to the applicant

     "Possession of part of the robbed items. Acquisition of the VW

     bus. Letters to his girl-friend. Rent of safe deposits containing

     forged documents. Contradictions concerning his alibi 2 October

     1987. Close friendship with S."

     On the basis of this verdict the Court sentenced the applicant

to 14 years' and S. to 12 years' imprisonment, taking into account the

judgment of the Nice Court (tribunal de grande instance) of 6 December

1989 by which S. had been sentenced to two years' imprisonment.

     The judgment of the Innsbruck Regional Court was founded inter

alia on the testimony of witnesses, including two members of the German

Federal Criminal Office who had participated at the search of the

applicant's car, an expert opinion as well as on documentary evidence.

     The applicant and S. filed a plea of nullity (Nichtigkeits-

beschwerde) and an appeal (Berufung) against sentence to the Supreme

Court (Oberster Gerichtshof).

     On 11 November 1993 the applicant lodged an application for his

personal attendance before the Supreme Court.

     On 15 February 1994 the Supreme Court rejected this application

on the ground that the law did not provide for the personal attendance

of an accused at the hearing on the plea of nullity and that the

applicant's presence did not appear necessary in the interests of the

proper administration of justice or for other reasons. Indeed, no

concrete indications suggesting a need for the applicant's personal

attendance at the hearing on the appeal lodged solely for his benefit

were apparent from the court files or from his application which, in

any event, had been filed out of time.

     On 17 May 1994 the Supreme Court rejected the applicant's plea

of nullity after a hearing at which the applicant was represented by

defence counsel.

     With regard to the applicant's complaint that prior to the trial

the presiding judge had exercised functions of an investigating judge,

the Supreme Court pointed out that the applicant had failed to

challenge the presiding judge at the beginning of the trial. In

addition, the Supreme Court considered that in any event the

applicant's complaint was ill-founded. The previous activities of the

presiding judge, consisting in the transmission of documents, could not

be considered as preliminary inquiries, such as the investigation of

criminal offences or the examination of criminal charges or facts which

had been carried out by the investigating judge who was in charge of

the case.

     Insofar as the applicant challenged the reading out of the

declarations of the German undercover agent, the Supreme Court noted

that the applicant had failed to raise this issue at the hearing of

30 June 1993 before the Innsbruck Regional Court and did not allow this

complaint.

     As to the jury's verdict, the Supreme Court considered that the

difference in the number of votes on the question of the applicant's

and his accomplice's guilt was not in itself contradictory. The Supreme

Court recalled that the verdict of a jury, unlike the judgments of a

single judge or a district court sitting with two lay assessors

(Schöffengericht), did not require any reasoning. Moreover, there was

no indication that the members of the jury had not correctly understood

the questions or had disregarded procedural rules or substantive

criminal law. The evaluation of the evidence and in particular the

appreciation of the credibility of witnesses was exclusively within the

competence of the lay judges. The applicant's complaints were an

inadmissible attempt to challenge the findings of fact and the

assessment of evidence made by the first instance court.

     On the applicant's appeal, the Supreme Court reduced his sentence

to 12 years' imprisonment. It considered that the applicant's previous

convictions in Germany in 1979 and in Spain in 1971 did not meet the

legal conditions for considering him a recidivist. The Court also had

regard to the fact that the criminal proceedings were pending since

1989.     On 29 September 1993 the applicant lodged a constitutional appeal

which was rejected by the Constitutional Court (Verfassungsgerichtshof)

on 29 November 1993 for reasons of competence.

COMPLAINTS

1.   The applicant complains under Article 5 paras. 1 (c), 3 and 4 of

the Convention that his arrest in France was illegally requested by the

Austrian authorities in the absence of any reasonable ground for

suspecting him of having committed a criminal offence.

     The Innsbruck Regional Court issued an unlawful and arbitrary

warrant of arrest on 22 September 1989. Neither did the description of

a witness correspond to his person nor did the police find traveller

cheques in his possession.

     The applicant also complains that the Austrian courts refused to

examine the lawfulness of his arrest in France.

2.   The applicant further complains of his conviction and sentence

and the proceedings before the Austrian courts. He alleges a violation

of Article 6 of the Convention in several respects.

a)   His first complaint concerns the alleged lack of impartiality of

the presiding judge of the first instance court. The applicant

maintains that this judge had acted during the preliminary inquiries

as an investigating judge and later as a trial judge in the same case.

He had consulted the case-file and had consequently acquired, before

the trial, a particularly detailed knowledge of the case. He thus had

a predetermined view on his guilt and should have been excluded from

participating at the trial. Furthermore, the presiding judge himself

had first considered himself as being precluded from taking part in the

case. The applicant also alleges that the presiding judge had exercised

a negative influence on the jury.

b)   The applicant next complains that no reasons were given for the

jury's verdict and that he was consequently deprived of the possibility

of effectively preparing an appeal as he did not know which

consideration led the jury to affirm his guilt. He furthermore

complains that the votes of the jury were contradictory. He refers in

this context to the fact that the jury found him guilty by a seven to

one majority whereas his accomplice was found guilty for the same

offences by an unanimous vote.

c)   The applicant also complains that his sentence and conviction

were based on an erroneous evaluation of the evidence. The traveller

cheques had been hidden in his car by a German undercover agent before

they were found by the police. They have never been submitted to the

Regional Court as evidence.

d)   The applicant complains that the proceedings before the Innsbruck

Regional Court were not conducted in public since the main door of the

court room was locked and only a small side-entrance openend.

e)    The applicant further complains that the Supreme Court decided

on his plea of nullity and his appeal in his absence.

f)   The applicant complains that the evidence against him was

essentially based on the false declarations of a German undercover

agent, according to him a well-known criminal, who was paid by the

Austrian Federal Ministry of Justice. The undercover agent did not give

evidence to the court in person. His statements were read out at the

trial, preventing the defence from questioning him. The Austrian police

officers who were heard by the Innsbruck Regional Court, invoked their

professional secrecy and refused to answer questions of the defence

concerning the credibility of the undercover agent.

3.   The applicant finally complains that there was no appeal against

the decision by which the President of the Innsbruck Regional Court

refused to exclude the presiding judge from participating at the trial.

The applicant alleges in this respect a violation of Article 13 of the

Convention.

THE LAW

1.   The applicant complains that his arrest and detention by the

French authorities were illegal and contrary to article 5 (Art. 5) of

the Convention.

     The Commission notes that the applicant was arrested by the

French police on 20 September 1989, kept first in police custody and

thereafter in detention pending extradition until 8 August 1991. It was

for the French authorities to ensure whether the set of facts

underlying the offences charged constituted a valid basis for the

applicant's detention and extradition. The Commission therefore finds

that, as far as Article 5 (Art. 5) of the Convention is concerned, the

French Government are exclusively responsible under the Convention for

the applicant's arrest and detention and that the applicant's

deprivation of liberty in France can in no way engage the

responsibility of the Austrian Government under this provision.

However, the present application is only directed against Austria.

     It follows that this part of the application is incompatible

ratione personae with the provisions of the Convention within the

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

2.   The applicant further complains of his conviction and sentence

and under Article 6 (Art. 6) of the Convention of the unfairness of the

criminal proceedings which led to his conviction.

     Article 6 (Art. 6) of the Convention, insofar as is relevant,

reads as follows:

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

     against him, everyone is entitled to a fair and public

     hearing within a reasonable time by an independent and

     impartial tribunal established by law. ...

     2.    Everyone charged with a criminal offence shall be

     presumed innocent until proved guilty according to law.

     3.    Everyone charged with a criminal offence has the

     following minimum rights:

     ...

     c.    to defend himself in person ...

     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;

     ..."

     Insofar as the applicant complains about the decisions of the

courts, the Commission recalls that under 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. The Commission refers

on this point to its established case-law (see e.g. No. 21283/93, Dec.

5.4.94, D.R. 77-A pp. 81, 82 and 88).

     The applicant has referred not only to Article 6 para. 1

(Art. 6-1) of the Convention but also to para. 3 of this Article. In

this respect the Commission reiterates that the requirements of para.

3 of Article 6 (Art. 6-3) are specific aspects of the general concept

of a fair hearing guaranteed in para. 1 of the same Article (cf., e.g.,

Eur. Court H.R., Lüdi judgment of 15 June 1992, Series A no. 238,

p. 20, para. 43). The Commission will therefore examine the applicant's

complaints from the point of view of these two provisions in

conjunction.

a)   The applicant's first complains that he was not given a fair

hearing by an impartial tribunal contrary to Article 6 para. 1

(Art. 6-1) of the Convention. He contends that the presiding judge had

first exercised the functions of an investigating judge and later acted

as trial judge in his case. The presiding judge's influence on the jury

was prejudicial to his case.

     As regards the substance of this complaint, the Commission

recalls that the existence of impartiality for the purposes of Article

6 para. 1 (Art. 6-1) of the Convention 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

H.R., Hauschildt judgment of 24 May 1989, Series A no. 154, p. 21,

para. 46; Padovani judgment of 26 February 1993, Series A no. 257-B,

p. 20, para. 25).

     With regard to the personal impartiality of the presiding judge

of the Innsbruck Regional Court and in particular to the applicant's

complaint that the presiding judge has exercised a negative influence

on the jury, the Commission finds that the applicant does not adduce

any argument in support of his allegation.

     As to the objective test, it must be determined whether, quite

apart from the judge's conduct, there are ascertainable facts which may

raise doubts as to his impartiality. In this respect even appearances

may be of a certain importance. What is at stake is the confidence

which the courts in a democratic society must inspire in the public and

above all, as far as criminal proceedings are concerned, in the

accused. It follows that, in deciding whether in a given case there is

a legitimate reason to fear that a particular judge lacks impartiality,

the opinion of the accused is important but not decisive. What is

decisive is whether his fear can be regarded as objectively justified

(Padovani judgment, loc. cit., p. 20, para. 27).

      The mere fact that a judge has also made pre-trial decisions in

a case, including those concerning detention on remand, cannot be held

as justifying fears concerning his impartiality, but special

circumstances may, in a given case, be such as to warrant a different

conclusion" (Hauschildt judgment, loc. cit., p. 22, paras. 50-52).

     In the present case the question arises whether or not the

presiding judge of the Innsbruck Regional Court, when replacing the

investigating judge, did have to answer the same questions as those

which were decisive for the Court's judgment, namely whether the

evidence placed before the Court was sufficient to find the applicant

guilty of the offences he was charged with and to convict him of these

offences (cf. No. 13157/87, Dec. 27.5.91, D.R. 70 p. 167). However, as

appears from the decision of the President of the Innsbruck Regional

Court of 28 December 1992 and the judgment of the Supreme Court of 17

May 1994, the acts carried out by the presiding judge of the Court of

Assizes during the preliminary proceedings consisted in the mere

transmission of documents and the fixing of expert fees. Accordingly,

the Commission considers that the nature and extent of the pre-trial

measures taken by the judge were so limited that any fears the

applicant may have had as to the judge's impartiality were not

objectively justified (cf. Eur Court H.R., Fey judgment of 24 February

1993, Series A no. 255, pp. 11-14, paras. 25-36).

     Consequently, in the circumstances of the present case, the

Commission cannot find that the applicant's fear as to the impartiality

of the presiding judge can be regarded as objectively justified and,

therefore, finds no appearance of a violation of Article 6 para. 1

(Art. 6-1) of the Convention in this respect.

     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.

b)   The applicant further complains that no sufficient reasons are

stated in the Regional Court's judgment as to the verdict of the

members of the jury and consequently an effective control of the

judgment was impossible. Referring to the circumstance that the jury

found him guilty by a seven to one majority whereas its verdict was

unanimous with regard to his accomplice shows, in the applicant's

opinion, that the jury's verdict was also inconsistent.

     The Commission recalls that national courts must indicate with

sufficient clarity the grounds on which they base their decision (Eur.

H.R., Hadjianastassiou judgment of 16 December 1992, Series A no. 252,

p. 16, para. 33). The extent to which reasons need to be given depends

on the circumstances of the case (No. 15957/90, Dec. 30.3.92, D.R. 72

p. 195).

     The Commission considers that the requirement that reasons be

given must be qualified by the specific features of the procedure

before the Court of Assizes at the Innsbruck Regional Court where

jurors are not required to give reasons for their findings as this is

excluded by Section 342 of the Code of Criminal Procedure.

     While the jury may reply only by "yes" or "no" to the questions

put by the presiding judge, these questions, which were very precise

in the applicant's case, formed the framework for the jury's verdict.

The questions and answers given by the jury were reproduced in the

judgment of the Innsbruck Regional Court of 1 July 1993. The Commission

further notes that under Section 331 para. 3 of the Austrian Code of

Criminal Procedure the jury's spokesman has to indicate in writing the

jury's considerations which were decisive for their answers to the

questions put to them by the Court. This provision was complied with

in the applicant's case and the jury's notes were available to him. The

Commission also refers to the Supreme Court's findings in this case to

the effect that the jury's verdict satisfied the legal requirements as

to the reasoning. The Commission finds that the questions put to the

jury together with the jury's notes, in spite of the brevity of the

jury's replies, were adequate and enabled the applicant, in fact, to

submit detailed grounds for his plea of nullity.

     The Commission considers that in these circumstances there is no

appearance of the proceedings having been unfair and contrary to

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

     It follows that the applicant's complaint in this respect is

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

c)   The applicant further complains that his conviction was based on

illegal evidence and an erroneous evaluation of evidence.

     The Commission stresses that the admissibility of evidence and

its probative value are primarily governed by the rules of domestic

law. The Convention organs' task is to ascertain whether the

proceedings considered as a whole, including the way in which evidence

was submitted, were fair (Eur. Court H.R., Lüdi judgment, loc. cit.,

p. 20, para. 43). The Commission is therefore not required to decide

on the question of whether the domestic courts correctly assessed the

evidence (see, e.g., No. 12013/86, Dec. 10.3.89, D.R. 59 pp. 100, 111).

     In the present case there is no indication that the proceedings

were unfairly conducted or that the applicant, who was represented by

a lawyer, could not adduce any evidence which he regarded as being

pertinent, or to put forward any argument he considered relevant.

Moreover, the Commission notes that the Supreme Court undertook a

detailed analysis of the applicant's complaints, addressing the issue

of the assessment of evidence by the first instance court. It concluded

that the lower court had not overstepped the limits of appreciation of

evidence or established facts in a arbitrary manner. The Commission

does not consider these conclusions arbitrary or otherwise 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.

d)   The applicant also alleges that the public was excluded from the

first instance trial since the main door of the court room was locked.

     However, the Commission recalls that under the terms of

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. This condition is not

met by the mere fact that an applicant has submitted his case to the

various competent courts. It recalls that domestic remedies within the

meaning of Article 26 (Art. 26) of the Convention have only been

exhausted if, before the highest domestic body, the applicant has

submitted, at least in substance, the complaint he puts before the

Commission, even without particular reference to the Convention (cf.,

e.g., No. 6861/75, Dec. 14.7.75, D.R. 3 p. 147; Nos. 5573/72 and

5670/72, Dec. 16.7.76, D.R. 7 p. 8; No. 7299/75 and 7496/76, Dec.

4.12.79, D.R. 18 p. 5; No. 12164/86, Dec. 12.10.88, D.R. 58 p. 63).

     In this case the applicant failed to raise the issues mentioned

above in his plea of nullity before the Supreme Court. Furthermore, an

examination of the case does not disclose the existence of any special

circumstances which might have absolved the applicant, according to the

generally recognised rules of international law, from raising his

complaints in the proceedings referred to.

     It follows that the applicant has not complied with the condition

as to the exhaustion of domestic remedies and this part of the

application must accordingly be rejected under Article 27 para. 3

(Art. 27-3) of the Convention.

e)   The applicant next complains that he could not attend the public

hearing before the Supreme Court.

     As regards the applicant's plea of nullity, the Commission points

out that under Austrian law the Supreme Court, in dealing with nullity

proceedings, is primarily concerned with questions of law that arise

in regard to the conduct of the trial and other matters. While the

Supreme Court is bound by the findings of fact made by lower courts,

it may be required to examine whether a motion to take evidence has

been properly refused by the trial court and whether the excluded facts

might have influenced the jury's verdict. If the accused is represented

by counsel, as in the present case, neither paragraph 1 nor

paragraph 3 c) of Article 6 (Art. 6-3-c) require his presence at such

proceedings (see Eur. Court H.R., Kremzow judgment of

21 September 1993, Series A no. 268-B, p. 44, para. 63).

     As regards the appeal proceedings before the Supreme Court, it

is essential that the appellant be present during the hearing of the

appeal and afforded the opportunity to participate in it together with

his counsel, if the court is called upon to examine whether the

sentence should be increased and thereby has to assess not only the

appellant's character and state of mind at the time of the offence but

also his motive (Kremzow judgment, loc. cit., p. 45, para. 67).

     In the present case, however, there was no question of increasing

the applicant's sentence. Moreover, the grounds of appeal submitted by

the applicant, did not give rise to an assessment of his motive or of

his character or state of mind at the time of the offence. The Supreme

Court reduced his sentence on the ground that the legal conditions for

considering him a recidivist were not satisfied and on account of the

length of the criminal proceedings.

     In these circumstances, the Commission finds that the applicant's

presence at the Supreme Court's hearing was not required by Article 6

para. 1 or para. 3 (c) (Art. 6-1, 6-3-c) of the Convention. There is,

thus, no appearance of a violation of the applicant's right to a fair

hearing in this respect.

f)   The applicant complains that the declaration of the undercover

agent was read out at the trial and that he did not have the

possibility to question the undercover agent in person on his

incriminating statement.

     However, the Commission is not required to decide whether or not

the facts alleged by the applicant disclose any appearance of a

violation of 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 observes that the Supreme Court had declared

inadmissible the applicant's complaint at issue on the ground that the

applicant's lawyer failed to raise this matter at the beginning of the

hearing of 30 June 1993. The Commission recalls its constant

jurisprudence according to which there is no exhaustion of domestic

remedies where a domestic law appeal is not admitted because of a

procedural mistake (cf. No. 10107/82, Dec. 12.7.84, D.R. 38 p. 90; No.

23256/94, Dec. 29.6.94, D.R. 78-B p. 139).

     It follows that the applicant has not complied with the

requirement as to the exhaustion of domestic remedies contained in

Article 26 (Art. 26) of the Convention.

     This part of the application must, therefore, be rejected under

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

3.   Under Article 13 (Art. 13) of the Convention the applicant lastly

complains that there was no appeal against the decision of

28 December 1992 by which the President of the Innsbruck Regional Court

decided not to exclude the presiding judge from the applicant's trial.

     Article 13 (Art. 13) provides:

     "Everyone whose rights and freedoms as set forth in this

     Convention are violated shall have an effective remedy before a

     national authority notwithstanding that the violation has been

     committed by persons acting in an official capacity."

     The Commission recalls that the requirements of Article 13

(Art. 13) of the Convention are less strict than, and accordingly

absorbed by Article 6 (Art. 6) of the Convention (see Eur. Court H.R.,

Philis judgment of 27 August 1991, Series A no. 209, p. 23, para. 67).

It follows that no separate issue arises under Article 13 (Art. 13) of

the Convention.

     Moreover, the Commission observes that the applicant had made use

of the possibility of raising this matter before the Supreme Court, an

appellate body with jurisdiction to quash or modify the decisions of

the lower courts. There is no indication on the facts as presented in

this case that this avenue of appeal is not an effective remedy for the

purposes of Article 13 (Art. 13) of the Convention.

     It follows that this part of the application is also manifestly

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

Convention.

     For these reasons, the Commission,  by a majority,

     DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Second Chamber        President of the Second Chamber

     (M.-T. SCHOEPFER)                          (H. DANELIUS)