AS TO THE ADMISSIBILITY OF

                      Application No. 23806/94

                      by Horst KLEINBICHLER

                      against Austria

     The European Commission of Human Rights (First Chamber) sitting

in private on 18 October 1995, 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

                 G.B. REFFI

                 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 15 March 1994 by

Horst KLEINBICHLER against Austria and registered on 5 April 1994 under

file No. 23806/94;

     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 applicant, born in 1941, is an Austrian national. He is

currently detained at the prison of the Klagenfurt Regional Court.

Before the Commission he is represented by Mr. D. Clementschitsch, a

lawyer practising in Villach.

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

summarised as follows.

A.   Particular circumstances of the case

     In early September 1978 a fire destroyed a restaurant owned by

the applicant. Subsequently, on 18 September 1978, preliminary

investigations (Voruntersuchung) were opened against the applicant on

the suspicion of fraud. In these and all the subsequent proceedings the

applicant was represented by Mr. Clementschitsch.

     On 27 January 1981 the Klagenfurt Public Prosecutor's Office

(Staatsanwaltschaft) preferred the indictment against the applicant.

He was charged inter alia with attempted aggravated fraud. He was

accused of having instigated R.Th. and E.M. to set fire to his

restaurant in order to obtain insurance monies from the B. insurance

company.

     On 5 October 1981 the trial was opened at the Klagenfurt Regional

Court (Landesgericht), sitting as a court of two professional judges

and two lay judges (Schöffengericht). Judge Orasche participated as a

professional judge.

     On 25 March 1983 the Klagenfurt Regional Court acquitted the

applicant. It noted in particular that R.Th. and E.M. had been

acquitted from the charge of arson by the Augsburg Regional Court for

lack of sufficient proof. The Regional Court further noted that it had

not been able to hear E.M. However, it had heard R.Th., who had denied

that the applicant had instigated him to set fire to his restaurant.

The statement of a further witness, namely E.T., who had incriminated

the applicant, was not sufficient to invalidate the statements made by

the applicant and R.Th.

     In subsequent civil proceedings, which lasted from 1983 to 1987,

the applicant obtained judgments from the competent courts, which

ordered the B. insurance company to pay him insurance monies of

altogether about ATS 6,4 million. It appears that payment was made to

the applicant in 1987 and 1988.

     On 4 November 1991 the Klagenfurt Public Prosecutor's Office

requested that the criminal proceedings against the applicant be

reopened. Judge Greller, being the head of the competent department of

the Klagenfurt Regional Court, transferred the file to the

investigating judge, requesting him to hear the applicant on the

request to reopen the proceedings. Subsequently, on 15 November 1991

Judge Greller requested a German court for judicial assistance as

regards the questioning of witness E.M. He submitted that the matter

had to be dealt with urgently and requested that E.M. be heard by the

German police authorities and that officers of the Austrian police

department, which was investigating the case, be allowed to be present.

     On 22 November 1991 the Klagenfurt Regional Court, sitting in

camera as a senate of three judges (Drei-Richter-Senat), namely Judge

Greller, Judge Lutschounig and Judge Orasche, decided to reopen the

proceedings against the applicant. The Regional Court found in

particular that R.Th., who had, in the former proceedings denied that

the applicant had requested him to set fire to his restaurant, had now

confessed that he and E.M. had actually done so. E.M. had made a

corresponding confession. Having regard in particular to the false

statement made by R.Th. in the former proceedings, and taking into

account that the prosecution of the offence was not yet statute-barred,

the Public Prosecutor's request to reopen the proceedings in accordance

with S. 355 of the Code of Criminal Procedure (Strafprozeßordnung) was

justified. Consequently, the acquittal had to be set aside.

     On 31 December 1991 the Graz Court of Appeal (Oberlandesgericht)

dismissed the applicant's appeal. It found in particular that the

Klagenfurt Regional Court had been duly composed. A judge, who had

participated in the earlier proceedings, in the present case Judge

Orasche, was not excluded by law from participating in the decision on

the reopening of these proceedings, under S. 68 of the Code of Criminal

Procedure. Furthermore, the Regional Court had rightly found that the

conditions for reopening the proceedings were met. In particular, the

prosecution of the offence was not yet statute-barred. The duration of

the proceedings against the applicant had interrupted the limitation

period. Contrary to the applicant's view, the confessions of R.Th. and

E.M., which had only been made in 1991, constituted new facts. In view

of these confessions, which were also supported by the statements made

by E.T. in the former proceedings, there was a high probability that

the applicant would now be convicted.

     On 28 February 1992 the Public Prosecutor's Office preferred the

indictment against the applicant, charging him with aggravated fraud.

He was accused of having instigated R.Th. and E.M. to set fire to his

restaurant and to have subsequently deceived employees of the B.

insurance company causing them to pay him altogether ATS 6,4 million.

     On 23 March 1992 the applicant appealed against the indictment.

He submitted in particular that the prosecution of the offence was

already statute-barred. He argued that the duration of the former

proceedings had not been in conformity with Article 6 of the European

Convention on Human Rights and should therefore not have interrupted

the limitation period. As regards the charge, he pointed out that he

had not deceived employees of the insurance company, as the latter had

only paid him upon judgment of the competent civil courts.

     On 23 April 1992 the Graz Court of Appeal dismissed the

applicant's appeal. As regards the question whether the prosecution of

the offence was statute-barred, it referred to its decision of

31 December 1991. It added that the duration of the proceedings had

mainly been due to the complexity of the case and the conduct of the

applicant.

     On 6 July 1992 the trial was reopened before the Klagenfurt

Regional Court sitting again as a court of two professional judges,

namely Judge Greller and Judge Lutschounig, and two lay judges. The

applicant had already on 30 June 1992 brought a motion, claiming that

the two professional judges were disqualified from participating at the

trial on the ground that they had decided on the reopening of the

proceedings. This motion had been dismissed by the President of the

Regional Court on 3 July 1992. The applicant repeated it at the trial.

However, the Regional Court also dismissed it. The trial was continued

on 23 July, 20 August, 17 September, 15 October, 13, 16, 17 and

18 November 1992.

     On 23 July 1992 the witnesses R.Th. and E.M., who had not been

summoned for this date, appeared at the trial. The applicant requested

that they should not be heard as the defence did not have time to

prepare for their questioning. He also indicated that he wanted to

confront them with witnesses of the defence. The Regional Court

dismissed this request and, subsequently, heard the two witnesses.

     R. Th. submitted in particular that he had not appeared at the

trial on 6 July 1992 inter alia for fear that he might still be

prosecuted in Austria on charges of arson. However, meanwhile he had

been assured by the police officers, who had investigated the case,

that there were no proceedings pending against him. E.M. also stated

that he had been assured that he did not risk anything, if coming to

Austria. As regards the events in 1978, R. Th. stated that, in the

summer of 1978, he had met the applicant, who had asked him whether he

knew  someone who would set fire to his restaurant. He had then offered

to do so against payment of a certain percentage of the insurance sum

and he and the applicant had arranged the details for carrying out

their plan. The applicant had gone to Italy, while he and E.M. had, in

the night of 7 to 8 September 1978, set fire to his restaurant. They

put candles into plastic bowls filled with fuel, to ensure that they

were already at a safe distance when the candles would burn down and

light the fire. He and E.M. had met the applicant in Italy early in the

morning of 8 September 1978 and had received part of their payment. The

applicant had never paid them the rest. E.M. also stated that he and

R.Th. had set fire to the applicant's restaurant.

     On 15 October 1992 the Public Prosecutor's Office amended the

indictment. The applicant was still charged with aggravated fraud.

However, it was assumed that he had not deceived employees of the

insurance company but organs of the competent civil courts, thereby

causing them to give judgments, obliging the B. insurance company to

pay him altogether ATS 6,4 million. Thereupon, the applicant claimed

that the charge was not the same any more and requested that the whole

trial be repeated. Further, the applicant requested that B.Sch. and

L.F. be heard as witnesses.

     On 18 November 1992 the Klagenfurt Regional Court convicted the

applicant of aggravated fraud and sentenced him to three and a half

years' imprisonment.

     The Regional Court found that the applicant had caused R.Th. and

E.M. to set fire to his restaurant. Subsequently, he had deceived

organs of the competent civil courts about the origin of the fire and

had thereby caused them to decide in his favour, obliging the B.

insurance company to pay him about ATS 6,4 million. In establishing

these facts, the Court found that the applicant's defence that he had

not instigated R.Th and E.M. to commit arson, was not credible. It

referred in particular to the statements made by the witnesses R.Th.

and E.M. It also considered the opinion of a fire expert, which it had

ordered and which had confirmed the plausibility of the description

given by R.Th. of how he had set fire to the applicant's restaurant.

     As regards the applicant's request to hear B.Sch., the Court

found that he had not witnessed any of the relevant events, but had

just confirmed E.M.'s alibi in the proceedings against the latter. As

E.M. had meanwhile confessed to having participated in setting fire to

the applicant's restaurant, there was no need to hear B.Sch. Moreover,

the request had been made at a very late stage and was apparently aimed

at delaying the proceedings. The same held true as regards the

applicant's request to hear L.F. Further, the applicant had failed to

show why this witness would be able to make a statement on whether or

not the applicant had met R.Th. and E.M. on 8 September 1978. In any

case, this question was not relevant.

     Finally, the Court found that the witnesses R.Th. and E.M., whose

questioning the applicant had opposed, had to be heard immediately, as

there was, in the circumstances, a probability that they might not

appear in court again. Moreover, a confrontation of these witnesses

with other witnesses had not proved necessary. In any case, the

applicant had failed to specify the factual issue in relation to which

he wanted such a confrontation.

     On 14 December 1993 the Supreme Court (Oberster Gerichtshof)

dismissed the applicant's plea of nullity and his appeal (Nichtigkeits-

beschwerde und Berufung).

     As regards his complaint that the two professional judges, namely

Judge Greller and Judge Lutschounig were excluded from participating

in the renewed trial or that they were at least biased, the Supreme

Court found that their participation in the decision to reopen the

proceedings against the applicant, did not constitute a reason for

disqualification within the meaning of S. 68 para. 2 of the Code of

Criminal Procedure. It was true that they had to examine the new

evidence when taking the decision to reopen the proceedings. However,

they did not anticipate the evaluation of evidence in the renewed

proceedings and there was also no reason to assume that they would be

biased within the meaning of S. 72 of the Code of Criminal Procedure.

     As regards the rejection of various requests for the taking of

evidence by the applicant, the Supreme Court found that they did not

violate the applicant's defence rights. It confirmed the reasoning of

the Regional Court. In particular, witness B.Sch. had already in the

former proceedings proved incapable of making any precise statements.

It was not clear how he could invalidate E.M.'s statement who now

incriminated himself by admitting that he participated in setting fire

to the applicant's house. The Supreme Court equally dismissed the

applicant's complaint that the Regional Court should not have heard

R.Th. and E.M. on 23 July 1992, as the defence had had no possibility

to prepare for their questioning. It found that the contents of these

witnesses' statements, which had led to the reopening of the

proceedings, had long been known to the defence.

     As regards the applicant's complaint about the amendment of the

indictment at the hearing of 15 October 1992, the Supreme Court found

that the indictment in the renewed proceedings had referred to the

damage caused to the insurance company by the payment of the insurance

sum which it made in 1987 and 1988. Thus, it had already related not

only to the attempt to deceive employees of the B. insurance company

but, without explicitly saying so, also to the deception of the civil

courts which had only occurred after the applicant had been acquitted.

B.   Relevant domestic law

1.   Rules concerning disqualification of or challenge to a judge

     S. 68 of the Code of Criminal Procedure (Strafprozeßordnung)

governs the disqualification (Ausschließung) of judges.

     S. 68 para. 2 provides that a judge shall be disqualified from

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

investigating judge in the same case or if he has participated in the

decision on the appeal against the indictment. If a trial has to be

repeated following an appeal or a plea of nullity, judges who have

participated in the first trial are disqualified from participating in

the new trial.

     After the time of the relevant facts, a paragraph 3 has been

added to S. 68 by amendment of 1993, Federal Law Gazette (Bundesgesetz-

blatt) 1993/526, which entered into force on 1 January 1994. It

provides that a judge who has acted as investigating judge in the same

case or has participated in the former trial, is disqualified from

deciding on a request for reopening of the proceedings and from

participating in the new trial.

     S. 72 allows the parties to the proceedings to challenge

(ablehnen) a judge, if they can show that there are reasons for

doubting his complete impartiality.

2.   Rules governing the reopening of proceedings

     According to S. 355, the Public Prosecutor may only request the

reopening of proceedings, as regards an offence of which the accused

has been acquitted, if it is not yet statute-barred and if the judgment

has either been based on a forged document or a false statement or has

been obtained by bribing or another offence (subpara. 1) or if the

acquitted makes a confession or if there are new facts, which alone or

in connection with evidence obtained in the former proceedings appear

suitable to serve as a basis for the punishment of the accused

(subpara. 2).

     S. 357 provides that the request for a re-opening of the

proceedings has to be lodged with the court of first instance, which

has conducted them previously (para. 1). The investigating judge has

to inquire into the facts underlying the request. Subsequently, in

cases under S. 355, the accused has to be heard. The court of first

instance decides upon the reopening of the proceedings, sitting in

camera (para. 2). An appeal may be lodged against this decision within

two weeks with the court of second instance (para. 3).

     S. 358 states that the decision to reopen the proceedings sets

aside the former judgment as far as the offence is concerned, in regard

of which the reopening is granted.

     According to S. 359, the decision to reopen the proceedings

restores them to the stage of preliminary investigations. The

investigations are to be conducted or completed, having regard to the

decision granting the reopening of the proceedings and to the new

evidence. The provisions on the discontinuation of the preliminary

investigations and on preferring the indictment do also apply

(para. 1). If the new proceedings reach trial stage, a new judgment has

to be given (para. 2). The same remedies which are available against

any other judgment may be brought against this judgment (para. 5).

COMPLAINTS

1.   The applicant complains under Article 6 of the Convention about

two aspects of the proceedings relating to the reopening of the

criminal proceedings against him.

     Firstly, he complains under Article 6 para. 1 that the Klagenfurt

Regional Court, when deciding on reopening the criminal proceedings

against him, was not an impartial tribunal. He submits that Judge

Orasche was disqualified from participating in this decision, as he

participated in the former trial. He argues that this view was

confirmed by the subsequent 1993 amendment of S. 68 of the Code of

Criminal Procedure.

     Secondly, he complains under Article 6 para. 3 (c) that the

decision to reopen the proceedings was taken in camera and that he had

no possibility to defend himself either in person or through counsel.

2.   The applicant also complains under Article 6 para. 1 of the

Convention that the Klagenfurt Regional Court, when convicting him

following the new trial in the reopened proceedings, was not an

impartial tribunal. He submits that Judge Greller was disqualified from

participating in the new trial, as he had, prior to the decision to

reopen the proceedings, requested a German Court under letters rogatory

to hear E.M. as a witness. Further, Judges Greller and Lutschounig were

disqualified from participating in the new trial as they had

participated in the decision to reopen the proceedings and had thereby

examined the new facts and evaluated the probability of his conviction

in the new proceedings.

3.   Further, the applicant complains under Article 6 para. 2 that the

presumption of innocence was violated by the reopening of the

proceedings against him, which is only admissible if the prosecution

of the offence at issue is not yet statute-barred. He submits in

particular that the duration of the former proceedings was excessive

and should therefore not be calculated as having interrupted the

limitation period. Further he submits that the statements made by R.Th.

and E.M. did not constitute new evidence.

4.   Finally, the applicant complains under Article 6 para. 3 that his

defence rights were violated in the reopened proceedings.

a.   He submits under Article 6 para. 3 (b) that he did not have

enough time to prepare his defence. He argues that the preliminary

investigations did not last long enough and that the Public

Prosecutor's Office, at the trial on 15 October 1992, amended the

indictment, thus, changing the accusation.

b.   He submits under Article 6 para. 3 (d) that his requests to hear

B.Sch. and L.F. as witnesses were dismissed. Further he complains that

the witnesses R.Th. and E.M. were heard at the trial of 23 July 1992

against his objection. Moreover, he claims that they were wrongly

informed that no further criminal proceedings could be conducted

against them in Austria. In his opinion, the prosecution of their

offences was not yet statute-barred.

THE LAW

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

Convention about two aspects of the proceedings relating to the

reopening of the criminal proceedings against him. Firstly, he

complains under Article 6 para. 1 (Art. 6-1) that the Klagenfurt

Regional Court, when deciding on reopening the criminal proceedings

against him, was not an impartial tribunal. Secondly, he complains

under Article 6 para. 3 (c) (Art. 6-3-c) that the decision to reopen

the proceedings was taken in camera.

     The Commission, recalling its constant case-law that Article 6

(Art. 6) does not apply to proceedings concerning the reopening of a

trial, finds that only the new proceedings, after the reopening has

been granted, can be regarded as concerning the determination of a

criminal charge (No. 7761/77, Dec. 8.5.87, D.R. 14, p. 173 with further

references). Thus, the applicant's complaints about the reopening of

the criminal proceedings against him are incompatible ratione materiae.

     It follows that this part of the application is incompatible

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

of the Convention.

2.   The applicant also complains under Article 6 para. 1 (Art. 6-1)

of the Convention that the Klagenfurt Regional Court, when convicting

him following the new trial in the reopened proceedings, was not an

impartial tribunal.

     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... hearing ... by an ... impartial

     tribunal ... ."

     The applicant submits in particular that Judge Greller was

disqualified from participating in the new trial, as he had, prior to

the decision to reopen the proceedings, requested a German Court under

letters rogatory to hear E.M. as a witness. Further, Judges Greller and

Lutschounig were disqualified from participating in the new trial as

they had participated in the decision to reopen the proceedings and had

thereby examined the new facts and evaluated the probability of his

conviction in the new proceedings.

     The Commission recalls that the existence of impartiality for the

purposes 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

(see Eur. Court H.R. De Cubber judgment of 26 October 1984, Series A

no. 86, pp. 13-14, paras. 24-26; Hauschildt judgment of 24 May 1989,

Series A no. 154, p. 21, para. 46).

     The applicant has not alleged that there was any personal bias

on the part of the judges in question. The main thrust of his argument

is that Judges Greller and Lutschounig, when sitting as trial judges

lacked objective impartiality, as they had performed certain functions

or taken decision at the pre-trial stage. Therefore, it falls to be

examined whether the applicant's fear as regards the impartiality of

these judge was objectively justified (Hauschildt judgment, loc. cit.,

para. 48).

     In this context, the Commission recalls that the mere fact that

a trial judge has also made pre-trial decisions in the case cannot be

held as in itself justifying fears as to his impartiality. What matters

is the scope and nature of these decisions (Hauschildt judgment, loc.

cit., p. 22, paras. 50-51; Sainte-Marie judgment of 16 December 1992,

Series A no. 253-A, p. 16, para. 32; Nortier judgment of

24 August 1993, Series A no. 267, p. 15, para. 33).

     As regards the function exercised by Judge Greller prior to the

decision on the reopening of the proceedings, the Commission observes

that he, being the head of the competent court department, transferred

the file to the investigating judge, requesting him to hear the

applicant on the question of reopening the proceedings. Further, he

requested a German court for judicial assistance as regards the

questioning of one witness. However, he heard neither the applicant nor

any witnesses himself. The Commission finds that there are no

circumstances to indicate that Judge Greller acquired any detailed

knowledge of the case or of the person of the accused, which would have

put him at risk of forming a pre-conceived opinion about the question

of the applicant's guilt (De Cubber judgment, loc. cit., p. 15-16

para. 29; Hauschildt judgment, loc. cit., p. 22-23, paras. 51-52).

      Judges Greller and Lutschounig, when deciding on the reopening

of the proceedings against the applicant, had to decide, in accordance

with S. 355 of the Austrian Code of Criminal Procedure, whether the new

facts presented by the prosecution appeared suitable to serve as a

basis for the applicant's punishment either alone or in connection with

the evidence obtained in the former proceedings. This may have

occasioned misgivings on part of the applicant, which cannot, however,

necessarily be treated as objectively justified.

     The Commission observes that the decision granting the reopening

of the proceedings restores the proceedings to the stage of preliminary

investigations. According to S. 359 para. 1 of the Code of Criminal

Procedure these investigations may either be discontinued or lead to

a new indictment. If the case, like the present one, attains trial

stage, the court proceeds to a full hearing of the case. Furthermore,

as the Supreme Court pointed out in its decision of 14 December 1993,

the Austrian legislation does not exclude judges, who ruled on the

reopening of the proceedings, from participation in the new trial.

     Having regard to the rules of the Austrian Code of Criminal

Procedure, the Commission finds that the questions which Judges Greller

and Lutschounig had to answer when deciding on the reopening of the

proceedings, were not the same as those which were decisive for the new

judgment. They only had to ascertain summarily whether the prosecution

had shown prima facie grounds for the reopening of the proceedings

(Hauschildt judgment, loc. cit., p. 22, para. 50; Sainte-Marie

judgment, loc. cit., p. 16, para. 33; Nortier judgment, loc. cit.,

p. 16, para. 35).

     In conclusion, the Commission finds that the applicant's fear

that Judges Greller and Lutschounig lacked impartiality cannot be

regarded as objectively justified.

     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.   Further the applicant complains under Article 6 para. 2

(Art. 6-2) that the presumption of innocence was violated by the

reopening of the proceedings against him, which is only admissible if

the prosecution of the offence at issue is not yet statute-barred and

if there are new facts. He submits in particular that the duration of

the former proceedings was excessive and should therefore not be

calculated as having interrupted the limitation period. Further he

submits that the statements made by R.Th. and E.M. did not constitute

new facts.

     As far as the applicant can be understood as complaining that the

Austrian courts did not correctly apply the law, the Commission recalls

that it is not competent to deal with an application alleging that

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

were it considers that such errors might have involved a possible

violation of the Convention (No. 21283/93, Dec. 5.4.94, D.R. 77-A,

pp. 81, 88). Article 6 para. 2 (Art. 6-2) of the Convention requires

that no representative of the State declares that a person is guilty

of having committed an offence before that guilt is established by a

court (No. 7986/77, Dec. 3.10.78, D.R. 13, p. 73). The contested

findings that specific requirements for reopening the proceedings were

met, do not contain any finding of guilt. The Commission, therefore,

finds that the applicant's submissions do not raise an issue under

Article 6 para. 2 (Art. 6-2) of the Convention.

     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.

4.   The applicant complains under Article 6 paras. 3 (b) and (d)

(Art. 6-3-b, 6-3-d) that his defence rights were violated in the

renewed proceedings.

     Article 6 para. 3 (Art. 6-3), so far as relevant, reads as

follows:

     "Everyone charged with a criminal offence has the following

     minimum rights:

     b. to have adequate time and facilities for the preparation of

     his defence;

     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 the guarantees in paragraph 3 of

Article 6 (Art. 6-3) are specific aspects of the right to a fair trial

set forth in paragraph 1 (Art. 6-1). The question of a violation of

these provisions must, therefore, be examined having regard to the

proceedings as a whole (see Eur. Court H.R. Windisch judgment of

27 September 1990, Series A no. 186, p. 9, para. 23).

a.   The applicant submits under Article 6 para. 3 (b) (Art. 6-3-b)

that he did not have enough time to prepare his defence. In this

respect, he argues that the preliminary investigations did not last

long enough and that the Public Prosecutor's Office, at the trial on

15 October 1992, amended the indictment, thus, changing the accusation.

     As regards the applicant's complaint that the preliminary

investigations in the renewed proceedings did not last long enough, the

Commission notes that the decision to reopen the proceedings was taken

on 22 November 1991. Thereby they were restored to the state of

preliminary investigations in accordance with S. 359 para. 1 of the

Code of Criminal Procedure. The indictment against the applicant was

preferred on 28 February 1992 and the trial was reopened on

6 July 1992. Moreover, in the renewed proceedings, the applicant was

represented by Mr. Clementschitsch, who had also acted as his counsel

in the former proceedings and was, thus, familiar with the file. The

Commission finds that the applicant failed to show in what respect the

duration of the preliminary investigations violated his right to

prepare his defence.

     Further, as regards the applicant's complaint that the indictment

was changed during the trial, the Commission notes that the Public

Prosecutor's Office, at the trial on 15 October 1992, amended the

indictment. It was no longer assumed that the applicant had deceived

employees of the insurance company but that he had deceived organs of

the civil courts, thereby obtaining judgments obliging the insurance

company to pay him ATS 6,4 million. The applicant was still charged

with aggravated fraud.

     The Commission finds that the amendment of the indictment served

to clarify one legal aspect of the charge against the applicant.

However, it neither changed the legal classification of the offence nor

did it introduce essentially new facts. In this respect the Commission

attaches weight to the fact that the applicant himself, in his appeal

against the indictment of 23 March 1992, had pointed out that he had

not deceived employees of the insurance company, as the latter had only

paid him upon judgment of the competent civil courts. Moreover, the

amendment was made more than one month before the end of the trial. The

applicant, assisted by counsel, still had four hearings, namely those

held on 13, 16, 17 and 18 November 1992, to present his arguments

relating to the amended charge. In these circumstances, the Commission

finds that the applicant failed to show that the contested amendment

of the charge infringed his defence rights.

b.    The applicant submits under Article 6 para. 3 (d) (Art. 6-3-d)

that his requests to hear B.Sch. and L.F. as witnesses were dismissed.

Further, he complains that the witnesses R.Th. and E.M. were heard at

the trial of 23 July 1992 against his objection. Moreover, he claims

that they were wrongly informed that no further criminal proceedings

could be conducted against them in Austria. In his opinion, the

prosecution of their offences was not yet statute-barred.

     As regards the last of these complaints, the Commission refers

to the above-mentioned case law, according to which it is in general

not competent to deal with alleged errors in the application of

domestic law. As regards the further complaints, 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)

leaves it to them, again as a general rule, to assess whether it is

appropriate to call witnesses; it does not require the attendance and

examination of every witness on the accused's behalf (see 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).

     In the present case, the applicant's requests to hear B.Sch. and

L.F as witnesses were refused by the Klagenfurt Regional Court inter

alia for lack of relevance. The Court also dismissed the applicant's

motion that R.Th. and E.M. should not be heard at the trial of

23 July 1992, as they had not been summoned for this date and the

defence was not prepared for their questioning. It found that there was

a risk that they might not appear again in court. The Supreme Court

confirmed these decisions. As regards the witnesses R.Th. and E.M. it

added that the contents of their statements had led to the reopening

of the proceedings and had long been known to the defence.

     In these circumstances, the Commission finds no sufficient

grounds to form the view that there were any special circumstances

which could prompt the conclusion that either the failure to hear the

witnesses B.Sch. and L.F. or the hearing of R.Th. and E.M. was

incompatible with Article 6 (Art. 6) of the Convention.

     In conclusion, the Commission finds that there are no indications

in the file that the applicant, represented by counsel, could not duly

present his defence or that the proceedings were 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.

     For these reasons, the Commission, unanimously,

     DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber        President of the First Chamber

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