AS TO THE ADMISSIBILITY OF

                      Application No. 21842/93

                      by George KEMPERS

                      against Austria

     The European Commission of Human Rights (First Chamber) sitting

in private on 6 September 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

                 G.B. REFFI

                 B. CONFORTI

                 N. BRATZA

                 I. BÉKÉS

                 E. KONSTANTINOV

                 G. RESS

                 A. PERENIC

           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 16 April 1993 by

George Kempers against Austria and registered on 13 May 1993 under file

No. 21842/93;

     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 is a Dutch national born in 1949, who is currently

detained in Austria at Karlau prison.  Before the Commission he is

represented by Mr. F. Insam, a lawyer practising in Graz.

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

summarised as follows.

A.   Particular circumstances of the case

     On 30 April 1991 at 24.00 hours the applicant was arrested in

Graz on suspicion of having committed offences against the Drug

Offences Act (Suchtgiftgesetz).  C.S., H.A. and I.H. were arrested at

the same time as co-suspects.

     On 1 May 1991 at 4.30 hours the applicant was brought to the

police station (Gendarmerieposten) in Seiersberg.  At 10.30 hours he

was transferred to the Styria Regional Police Headquarters

(Landesgendarmeriekommando) and brought back to the Seiersberg police

station at 22.00 hours.  On 2 May 1991 at 8.50 hours he was brought

again to the Regional Police Headquarters and from there at 18.15

transferred to the Regional Court prison house (Landesgerichtliches

Gefangenenhaus).

     On 3 May 1991 at 10.30 hours the Investigating Judge at the Graz

Regional Court (Landesgericht) heard the applicant and ordered the

institution of pre-trial investigations (Voruntersuchung) against him.

The applicant admitted that he had tried to sell 5 kg Cocaine in Graz

on 30 April 1991 together with his co-suspects.  He also admitted a

previous drug transaction which had taken place in Aachen (Germany) in

the beginning of April 1991.  At this questioning the applicant was not

assisted by an interpreter.

     On the same day the Investigating Judge ordered that the

applicant be taken into detention on remand.  The Investigating Judge

found that there was a danger of collusion, or danger that he might

commit offences and a danger of the applicant's absconding.  Pursuant

to Section 45 para. 3 (1) of the Code of Criminal Procedure

(Strafprozeßordnung) the applicant's contact with his defence counsel

took place under the surveillance of the Investigating Judge for a

period of 14 days after the order of detention on remand as the order

had been based on the ground inter alia of the danger of collusion.

     On 14 May 1991 the Investigating Judge extended the surveillance

of the applicant's contact with his defence counsel, pursuant to

Section 45 para. 3 (2) Code of Criminal Procedure, until service of the

bill of indictment on the applicant.  The Investigating Judge found

this measure necessary because the applicant was suspected of being a

member of a gang of drug traffickers, further members of the gang had

not yet been discovered and the applicant had made contradictory

statements.  Thus, contacts between the applicant and his defence

counsel could prejudice the further investigations, a considerable part

of which had to be undertaken outside Austria.  The applicant appealed

against this decision.

     On 29 May 1991 the Judges' Chamber (Ratskammer) of the Graz

Regional Court dismissed the applicant's appeal.  It found that the

order of the Investigating Judge did not involve any criticism of the

defence counsel or any reproach against him of conduct contrary to law

or the disciplinary rules of members of the bar, but merely had the

purpose of preventing any contact whatsoever with third persons in

order not to endanger the success of the criminal investigations.  The

applicant was suspected of drug trafficking on a large scale as a

member of a gang which was active in several European States and some

members were still at large.  In such circumstances the police

investigations had to be conducted with utmost care and even the

slightest possibility of collusion had to be prevented.

     On 3 June 1991 R.M., V.B. and T.M. were arrested by the police

when they attempted to sell drugs in Bregenz. These persons were

suspected of being members of the same gang as the applicant.

     On 2 July 1991 the applicant's defence counsel requested a

complete copy of the case file.  On 5 July 1991 he received a set of

copies.  According to the applicant it was apparent from the page

numbering of these copies that they did not contain the complete case

file.

     On 6 August 1991 the Graz Public Prosecutor's Office preferred

a bill of indictment charging the applicant and C.S., J.S., H.A., I.H.,

R.M., V.B and T.M. with drug trafficking.  The charge against the

applicant, C.S., I.H., R.M., V.B. and H.A. concerned a drug deal which

had taken place in Graz in April 1991.  The charge against R.M., V.B.

and T.M. concerned a drug deal which had taken place in Bregenz in June

1991.  The bill of indictment also referred to a previous drug deal in

the beginning of April 1991 in Aachen without, however, charging the

applicant formally in this respect.

     On 8 August 1991 the bill of indictment was served on the

applicant.  From that time onwards the applicant could meet his defence

counsel without surveillance.

     On  16 September 1991 the Graz Court of Appeal (Oberlandes-

gericht) dismissed the applicant's objections against the bill of

indictment.

     On 8 November 1991 the Graz Court of Appeal, following a request

by the Regional Court, authorised the applicant's detention on remand

for a maximum duration of 9 months.  The Court of Appeal found that

investigations were complicated because of the number of suspects

involved and their connections to other countries which made the

preparation of the trial complicated.

     On 15 January 1992 the trial against the applicant and the

co-accused took place before the Graz Regional Court.

     At the trial an interpreter for the Dutch language appeared

before the court.  After the Dutch speaking accused, including the

applicant, had stated that they had sufficient command of German in

order to understand the proceedings, the interpreter was dismissed by

the court.

     In his statement before the court the applicant admitted the

facts as regards the drug transaction in April 1991 in Graz, but

pleaded not guilty and submitted that he had been incited to the drug

deal by undercover agents acting on behalf of the Austrian State.  As

regards the drug transaction in Aachen in April 1991 the applicant

stated that his submissions before the police and the Investigating

judges were wrong.  He had made them merely because he had felt cheated

by the co-accused who, after his arrest, were still at large.

     In the course of the trial the Public Prosecutor extended the

bill of indictment against the applicant and C.S. charging them also

with the drug deal which had taken place in Aachen in the beginning of

April 1991.  The Public Prosecutor submitted that he could not have

raised this charge formally in the bill of indictment since at that

time it had not been clear whether the applicant would be extradited

with regard to this charge.  The applicant opposed the extension of the

bill of indictment and requested that this issue be referred back to

the Investigating Judge.  The Regional Court allowed the extension of

the bill of indictment and dismissed the applicant's objection.  It

found that the Public Prosecutor could not have raised this charge

earlier and, since the trial had not terminated, could validly extend

the bill of indictment.  It was not necessary to refer the charge back

to the Investigating Judge as no further pre-trial investigations

appeared necessary and the charge could be examined at the trial.  The

applicant did not request to be heard on this charge after the

extension had been granted.

     At the trial the Regional Court rejected the applicant's request

to hear the police officers, including the Federal Minister for

Internal Affairs (Bundesminster für Inneres), who were responsible for

the measures of undercover investigation, the undercover agents and the

police informants, in order to prove that the accused had been incited

by the police authorities to commit the offences they were charged

with.  The Regional Court found that the evidence requested was

irrelevant to the proceedings.

     On 16 January 1992 the Graz Regional Court convicted the

applicant under the Drug Offences Act of having, together with his

accomplices R.M., C.S. and V.B. and together with C.S. attempted in

April 1991 to sell a large quantity of drugs in Graz and Aachen

respectively.  The Court also convicted R.M. and V.B. of a drug

transaction which had taken place in Bregenz in June 1991.  The Court

sentenced the applicant to six years' imprisonment and to a fine of 1,4

million AS or 6 months' imprisonment in default.

     The Regional Court found that the applicant, who knew drug

suppliers in the Netherlands, had contacted R.M. in Switzerland in

December 1990.  They agreed that the applicant would procure drugs in

the Netherlands while R.M. would look for potential buyers.  In the

beginning of April 1991 the applicant sold drugs he had procured from

C.S. to R.M.  This drug transaction took place in Aachen.  R.M. brought

the drugs to Switzerland and sold them to other persons, amongst them

V.B., who also informed him about potential buyers in Graz.

Subsequently, between 22 and 27 April 1991, negotiations took place

between V.B., acting for these potential buyers, R.M., who financed the

transaction, and the applicant and C.S., who procured the drugs in the

Netherlands.  It was agreed to bring the drugs to Germany close to the

Austrian border and to meet the potential buyers in Graz on 28 April

1991.  As the potential buyers insisted that the drugs be brought to

Graz the transaction did not take place and the drugs were sent back

to the Netherlands.  After further negotiations a new meeting in Graz

was arranged for 30 April 1991.  On that day H.A. brought the drugs by

car to Graz, where also the applicant and C.S. were present.  At the

meeting with the potential buyers they were arrested by the police.

In June 1991 R.M. organised a further drug transaction with potential

buyers who V.B. had found in Bregenz.  R.M. procured the drugs in

Switzerland and hired T.M. for the transport.  On 3 June 1991, when

attempting to hand over the drugs to the presumed buyers, R.M., V.B.

and T.M. were arrested.

     In establishing these facts, the Regional Court relied on the

statements of the accused, made in the course of the pre-trial

investigations and at the trial, and also on a written police report

in regard to which police officer G.T. was heard by the court.  The

Regional Court had also regard to a report drawn up by the Dutch

police.

     As regards the applicant's request for hearing witnesses

concerning the involvement of undercover agents in the criminal

investigations to prove that the accused had been instigated by the

police authorities to commit the offences they were charged with, the

Regional Court found that the evidence requested was irrelevant to the

proceedings.  It was apparent from the police reports and the

statements of police officer G.T. as witness that the drug offences had

been discovered by means of undercover investigation.  Furthermore, the

applicant, V.B., C.S. and R.M. had already been engaged in drug

trafficking before V.B. put them in contact with presumed Austrian drug

buyers.  The accused including the applicant - apart from T.M. and H.A.

who only had acted as drug couriers - had admitted this when questioned

by the police and by the Investigating Judge in the course of the pre-

trial investigations.  In such circumstances it could not be said that

their intention to engage in drug trafficking was merely a result of

measures of undercover investigation.  In any event, even the fact that

someone had been incited to an offence by officials carrying out

investigations could not lead to exemption from conviction for these

offences.

     On 13 May 1992 the Graz Public Prosecutor's Office lodged an

appeal against the sentence regarding the applicant, V.B and C.S.

     On 20 May 1992 the applicant lodged a plea of nullity and an

appeal against the sentence.  He complained that the Regional Court had

refused to hear as witnesses the persons responsible for the ordering

of the undercover investigations and the police informants.  Their

evidence would have proven that the criminal offence had been committed

on the instigation of the Austrian police.  He also complained about

the length of the criminal proceedings and about the surveillance of

the contact with his defence counsel at the pre-trial stage and invoked

Article 6 of the Convention.  Moreover, he complained that after the

extension of the bill of indictment by the Public Prosecutor in the

course of the trial, he had not been heard by the court, which

interfered with his right to an effective defence.

     As regards his appeal against the sentence, he submitted that the

Regional Court had failed to take mitigating circumstances into

account, in particular that the offence had been provoked by the

Austrian authorities.

     On 16 September 1992 the Supreme Court rejected the plea of

nullity.  According to the written text of the decision the Supreme

Court decided in camera and "after consideration of the Procurator

General Office's submissions" ("nach Anhörung der Generalprokuratur").

It further referred the case to the Graz Court of Appeal for deciding

on the appeal against sentence.

     The Supreme Court found that the Regional Court had acted

correctly when it refused the applicant's requests for taking of

further evidence.  The requested evidence was irrelevant for the

proceedings as it had already been clarified at the trial that the

offences in question had been discovered by measures of undercover

investigation.  Furthermore, the extent to which these measures had

incited the accused to the commit the offences at issue was of no

importance for the proceedings as it did not concern any fact of

relevance for the finding of guilt.  The offence of drug trafficking

is also committed if the potential buyer of the drugs cooperates with

the police.

     As regards the applicant's complaints about the length of the

proceedings and the surveillance of the contact with his defence

counsel at the pre-trial stage, the Supreme Court noted that the

applicant in this respect relied on provisions of the Convention,

which, however, did not constitute reasons for nullity as provided for

in the Code of Criminal Procedure.  As regards his complaint that he

had not been heard after the Regional Court had granted the extension

of the bill of indictment, the Supreme Court found that the applicant

had not requested to be heard again so that it could not deal with this

complaint.

     On 28 October 1992 the Graz Senior Public Prosecutor's Office

(Oberstaatsanwaltschaft) submitted its observations on the applicant's

appeal against the sentence.

     On 21 December 1992 the Graz Court of Appeal decided on the

applicant's appeal.  It upheld the sentence as regards the term of

imprisonment and reduced the fine to 1 million AS and the imprisonment

in default to 4 months.  The Court of Appeal found that the mitigating

circumstance of Section 34 para. 4 of the Penal Code, namely that the

accused had been instigated to commit the offence by a third person,

did not apply to the applicant.

     The Court of Appeal observed that measures of undercover

investigation were an indispensable means for fighting organised crime

as it allowed the police access to the men who pull the strings

(Hintermänner) in such an organisation.  Nevertheless, the instigation

by police authorities to commit an offence, made in the course of

undercover investigations, even if not unlawful, could at least be

considered as problematic.  However, there was no room for such

reservations if a person who had already shown himself willing to

commit a certain kind of criminal offences came across a police

informant.  In the present case, the applicant had, according to his

own statements, already been selling drugs before he committed the

offences at issue.  In committing these offences he had only been

misled as to the seriousness of the intention of the potential drug

buyers to conclude the drug transactions.  He therefore could not rely

on the mitigating circumstance of Section 34 para. 4 of the Penal Code.

This decision was served on the applicant on 11 March 1993.

B.   Relevant domestic law

     According to S. 12 para. 1 of the Code of Criminal Procedure the

Judges' Chamber at the First Instance Court supervises all measures

taken by the Investigating Judge at the First Instance Court in the

course of preliminary investigations.

     According to S. 45 para. 2, first sentence, the Investigating

Judge shall permit the defence counsel on request to inspect the court

files, except the records of deliberations, on the premises of the

court, and to make copies thereof; alternatively the Investigating

Judge may also deliver photocopies to counsel.

     According to S. 45 para. 3 a person taken into detention on

remand may meet his defence counsel in the absence of the Investigating

Judge.  However, if detention on remand has been ordered on the ground

of the danger of collusion the Investigating Judge may, during the

first 14 days of the detention, be present when the remand prisoner

meets his defence counsel.  If, based on specific circumstances, the

danger exists that the contact with the defence counsel may interfere

with evidence the Investigating Judge may order that the surveillance

of the contact with the defence counsel be extended until the bill of

indictment is served.  Surveillance of the contact with the defence

counsel may only be exercised as long as the detention on remand is

based on the danger of collusion (S. 180).

     S. 113 provides in particular that anybody affected by a decision

of the Investigating Judge or by a delay in the course of preliminary

investigations or in the proceedings after indictment, may apply for

review by the Judges' Chamber, which decides in private after having

heard the Investigating Judge and the Public Prosecutor. According to

S. 114 there is a further appeal against decisions of the Judges'

Chamber to the Court of Second Instance, if these decisions concern the

separation of proceedings, the institution or discontinuation of the

preliminary investigation, bail, or detention on remand without a

hearing concerning release having taken place.

     Under S. 180 paras. 1 and 2 a person may be held in detention on

remand if he is seriously suspected of having committed a criminal

offence and if there is a risk of his absconding, of collusion or that

the person might commit offences. According to S. 193, detention may

not last more than two months where its sole justification is the risk

of collusion; it may not last more than six months where one of the

other grounds is relied on. The Court of Appeal may, however, if so

requested by the Investigating Judge or the Public Prosecutor and if

the difficulty or the scope of the investigations makes it necessary,

extend the detention. In such cases the maximum duration of detention

is three months where the measure is based on a risk of collusion

alone, and one year, or even two years, if the term of imprisonment

which the suspect risks is ten years or more, in the other

circumstances provided for.

     By virtue of SS. 194 and 195, it is open to the suspect to apply

for release at any time. Such an application and any appeal against a

decision ordering detention on remand must be examined by the Judges'

Chamber at a private hearing in the presence of the accused or his

defence counsel.

     According to S. 31 the Public Prosecutor attached to the Court

of First Instance takes part in all pre-trial investigations and trials

before this Court.  S. 32 provides that the Senior Public Prosecutor

represents the prosecution in all proceedings before the Court of

Appeal.  Furthermore the Senior Public Prosecutor supervises the Public

Prosecutors and, if he wishes to do so he may act instead of them in

all matters which fall into their competence.

COMPLAINTS

1.   The applicant raises several complaints regarding his detention

on remand.  He submits that it is not clear from the written decision

of the Investigating Judge on the institution of pre-trial

investigations of 3 May 1991 whether he was correctly informed about

the charges laid against him.  Furthermore, the Investigating Judge had

decided on his detention on remand and prepared a draft decision before

hearing him.  He also submits that after his arrest on 30 April 1991

he was not brought promptly before a judge.  After his arrest 58 hours

passed before he was finally heard by the competent Investigating

Judge.  Lastly, he submits that the Court of Appeal violated the

principle of equality of arms because, when deciding on 8 November 1991

to prolong the maximum duration of his detention on remand, it heard

the prosecution but neither him nor his defence counsel.  He relies on

Article 5 paras. 2 and 3 of the Convention.

2.   He complains under Article 6 para. 3 (b) and (c) of the

Convention that his right to defence had been prejudiced because at the

pre-trial stage the contact with his defence counsel was under the

surveillance of the Investigating Judge.

3.   He complains under Article 6 para. 3 (b) and (c) of the

Convention that his right to defence had been prejudiced in that he was

not given a complete copy of the file.  He submits that although on

2 July 1991 the defence had requested a complete copy of the file only

parts of it were given to the defence on 5 July 1991.

4.   He complains that at the trial the Public Prosecutor extended the

bill of indictment charging him with a further drug transaction.  In

this respect he was not given sufficient time to prepare his defence.

He invokes Article 6 of the Convention.

5.   He complains under Article 6 para. 3 (d) of the Convention that

at his trial the court refused to take evidence as regards the

involvement of undercover agents.

6.   He complains that he was not assisted by an interpreter before

the Investigating Judge, nor at the trial. He does not invoke any

specific provision of the Convention in this respect.

7.   He complains under Article 6 para. 1 of the Convention about a

violation of the principle of equality of arms in the proceedings on

his plea of nullity before the Supreme Court.  He submits that the

Procurator General apparently made submissions to the Supreme Court of

which the applicant was not informed and to which he had no possibility

to react.

8.   He complains under Article 6 para. 1 of the Convention about a

violation of the principle of equality of arms in that on 28 October

1992 the Graz Senior Public Prosecutor's Office submitted observations

on his appeal against the sentence, while, in his view, only the Public

Prosecutor's Office was entitled to do so.

9.   Lastly, he complains under Article 6 para. 1 of the Convention

that the criminal proceedings against him were not conducted within a

reasonable time.  He submits in particular that an unnecessary delay

occurred in that the transcript of the trial and the judgment of the

Regional Court of 15 January 1992 were not served on his defence

counsel before 6 May 1992.

THE LAW

1.   The applicant raises several complaints under Article 5

(Art. 5) of the Convention regarding his detention on remand.

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

the facts alleged by the applicant disclose any appearance of a

violation Article 5 (Art. 5) 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, and within a period of six

months from the date on which the final decision was taken.

     In this respect the Commission observes that the applicant's pre-

trial detention of which the applicant complains ended with his

conviction by the Regional Court on 16 January 1992 while the present

application was introduced on 16 April 1993.  It follows that the

applicant has not complied with the six months' time-limit 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.

2.   The applicant complains under Article 6 para. 3 (b) and (c)

(Art. 6-3-b, 6-3-c) of the Convention that his right to defence was

prejudiced because at the pre-trial stage his contacts with his counsel

were placed under the surveillance of the Investigating Judge.

     The Commission considers that it cannot, on the basis of the

file, determine the admissibility of this complaint and that it is

therefore necessary in accordance with Rule 48 para. 2 (b) of the Rules

of Procedure, to give notice of this part of the application to the

respondent Government.

3.   The applicant complains under Article 6 para. 3 (b) and (c)

(Art. 6-3-b, 6-3-c) of the Convention that his right to defence was

also prejudiced in that he was not given a complete copy of the file.

He submits that although the defence had requested a complete copy of

the file on 2 July 1991, only parts were given to the defence on

5 July 1991.

     However, under Article 26 (Art. 26) of the Convention the

Commission may only deal with a matter after all domestic remedies have

been exhausted according to the generally recognised rules of

international law.

     In this respect the Commission observes that the applicant has

not shown that he appealed to the Judges' Chamber against the alleged

refusal of access to parts of the case file.  It follows that in this

respect 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.

4.   The applicant complains that at the trial the Public Prosecutor

extended the bill of indictment charging him with a further drug

transaction.  In this respect he was not given sufficient time to

prepare his defence.  He invokes Article 6 (Art. 6) of the Convention.

     However, under Article 26 (Art. 26) of the Convention the

Commission may only deal with a matter after all domestic remedies have

been exhausted according to the generally recognised rules of

international law.

     The Commission recalls that domestic remedies within the meaning

of Article 26 (Art. 26) of the Convention have been exhausted if,

before the highest domestic body, the applicant has submitted at least

in substance the complaint he is raising before the Commission, even

without particular reference to the Convention (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 the present case, the Public Prosecutor in the course of the

trial extended the bill of indictment against the applicant and C.S.

charging them with a further drug deal.  The applicant opposed this

extension and requested that this count be referred back to the

Investigating Judge.  The Regional Court allowed the extension of the

bill of indictment and dismissed the applicant's objection.  The

applicant did not request to be heard on this charge after the

extension had been granted.  In his plea of nullity the applicant

complained that after the extension of the bill of indictment in the

course of the trial he was not heard again by the court.  On

16 September 1992 the Supreme Court held that it could not deal with

this complaint as the applicant had not requested at the trial to be

heard again.

     The Commission finds that the applicant did not raise in

substance before the Supreme Court the complaint he raises now before

the Commission.  While his complaint before the Commission concerns the

granting of the extension of the bill of indictment which allegedly

violated the applicant's right to have sufficient time for the

preparation of the defence, he complained before the Supreme Court that

he had not been heard by the Regional Court after the extension of the

bill of indictment had been granted.

     It follows that in this respect the applicant has not satisfied

the requirement as to exhaustion of domestic remedies contained Article

26 (Art. 26) of the Convention and that this part of the application,

therefore, is inadmissible by virtue of Article 27 para. 3 (Art. 27-3)

of the Convention.

5.   The applicant complains under Article 6 para. 3 (d)

(Art. 6-3-d) of the Convention that the Regional Court refused to take

evidence as regards the involvement of undercover agents.

     The Commission finds that this complaint falls to be examined

under Article 6 para. 1 and para. 3 (d) (Art. 6-1, 6-3-d) of the

Convention which, as far as relevant, reads as follows:

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

     against him, everyone is entitled to a fair and public

     hearing ... by an independent and impartial tribunal

     established by law. ...

     (3) Everyone charged with a criminal offence has the

     following minimum rights:

     (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 as a general rule it is for the

national courts, and in particular the court of first instance, to

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

evidence which the accused seeks to adduce (Eur. Court H.R., Barberà,

Messegué and Jabardo judgment of 6 December 1988, Series A no. 146,

p. 31, para. 68).  Article 6 para. 3 (Art. 6-3) of the Convention does

not give the accused an unlimited right to have witnesses called

(No. 8417/78, Dec. 4.5.79, D.R. 15 p. 200).  In particular a court is

justified in refusing to summon witnesses when it considers that their

statements could not be of any relevance to the case (No. 10486/83,

Dec. 9.10.86, D.R. 49 p. 86 at p. 102).  Domestic courts may thus

exercise some discretion, provided that the Convention and particularly

the right to a fair hearing are respected, in deciding whether the

hearing of a defence witness is likely to help to establish the truth

(No. 8231/78, Dec. 6.3.82, D.R. 28 p. 5).

     In the present case, the Regional Court refused to take evidence

requested by the applicant as it found the proposed evidence irrelevant

to the case.  In the course of the pre-trial investigation and the

trial the applicant, and also the co-accused, had admitted the

essential facts they were charged with.  The issue of the requested

evidence was whether they had been incited to do so by police

informants and undercover agents.  The Regional Court found that this

question was of no relevance to the proceedings as, even assuming that

such incitement had occurred, this would have had no effect for

establishing the guilt of the applicant.  The Supreme Court confirmed

these findings of the Regional Court.  Also the Court of Appeal

observed that the applicant had, according to his own statements,

already been selling drugs before he committed the offences at issue

and in committing these offences he had only been misled as to the

seriousness of the intention of the potential drug buyers to conclude

the drug transactions.  It found that the mitigating circumstance of

Section 34 para. 4 of the Penal Code, namely that the accused had been

instigated to commit the offence by a third person, did not apply to

such circumstances.

     The Commission therefore is satisfied that the Austrian Courts,

in particular the Regional Court and the Court of Appeal, have

sufficiently explained why the evidence requested by the applicant was

irrelevant to the proceedings.

     Under these circumstances the Commission finds that there is no

appearance of a violation of the applicant's rights under Article 6

para. 1 and para. 3 (d) (Art. 6-1, 6-3-d) of the Convention as regards

the taking of evidence by the Austrian courts.

     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.

6.   The applicant complains that neither before the Investigating

Judge, nor at the trial was he assisted by an interpreter. He does not

invoke any specific provision of the Convention in this respect.

     The Commission finds that this complaint falls to be examined

under Article 6 para. 3 (e) (Art. 6-3-e) of the Convention which

provides as one of the minimum rights of everyone charged with a

criminal offence the right "to have the free assistance of an

interpreter if he cannot understand or speak the language used in

court".

     The Commission observes, however, that the applicant, when heard

by the Investigating Judge on 3 May 1991 did not request the assistance

of an interpreter.  Moreover, at the trial on 15 January 1991 an

interpreter for the Dutch language appeared before the court who

subsequently left as the applicant and other Dutch speaking co-accused

had declared that they had sufficient command of German.

     Under such circumstances there is no appearance of a violation

of Article 6 para. 3 (e) (Art. 6-3-e) 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.

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

Convention about a violation of the principle of equality of arms in

the proceedings on his plea of nullity before the Supreme Court.  He

submits that the Procurator General apparently made submissions to the

Supreme Court of which the applicant was not informed and to which he

had no possibility to react.

     The Commission considers that it cannot, on the basis of the

file, determine the admissibility of this complaint and that it is

therefore necessary in accordance with Rule 48 para. 2 (b) of the Rules

of Procedure, to give notice of this part of the application to the

respondent Government.

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

Convention about a further violation of the principle of equality of

arms in that on 28 October 1992 the Graz Senior Public Prosecutor's

Office submitted observations on his appeal against the sentence,

while, in his view, only the Public Prosecutor's Office was entitled

to do so.

     The Commission recalls that the principle of equality of arms is

only one feature of the concept of fair trial, which also includes the

fundamental right that criminal proceedings should be adversarial.  The

right to an adversarial trial means, in a criminal case, that both

prosecution and defence must be given the opportunity to have knowledge

of and comment on the observations filed and the evidence adduced by

the other party (Eur. Court H.R., Brandstetter judgment of 28 August

1991, Series A no. 211, p. 27, paras. 66-67).

     Having regard to the relevant provisions of the Code of Criminal

Proceedings, the Commission observes that it is up to the Senior Public

Prosecutor's Office to present the case for the prosecution before the

Courts of Appeal.  The Commission cannot find that the fact that the

Senior Public Prosecutor's Office made submissions to the Court of

Appeal on the applicant's appeal against the sentence infringed in any

way the principle of equality of arms.  In this respect, the Commission

notes that the applicant does not argue that he was not aware of these

submissions or that he could not react thereto.

     Under these circumstances the Commission finds that there is no

appearance of a violation of the applicant's rights under 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.

9.   The applicant finally complains under Article 6 para. 1

(Art. 6-1) of the Convention that the criminal proceedings against him

were not conducted within a reasonable time.  He submits in particular

that an unnecessary delay occurred in that the transcript of the trial

and the judgment of the Regional Court of 15 January 1992 were not

served on his defence counsel before 6 May 1992.

     The Commission observes that the relevant period to be taken into

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

when the pre-trial investigations against the applicant were instituted

on 3 May 1991 and ended on 21 December 1992 when the Court of Appeal

decided on the applicant's appeal.  They lasted therefore one year,

seven  months and two weeks.  The case was of some complexity as it

involved charges against seven accused.  Moreover, during the relevant

period the case was examined by three different courts.

     Under these circumstances the Commission finds that the length

of criminal proceedings against the applicant can be considered as

reasonable within the meaning of Article 6 para. 1 (Art. 6-1) 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.

     For these reasons the Commission, unanimously,

     DECIDES TO ADJOURN the examination of the applicant's complaint

     concerning the surveillance of the contact with his defence

     counsel by the Investigating Judge at the pre-trial stage and his

     complaint that he was not given the possibility to react to

     submissions made by the Procurator General in the proceedings

     before the Supreme Court;

     DECLARES INADMISSIBLE the remainder of the application.

Secretary to the First Chamber   President of the First Chamber

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