SUR LA RECEVABILITÉ

                      Application No. 23189/94

                      by Wilhelm PUTZ

                      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 28 May 1993 by

Wilhelm Putz against Austria and registered on 6 January 1994 under

file No. 23189/94;

     Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

     Having deliberated;

     Decides as follows:

THE FACTS

     The facts of the case, as they have been submitted by the

applicant, may be summarised as follows.

     The applicant, born in 1936, is an Austrian national and resident

in Bad Goisern.  He is a civil engineer and businessman by profession.

In the proceedings before the Commission he is represented by

Mr. C. Schwab, a lawyer practising in Wels.

     The applicant's previous Application No. 18892/91 concerns his

complaints that he did not have a fair hearing by an impartial tribunal

in respect of two Austrian court decisions imposing penalties upon him

for "offences against the order in court", and that he had no effective

remedy in respect of these court decisions.  These complaints were

declared admissible by the Commission on 3 December 1993.  This case

is presently pending before the Court.

     In 1985 bankruptcy proceedings were opened against the applicant

and in September 1985 preliminary investigations were instituted before

the Wels Regional Court (Landesgericht) against him and others on the

suspicion of inter alia bankruptcy offences.  On 16 September 1985 the

applicant was taken into detention on remand.  In November 1985 the

applicant's right to correspondence from the remand prison was limited

to one letter of one page per day, except for correspondence with the

liquidator and the defence counsel.  On 1 July 1986 the Review Chamber

(Ratskammer) of the Wels Regional Court dismissed the applicant's

appeals against the opening of the preliminary investigations, his

detention on remand and the restriction of his right to correspondence

as well as his complaints about the accounting expert.

     Furthermore, in 1990 criminal proceedings under the Code of

Financial Offences (Finanzstrafgesetz) were opened against the

applicant before the Wels Regional Court.  In these proceedings the

applicant was assisted by the official defence counsel Mr. D. Jahnel.

     In 1991 the criminal proceedings under the Code of Financial

Offences were joined to the proceedings concerning the charges of inter

alia bankruptcy.

     On 29 August 1991 the Board of the Upper Austrian Lawyers'

Chamber (Ausschuß der Rechtsanwaltskammer) dismissed the objection

against the continuing appointment of Mr. D. Jahnel as official defence

counsel regarding the tax offences.  However, the Board decided that

Mr. D. Jahnel was not required to exercise his duties as defence

counsel as long as the applicant's defence was ensured by the two

official defence counsel, Mr. Schwab and Mr. W. Jahnel, acting in the

proceedings concerning the bankruptcy charges.

     On 6 September 1991 the applicant inquired with the Lawyers'

Chamber about his representation in the criminal proceedings under the

Code of Financial Offences.  He submitted that Mr. W. Jahnel had told

him about the decision of 29 August 1991 and complained that he would

no longer be adequately defended.  He also stated that Mr. D. Jahnel

had failed to inform him about the said decision.  He therefore

requested that Mr. D. Jahnel be released as defence counsel.

     On 29 October 1991 the Second Division of the Board of the

Lawyers' Chamber released Mr. D. Jahnel as official defence counsel.

     On 14 November 1991 the Board of the Lawyers' Chamber dismissed

the applicant's appeal.  The Board considered that the applicant had

no right to appeal against decisions on the appointment and release of

official defence counsel under the relevant provision of the Lawyers'

Regulations (Rechtsanwaltsordnung).  Moreover, he could not claim to

be aggrieved by the said decision, as he himself had requested his

counsel's release by letter of 6 September 1991.  As the decision of

29 October 1991 corresponded to his request, no particular reasoning

had been necessary.

     On 2 October 1992 the Constitutional Court (Verfassungs-

gerichtshof) dismissed the applicant's complaints against the decisions

of 29 August and 14 November 1991 on the grounds that they offered no

prospect of success and were not excluded from the competence of the

Administrative Court (Verwaltungsgerichtshof).  The decision was served

on 9 December 1992.

     Meanwhile, on 21 November 1991 the Wels Regional Court had

convicted the applicant of ordinary bankruptcy (fahrlässige Krida), of

fraudulent conversion, of defamation, of having defrauded social

security contributions and of tax evasion, i.e. offences under the

Austrian Penal Code (Strafgesetzbuch), the Social Insurance Act

(Allgemeines Sozialversicherungsgesetz) and the Code of Financial

Offences.  The Court had sentenced him to eighteen months' imprisonment

on probation, and, as regards the tax offences, imposed a fine

amounting to AS 59 million and a further sentence of six months'

imprisonment.  The period of his detention on remand of almost six

months was to be counted towards these sentences.

     On 27 May 1993 the Austrian Supreme Court (Oberster Gerichtshof),

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

the Wels Regional Court's judgment regarding his conviction of ordinary

bankruptcy, of having defrauded social security contributions and of

tax evasion.  To this extent, the Supreme Court referred the case to

the Innsbruck Regional Court.  The remainder of the applicant's plea

of nullity was dismissed.

     The Supreme Court found that the applicant's objections regarding

the accountant expert and requests for an amendment of the expert

evidence in view of further documentary material had been well-founded.

As regards the accountant expert, the Supreme Court noted that he had

already acted as expert on behalf of the liquidator in the context of

the bankruptcy proceedings.  Moreover, the relevance of the newly

discovered documents could not be excluded.

     As regards the applicant's conviction of fraudulent conversion

and of defamation, the Supreme Court dismissed numerous complaints

concerning the conduct of the trial proceedings and the refusal of

requests lodged in the course thereof.

     The Supreme Court considered in particular the applicant's

submission that two of the judges of the Wels Regional Court should not

have been sitting in the case at issue, as they had been acting in

previous criminal proceedings against him.  The Supreme Court found

that the applicant had not shown that the judges concerned were

disqualified in respect of the present proceedings.  His arguments

could not therefore be regarded as a ground of nullity.  Moreover, the

refusal of his request, lodged in the course of the trial, for a

production of the files concerning the question of disqualification of

judges in the context of the previous proceedings, had not thus

violated his defence rights.

     The Supreme Court also dismissed the applicant's complaint that

he had not been duly assisted by defence counsel in the proceedings

under the Code of Financial Offences.  The Court noted that following

the joinder of these proceedings with the proceedings concerning in

particular the charges of fraud and bankruptcy offences, one of his

official defence counsel appointed in the latter proceedings, who had

at some stage intervened as counsel in the context of the criminal

proceedings under the Code of Financial offences, had been present and

ensured his defence at the trial hearings.

     The Supreme Court also found that the applicant's complaint about

the Regional Court's decision to dismiss his request, lodged in the

course of the trial, for a complete copy of all files and postponement

of the hearing for at least four weeks was unfounded.  In this respect,

the Supreme Court noted that the Regional Court had stated in its

reasons that the applicant's counsel had sufficient time prior to the

trial to update his defence files as compared to the court files and

that he could further do so until the trial was continued.

     The Supreme Court, having regard to all material before it,

further considered that the Regional Court, having regard to the

results of the taking of evidence so far, had properly refused to hear

further witnesses as the applicant had failed to show the relevance of

their statements.  Moreover, findings regarding the expert as well as

the amendment of the expert evidence were irrelevant regarding the

charge of fraudulent conversion.

     Finally, the Supreme Court found no shortcomings in the reasoning

of the Regional Court's judgment.

     The criminal proceedings before the Innsbruck Regional Court have

not yet terminated.

     Apparently in 1993 the applicant brought criminal charges against

the official liquidator and others, including the judge at the Wels

Regional Court who had been in charge of supervising the official

liquidator, which he pursued in private prosecution proceedings.  On

9 July 1993, following the applicant's motion to challenge all judges

of the Wels Regional Court for bias, the President of the Wels Regional

Court informed the President of the Linz Court of Appeal (Oberlandes-

gericht) that, having regard to their personal relations to the above-

mentioned judge as colleague, all judges were to be considered as

biased in the proceedings against him.

COMPLAINTS

     The applicant complains under Article 6 paras. 1 and 3 of the

Convention about the criminal proceedings against him.

     He considers that, following the decisions of the Board of the

Upper Austrian Lawyers' Chamber of 29 August and 14 November 1991, he

remained without the assistance of counsel for the defence against the

charges under the Code of Financial Offences.

     According to the applicant, his defence rights were also violated

due to other circumstances, namely, the refusal to produce the court

files concerning the question of disqualification of judges in the

context of previous criminal proceedings against him impaired his

defence rights, the restriction on his correspondence during his

detention on remand, the alleged refusal of a complete copy of the

court files and postponement of the trial and the dismissal of numerous

requests for the taking of further evidence.

     Furthermore, the Supreme Court had incorrectly denied the

relevance of his complaints regarding the accountant expert with regard

to his conviction of fraudulent conversion.

     The applicant further submits that the Supreme Court, when

considering his complaints about the taking of evidence, had regard to

the contents of court files concerning related court proceedings.

     The applicant also complains about the alleged lack of

impartiality of the judges at the Wels Regional Court.  In this

respect, he notes that judges had been disqualified in previous

criminal proceedings against him.  Moreover, he had reproached one of

their colleagues, who had been involved in the bankruptcy proceedings

against him, with various violations of the law and negligence in

supervising the official liquidator.  Furthermore, in 1993, in the

proceedings against inter alia this judge, all judges of the Wels

Regional Court had declared themselves to be biased.

2.   The applicant complains under Article 7 of the Convention that

he had been wrongly convicted of defamation, alleging that the impugned

statements had been justified.

3.   As regards the restriction on his correspondence during his

detention on remand, he also invokes Article 8 of the Convention.

THE LAW

1.   The applicant complains about the criminal proceedings against

him, which were conducted before the Wels Regional Court and the

Supreme Court.  He invokes Article 6 para. 1 and para. 3

(Art. 6-1, 6-3) of the Convention which, so far as relevant, provide

as follows:

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

     him, everyone is entitled to a fair ... hearing ... by an

     independent and impartial tribunal established by law. ...

     3.    Everyone charged with a criminal offence has the following

     minimum rights:

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

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

     accusation against him;

           b.    to have adequate time and facilities for the

     preparation of his defence;

           c.    to defend himself in person or through legal

     assistance of his own choosing or, if he has not sufficient means

     to pay for legal assistance, to be given it free when the

     interests of justice so require;

           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".

a.   The Commission observes that the Supreme Court, in its judgment

of 27 May 1993, quashed the applicant's conviction of ordinary

bankruptcy, of having defrauded social security contributions and of

tax evasion, and to this extent referred the case back to the Innsbruck

Regional Court.  The conviction of fraudulent conversion and defamation

was confirmed.

b.   The Commission recalls that the question of whether a trial

conforms to the standards laid down in Article 6 (Art. 6) must be

decided on the basis of an evaluation of the trial in its entirety (cf.

No. 11058/84, Dec. 13.5.86, D.R. 47 p. 230 with further references).

Accordingly, the applicant's complaints relating to the exercise of his

defence rights in respect of the charges which are still pending before

the Innsbruck Regional Court, inter alia the charges under the Code of

Financial Offences, are premature.

c.   The remainder of the applicant's complaints about the conduct of

the proceedings relates in particular to the taking of evidence.  It

seems appropriate to look at these complaints from the points of view

of paragraphs 1 and 3 of Article 6 (Art. 6-1, 6-3) taken together,

especially as the guarantees in paragraph 3 represent aspects of the

concept of a fair trial contained in paragraph 1 (Eur. Court H.R.,

Unterpertinger judgment of 24 November 1986, Series A no. 110, p. 14,

para. 29).

     As a general rule, it is for the national courts to assess the

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

defendants seek to adduce.  More specifically, Article 6 para. 3 (d)

(Art. 6-3-d) leaves it to them, again as a general rule, to assess

whether it is appropriate to call witnesses, in the "autonomous" sense

given to that word in the Convention system; it does not require the

attendance and examination of every witness on the accused's behalf

(cf., Eur. Court H.R., Bricmont judgment of 7 July 1989, Series A no.

158, p. 31, para. 89; Vidal judgment of 22 April 1992, Series A no.

235-B, pp. 32-33, para. 33).

     In the present case, the applicant's requests to hear further

witnesses were refused for their lack of relevance, taking into account

the results of the Regional Court's taking of evidence as a whole.

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

sufficient grounds to form the view that there were any special

circumstances which could prompt the conclusion that the failure to

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

     Furthermore, the applicant failed to show that, with the

assistance of two defence counsel, he could not effectively ensure his

defence in the proceedings before the Wels Regional Court.  In this

respect, the Commission notes the findings of the Supreme Court in its

decision of 27 May 1993 that, following the joinder of the proceedings

under the Code of Financial Offences with the proceedings concerning

in particular the charges of fraud and bankruptcy offences, one of his

official defence counsel appointed in the latter proceedings, who had

at some stage intervened as counsel in the context of the proceedings

under the Code of Financial offences, had been present and ensured his

defence at the trial hearings.  Moreover, the restriction on his

correspondence during his detention on remand did not impair his

defence, as unlimited correspondence with his counsel was expressly

permitted.  As regards the refusal of the Wels Regional Court to have

a completely new copy of the court files prepared in the course of the

trial and to postpone the trial for that purpose, it is unclear whether

and to what extent this decision had any bearing on the applicant's

conviction of fraudulent conversion and defamation.  In any event, the

applicant's counsel had the possibility to update and complete his

defence files in between the trial hearings.  There is no indication,

that the applicant and his counsel could not properly prepare their

defence and present their arguments in court.

     Finally, the applicant's submissions do not disclose any

appearance of unfairness of the proceedings before the Austrian Supreme

Court.  His assertion that the Supreme Court, when considering his

complaints regarding the taking of evidence, had regard inter alia to

the contents of other court files, does not show any undue limitation

of his defence rights.  In this respect, the Commission considers in

particular that the Supreme Court reviewed the Regional Court's

decision to refuse the hearing of further witnesses on the basis of the

applicant's appeal submissions as to the relevance of their statements.

d.   As to the applicant's complaints about the alleged lack of

impartiality of the judges at the Wels Regional Court, the Commission

has had regard to the relevant criteria established in the relevant

case-law of the Convention organs (Eur. Court H.R., Hauschildt judgment

of 24 May 1989, Series A no. 154, p. 21, para. 46; Fey judgment of

24 February 1993, Series A no. 255-A, p. 12, para. 28).  The Commission

finds that the applicant's submissions do not disclose any reason to

doubt the impartiality of the judges at the Wels Regional Court who had

been conducting the proceedings against him.  In this respect, the

Commission has taken into account the Supreme Court's judgment of

27 May 1993, according to which the applicant's submission that two of

the judges of the Wels Regional Court should not have been sitting in

the case at issue, as they had acted in previous criminal proceedings

against him, did not afford any reason for disqualification in the

context of the present proceedings. Moreover, there are no reasonable

grounds to conclude that judges, accepting doubts as to their

impartiality to decide upon criminal charges brought by the applicant

against inter alia one of their colleagues, lacked impartiality in the

earlier criminal proceedings against the applicant.

     Considering the circumstances of the case as a whole, the

Commission finds no appearance of a violation of the applicant's rights

under Article 6 paras. 1 and 3 (Art. 6-1, 6-3) 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).

2.   As regards the applicant's complaint under Article 7 (Art. 7) of

the Convention concerning his conviction of defamation, the Commission

considers that the submissions are limited to the allegation of factual

and legal errors in the Wels Regional Court's finding, as confirmed by

the Supreme Court, that he had committed the offence of defamation,

pursuant to the relevant provisions of the Austrian Penal Code.  This

part of the application is, therefore, also manifestly ill-founded

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

3.   Finally, the Commission, in accordance with Article 26 (Art. 26)

of the Convention, is not called to examine whether or not the

limitations on the applicant's correspondence during his detention on

remand, imposed in 1985, amounted to a violation of his right to

respect for his correspondence under Article 8 (Art. 8) of the

Convention.  The Commission notes that the applicant lodged this

complaint only in May 1993, that is more than six months after the

event complained about.  It follows that this complaint is inadmissible

under Article 27 para. 3 (Art. 27-3) 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)