AS TO THE ADMISSIBILITY OF

                      Application No. 23194/94

                      by Gerhard STADLER

                      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 23 December 1993

by Gerhard STADLER against Austria and registered on 6 January 1994

under file No. 23194/94;

     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 is an Austrian citizen, born in 1940, and general

manager of the S.G. company, a company incorporated under Austrian law

doing business as haulage contractor.  Before the Commission he is

represented by Mr. L.J. Kempf, a lawyer practising in Peuerbach

(Austria).

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

summarised as follows.

A.   Particular circumstances of the case

     In April and July 1988 an inspection of the S.G company by tax

inspectors (Betriebsprüfung) was carried out in the course of which

irregularities in the company's book-keeping were discovered.

     On 10 June 1991 the Wels Public Prosecutor's Office

(Staatsanwaltschaft) preferred a bill of indictment against the

applicant charging him under the Code of Tax Offences

(Finanzstrafgesetz) with evasion of turnover tax, commercial tax and

property tax.

     On 21 January 1992 the trial against the applicant took place

before the Wels Regional Court (Landesgericht).  A representative of

the Grieskirchen Tax Office (Finanzamt), which had joined the criminal

proceedings as a private party (Privatbeteiligter), participated at the

trial.

     The Regional Court heard several witnesses, inter alia, the

applicant's tax consultant, employees of the S.G. company and

representatives of firms which had business relations with the S.G.

company.  The Regional Court adjourned the trial to hear further

witnesses.

     On 19 August 1992 the Public Prosecutor's Office submitted a

report from the Grieskirchen Tax Office, dated 31 July 1992, to the

Regional Court.  According to this report the applicant had in the

course of a further inspection by tax officers carried out in July 1992

submitted a self-incriminating report in which he had admitted tax

evasion by entering sham investments into the book-keeping and making

unjustified claims for input tax (Vorsteuerabzug).  The Regional Court

filed this report without serving it on the applicant.

     On 17 November 1992 the trial continued before the Regional

Court.  The applicant requested the court to take further evidence,

namely to hear again his tax consultant and representatives of the Graz

and Grieskirchen Tax Offices and to have the tax files of the R.

company, a sister company of the S.G. company, produced in order to

prove that the R. company, at the time of the alleged offences, had

considerable value added tax reimbursement claims.

     The Regional Court dismissed the applicant's request to hear

further witnesses, as it found this evidence irrelevant for the charges

of tax evasion.  Even if it were true that the R. company had value

added tax reimbursement claims, the applicant had failed to make tax

declarations concerning the facts he was charged with, so that an off-

set against the reimbursement claims, if at all possible, could not

have been effectuated.

     According to the record of the hearing, several documents were

read out by the Regional Court, including the report from the

Grieskirchen Tax Office of 31 July 1992.  The applicant did not react

thereto.

     On 17 November 1992 the Wels Regional Court convicted the

applicant of tax evasion and sentenced him to a fine of 2 million AS

and 5 months' imprisonment in default.  Half of the fine was suspended

for a probationary period of three years.

     The Regional Court found that in September 1986 the applicant had

bought several trucks from the D. company and, although the trucks had

not actually been delivered, had entered their value in the company's

book-keeping as assets and had claimed input tax.  On the applicant's

request the contract had been cancelled in February 1987 and a credit

note (Gutschrift) had been issued by the D. company, which, however,

had not been entered into the book-keeping of the S.G. company.  A

similar transaction had been made with the T. company, another truck

retailer, in December 1987, with refunding by credit note in January

1988.  Furthermore, in 1981 and 1982, the applicant had requested

estimates of costs (Kostenvoranschläge) regarding repair works of

trucks of the S.G. company.  Though these repair works had eventually

never been carried out, the applicant had treated the estimates of

costs in the book-keeping of the S.G. company as invoices and had

claimed input tax.

     The Regional Court noted the applicant's defence that he had

returned the credit notes to the D. company and the T. company in order

to negotiate the amount of the credit notes and that these documents

had apparently got lost there so that he could not have entered them

into his book-keeping.  The booking of the estimates of costs as

invoices had been merely a mistake.

     The Regional Court did not accept the applicant's defence.  It

found that there were no indications that the applicant had returned

the credit notes.  Also the argument of further negotiations regarding

the credit notes was in itself implausible as it was against the rules

of ordinary book-keeping - with which the applicant as an experienced

business man was familiar - that after the cancelling of a contract a

credit note be issued which did not correspond to the previous

contract.  It also noted the fact that the same kind of transaction

occurred twice and that in both cases the ordering of the trucks had

taken place shortly before the end of the year and the cancelling of

the contracts shortly after the beginning of the new year.  As regards

the booking of estimates of costs as invoices, the Regional Court found

that this did not happen by mistake because the respective amounts were

treated as debts until 1988 although an error would have been

discovered much earlier.  Moreover, the applicant had been asked by his

book-keeper about the open account and had decided to leave it in the

book-keeping.

     On 11 March 1993 the applicant lodged a plea of nullity and an

appeal against the sentence.  He complained, inter alia, about the

Regional Court's refusal to take the evidence he had requested and

submitted that the Regional Court had failed to decide on his request

to have tax files of the R. company produced.  He further attacked the

assessment of evidence made by the Regional Court as, in his view,

parts of some witnesses' statements could also be understood as

exonerating him.

     On 24 March 1993 the Grieskirchen Tax Office, as a private party,

submitted observations on the applicant's plea of nullity, covering

some two and a half pages.  These observations were not served on the

applicant.

     On 18 May 1993 the Procurator General's Office (General-

prokuratur) submitted its observations on the applicant's plea of

nullity and appeal against the sentence, which subsequently were served

on the applicant.

     On 22 June 1993 an oral hearing on the plea of nullity and appeal

took place before the Supreme Court (Oberster Gerichtshof).  In this

hearing the applicant, his defence counsel and a representative of the

Procurator General's Office participated.  In the course of the hearing

the Supreme Court read out the Grieskirchen Tax Office's submissions

of 24 March 1993.

     On the same day the Supreme Court dismissed the applicant's plea

of nullity and partly granted his appeal reducing the fine to 1.4

million AS and the imprisonment in default to 4 months.

     The Supreme Court found that the Regional Court had acted

correctly when it dismissed the applicant's requests for a further

hearing of his tax consultant and of representatives of the Graz and

Grieskirchen Tax Offices as their statements would have been irrelevant

to the proceedings.  The Supreme Court noted that the Regional Court

should have also explicitly refused the further request, namely to

produce the tax file of the R. company.  However, this procedural

mistake did not infringe the applicant's defence rights since his

request for production of the tax files concerned the same issue with

regard to which the Regional Court had correctly refused the taking of

further evidence.

     The Supreme Court further found that the Regional Court had

correctly established the facts and assessed the evidence.  It added

that in assessing the evidence a court was not bound to rely only on

logically cogent deduction but, in applying the principle of free

assessment of evidence, it could also rely on deductions based on

probability and common knowledge.

     Relevant domestic law:

     According to S. 45 para. 2 of the Code of Criminal Procedure

(Strafprozeßordnung), the Investigating Judge shall permit the defence

counsel to inspect the court files, except the records of

deliberations, and to make copies thereof; alternatively the

Investigating Judge may also deliver copies.  Under the same conditions

the defence counsel can inspect the file during the trial.

     According to S. 258 of the Code of Criminal Procedure all

evidence must normally be taken at the trial, in particular witnesses

and experts must make their statements orally before the court.

Documents may only be used as evidence if they have been read out in

court.  According to S. 252 para. 2 documents must be read out in court

if the parties do not waive this right.

     The tax authorities have, by law, the position of a private party

(Privatbeteiligter) in criminal proceedings before the ordinary courts

(S. 200 of the Code of Tax Offences).

     S. 365 et seq. of the Code of Criminal Procedure regulate the

position of the private party.  The private party is the alleged victim

of a criminal offence and can join the criminal proceedings to have its

civil law compensation claim against the offender determined by the

criminal court.  He has the right to inspect the files and to

participate at the trial, but he can lodge an appeal against a judgment

of the Criminal Court only under specific circumstances.  Under S. 200

para. 2 of the Code of Tax Offences the tax offence authorities can,

however, lodge an appeal in the same way as the Public Prosecutor.

COMPLAINTS

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

Convention that the criminal proceedings conducted against him were

unfair.

a.   He submits that the Regional Court refused to take the evidence

he had requested.

b.   He further submits that at the court hearing on 17 November 1992

the Presiding Judge did not actually read out the report of the

Grieskirchen Tax Office of 31 July 1992, which had not been served on

him, but merely mentioned it and referred to its number in the file.

Thus, the applicant did not become aware of its contents until the

Public Prosecutor in its concluding remarks referred to it.  He

therefore was deprived of the possibility to comment on this report at

the hearing and could not object to it being read out.

c.   He also submits that in the proceedings on his plea of nullity

and appeal the written observations of the private party had not been

transmitted to him but were, unexpectedly, read out by the Supreme

Court at the hearing on 22 June 1993.  Since the applicant and his

defence counsel were only informed at the hearing about the contents

of the private party's submissions they had no adequate possibility to

react thereto.  He submits that usually no written observations are

submitted by private parties who make their statements orally in the

hearing of the plea of nullity.  The applicant alleges a violation of

the principle of equality of arms and that he was not given sufficient

time to prepare his defence in this respect.

2.   The applicant also complains about a violation of the principle

of presumption of innocence as guaranteed by Article 6 para. 2 of the

Convention.  He submits that there was not sufficient evidence to find

that with regard to the mistakes occurred in the book-keeping he had

had the intention to evade taxes.  He also submits that the opinion

expressed by the Supreme Court, namely that a court was not bound to

rely only on logically cogent deduction but could also rely on

deductions based on probability and common knowledge, infringed the

principle of presumption of innocence.

THE LAW

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

(Art. 6-1, 6-3) of the Convention that the criminal proceedings

conducted against him were unfair.

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

insofar as relevant, read as follows:

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

     against him, everyone is entitled to a fair and public

     hearing within a reasonable time by an independent and

     impartial tribunal established by law. (...)

     (3) 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 witnesses 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 contained in paragraph

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

general concept of fair trial set forth in paragraph 1 of this Article.

In the circumstances of the present case, it will consider the

applicant's complaint under the two provisions taken together (see Eur.

Court H.R., Isgrò judgment of 19 February 1991, Series A no. 194-A, p.

12, para. 31).  In order to determine whether the aim of Article 6

(Art. 6) - a fair trial - has been achieved, regard must be had to the

entirety of the domestic proceedings conducted in the case (Eur. Court

H.R., Imbrioscia judgment of 24 November 1993, Series A no. 275, pp.

13-14, para. 38).

a.   Insofar as the applicant submits that the Regional Court refused

to take the evidence he had requested, the Commission recalls that

Article 6 para. 3 (d) (Art. 6-3-d) of the Convention does not give an

absolute right to examination of every witness proposed by the defence

(Eur. Court H.R., Engel and others judgment of 6 June 1976, Series A

no. 22, p. 38, para. 91).  In particular a court is justified in

refusing to summon witnesses when it considers that their statements

could not be of relevance to the case (see No. 4124/69, Dec. 13.7.70,

Collection 35 p. 132; No. 10486/83, Dec. 9.10.86, D.R. 49, p. 86 at

102).

     In the present case the applicant on 17 November 1992 requested

the Regional Court to take further evidence in order to prove that the

R. company, at the time of the alleged offences, had considerable value

added tax reimbursement claims.  The Regional Court rejected the

request to hear the applicant's tax consultant and representatives of

the Graz and Grieskirchen Tax Offices, as it found their evidence

irrelevant for the charges of tax evasion:  Even if it were true that

the R. company had value added tax reimbursement claims, the applicant

had failed to make tax declarations concerning the facts he was charged

with, so that an off-set against the reimbursement claims, if at all

possible, could not have been effectuated.  The Regional Court did not

deal with the applicant's further request for the production of tax

files of the R. company.  On 22 June 1993 the Supreme Court found that

the Regional Court had acted correctly when it dismissed the

applicant's requests for the hearing of witnesses, but noted that the

Regional Court should have also refused explicitly the further request,

namely to produce the tax file of the R. company.  However, this

procedural mistake did not infringe the applicant's defence rights

since his request for production of the tax files concerned the same

issue with regard to which the Regional Court had correctly refused the

taking of further evidence.

     The Commission finds that the Regional Court and the Supreme

Court sufficiently explained why the evidence requested by the

applicant was irrelevant to the proceedings.

     Accordingly there is no appearance of a violation of the

applicant's right to a fair hearing under Article 6 paras. 1 and 3 (d)

(Art. 6-1, 6-3-d) of the Convention in this respect.

b.   The applicant further submits that at the court hearing on

17 November 1992 the Presiding Judge did not actually read out the

report of the Grieskirchen Tax Office of 31 July 1992, which had not

been served on him, but merely mentioned it and referred to its number

in the file.  Thus, he had not been aware of its contents until the

Public Prosecutor in its concluding remarks referred to it.  He

therefore was deprived of the possibility to comment on this report at

the hearing and could not object to it being read out.

     The Commission observes, however, that according to the record

of the court hearing of 17 November 1992 the report in question was

read out by the Presiding Judge.  The applicant, at no stage of the

proceedings, submitted that the record of the court hearing was

incorrect in this respect.  Even assuming that the relevant report had

been treated as read out, the Commission notes that such practise was

only permissible with the consent of the applicant.  However, the

applicant does not submit that the Presiding Judge had acted in this

respect contrary to the relevant provisions of the Code of Criminal

Procedure.  Moreover, the Commission notes that the document at issue

had been added to the file on 19 August 1992 and that the next court

hearing took place on 17 November 1992.  There is nothing to show that

the applicant's defence counsel could not have inspected the file

before the hearing to learn about this document.

     The Commission therefore finds no appearance of a violation of

the applicant's right to a fair hearing under Article 6 paras. 1 and

3 (b) (Art. 6-1, 6-3-b) of the Convention in this respect.

c.   The applicant also submits that in the proceedings on his plea

of nullity and appeal the written observations of the private party had

not been transmitted to him but were, unexpectedly, read out by the

Supreme Court at the hearing on 22 June 1993.  Since the applicant and

his defence counsel were only informed at the hearing about the

contents of the private party's submissions they had no adequate

possibility to react thereto.  He alleges a violation of the principle

of equality of arms and that he was not given sufficient time to

prepare his defence in this respect.

     The Commission recalls that the principle of equality of arms is

only one feature of the wider concept of a 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 the 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.  Various ways are

conceivable in which national law may secure that this requirement is

met.  However, whatever method is chosen, it should ensure that the

other party will be aware that observations have been filed and will

get a real  opportunity to comment thereon (Eur. Court H.R.,

Brandstetter judgment of 28 August 1991, Series A no. 211, pp. 27-28,

paras. 66-67).  In particular it is inherently unfair for the

prosecution to make submissions to a court of which the defence is

unaware and on which the defence has no opportunity to comment (M.B.

v. Austria, Comm. Report 8.9.94, para. 56).

     The Commission finds that the Grieskirchen Tax Office, as a

private party to the criminal proceedings against the applicant, may

be perceived by the applicant as his adversary.  The Commission

therefore has to examine whether in the relation between the applicant

and the Tax Office the principle of equality of arms has been observed.

     In the present case the applicant lodged a plea of nullity and

an appeal against the sentence on 11 March 1993.  On 24 March 1993 the

Grieskirchen Tax Office, as a private party, submitted observations on

the applicant's plea of nullity, covering some two and a half pages.

These observations were not served on the applicant.  On 18 May 1993

the Procurator General's Office submitted its observations on the

applicant's plea of nullity and appeal against the sentence, which were

served on the applicant.  On 22 June 1993 an oral hearing on the plea

of nullity and appeal took place before the Supreme Court, in which the

applicant, his defence counsel and a representative of the Procurator

General's Office participated, but no representative of the Tax Office.

In the course of the hearing the Supreme Court read out the

Grieskirchen Tax Office's submissions of 24 March 1993.

     The applicant, according to his own submissions, expected that

the Tax Office would make oral submissions at the Supreme Court's

hearing.  He was informed at the hearing about the fact that the Tax

Office had submitted observations and these observations were read out

by the court.  The applicant, who was assisted by counsel, did not show

that he could not duly comment on the Tax Office's observations.

Moreover, once confronted with these observations, he did not request

that the hearing be adjourned on the ground that he needed more time

to prepare a reply thereto.

     In these circumstances the Commission cannot find that the fact

that the Tax Office's written observations were read out by the court

infringed the principle of equality of arms as protected by Article 6

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

     The Commission therefore finds no appearance of a violation of

the applicant's right to a fair hearing within the meaning of Article

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

     It follows that this part of the application is manifestly

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

Convention.

2.   The applicant also complains about a violation of the principle

of presumption of innocence as guaranteed by Article 6 para. 2

(Art. 6-2) of the Convention.  He submits that there was not sufficient

evidence to find that with regard to the mistakes occurred in the

book-keeping he had had the intention to evade taxes.  He also submits

that the opinion expressed by the Supreme Court, namely that a court

was not bound to rely only on logically cogent deduction but could also

rely on deductions based on probability and common knowledge, infringed

the principle of presumption of innocence.

     Article 6 para. 2 (Art. 6-2) of the Convention reads as follows:

     "Everyone charged with a criminal offence shall be presumed

     innocent until proved guilty according to law."

     The Commission recalls that the presumption of innocence will be

violated if, without the accused's having previously been proven guilty

according to law, a judicial decision concerning him reflects an

opinion that he is guilty (Eur. Court H.R., Barberá, Messegué and

Jabardo judgment of 6 December 1988, Series A no. 146, p.38, para. 91).

     The Commission notes that the applicant does not argue that

during the proceedings, and in particular the trial, the Regional Court

had taken decisions or attitudes reflecting such an opinion.  Having

regard to the applicant's submissions, the Commission rather finds that

the essence of his complaint is that the Austrian courts, in convicting

him, had committed errors of fact in that they assessed the evidence

incorrectly.  However, the Commission cannot determine this issue, as

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

of law or fact have been committed by domestic courts except where it

considers that such errors might have involved a possible violation of

any of the rights and freedoms set out in the Convention (see e.g. No.

458/59, Dec. 29.3.60, Yearbook 3 pp. 222, 236;  No. 5258/71, Dec.

8.2.73, Collection 43 pp. 71, 77; No. 7987/77, Dec. 13.12.79, D.R. 18

pp. 31, 45).

     It follows that also 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)