AS TO THE ADMISSIBILITY OF

                      Application No. 20864/92

                      by Neville Noah FEINGOLD

                      against Austria

     The European Commission of Human Rights (First Chamber) sitting

in private on 6 April 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

                 B. CONFORTI

                 N. BRATZA

                 I. BÉKÉS

                 E. KONSTANTINOV

           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 12 October 1992

by Neville Noah FEINGOLD against Austria and registered on 28 October

1992 under file No. 20864/92;

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

of Procedure of the Commission;

-    the Commission's decision of 2 March 1994 to communicate the

     application;

-    the observations submitted by the respondent Government on

     15 June and 1 July 1994 and the observations in reply submitted

     by the applicant on 16 September 1994;

     Having deliberated;

     Decides as follows:

THE FACTS

     The applicant is a citizen of the United Kingdom born in 1951.

He has lived in Austria since 1978 and is married to an Austrian.  He

is represented before the Commission by Mr. G. Lansky, a lawyer

practising in Vienna.  The facts of the case may be summarised as

follows.

Particular circumstances of the case

     On 10 January 1991 an indictment was brought against the

applicant, accusing him of having caused damage of over AS 203 million

to the Sun Insurance Office.  The prosecutor requested an order for the

confiscation of the unjust enrichment, pursuant to Article 20a of the

Criminal Code (Strafgesetzbuch).

     On 12 April 1991 the applicant, by his then representative, made

a request under Article 224 of the Code of Criminal Procedure

(Strafprozeßordnung) for further witnesses to be heard.  On 3 May 1991

the applicant's present representative went on the court record, and

on 8 May 1991 the applicant's representative requested further

evidence, the adjournment of the trial (as the representative had only

just been appointed) and, in the alternative, the summoning of

witnesses and experts at the trial.  It appears that the judge who had

been nominated as presiding judge, Judge Gallent, took no decision on

the request.

     Judge Gallent did not participate as trial judge when the main

proceedings opened on 14 May 1991 as he had been promoted.

     On 20 September 1991 the applicant was convicted by the Vienna

Regional Court (Landesgericht) of 6 counts of disloyalty ("Untreue"),

contrary to Article 153 of the Criminal Code.  Two of the counts

related to attempt, one of them related to the full offence in part and

attempt in part.  The operative part of the judgment provided that the

applicant had "between 28 August 1981 and 17 March 1988 ... as

principal authorised agent of the Sun Insurance Office Ltd. ...

knowingly abused his authority to ... enter into obligations on behalf

of the Sun Insurance Office Ltd. ... and thereby caused actual

financial harm to the said firm of ... AS 126,164,366.86 and attempted

financial harm ... of AS 75,249,500.00 ..." by entering into various

guarantees on behalf of the Sun Insurance Office in respect of bank

loans granted to himself and to the Sun Unternehmens-

verwaltungsges.m.b.H (SU), an Austrian company, by granting liens over

accounts of the Sun Insurance Office in order to secure claims by third

parties against the SU, and by permitting a bank to undertake book

transfers in the name of the SU against accounts of the Sun Insurance

Office.

     The applicant was sentenced to 81/2 years' imprisonment and ordered

to pay AS 37,477,570.13 pursuant to Article 20a of the Criminal Code.

In respect of the AS 37,477,570.13, the Court noted that it did not

accept his claim that he was entitled to the money as commission was

paid by different channels, as the applicant would then have been the

only broker who received commission without it passing through the SU.

Moreover, there was no record of any entitlement to commission, and

this was confirmed by several witnesses.  No order was made in respect

of the private parties to the criminal proceedings, who were referred

to the civil proceedings available.

     In the part of the judgment headed "Reasons for the decision"

("Entscheidungsgründe") the court found, inter alia, as follows:

     "... This authority empowered the AAA [the predecessor to the SU]

     to enter into insurance contracts ....  Point 4 of the authority

     empowers the AAA to open and run bank accounts in the name of the

     Sun Insurance, but "without power to overdraw such account or

     accounts or otherwise pledge the credit of the Company" ...

     The SU's losses accrued partly through Feingold's business

     policies, and partly, to approximately one half, through

     expenditure for which it was not possible to establish any

     business need, Feingold's excessive personal drawings, travel,

     hotel expenses, ... etc.  ... Feingold doubled his salary in 1985

     ...

     On 16 April 1984 the accused, in the name of the Sun Insurance

     Office, gave a guarantee for a loan of AS 3,000,000.00, which the

     Austrian Länderbank had given the accused in his personal

     capacity.

     On 4 March 1987 the accused, in the name of the Sun Insurance

     Office, pledged a Sun Insurance Office credit of AS 5,000,000.00

     to secure all the Länderbank's claims against the SU...

     On 17 December 1987 Feingold, in the name of the Sun Insurance

     Office and the SU, authorised a book transfer relating to the

     accounts 624 220 000/018 ... (SU) ... On examination of the

     accounts ... it transpired that two of the SU's loan accounts

     were not contained in the books: ... With regard to a total of

     AS 37,477,570.13, examination of the coupons established no

     business necessity for the expenditure (betrieblich bedingte

     Erfordernisse dieser Ausgaben).  Only Feingold, who dealt with

     the banks, was authorised to sign for these accounts. ...

     The accused admits that he signed all the declarations at issue

     ...  He claims that ... he was not aware of any misuse of his

     agency authority or, in the alternative, that no misuse of the

     agency authority took place.

     The accused's position is not tenable.  That he was well aware

     of the limits of his authority from the very beginning is

     apparent from the fact that he fulfilled the other duties of his

     agency contract. ... "

     The applicant entered a plea of nullity with respect to the

conviction and an appeal against the sentence.  The Supreme Court

(Oberster Gerichtshof) rejected the plea of nullity in camera on

25 February 1992 as partly clearly unfounded under Article 285d

para. 1 (2) of the Code of Criminal Procedure, and partly as not made

in accordance with the law, under Article 185d para. 1 (1) of the Code

of Criminal Procedure.  The Procurator General had filed the following

comment:

     "In the view of the Procurator General's office, the plea of

     nullity submitted by the accused, Neville Noah Feingold, meets

     the criteria for a decision pursuant to Article 285d of the Code

     of Criminal Procedure.  The transmission of a copy of the

     decision is requested."

     The applicant was not served with a copy of this comment, and was

not given the opportunity to make representations on it.

     The Supreme Court found, in connection with the ground of nullity

that the applicant had not been fit to participate at the trial, that

although the applicant's fitness to participate had at times been in

doubt - largely due to his misuse of alcohol - the first instance court

had kept the position under review and had reduced the length of the

court sittings on the advice of the expert attending.  The allegations

of unfitness were in any event first raised on the appeal, and so were

in any event inadmissible.

     In connection with a ground of nullity that the Regional Court

had failed to call two named witnesses, the Supreme Court noted that

the Regional Court had expressly stated that one was not necessary as

the evidence was available in documentary form.  The Supreme Court

found that it was not clear how the evidence the witnesses could have

provided could have helped the applicant.

     The Supreme Court regarded the defence request at trial for all

papers and accounts to be sequestered and examined for indications of

improper payments as inadmissible because they were merely "fishing

expeditions".  The fact that the first instance court had not formally

replied to this request did not affect the validity of the judgment.

Similarly, there was no reason to suppose that acceding to the request

would have indicated that the sums referred to in the report of

Mr. Bohle could have been received by anybody else, or that the

applicant could have been entitled to them.

     The Supreme Court underlined that the offence of disloyalty was

committed where abuse of authority gave rise to financial disadvantage

to the principal.  What subsequently happened to the money was

irrelevant.

     The Supreme Court found that the plea of nullity under Article

281 para. 1 (5) of the Code of Criminal Procedure was an inadmissible

attempt to challenge facts rather than the reasoning underlying the

judgment and that the court had adequately reasoned its decision; under

Article 281 para. 1 (5a) (that there is considerable doubt as to the

accuracy of the fact on the basis of which the court took its

decision), the Supreme Court found that the applicant had not raised

issues based on the case-file, but had laid out a scenario which was

favourable to him, and compared it with the decision of the Regional

Court.

     In connection with the plea of nullity under Article 281 para.

1 (11) of the Code of Criminal Procedure (error of law in sentencing),

the Supreme Court noted that the Regional Court had found as a fact

that the applicant had unlawfully enriched himself in the sum of AS

37,477,570.13, and it found that the statements in the plea of nullity

that an expert's opinion did not necessarily lead to that conclusion

took no account of the findings of fact of the Regional Court.

     On 14 April 1992 the Vienna Court of Appeal (Oberlandesgericht),

in which Judge Gallent participated, granted the applicant's appeal

against sentence in part.  It found that the Regional Court had failed

to take into account the mitigating circumstance that the applicant was

only partly convicted for the full offence, and partly for attempt.

It reduced the sentence to 7 years' imprisonment.

Relevant Domestic Law

     Article 20a of the Criminal Code (confiscation of enrichment)

provides, so far as relevant, as follows:

     "(1)  If an offender has unlawfully enriched himself by

     committing one or more punishable acts, he shall be convicted to

     pay a sum equivalent to the extent of the enrichment where the

     enrichment exceeds one million Schillings".

     Article 153 of the Criminal Code (disloyalty) provides, so far

as relevant, as follows:

     "(1)  Any person who knowingly abuses authority bestowed on him

     by ... a legal operation and thereby causes a third party

     financial disadvantage (Vermögensnachteil) ... shall be sentenced

     to ...".

     Article 133 of the Criminal Code (criminal conversion) provides,

so far as relevant, as follows:

     "(1) Any person who, with the intention of unlawfully enriching

     himself or a third party, appropriates property with which he has

     been entrusted shall be sentenced to ..."

COMPLAINTS

     The applicant alleges a violation of Article 14 of the Convention

in connection with Articles 5 and 7 of the Convention in that he was

charged with the offence under Article 153 of the Criminal Code rather

that under Article 133.

     He also alleges a violation of Article 6 of the Convention in

several respects:

(a)  He alleges that he was unfit to take part in the proceedings, and

that they should not have been permitted to continue;

(b)  He complains that there was not a public hearing before the

Supreme Court, and that he did not have the opportunity to comment on

the Procurator General's submissions;

(c)  He complains that two named witnesses were not called from London;

(d)  He complains of the participation of Dr. Gallent as judge at the

Vienna Court of Appeal on 14 April 1992 as Dr. Gallent had previously

(in his capacity as judge initially nominated as trial judge) failed

to deal with an application for the case to be remitted to the

investigating judge for further investigation.  The applicant states

that the decision should in fact have been taken by the Review Chamber

(Ratskammer), and that if Dr. Gallent had continued to act as trial

judge, he would have been excluded from the appeal proceedings by

virtue of Article 69 para. 2 of the Code of Criminal Procedure;

(e)  He complains that, although interpretation was available before

the investigating judge and the Regional Court, there was no

interpretation before the Vienna Court of Appeal in the appeal against

sentence;

(f)  He complains that the Vienna Court of Appeal failed to deal with

some of his grounds of appeal;

(g)  He complains that the order requiring him to repay the sums by

which he had enriched himself violated both Article 6 and Article 7 of

the Convention.  He complains under Article 7 that the order was made

in his case even though he was not accused of offences involving

unlawful enrichment.  Under Article 6 he complains that the effect of

the order was to subject him to a criminal penalty even though he had

not been charged with unlawfully enriching himself in any way, and that

there were no proceedings in which he could defend himself against this

charge.

PROCEEDINGS BEFORE THE COMMISSION

     The application was introduced on 12 October 1992 and registered

on 28 October 1992.

     On 2 March 1994 the Commission decided to communicate the

application to the respondent Government, pursuant to Rule 48

para. 2 (b) of the Rules of Procedure.

     The Government's written observations were submitted on

15 June 1994, after an extension of the time-limit fixed for that

purpose. Further observations were submitted on 1 July 1994. The

applicant replied on 16 September 1994, also after an extension of the

time-limit.

THE LAW

1.   The applicant alleges a violation of Article 14 (Art. 14) of the

Convention in connection with Articles 5 and 7 (Art. 5, 7) of the

Convention in that there is a difference between the offence under

Article 133 of the Criminal Code (criminal conversion - Veruntreuung)

and that under Article 153 (disloyalty - Untreue), with which he was

charged.  The applicant complains that both offences deal with cases

of misuse of a position of confidence, and that to deal with them

differently is discriminatory.

     However, and assuming that the applicant has complied with the

requirement of exhaustion of domestic remedies in this respect, the

substantive content of domestic criminal law is a matter in the first

place for the domestic legislator, and the mere fact that the applicant

was charged with an offence under one provision rather than another

cannot raise issues under the provisions of the Convention the

applicant refers to, or otherwise.

     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 alleges that he was unfit to take part in the first

instance proceedings, and that Article 6 para. 1 and para. 3 (c)

(Art. 6-1, 6-3-c) have been violated.  Article 6 (Art. 6) of the

Convention provides, so far as relevant to the present case, 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:

           c.    to defend himself in person ...

           d.    to examine or have examined witnesses against him and

     to obtain the attendance and examination of witnesses on his

     behalf under the same conditions as witnesses against him;

           e.    to have the free assistance of an interpreter if he

     cannot understand or speak the language used in court."

     Article 6 (Art. 6) of the Convention guarantees the right to take

part in the hearing before the domestic courts (see, for example, Eur.

Court H.R., Colozza judgment of 12 February 1985, Series A no. 89,

p. 14, para. 27).  Whilst questions of a person's fitness to plead may

be relevant to Convention issues - such as whether the "interests of

justice" require legal aid, or whether an individual should have

representation for the purposes of Article 5 para. 4 (Art. 5-4) (see,

for example, Eur. Court H.R., Megyieri judgment of 12 May 1992, Series

A no. 237, pp. 11-13, paras. 21-27) - it is in the first place for the

domestic authorities to consider the matter.  The Convention organs can

then consider whether the way in which the domestic authorities dealt

with the question is in conformity with the relevant provisions of the

Convention.

     In the present case, as the Supreme Court noted, the first

instance court kept the question of the applicant's fitness to plead -

which was largely induced by alcohol abuse - under constant review and

reduced the length of the court sittings on the advice of the expert.

The applicant did not, through his lawyer, raise questions of fitness

to plead in the course of the trial, but only on appeal.

     In these circumstances, the Commission finds that it is not

established that the applicant's alleged unfitness to plead and the way

in which the domestic authorities dealt with it gives rise to any

issues under Article 6 (Art. 6) 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.

3.   The applicant complains of the absence of a hearing before the

Supreme Court, again alleging a violation of Article 6 para. 1

(Art. 6-1) of the Convention.

     The Government consider that the Austrian reservation to

Article 6 (Art. 6) of the Convention prevents the Commission from

considering this complaint.  They point out that, in any event, the

applicant's plea of nullity was rejected as inadmissible pursuant to

Article 285d para. 1 of the Code of Criminal Procedure, that is, that

it could have been rejected by the court of first instance or (in the

case of grounds of nullity based on Article 281 para. 1 (1) to (8) and

(11)) the Supreme Court was of the unanimous opinion that it was

unfounded.  They consider that the Supreme Court was therefore not

acting as an instance of fact, and that such decisions do not call for

a hearing.  They add that the Court of Appeal did hold a hearing on the

applicant's appeal against sentence.

     The applicant considers that the Austrian reservation to

Article 6 (Art. 6) of the Convention is irrelevant because it deals not

with the question of whether a hearing should be held, but who should

be present if a hearing does take place.  He deduces a right to have

a hearing at the appeal stage from Article 2 of Protocol No. 7 (P7-2).

The applicant accepts that a hearing is not necessary for the court to

form its own impression of the parties when an appeal is solely on

points of law, but he points to Article 281 para. 1 (5) of the Code of

Criminal Procedure, which is a ground of nullity based on doubts as to

the facts.  Moreover, Article 281 para. 1 (5a) of the Code of Criminal

Procedure, which was introduced in 1987, adds a further factual ground

of nullity which was raised in the present case.

     The Commission recalls that even where an appeal court has

jurisdiction to review a case both as to the facts and as to the law,

and provided a public hearing has been held at first instance,

Article 6 (Art. 6) does not always require a right to a public hearing

irrespective of the issues to be decided.  In particular, leave to

appeal proceedings and proceedings involving only questions of law may

be in conformity with Article 6 (Art. 6) of the Convention even in the

absence of a hearing (cf. Eur. Court H.R., Jan-Ã…ke Andersson judgment

of 29 October 1991, Series A no. 212-B, p. 27, p. 45; No. 17358/90,

M.B. v. Austria, Comm. Report 8.9.94, pending before the European Court

of Human Rights, paras.42-51).

     A hearing was held at first instance.

     The applicant's plea of nullity was rejected by the Supreme Court

under Article 285d para. 1 of the Code of Criminal Procedure.  That

provision does not formally constitute a leave to appeal procedure as

referred to by the Court in the above-mentioned case of Jan-Ã…ke

Andersson, but its effect is similar in that it enables the courts to

consider whether an appeal has sufficient merits to warrant further

consideration (see the above-mentioned M.B. case, para. 47).

     Whilst it is true that the applicant claims that his plea of

nullity, which alleged nullity inter alia under Article 281 para. 1 (5)

and (5a), raised questions of fact as well as questions of law, the

Commission notes that the Supreme Court regarded the first of these

grounds of nullity as an inadmissible attempt to challenge the first

instance court's findings of fact (rather than the underlying

reasoning), and the second as laying out a scenario which was

favourable to him, and comparing it with the decision of the Regional

Court.

     The Commission is not satisfied that the applicant's plea of

nullity raised questions of fact which could have called for a hearing

and therefore finds that Article 6 para. 1 (Art. 6-1) of the Convention

did not require the Supreme Court to hold a hearing on the applicant's

plea of nullity.

     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 alleges a violation of Article 6 (Art. 6) of the

Convention in that the trial court did not call two witnesses from

London whose presence the applicant had requested.

     The Commission recalls that Article 6 para. 1 (Art. 6-1) of the

Convention and Article 6 para. 3 (d) (Art. 6-3-d) of the Convention do

not give the right to an unlimited number of witnesses, and that the

domestic courts may refuse to call witnesses requested by the defence

if, for example, it is considered that their evidence would be

irrelevant (see, for example, No. 10563/83, Ekbatani v. Sweden,

Dec. 5.7.85, D.R. 44 p. 113, 117; No. 10486/83, Hauschildt v. Denmark,

Dec. 1.10.86, D.R. 49 p.86, 102).

     In the present case, the Supreme Court found that the evidence

of both of the witnesses whom the applicant wanted to call was

irrelevant, in the case of one as the evidence was available in

documentary form, and in the other as it was not clear how the evidence

could have assisted the applicant.

     Accordingly, this part of the application does not disclose any

appearance of a violation of Article 6 para. 1 and Article 6 para.

3 (d) (Art. 6-1, 6-3-d) of the Convention.  It follows that it is

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

(Art. 27-2) of the Convention.

5.   The applicant complains that the judge initially nominated as

trial judge failed to deal with a request of 12 April 1991 for further

investigations, whereas he should have forwarded the request to the

Review Chamber if he was minded to refuse it.  The same judge then

participated in the proceedings before the Court of Appeal on the

applicant's appeal against sentence.  The applicant alleges a violation

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

     The Government accept that, under Article 225 para. 1 of the Code

of Criminal Procedure, when a presiding judge intends to reject an

application under Article 224 of the Code, he is required to obtain the

consent of the Review Chamber.  They submit that in the present case,

however, the judge did not reject the request, because he granted a

subsidiary request to include the evidence requested in the trial.  The

Government consider that this very minor involvement - which extended

only to agreeing to a subsidiary request - did not give the judge the

opportunity to form an opinion about the strength of the case against

the applicant, and did not mean that he should not have taken part in

the appeal proceedings.  They point out that, in any event, the

applicant failed to challenge the judge on grounds of bias (although

they accept that a challenge under Article 72 et seq. of the Code of

Criminal Procedure would have had no prospect of success), and the

Court of Appeal in fact reduced the applicant's sentence on appeal.

     The applicant stresses that as the judge decided on the

subsidiary, alternative application, he must have decided to reject the

principal one.  He has submitted an application of 8 May 1991 in which

he requested certain evidence, the adjournment of the trial (because

of the recent appointment of his present representative) and, in the

alternative, the summoning of witnesses and experts to the trial.  He

considers that the judge must have formed an opinion for his decision

not to take the evidence immediately, and that the failure to involve

the Review Chamber was a decision taken to his detriment.  He states

that he only found out that the same judge had participated twice when

he received the Court of Appeal's decision, and considers that the

double participation led to bias on the part of the judge.

     The Commission has not been furnished with any decisions taken

by the judge concerned which shed light on his involvement in the case

during the "intermediary proceedings" (Zwischenverfahren), that is the

period between the entry into force of the indictment and the formal

opening of the trial (Hauptverhandlung).  It appears, however, that he

did not in fact take any formal decisions as to the gathering of

evidence.  The Commission regards it as likely that, by acceding to the

applicant's request to take evidence at the trial, the judge was

avoiding taking a decision on the strength of the case against the

applicant, rather than finding against him.

     In these circumstances, the Commission finds that the applicant

has not made out his allegations that the judge had preconceived

notions of the applicant's guilt before the judge took part in the

applicant's hearing in the appeal against sentence.  Accordingly, the

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

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

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

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

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

judge's personal impartiality has not been challenged.

     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 he was not given interpretation for

his appeal against sentence, although interpreters were present for his

trial.  He alleges a violation of Article 6 para. 3 (e) (Art. 6-3-e)

in this respect.

     The Government submit that, by not requesting an interpreter at

the appeal hearing, the applicant has failed to exhaust domestic

remedies, but argue that in any event there was no need for an

interpreter at the appeal hearing because the applicant, who has lived

in Vienna since 1978 and who is married to an Austrian, speaks

excellent German.  They refer to a statement from the judge who

eventually presided at the applicant's trial and who comments that the

applicant spoke excellent German, and to a comment from a member of the

Austrian President's office, to which the applicant had presented a

plea for clemency, that the applicant spoke German "like a native".

The Government also submit that the interpretation had been present at

the trial largely for the benefit of foreign witnesses, and on four

occasions (31 May, 24 June, 22 July and 14 August 1991) when no foreign

witnesses and no English documents were translated, no interpreter was

present and the applicant did not complain.  Finally, they mention that

appeals against sentence are in any event limited in scope, and a

defendant is usually asked, after the parties' representatives have

pleaded, whether he wishes to make further submissions or whether he

shares the views of his representative.  In the present case, the

applicant stated that he shared his lawyer's views, and the Government

consider that he thereby waived his right to the assistance of an

interpreter.

     The applicant states that almost all his business activities were

carried out in English, and that when necessary he could and did use

translators.  He also regards an ability to deal with everyday German

as insufficient reason to deny a person the services of an interpreter

in court, especially where, as here, the proceedings concerned

complicated business transactions in a language other than the language

in which he worked.

     The Commission recalls that Article 6 para. 3 (e) (Art. 6-3-e)

of the Convention guarantees the assistance of an interpreter if the

person charged with a criminal offence "cannot understand or speak the

language used in court".

     In the present case, the applicant had been responsible for

setting up and developing business in Austria.  He accepts that his

everyday German is adequate.  The Commission notes that the applicant

did not protest on those occasions when no interpreter was present

during his trial, and he has not even hinted that he had any specific

difficulties in following the (partly successful) appeal against

sentence.

     In these circumstances, the Commission finds that the Austrian

courts were not under an obligation to provide, of their own motion,

an interpreter for the applicant at the hearing of his appeal against

sentence.  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 of the imposition on him of an order to

pay AS 37,477,570.13 by way of an additional penalty under Article 20a

of the Criminal Code.  He complains under Article 7 (Art. 7) of the

Convention that the order was made even though he was not accused of

offences involving unlawful enrichment, and under Article 6 (Art. 6)

that the effect of the order was to subject him to a criminal penalty

for unlawful enrichment without either a charge or proceedings in which

he could defend himself.

     Article 7 (Art. 7) of the Convention provides as follows:

     "1.   No one shall be held guilty of any criminal offence on

     account of any act or omission which did not constitute a

     criminal offence under national or international law at the time

     when it was committed.  Nor shall a heavier penalty be imposed

     than the one that was applicable at the time the criminal offence

     was committed."

     The Government, by reference to the Commission's opinion in the

case of Welch v. the United Kingdom (Comm. Rep. 15.10.93, to be

published in Eur. Court H.R., Series A no. 307-A), consider that the

order in the present case was not a penalty, such that Article 7

(Art. 7) is not applicable.  They consider that Article 20a is explicit

in requiring repayment of sums in excess of AS 1 million, such that

Article 7 (Art. 7) is complied with in any event.  In connection with

Article 6, the Government consider that the imposition of the order did

not involve a criminal charge separate from the charge under the

substantive law, and that the civil limb of Article 6 (Art. 6) is

complied with by the proceedings which preceded the making of the

order.

     The applicant considers that, notwithstanding the Commission's

opinion in the case of Welch, the confiscation of enrichment in the

present case was a penalty, and that even if it is not, the Convention

must nevertheless give full procedural rights.  He considers that he

was denied these rights as none of the evidence in the case went to the

question of enrichment.

     The Commission recalls that since the parties in the present case

submitted their observations, the European Court of Human Rights has

given judgment in the case of Welch (Eur. Court H.R., Welch judgment

of 9 February 1995, Series A no. 307-A).  The Court there considered

that there had been a violation of Article 7 (Art. 7) of the Convention

as, at the time the offence was committed, the provisions for the

confiscation order did not exist.  It considered that the order was a

penalty.

     In the present case, too, the Commission finds that the order for

confiscation of enrichment was a penalty.

     The applicant alleges a violation of Article 7 (Art. 7) of the

Convention on the ground that a criminal penalty was imposed without

being based on any findings of fact.  The provision, however, relates

rather to the question whether an offence or a penalty was in force at

the time the offence was committed.  The applicant has not referred to

this question at all, but in any event, he failed to raise it in his

ground of nullity under Article 281 para. 1 (11), and so has not

exhausted domestic remedies in this respect.

     The applicant also alleges a violation of Article 6 (Art. 6) of

the Convention in connection with his complaint that he was penalised

by the order for confiscation of enrichment without the courts ever

establishing that he unlawfully enriched himself.

     The Government in this connection point to the way in which the

court calculated the figure of AS 37,477,570.13.  They underline that

the figures, which were not challenged by the applicant in the trial,

were included in the report of Mr. Bohle and were confirmed by several

witnesses who confirmed that none of them knew of any entitlement of

the applicant to commission.

     The applicant regards the Government's comments as coming close

to an "inadmissible anticipatory assessment of the evidence", pointing

out that none of the witnesses was heard on the question of the

enrichment.

     The Commission recalls that, pursuant to Article 19 (Art. 19) of

the Convention, its role is to ensure the observance of the Convention.

It is not competent to deal with allegations that errors of law or of

fact have been committed by domestic courts, except where it considers

that such errors might have involved a possible violation of the rights

and freedoms set out in the Convention.

     The Commission has above found that the order for confiscation

of enrichment was a "penalty" within the meaning of Article 7 (Art. 7)

of the Convention.  That penalty was imposed in the framework of the

criminal proceedings brought against the applicant for disloyalty, and

the applicant was able to put questions to witnesses in connection with

this penalty in the same way as if, for example, the question had

related to his ability to pay a fine.  In particular, the Commission

notes that the applicant did not make any submissions at the trial

(such as requests for a named person to be heard who would have given

evidence that the applicant was entitled to commission) which could

have cast doubt on the evidence of Mr. Bohle.  The Commission therefore

finds that the way in which the domestic courts dealt with the issue

of whether an order should be made under Article 20a, and if so in what

amount, discloses no appearance of a violation of Articles 6 or 7

(Art. 6, 7) 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.

8.   Finally, the applicant complains of the passing of a statement

from the Procurator General to the Supreme Court.  He alleges a

violation of Article 6 (Art. 6) of the Convention on the ground that

he was not given a copy of the statement and was not able to comment

on it.

     The Government submit that the Procurator General's statement

that the case could be dealt with under Article 285d of the Code of

Criminal Procedure is not at all the same as the "croquis" at issue in

the Brandstetter case (Eur. Court H.R., Brandstetter judgment of

28 August 1991, Series A no. 211) because in the statement in the

present case, the Procurator General did not in fact comment on the

substance of the plea of nullity.  They add that the Procurator General

did not participate in the proceedings before the Supreme Court.

     The applicant considers that a statement that Article 285d  of

the Code of Criminal Procedure is applicable is inevitably a comment

on the merits of the plea of nullity because it was tantamount to

saying that the grounds of nullity were not present, and that the plea

was "obviously ill-founded" within the meaning of Article 285d para.

1 (2) of the Code of Criminal Procedure.

     The Commission considers that this complaint raises questions of

law and fact which require a determination as to their merits, no other

ground of inadmissibility having been established.

     For these reasons, the Commission, unanimously,

     DECLARES ADMISSIBLE, without prejudging the merits, the

     applicant's complaint that he was unable to challenge the

     statement of the Procurator General;

     DECLARES INADMISSIBLE the remainder of the application.

Secretary to the First Chamber       President of the First Chamber

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