AS TO THE ADMISSIBILITY OF

                       Application No. 20552/92

                       by Marc ACHTARI

                       against Switzerland

      The European Commission of Human Rights (Second Chamber) sitting

in private on 5 April 1995, the following members being present:

           Mr.   H. DANELIUS, President

           Mrs.  G.H. THUNE

           MM.   G. JÖRUNDSSON

                 S. TRECHSEL

                 J.-C. SOYER

                 H.G. SCHERMERS

                 F. MARTINEZ

                 L. LOUCAIDES

                 J.-C. GEUS

                 M.A. NOWICKI

                 I. CABRAL BARRETO

                 J. MUCHA

                 D. SVÁBY

           Mr.   K. ROGGE, 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 July 1992 by

Marc Achtari against Switzerland and registered on 27 August 1992 under

file No. 20552/92;

      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 submitted by the applicant, may be

summarised as follows:

      The applicant, a Swiss citizen born in 1946, is a pharmacist.

Before the Commission he is represented by Mr Jean Lob, a lawyer

practising in Lausanne.

       On 3 November 1988 the investigating judge of the Glâne district

issued a warrant of arrest against the applicant, suspected of having

killed his associate, Mr. M.F.  On the same day the applicant was

detained on remand.

      On 13 April 1989 the Indictment Chamber of the Cantonal Court of

the Canton of Fribourg (Chambre d'Accusation du Tribunal Cantonal de

Fribourg) committed the applicant for trial before the Glâne Criminal

Court (Tribunal criminel) on suspicion of homicide or, alternatively,

murder.

      On 29 June 1989 the Glâne Criminal Court convicted the applicant

of murder and sentenced him to life imprisonment.

      The applicant filed an appeal in cassation and a public law

appeal against this judgment.

      On 29 November 1989 the Federal Court (Tribunal Fédéral) quashed

the attacked judgment, finding that the lower Court had been assisted

by a registrar (greffier-juriste) who had previously participated in

the taking of important investigative measures.  The Federal Court

referred the case to the Cassation Court for the Canton of Fribourg

(Cour de cassation du canton de Fribourg).  On 4 December 1989 this

Court referred the case to the Gruyère Criminal Court for

reconsideration.

      On 3 April 1990 the Gruyère Criminal Court convicted the

applicant of homicide, by poisoning M. F. with potassium cyanide put

into a can of beer, and sentenced him to ten years' imprisonment.

      The Court found that late in the evening of 24 October 1988, the

applicant, the victim  M.F., a pharmacist P.S. and his girlfriend M.C.

had been working at a pharmacy, owned by the applicant and the victim.

They had been drinking beer from cans.  At a certain moment the

applicant noticed that his beer had a strange smell.  Thereupon he had

exchanged his can for that of the victim.  Shortly afterwards M.F. had

complained that his beer had terrible taste ("mais elle est déguelasse

cette bière")  and had lost consciousness.  A doctor had arrived with

an ambulance and tried to resuscitate M.F.  The applicant had failed

to tell him about the acid smell of the beer; it was P.S. who had done

so.  M.F. had been taken to a hospital and died shortly thereafter.

An autopsy made by the Forensic Medicine Institute in Lausanne had

shown that the beer had contained potassium cyanide.

      The Court considered the evidence given, inter alia, by P.S. and

M.C., who had been present at the premises at the material time, three

security agents present in the building, the physician who had

attempted to resuscitate the victim, the ambulance assistant, the

victim's wife, other family members, taped phone conversations between

the victim's wife and, inter alia, P.S. and M.C, and a psychiatric

opinion about the applicant.

      The Court noted that the applicant had consistently denied that

he had poisoned M.F., and that there were no direct witnesses of the

poisoning, nor any irrefutable material evidence.   The Court further

considered six hypotheses as to the possible course of events leading

to the victim's death, namely an accident, a suicide, the victim's

attempt to kill the applicant, an action of either M.C. or P.S.,  a

conspiracy of unknown third parties against the victim, and the action

of an unidentified third person who could have penetrated into the

pharmacy at the material time without being seen.  The Court excluded

all these possibilities and concluded that it appeared most plausible

that the crime had been committed by the applicant.  In establishing

the possible motives of the applicant the Court pointed to his troubled

business relations with the victim and to a difficult character of the

latter.  The Court had regard to the varying versions of the facts

given by the applicant in the course of the investigations.  The Court

took into account the applicant's failure to tell the doctor about the

change of the smell of beer, as well as the fact that it was only at

a late stage of the investigations that the applicant had told the

investigating judge about the exchange of beer cans.  These latter

factors, in the Court's opinion, negatively affected his credibility.

      The Court considered that the principle "in dubio pro reo" on the

one hand related to the burden of proof in that it obliged the court

to prove guilt of the accused and not the accused to prove his

innocence.  On the other hand this principle prohibited arbitrary

appreciation of evidence.  However, it did not oblige the Court to

retain a solution most favourable to the accused.

      On 17 September 1990 the Fribourg Court of Cassation dismissed

the applicant's plea of nullity.   The Court noted that the lower Court

had excluded other hypotheses as to the possible cause of the victim's

death on the basis of a thorough and well-motivated reasoning; that the

Court had not overstepped the margin of appreciation in making

conclusions relating to the gaps and inconsistencies in the evidence

given by the applicant, in particular as to the fact that he had

exchanged the beer cans between himself and the victim, and as to his

failure to tell the ambulance doctor about the change of the smell of

the beer.  The Court concluded that there was no arbitrariness in the

assessment of evidence by the lower Court.

      The applicant filed a public law appeal with the Federal Court,

complaining under Article 6 para. 2 of the Convention and Article 4 of

the Federal Constitution that the authorities had disregarded the

presumption of innocence and had proceeded from the assumption that he

was guilty.  This had led the Courts to disregard the evidence which

was more favourable to the applicant and to attach undue importance to

evidence pointing to his guilt.  As a result, the assessment of

evidence was arbitrary.

      On 29 January 1992 the Federal Court dismissed the applicant's

public law appeal.  In its decision, numbering 28 pages, the Court

analysed the findings of the lower Courts relating to the exchange of

the beer cans and to the applicant's failure to tell the doctor about

the strange smell of the beer.  The Court examined the conclusions

which the Courts had drawn therefrom as to the applicant's guilt.  The

Court considered that these conclusions were not untenable, as alleged

by the applicant.  It was true that the lower courts had not convicted

the applicant on the basis of any material proof, but on the basis of

concurring indications ("faisceau d'indices").  However, Article 6

para. 2 of the Convention did not require an absolute certainty of the

evidence; but only that guilt should be attributed if objective

analysis of the evidence did not allow for the conclusion that the

accused was not guilty.  The Court considered that "nothing [in the

deliberations of the cantonal courts] supports an opinion that they had

acted in such a manner as to presuppose guilt of the applicant and to

interpret the facts systematically to his disadvantage in order to set

aside the evidence which was favourable for him" ("rien dans les

éléments ainsi débattus ne permet de dire que les autorités cantonales

seraient parties d'une présomption de culpabilité du recourant detenant

systématiquement à sa charge des faits douteux pour écarter ce qui dans

l'administration des preuves lui a été favorable").  The Court

concluded that the first instance court had not surpassed the limits

of appreciation of evidence or established facts in a arbitrary manner

in excluding other hypotheses as to the causes of the victim's death.

COMPLAINTS

      The applicant complains of a breach of Article 6 para. 2 of the

Convention according to which everybody shall be presumed innocent

until proven guilty according to law.  The applicant submits that he

was convicted on the basis of insufficient evidence, contrary to the

principle that the guilt must be firmly established.  He complains that

the assessment of evidence made throughout the proceedings was

arbitrary.  He submits that the Federal Court's restrictive

interpretation of this provision diminishes the protection afforded by

Article 6 of the Convention.

THE LAW

      The applicant complains under Article 6 para. 2 (Art. 6-2) of the

Convention that he was convicted on insufficient evidence, contrary to

the principle that the guilt must be firmly established.  He submits

that he was not presumed innocent until proven guilty in accordance

with the law.  He complains that the assessment of evidence made

throughout the proceedings was arbitrary.

      With regard to the judicial decisions of which the applicant

complains, the Commission recalls that under Article 19 (Art. 19) of

the Convention its only task is to ensure the observance of the

obligations undertaken by the Parties to the Convention.  In

particular, 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.  The Commission refers on this point to its established

case-law (see e.g. No. 458/59, Dec. 29.3.60, Yearbook 3 p. 222, 236;

No. 5258/71, Dec. 8.2.73, Collection 43 pp. 71, 77; No. 7987/77, Dec.

13.12.79, D.R. 18 p. 31, 45).

      Insofar as the applicant complains under Article 6 para. 2

(Art. 6-2) of the Convention that he was not presumed innocent until

proven guilty,  the Commission recalls that the presumption of

innocence will be violated if, without the accused's having previously

been proved guilty according to law, a judicial decision concerning him

reflects an opinion that he is guilty (Eur. Court H.R., Barberà,

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

p.31, para. 67 et seq.).

      In the present case the applicant does not adduce any argument

which would indicate that the presumption of innocence was disregarded

in the proceedings at issue, other than the assessment of evidence made

by the Courts.  It does not appear from the case-file that during the

proceedings the Courts, before finding the applicant guilty on the

basis of the evidence, took decisions reflecting the opinion that the

applicant had committed the acts which he was charged with.

      Insofar as the applicant complains about arbitrary assessment of

evidence, the Commission recalls that it is primarily for the national

courts to assess the evidence before them.  The Convention organs' task

is to ascertain whether the proceedings considered as a whole,

including the way in which evidence was taken, were fair (Eur. Court

H.R., Asch judgment of 26 April 1991, Series A no. 203, p. 10,

para. 26).

      In the present case there is no indication that the proceedings

were unfairly conducted or that the applicant, who was represented by

a lawyer, could not adduce any evidence which he regarded as being

pertinent or to put forward any argument he considered relevant.  The

Federal Court undertook a detailed analysis, numbering 28 pages, of the

applicant's complaints, addressing the issue of the assessment of

evidence by the first instance court.  It concluded that the lower

courts had not overstepped the limits of appreciation of evidence or

established facts in a arbitrary manner in excluding other hypotheses

as to the causes of the victim's death.   The Commission does not find

these conclusions arbitrary or otherwise unfair.

      It follows that 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 Second Chamber        President of the Second Chamber

      (K. ROGGE)                                  (H. DANELIUS)