AS TO THE ADMISSIBILITY OF

                      Application No. 22715/93

                      by E. G.

                      against Austria

      The European Commission of Human Rights (First Chamber) sitting

in private on 17 January 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 19 August 1993 by

E. G. against Austria and registered on 30 September 1993 under file

No. 22715/93;

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

of Procedure of the Commission;

      Having deliberated;

      Decides as follows:

THE FACTS

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

summarised as follows.

      The applicant, born in 1954, is an Austrian national.  He is a

lawyer by profession, residing and practising in Vienna.

A.    The particular circumstances of the case

      On 6 May 1992 the Vienna Regional Criminal Court (Landesgericht)

held a hearing concerning charges of intimidation (Nötigung), assault

(Körperverletzung) and cruelty to animals (Tierquälerei) against the

applicant.

      The charges related to an incident in road traffic in June 1991.

The applicant pleaded not guilty.  He submitted in particular that he

had let his car roll slowly into a parking space, which was occupied

by the dog of Mrs. H.  Although he had already stopped, Mrs. H. had

placed herself in front of his car and ordered him not to drive any

further.  Thereupon, he had simply left.  He had returned a little

later to park the car properly.

      The witness, Mrs. H., stated that the applicant, with his car,

had driven up to her dog and knocked it down.  When the dog moved away,

she had placed herself between it and the applicant's car.

Subsequently, the applicant touched her twice with his car.  On the

next day she had filed a criminal information (Anzeige) with the

police.  The Court also heard the police officer, with whom Mrs. H. had

filed the information.  He stated inter alia that Mrs. H. had a swollen

knee and that the dog limped slightly.  In the course of the

questioning the applicant had the opportunity to put questions;

however, some of his questions to the witness Mrs. H. were refused by

the judge, who, according to S. 249 para. 2 of the Code of Criminal

Procedure (Strafprozeßordnung), may reject questions which appear

unreasonable.  Further, the Court heard a medical expert as regards the

injuries suffered by Mrs. H. and a veterinary expert on the injuries

of the dog.

      After the witnesses and the two experts had been heard the

applicant requested to be assisted by counsel.  The judge rejected this

request on the ground that the applicant was experienced enough to

present his defense.

      The applicant gives the following account of the subsequent

events: As the judge refused to let him use the telephone in the

meeting room to call a counsel, he went to the door to ask a colleague,

who was waiting outside, to call a counsel for him.  Thereupon, the

judge, by setting off an alarm, called a security officer (Justizwache-

beamter), whom he instructed to sit down next to the door and to arrest

him, should he again try to leave.  The hearing continued for another

two and a half hours.

      According to the minutes, the applicant brought a motion

challenging the judge for bias, inter alia on the ground that he had

prevented him to call a counsel, had threatened to arrest him and had

rejected his requests relating to the taking of evidence.  He further

requested that the hearing be suspended until he got the assistance of

a counsel, as in the circumstances, he did not feel able to plead his

case.  The judge also rejected these requests.

      The Regional Court convicted the applicant for intimidation,

assault and cruelty to animals and sentenced him to four months'

imprisonment.  The sentence was suspended on probation.  It found that

the applicant had touched Mrs. H. twice with his car in order to force

her to leave a parking space with her dog and thereby caused bruises

of her right knee and a minor strain of the right ankle and had also

hit the dog with his car causing a very painful blow to the joint,

bruises and a large haematoma on the right hindquarter.

      In establishing the facts, the Court noted that the witness,

Mrs. H., had made detailed and credible statements before the police

and the investigating judge as well as at the hearing.  The Court had

not had the impression that she gave a hysterical or distorted account

of the facts, as alleged by the applicant.  Therefore, the applicant's

various requests for the admission of evidence as regards her

credibility had to be rejected.  As regards the injuries of the dog,

the Court found that they were confirmed by the veterinary expert.

Thus the applicant's requests for ordering the opinion of another

veterinary expert as well as other requests aimed at showing that the

injuries could not have been sustained in the incident, as described

by Mrs. H., had to be rejected.  As regards the injuries suffered by

Mrs. H., the Court referred to the medical expert and an attestation

of the hospital where she had been treated after the incident.  As the

injuries were typical consequences of being hit by a car, the

applicant's request for another expert opinion and other requests

aiming at showing that the injuries could also have been caused by

another event, had to be rejected.

      On 22 June 1992 the applicant, now represented by counsel, lodged

an appeal on questions of law and fact (Berufung).  As regards the

appeal on questions of law, he complained in particular that the trial

judge had rejected his request to be assisted by counsel.  He alleged

that the judge had threatened to arrest him and had called a security

officer to prevent him from leaving the court room.  He further

complained that the court had rejected all his requests for the

admission of evidence and that the judge had not withdrawn from the

case after he had challenged him for bias.

      In his appeal on questions of fact, the applicant contested the

Regional Court's findings and filed a number of new requests for the

admission of evidence.  In particular, he submitted the opinions of

another medical and another veterinary expert.

      On 19 October 1992 the Vienna Court of Appeal (Oberlandes-

gericht), after having held a hearing in presence of the applicant and

his counsel, dismissed the applicant's appeal.

      As regards his complaint that he was not allowed to call a

counsel, the Court considered that the applicant was himself a lawyer

and had been familiar with the charges against him.  Had he deemed it

necessary, he could have come to the hearing with a counsel.  At the

hearing he could question the witnesses and the two experts.  Further,

he made altogether forty-one requests for the taking of evidence.

Thus, the fact that he was not represented by counsel did not prevent

him from presenting his defense.  As regards the rejection of the

applicant's requests for the admission of evidence, the Court of Appeal

noted that the Regional Court, in its judgment, had dealt with them in

detail and had given conclusive reasons for their rejection.  It had

properly examined them and had come to the conclusion that they were

either not suited to prove relevant facts, or could not further clarify

facts which had already been sufficiently examined.

      As regards his appeal on questions of fact, the Court of Appeal

found that the Regional Court, having the personal impression of the

applicant, the witnesses and the experts, had given a convincing

evaluation of the evidence.  There were no objections as regards the

establishment of the facts.  Further, the Appeal Court did not find any

reason to take additional evidence (Beweisergänzung) and did therefore

not deal with the two additional expert opinions presented by the

applicant.

      The decision was served on the applicant on 23 February 1993.

COMPLAINTS

1.    The applicant complains under Article 6 of the Convention about

the unfairness of the criminal proceedings against him.  He submits in

particular that the courts were biased, that his right to choose a

counsel and to be assisted by counsel was restricted and that the

courts rejected his requests relating to the taking of evidence.

2.    The applicant complains that the proceedings violated his right

to property.

3.    Further, the applicant complains that he has been unlawfully

arrested during the trial before the Vienna Regional Criminal Court.

He submits in particular that the judge, after he had gone to the door

of the court room as he wanted to call a counsel, had set off an alarm.

Thereby the judge called a security officer, whom he instructed to sit

down next to the door and to arrest him, should he again try to leave.

THE LAW

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

Convention about the unfairness of the criminal proceedings against him

and about the alleged bias of the criminal courts.

      Article 6 (Art. 6), so far as relevant, reads as follows:

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

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

      independent and impartial tribunal ... .

      3.   Everyone charged with a criminal offence has the following

      minimum rights:

      c.   to defend himself in person or through legal assistance of

      his own choosing ... ."

a.    As regards the applicant's complaint that he was prevented from

being represented by counsel, the Commission notes that Article 6 para.

3 (c) (Art. 6-3-c) guarantees everyone charged with a criminal offence

the right either to defend himself in person or through legal

assistance of his own choosing.  As the requirements of paragraph 3 of

Article 6 (Art. 6-3) represent particular aspects of the right to a

fair trial guaranteed in paragraph 1, the Commission will examine the

applicant's complaints from the point of view of these two provisions

taken together (see Eur. Court H.R., Lüdi judgment of 15 June 1992,

Series A. no. 238, p. 23, para. 43).

      In the present case, the applicant, who is himself a lawyer,

appeared at the hearing before the Regional Court of 6 May 1992 without

counsel.  He only requested to be assisted by counsel after the

witnesses and two experts had been heard.  The Regional Court refused

his request on the ground that he was experienced enough to defend

himself.  The Court of Appeal, on the applicant's appeal, confirmed

this decision, finding that the applicant had been able to exercise his

defence rights at the hearing.

      The Commission finds no indication that the applicant could not

properly present his defence before the Regional Court. Moreover, he

could lodge an appeal regarding questions of law and fact against the

Regional Court's decision and was represented by counsel at the appeal

stage.  In these circumstances there is no indication that the Regional

Court's rejection of the applicant's request to be assisted by counsel

was contrary to the requirements of a fair trial within the meaning of

Article 6 paras. 1 and 3 (c) (Art. 6-1+6-3-c) taken together.

b.    As regards the applicant's complaint that the courts rejected his

requests relating to the taking of evidence, the Commission recalls

that the admissibility of evidence is primarily governed by the rules

of domestic law, and as a general rule it is for the national courts

to asses the evidence before them.  The Commission's task is to

ascertain whether the proceedings, considered as a whole, were fair

(see Lüdi judgment, loc. cit).

      In the present case, the Regional Court, in its decision of 6 May

1992 gave reasons for its rejection of the applicant's requests for the

admission of evidence, relating in particular to the credibility of the

witness, Mrs. H., and the opinions of the medical and the veterinary

expert.  The Court of Appeal found these reasons conclusive.  It

further considered that the Regional Court's evaluation of evidence was

convincing, and did not find any reason for taking additional evidence.

There is no indication that the applicant was unduly restricted in

questioning the witnesses.  In these circumstances, the Commission

finds that the applicant failed to show that the taking of evidence was

arbitrary and therefore contrary to Article 6 para. 1 (Art. 6-1).

c.    As regards the applicant's further complaint under Article 6

(Art. 6) that the courts deciding on the criminal charge against him

were biased, the Commission recalls that the existence of impartiality

for the purposes of Article 6 para. 1 (Art. 6-1) must be determined

according to a subjective test, that is on the basis of the personal

conviction of a particular judge in a given case, and also according

to an objective test, that is ascertaining whether the judge offered

guarantees sufficient to exclude any legitimate doubt in this respect

(Eur. Court H.R., Fey judgment of 24 February 1993, Series A no. 255-A,

p. 12 para. 28).

      In the present case the applicant challenged the judge at the

Regional Court for bias, in particular on the grounds that he had

rejected his request to be assisted by counsel and his requests

relating to the taking of evidence.  However, he did not challenge the

judges at the Court of Appeal.

      With a view to its above findings regarding the alleged

unfairness of the proceedings, the Commission considers that the

applicant's submissions do not suffice to put the personal impartiality

of the judge of the Regional Court into doubt.  The applicant failed

to submit any other facts.  His fear, expressed in general terms, that

the judges dealing with his case lacked impartiality can, therefore,

not be regarded as objectively justified.

      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 that the contested criminal

proceedings against him violated his right to property.

      The Commission finds that the applicant failed to substantiate

this complaint.

      It follows that this part of the application is also manifestly

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

Convention.

3.    The applicant further complains that he was unlawfully deprived

of his liberty during the hearing before the Vienna Regional Criminal

Court of 6 May 1992.

      The Commission notes the applicant's submissions that, in the

course of the above hearing he had gone to the door of the court room

in order to ask a colleague, who was waiting outside, to call a counsel

for him, and that, thereupon, the judge called a security officer, whom

he instructed to arrest him, should he again try to leave.

Subsequently, the hearing went on for about two and a half hours.

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

determine the admissibility of this complaint and that it is therefore

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

Procedure, to give notice of this complaint to the Government.

      For these reasons, the Commission unanimously

      DECIDES TO ADJOURN the examination of the applicant's complaint

      concerning his alleged arrest during the hearing of 6 May 1992

      before the Vienna Regional Criminal Court;

      DECLARES INADMISSIBLE the remainder of the application.

Secretary to the First Chamber          President of the First Chamber

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