AS TO THE ADMISSIBILITY OF

                      Application No. 18959/91

                      by S.E. K.

                      against Switzerland

      The European Commission of Human Rights (First Chamber) sitting

in private on 11 January 1995, the following members being present:

           Mr.   C.L. ROZAKIS, President

           Mrs.  J. LIDDY

           MM.   F. ERMACORA

                 E. BUSUTTIL

                 A.S. GÖZÜBÜYÜK

                 A. WEITZEL

                 M.P. PELLONPÄÄ

                 B. MARXER

                 B. CONFORTI

                 N. BRATZA

                 I. BÉKÉS

                 E. KONSTANTINOV

                 G. RESS

           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 13 September 1991

by S.E. K. against Switzerland and registered on 17 October 1991 under

file No. 18959/91;

      Having regard to:

-     its decision of 12 January 1994 rejecting part of the

      application;

-     the reports provided for in Rule 47 of the Rules of Procedure of

      the Commission;

-     the observations submitted by the respondent Government on

      31 March 1994 and the observations in reply submitted by the

      applicant on 19 August 1994;

      Having deliberated;

      Decides as follows:

THE FACTS

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

parties, may be summarised as follows.

      The applicant, a citizen of the United States born in 1945 and

residing since 1972 in Zurich, is a certified public accountant and tax

consultant (Steuerberater und Bücherexperte) by profession.  Before the

Commission he is represented by Mrs. V. Delnon, a lawyer practising in

Zurich.

      In 1982 M.P., a Mexican citizen, entrusted the applicant with the

establishment and administration of a trust in Liechtenstein and

transferred for this purpose a sum of 6 million US-Dollars to

Switzerland.  This trust, the S. Trust, was established by the

applicant on 20 September 1982 and an account for the S. Trust opened

at the J.B. bank.

      In February 1985 M.P.'s lawyer requested that an information

(Strafanzeige) be laid against the applicant, accusing him of having

embezzled money entrusted to him for the use of the S. Trust.

      On 18 and 25 April 1985 the applicant was questioned by the

Zurich Cantonal Police (Kantonspolizei).  According to the transcripts

of the interrogation of 18 April 1985 the applicant stated that on his

proposal R.P., a real estate agent residing in the United States with

whom the applicant was doing business, had contacted M.P. and presented

to him a real estate development project on the Bahama Islands.  The

applicant stated further that R.P., after having presented the project

to M.P., had informed the applicant that M.P. did like the project but

had not formally given his consent to an investment into the project.

      On 9 May 1985 the President of the Zurich District Court

(Bezirksgericht) appointed an ex officio defence counsel for the

applicant.

      On 9 May 1985, 14 October 1985 and on 15 October 1985, the

applicant was questioned by the Cantonal Police.

      On 24 May 1985 the applicant requested the District Attorney to

hear three witnesses, inter alia the real estate agent R.P.

      On 26 November 1986 the applicant, in the presence of his defence

counsel, was heard by the Zurich District Attorney (Bezirksanwalt) on

the charges against him.  According to the transcript of the

interrogation the applicant, inter alia, stated that M.P. had wanted

to go ahead with the real estate development project, that he had not

got the consent to the project directly from M.P. and that he had

thought that M.P. had been informed about the investment by R.P.,

though not directly by the applicant.

      On 17 June 1987 the Zurich Public Prosecutor's Office preferred

a bill of indictment on the applicant accusing him of having embezzled

funds of the S. Trust and having invested them into a real estate

development project on the Bahama Islands.

      On 9 September 1987 the Indictment Chamber (Anklagekammer) of the

Zurich Court of Appeal (Obergericht) allowed the indictment and decided

that the trial against the applicant be held before the Court of Appeal

sitting as court of first instance.

      On 20 April 1988 the applicant requested the Court of Appeal to

hear R.P. as witness for the defence in the trial.

      On 27 April 1988 the first hearing before the Court of Appeal

took place.  In the course of the hearing the applicant's lawyer

requested the Court of Appeal to hear R.P. as witness.  During the

trial an interpreter was present.

      On 17 May 1988 the Court of Appeal adjourned the trial for taking

further evidence, i.e. to request from the J.B. bank all the documents

concerning the S. Trust and to hear M.P. and G.L., a former employee

of the applicant, as witnesses.  On 18 November 1988 these witnesses

were heard by one of the judges sitting in the applicant's trial at the

Court of Appeal in the presence of the applicant's lawyer.

      On 8 March 1989 a further hearing before the Court of Appeal took

place and again the applicant's lawyer requested the Court to hear R.P.

as witness.

      On the same day the applicant was convicted for embezzlement and

sentenced to 21 months of imprisonment.

      The Court of Appeal found that on 29 September 1983, at a time

when the applicant had been under financial strain, he had taken a loan

from the J.B. Bank and pledged the funds of the S. Trust as security.

The applicant used the money for the purchase of land on the Bahamas

by a firm owned by him.  As the applicant could not pay back the loan,

the J.B. bank eventually seized the security given and after October

1984, refused to give any more loans.

      The Court of Appeal noted that the applicant did not contest the

essential facts of the charge laid against him but denied that he had

made the investment without M.P.'s consent.  The applicant had changed

his version of the events in the course of the proceedings.  Initially,

at the time of the police investigations, the applicant had maintained

that he had acted in the interest of M.P., who did like the project,

although without the latter's formal consent.  Then, a week before the

trial, in his request for further evidence, the applicant maintained

that R.P. actually had been given the order to invest in the Bahama

project by M.P.  According to the applicant this change was due to the

fact that he had no sufficient command of German and therefore the

statements as recorded in the transcript of the police interrogations

were not correct.  The Court of Appeal, however, found that the

applicant did sufficiently understand German as he had made his

statements in the trial in German.

      The Court of Appeal considered that the version of the events as

presented by the applicant in the police interrogations was

corroborated by further evidence.  The Court of Appeal noted that on

28 September 1983, the day before the applicant made the investment,

M.P. had visited the applicant in his office in Zurich, but the

applicant neither discussed the project with M.P., nor informed him of

the imminent investment.  If the applicant had really received from

R.P. the instruction to make the investment, it was improbable that he

would not have discussed the project at all with M.P.  Also the fact

that the applicant, rather than using the accounts of the Trust in the

first place, took a loan and pledged the Trust's accounts as security

and that he withheld account sheets of the J.B. bank from M.P,

confirmed that he had made the investment without M.P.'s consent.

Furthermore, the applicant's initial statements were also in accordance

with a note he had written in English on 7 February 1985, and which

reads as follows:

      "Prior to September 29, 1983 R.P. was requested by M.P. to visit

      him in Mexico in order to present the S.A. project.  R.P.

      reported to me after his return from Mexico that M.P. thought it

      was a very good project. - In addition R.P. reported that one of

      M.P.'s sons was most excited about the project and that he

      indicated a desire to acquire the property individually or

      jointly with some friends and associates.  It was felt by me that

      inspite of this considerable interest a more conservative

      approach would be as lender to the project with a guaranteed

      return substantially above the Eurodollar interest rate allowing

      for as well a conversion to equity in the project at a later date

      should it be so desired."

      The Court of Appeal noted further that M.P. had stated in the

proceedings that he had not been informed about the investment and the

use of the funds of the Trust.  According to the Court of Appeal, M.P.

was not a wholly credible witness, but after scrutiny of his statements

it could accept his version of the events.

      The Court of Appeal also dismissed the applicant's request for

hearing R.P. as witness and gave the following reasons:

      "It is superfluous to hear R.P. as witness.  If R.P. would simply

      confirm what the accused had stated at the beginning of the

      investigations, the statements of the witness could in no way

      exonerate the accused.  If, however, the witness would confirm

      the later version of the events given by the applicant, his

      statements could not be considered as relevant evidence.  Such

      statements would indeed be wholly incredible as the applicant

      would have had the strongest interest in giving this account of

      the events himself and from the very beginning.  A statement of

      R.P., confirming the later version of the events given by the

      applicant must be considered as a testimony given merely as a

      favour (Gefälligkeitsaussage) and, possibly, as a justification

      for the witness himself, who had received the amount of 200,000

      US$ in connection with land purchase at issue."

      On 26 May 1989 the applicant filed a plea of nullity

(Nichtigkeitsbeschwerde) with the Zurich Court of Cassation

(Kassationsgericht).  The applicant submitted, inter alia, that the

Court of Appeal had refused to hear R.P. as witness although he had

repeatedly requested such a hearing.  The Court of Appeal had refused

this request with arguments based on an anticipated assessment of

evidence.

      On 1 October 1990 the Court of Cassation dismissed the

applicant's plea of nullity.  The Court of Cassation found that an

anticipated assessment of evidence was admissible in cases where, even

if the envisaged evidence were adduced, the evidence could not

influence the result of the evidence.  Therefore, the Court of Appeal

correctly refused to hear R.P. as witness.

      On 21 November 1990 the applicant introduced a public law appeal

(staatsrechtliche Beschwerde) to the Federal Court (Bundesgericht).

He submitted in particular that his request for hearing R.P. as witness

had been refused by the Court of Appeal with arguments of anticipated

assessment of the evidence.  He further submitted that the Court of

Appeal in refusing his request for hearing R.P. as witness had simply

relied on the transcripts of the applicant's interrogation by the

police though these transcripts should not have been used in the trial.

      On 7 March 1991 the Cassation Chamber (Kassationshof) of the

Federal Court dismissed the applicant's public law appeal.

      The Federal Court held that the Court of Cassation had given

sufficient reasons why it was not necessary to hear R.P. as a witness

in the proceedings.  In his appeal the applicant had not shown why the

Court of Cassation's arguments were wrong, therefore the Federal Court

could not deal with this complaint.

COMPLAINTS

      The applicant's remaining complaint under Article 6 para. 1 and

3 (d) of the Convention concerns the Court of Appeal's refusal to hear

R.P. as witness for the defence.  He considers that the Court of Appeal

relied on considerations which amounted to an anticipated assessment

of evidence.

PROCEEDINGS BEFORE THE COMMISSION

      The application was introduced on 13 September 1991 and

registered on 17 October 1991.

      On 12 January 1994 the Commission's decided to communicate the

applicant's complaint under Article 6 para. 1 of the Convention as

regards the Court of Appeal's refusal to hear R.P. as a witness for the

defence and declared inadmissible the remainder of the application.

      On 31 March 1994 the respondent Government submitted their

observations and on 19 August 1994, after extension of the time limit,

the applicant submitted his observations in reply.

THE LAW

1.    The applicant complains under Article 6 para. 1 and 3 (d)

(Art. 6-1, 6-3-d) of the Convention that the Court of Appeal refused

to hear R.P. as witness for the defence, relying on considerations

which amounted to an anticipated assessment of evidence.

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

as 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 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:

      (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;

2.    The Government submit that the applicant failed to exhaust

domestic remedies because the Federal Court rejected his public law

appeal insofar he complained about the refusal to hear R.P. as witness.

The Federal Court found that the applicant had failed to substantiate

why the considerations of the Court of Cassation that an anticipated

assessment of evidence had been lawful in the present case were wrong

and, thus, had not complied with procedural requirements in this

respect.  Moreover, the applicant relied for the first time in his

application to the Commission on Article 6 paras. 1 and 3 (d)

(Art. 6-1, 6-3-d) of the Convention, while in the domestic proceedings

he had only invoked Article 4 of the Federal Constitution, which

guarantees a right to be heard including a prohibition of denial of

justice and of arbitrary decisions, and had complained of an unlawful

interference with his right to defence.

      The applicant submits that both in his plea of nullity before the

Zurich Court of Cassation and in the public law appeal before the

Federal Court he had complained that the refusal to hear R.P. as

witness was unlawful.  In particular, in his public law appeal to the

Federal Court he had complained under Article 4 of the Federal

Constitution that the refusal to hear R.P. as witness constituted an

unlawful anticipated assessment of evidence and thus a denial of a fair

hearing.  The Federal Court dealt with this complaint and came to the

conclusion that the Court of Cassation had dealt sufficiently with this

issue so that there was no violation of Article 4 of the Federal

Constitution.  In complaining about a violation of his right to a fair

hearing (Gewährung rechtlichen Gehörs) guaranteed by Article 4 of the

Federal Constitution he had invoked the guarantees enshrined in Article

6 para. 3 (d) and Article 6 para. 1 (Art. 6-3-d, 6-1) of the

Convention.

      Under Article 26 (Art. 26) of the Convention the Commission may

only deal with a matter after all domestic remedies have been

exhausted, according to the generally recognised rules of international

law, and within a period of six months form the date on which the final

decision was taken.

      The Commission recalls that domestic remedies within the meaning

of Article 26 (Art. 26) of the Convention have been exhausted if,

before the highest domestic body, the applicant has submitted in

substance his complaint before the Commission, even without particular

reference to the Convention (No. 7299/75 and 7496/76, Dec. 4.12.79,

D.R. 18 p. 5; No. 12164/86, Dec. 12.10.88, D.R. 58 p. 63).  There is

no exhaustion when a domestic appeal is not admitted because of a

procedural mistake (No. 6878/75, Dec. 6.10.76, D.R. 6 p. 79; No.

10107/82, Dec. 12.7.84, D.R. 38 p. 90).

      The Commission notes that, in his plea of nullity to the Court

of Cassation of 26 May 1989, the applicant complained unsuccessfully

about the Court of Appeal's refusal to hear R.P. as witness.  On 21

November 1990 he lodged a plea of nullity with the Federal Court in

which he reiterated this complaint and invoked Article 4 of the Federal

Constitution.  On 7 March 1991 the Federal Court rejected this part of

the applicant's public law appeal as it found that the Court of

Cassation had given sufficient reasons why it had not been necessary

to hear R.P. as a witness in the proceedings, and that the applicant

had not shown why the Court of Cassation's arguments were wrong.

      In these circumstances, the applicant had complained in substance

before the Federal Court, relying on Article 4 of the Federal

Constitution, about the refusal to hear R.P. as witness.  The Federal

Court rejected this complaint, but in concluding that the applicant had

failed to show that the Court of Cassation's reasoning regarding the

refusal to hear R.P. as witness were wrong the Federal Court in fact

endorsed the findings of the Court of Cassation.

      The Commission therefore considers that the applicant has

exhausted domestic remedies within the meaning of Article 26 (Art. 26)

of the Convention.

3.    The Government submit further that in deciding whether a request

for evidence should be granted or not, domestic courts have a wider

margin of appreciation as regards witnesses for the defence.  Only

under exceptional circumstances the refusal to hear such a witness

would violate the Convention, e.g. when the domestic court failed to

give any reasons why it considered a witness irrelevant to the

proceedings.  In its judgment of 8 March 1989 the Court of Appeal gave

sufficient reasons why it found that the hearing of R.P. as witness was

irrelevant for the proceedings.  In arriving at this conclusion the

Court of Appeal took in particular into account that the applicant

initially admitted not having any instruction by M.P. to use the

trust's funds for the investment at issue, which was also corroborated

by a note the applicant had written on 7 February 1985.  Furthermore,

though M.P. had visited the applicant on the day before the investment

was made, the project was not discussed by them.  If the applicant had

really received from R.P. the instruction to make the investment, it

was improbable that he would not have discussed the project and the

details of the investment with M.P.  The Court of Appeal concluded that

under such circumstances evidence of R.P., confirming the applicant's

subsequent allegation that he had made the investment at issue on the

instruction by M.P., would be implausible and, thus, irrelevant to the

proceedings.  The Court of Appeal's refusal to hear R.P. as a witness

thus did not violate Article 6 para. 1 and 6 para. 3 (d)

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

      The applicant submits that in the criminal proceedings against

him the outcome of the meeting between M.P. and R.P. in Mexico was of

decisive importance.  However, of the two persons who attended the

meeting only one, M.P., was heard by the Court of Appeal as a witness

for the prosecution.  This witness had a vested interest as he was the

injured party and was, as the Court of Appeal acknowledged, not a

person beyond all doubt.  The applicant could not refute his

statements, as he had not been present at the meeting.  Moreover, the

arguments on which the Court of Appeal based its refusal to hear R.P.

as witness only relate to circumstantial evidence.  If the witness for

the defence would have corroborated the applicant's version of the

events, the circumstantial evidence would no longer have been

sufficient to prove his guilt.  The court's refusal to hear R.P. as

witness for the defence therefore violated Article 6 (Art. 6) of the

Convention.

      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 from the angle of paragraph 1 taken

together with the principles inherent in paragraph 3 (d) of Article 6

(Art. 6-3-d) (see Eur. Court H.R., Unterpertinger judgment of

24 November 1986, Series A no. 110, p. 14, para. 29).

      As a general rule it is for the national courts, and in

particular the court of first instance, to assess the evidence before

them as well as the relevance of the evidence which the accused seeks

to adduce (Eur. Court H.R., Barberà, Messegué and Jabardo judgment of

6 December 1988, Series A no. 146, p. 31, para. 68).  Article 6 para.

3 (Art. 6-3) of the Convention does not give the accused an unlimited

right to have witnesses called (No. 8417/78, Dec. 4.5.79, D.R. 15

p. 200).  Domestic Courts may thus exercise some discretion, provided

that the Convention and particularly the right to a fair hearing are

respected in deciding whether the hearing of a defence witness is

likely to help to establish the truth (No. 8231/78, Dec. 6.3.82, D.R.

28, p. 5).

      With regard to the hearing of witnesses, a distinction should be

made between witnesses against and witnesses on behalf of the accused.

In respect of the former, an accused should, as a rule, be given an

adequate and proper opportunity to challenge and question a witness

against him, either at the time the witness was making his statement

or at some later stage.  In respect of the witnesses on behalf of the

accused, only exceptional circumstances could lead the Convention

organs to conclude that a refusal to hear such witnesses violated

Article 6 (Art. 6) of the Convention (see Vidal v. Belgium, Comm.

Report 14.1.91, Series A no. 235-B, pp. 38-39, paras. 47-49; Eur. Court

H.R., Bricmont judgment of 7 July 1989, Series A no. 158, p. 31, para.

89).  Thus, the complete silence in a judgment as to why the court

rejected the hearing of a witness for the defence is not consistent

with the concept of a fair trial which is the basis of Article 6

(Art. 6) of the Convention (see Eur. Court H.R., Vidal judgment of

22 April 1992, Series A no. 235-B, pp. 32-33, paras. 33-34).

      In the present case the Court of Appeal, in its judgment of

8 March 1989, indicated in detail the reasons why it did not consider

it necessary to hear this witness.  The Court of Appeal found that his

statements would be irrelevant to the case, as the witness could either

confirm the version of the events which had, in the meantime, been

corroborated by various further evidence, or make statements in order

to protect the applicant and himself which in view of the results of

the other evidence would be implausible from the outset.

      While the above reasoning of the Court of Appeal by which it

expressed an opinion on the credibility of a witness without having

heard him is open to criticism, the Commission, having regard to the

context in which this statement was made and the particular

circumstances of the case, finds that the Court of Appeal sufficiently

explained why it considered the statements of this witness as

irrelevant to the proceedings.  There are no indications that the Court

of Appeal rejected the applicant's request in an arbitrary or unfair

manner.

      In these circumstances the Commission finds that there is no

appearance of a violation of the applicant's right to a fair hearing.

      The application, therefore, is manifestly ill-founded within the

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

      For these reasons, the Commission, by a majority

      DECLARES THE REMAINDER OF THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber        President of the First Chamber

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