AS TO THE ADMISSIBILITY OF

                      Application No. 21155/93

                      by M. K.

                      against Austria

      The European Commission of Human Rights (First Chamber) sitting

in private on 2 September 1994, the following members being present:

           MM.   A. WEITZEL, President

                 C.L. ROZAKIS

                 F. ERMACORA

                 E. BUSUTTIL

                 A.S. GÖZÜBÜYÜK

           Mrs.  J. LIDDY

           MM.   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 14 September 1992

by M. K. against Austria and registered on 14 January 1993 under file

No. 21155/93;

      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 1952, is a Slovak national. He is

currently detained at the Stein Prison in Austria. In the proceedings

before the Commission he is represented by Mr. Soyer, a lawyer

practising in Vienna.

      On 4 September 1991 the Vienna Regional Criminal Court

(Landesgericht für Strafsachen) convicted the applicant inter alia

under the Drug Offences Act (Suchtgiftgesetz) of having, on

28 March 1990, together with his accomplice R., attempted to sell a

large quantity of drugs. The Court further convicted the applicant of

having attempted to resist the exercise of official authority

(Widerstand gegen die Staatsgewalt) upon his arrest, and of having

caused bodily harm. The Court sentenced the applicant to seven years'

imprisonment.

      The Court found that the applicant, who planned to sell heroin

in Austria, came into contact with a police informer (S.), and with his

assistance arranged a meeting with a potential buyer for 28 March 1990.

The applicant's accomplice R. brought two kilograms of heroin to the

meeting point, the parking place of a shopping centre in Vienna. The

Drug Enforcement Group of the Ministry for the Interior, had received

notice of the planned deal from their informer. Thus, on 28 March 1990,

the applicant met the police informer S. who was accompanied by an

undercover agent who appeared as the potential buyer. Following price

negotiations, the applicant went to R.'s car and returned with a bag

containing the heroin. The undercover agent carried out a test which

showed that the substance the applicant had offered was actually

heroin. Upon approaching the undercover agent's car where the applicant

was supposed to be paid, the agent gave a sign to plain cloths'

policemen, who were waiting at close distance, to arrest the applicant.

The applicant, who still carried the bag with the heroin, hit police

officer B. with this bag and wounded his hand, before he could be

arrested.

      The Court, establishing the relevant facts, considered in

particular that the applicant had made a confession before the police,

when he, assisted by an interpreter, was questioned after his arrest.

He had admitted that he, following R.'s instructions, had tried to hand

over the bag which according to his knowledge contained two or three

kilograms of heroin. He had repeated his confession before the

Investigating Judge, where he had also been assisted by an interpreter.

Though at the trial the applicant had pleaded not guilty, he had still

admitted that he handed over the bag. While claiming that he did not

know it contained heroin, he had made partly contradictory statements

during the trial. He repeated first that he had come to Vienna with R.,

who also instructed him to hand over the bag; at a later hearing he

stated that he had met the police informer S. a few days before

28 March 1990 and had arranged the meeting with him and that, at the

meeting place, S. had asked him to carry the bag.

      As regards the applicant's allegation that the police interpreter

and the interpreter assisting him at the questioning before the

Investigating Judge had not understood him correctly, the Court,

proceeding from the statements of the police officer, who had

questioned the applicant, and the police interpreter, found that the

applicant had not claimed any misunderstandings during his questioning

at the police. Moreover, the Investigating Judge had recorded that the

applicant was assisted by a sworn police interpreter, as no court

appointed interpreter was available.

      The Court also referred to a report of 19 August 1991 which, at

the Public Prosecutor's request, had been drawn up on the basis of the

undercover agent's submissions by his superior, Major D., a senior

official of the Drug Enforcement Group of the Ministry for the

Interior. The report stated that the Drug Enforcement Group were

informed that Slovak dealers were planning to offer drugs in Austria

by a police informer, and that the police informer subsequently

arranged the meeting of 28 March 1990. It further stated that the

police informer and the undercover agent had come together to the

meeting point, that the latter had negotiated the price with the

applicant, who had then taken the bag with the heroin from a car. After

having tested the drugs offered, the undercover agent had given the

sign to arrest the applicant. The Court found that the contents of the

report had been confirmed inter alia by the statements of two witnesses

heard, namely Major D. and Police Officer B., who had both observed at

the scene of the attempted sale from some distance. Major D., in

particular, had stated that he saw the applicant approaching the police

informer and the undercover agent, going to a car and coming back with

a bag. The Court considered that the defence had had the opportunity

to question the reliability of this report during trial.

      At the trial the Court had rejected the request by the

applicant's counsel that he be allowed to be present at the drawing up

of the report and to put questions to the undercover agent, on the

ground that it would be contrary to the police authorities' refusal to

disclose his identity. Subsequently, the applicant's counsel had,

unsuccessfully, requested that the report should not be used as

evidence, as this would be contrary to the principles of a fair trial.

      Finally the Court referred to the statements of the police

informer S., who, summoned on the defence counsel's request, had

admitted to have arranged a heroin deal. Moreover, he had contradicted

the statement of the applicant's life companion, that he had believed

in the applicant's innocence and had told her so after the applicant's

arrest. In these and the following proceedings the applicant was

assisted by counsel.

      The applicant filed a plea of nullity (Nichtigkeitsbeschwerde)

and an appeal (Berufung) against his conviction. In his plea of nullity

he complained inter alia that the Court had proceeded from the

undercover agent's report. He submitted in particular that his counsel

was not allowed to be present and to question the agent when the report

was filed. Therefore, he alleged that his right under Article 6

para. 3 (d) of the Convention had been violated. In his appeal the

applicant complained that the Court had neglected some mitigating

circumstances.

      On 13 October 1992 the Supreme Court (Oberster Gerichtshof)

dismissed the applicant's plea of nullity, insofar as relevant in the

present case. However, upon his appeal, the Court reduced the sentence

to five years' imprisonment.

      The Supreme Court considered that the identity of the undercover

agent could not be disclosed for reasons of his personal safety and in

the interest of his further employment in the Drug Enforcement Group.

For the same reasons it had been impossible to allow the applicant's

counsel to be present and to question the undercover agent when he

filed his report. As the Court was prevented from hearing the

undercover agent, it had to take resort to reading out Major D.'s

report, containing the agent's submissions. In addition, there had been

a possibility to question Major D. on the report.

      The Supreme Court further considered that the Regional Court also

proceeded from other evidence, in particular from the applicant's

confession before the police and the Investigating Judge taken together

with the fact that he had been in possession of the heroin when he was

arrested. Moreover, there was no indication that the undercover agent

had in any way induced the applicant to offer the drugs or to make the

deal. Finally the Court had not dismissed any other request for taking

of evidence submitted by the defence.

COMPLAINTS

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

of the Convention about the unfairness of criminal proceedings which

led to his conviction of attempted sale of drugs. He submits in

particular that the Regional Court proceeded mainly from the written

submissions made by the undercover agent involved in the case, whom he

could not examine as a witness, as the police authorities refused to

disclose his identity.

THE LAW

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

(Art. 6-1, 6-3-d) about the unfairness of criminal proceedings which

led to his conviction under the Drug Offences Act. He submits in

particular that he did not have the possibility to question the

undercover agent involved in the case.

      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 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; ..."

      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, including the way in which the evidence was submitted, were

fair (see Eur. Court H.R., Lüdi judgment of 15 June 1992, Series A.

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

      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 complaint from the

point of view of these two provisions taken together (see Lüdi

judgment, loc. cit).

      According to the Court's case-law, all the evidence must normally

be produced in the presence of the accused at a public hearing with a

view to adversarial argument. There are exceptions to this principle,

but they must not infringe the rights of the defence; as a general rule

paragraphs 3 (d) and 1 of Article 6 (Art. 6-1, 6-4-d) require that the

defendant be given an adequate and proper opportunity to challenge and

question a witness against him, either when he makes his statements or

at a later stage of the proceedings (see the above mentioned Lüdi

judgment, loc. cit. p. 21, para. 47; Eur. Court H.R., Isgró judgment

of 19 February 1991, Series A no. 194-A, p. 12, para. 34; Eur. Court

H.R., Saïdi judgment of 20 September 1993, Series A no. 261-C, p.56,

para. 43).

      In the present case the Vienna Regional Criminal Court proceeded

from the applicant's confession before the police and the Investigating

Judge, as well as from his submissions in court. It further considered

the statements of several witnesses heard, in particular Major D., the

Police Officer B., and the police informer S. It also had regard to the

report of 19 August 1991 drawn up by the police officer Major D. upon

the submissions of an undercover agent, setting out the arrangement for

the meeting of 28 March 1990 by a police informer, and the course of

this meeting.

      It is true that the applicant could not examine the undercover

agent as a witness. However, in ascertaining whether the requirements

of Article 6 paras. 1 and 3 (d) (Art. 6-1, 6-3-d) were met, a decisive

element is whether the conviction of the applicant was based solely or

mainly on evidence in respect of which his defence rights have been

restricted, or whether there was other independent incriminating

evidence (see the above mentioned Isgró judgment, loc cit., p. 12 et

seq., para. 35).

      The Commission notes that the Supreme Court dealt with the

applicant's complaint that his right under Article 6 para. 3 (d)

(Art. 6-3-d) had been violated. The Supreme Court considered that the

Regional Court was prevented from hearing the undercover agent, as his

identity could not be disclosed for reasons of his personal safety and

in the interest of his further employment in the Drug Enforcement

Group. The Supreme Court found that the Regional Court had not

proceeded only or mainly from the agent's report, but also from the

applicant's confession together with the fact that he carried the

heroin when he was arrested, and the statements of the witnesses heard.

      The Commission considers that the Vienna Regional Court based the

applicant's conviction on independent incriminating evidence other than

the report drawn up by Major D. on the submissions of the undercover

agent. Firstly, as also the Supreme Court pointed out, it was not

disputed that the applicant was in the possession of a bag with two

kilograms of heroin when he was arrested at the scene of the attempted

sale. Moreover, the applicant made a confession before the police and

before the Investigating Judge. Two witnesses heard by the Court did

not confirm the applicant's allegation that he had been misunderstood

when admitting that he knew he was trying to sell heroin. At the trial

the applicant admitted that he arranged the meeting of 28 March 1990

with the police informer S. and that he wanted to hand over a bag to

the undercover agent. He only denied that he knew of its contents.

Finally the Regional Court had, at the request of the defence, heard

the police informer S., who confirmed that he arranged the deal and

denied to have made any statements that he had believed in the

applicant's innocence. Moreover, the report drawn up by Major D. on the

undercover agent's submissions was confirmed by the statements of the

applicant and of the police informer S. and by the statements of

Major D. and Police Officer B., who had observed the meeting from some

distance.

      In these circumstances, the Commission finds that the applicant's

conviction regarding the attempted sale of drugs was not based solely

or mainly on the report containing the submissions of the undercover

agent, whom he could not examine as a witness. There was independent

incriminating evidence and the Regional Court was in a position to

evaluate the consistency of the said report with the necessary caution.

      In conclusion, any limitations which may have been imposed on the

rights of the defence where not such as to deprive the applicant on the

whole of a fair trial.

      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 First Chamber        President of the First Chamber

     (M.F. BUQUICCHIO)                       (A. WEITZEL)