AS TO THE ADMISSIBILITY OF

                      Application No. 16925/90

                      by F. K.

                      against Austria

      The European Commission of Human Rights (First Chamber) sitting in

private on 11 May 1994, the following members being present:

           MM.   A. WEITZEL, President

                 C.L. ROZAKIS

                 A.S. GÖZÜBÜYÜK

           Mrs.  J. LIDDY

           MM.   M.P. PELLONPÄÄ

                 G.B. REFFI

                 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 9 May 1990 by F. K.

against Austria and registered on 25 July 1990 under file No. 16925/90;

      Having regard to :

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

      Commission;

-     the observations submitted by the respondent Government on

      20 July 1992 and the observations in reply submitted by the

      applicant on 12 October 1992;

      Having deliberated;

      Decides as follows:

THE FACTS

      The applicant is an Austrian citizen born in 1948.  He lives in

Vomp, in the Tyrol, and is represented by Mr. A. Heiss, lawyer, of

Innsbruck.  The facts of the case may be summarised as follows:

      On 30 January 1983 an investigating judge decided to institute

proceedings against the applicant and two others on suspicion  of having

committed aggravated fraud by holding themselves out as publishers of a

holiday catalogue which would be widely distributed, when in fact they

merely intended to receive payments for entries in a catalogue.

      A search and seizure warrant was issued in respect of, inter alia,

the applicant's flat.  Arrest warrants were issued on 3 February 1983,

and the applicant was questioned on 15 March 1983.  The final indictment

of the applicant and one co-accused was transmitted to the Innsbruck

Regional Court (Landesgericht) on 27 June 1984 and the final indictment

of another co-accused was transmitted on 20 July 1984.  On

20 October 1986 the trial date was fixed for 5 December 1986, but on that

date the trial had to be adjourned because neither of the co-accused was

represented.  Three further adjournments ensued because both prosecution

and defence called large numbers of witnesses.  Three witnesses were

heard on 23 June 1988, and 14 further witnesses were heard on

20 October 1988.  At the final hearing on 27 April 1989, 6 further

witnesses were heard.  The applicant was convicted.

      In its judgment of 27 April 1989, served on the applicant on

14 July 1989, the court noted that it was not denied that the defendants

had published the advertisements for entries in their catalogue, and

rejected the applicant's contention that the advertisements had all been

simply wrongly phrased.  It found the intention to deceive customers was

clear, and the discrepancy between the actual text used and what the

defendants claimed in court confirmed this.  The court noted:

      "Den verschiedenen Anzeigen der Polizei und Gendarmerie sowie den

      dort enthaltenen Niederschriften und Urkunden ist zweifelsfrei zu

      entnehmen, wann welche Personen zur Bezahlung welcher Beträge

      verleitet wurden.  Diese Beweismittel wurden dem Schuldspruch Punkt

      A) bzw. den darauf bezugnehmenden Feststellungen zugrundegelegt.

      Ein Teil dieser Personen wurde im Rahmen der Hauptverhandlung bzw.

      im Zwischenverfahren als Zeugen vernommen.  Naturgemäß konnten sich

      die Vernommenen dabei an die Jahre zurückliegenden Vorgänge nicht

      mehr so deutlich erinnern.  Alle diese Zeugen hinterließen jedoch

      den Eindruck, bei der seinerzeitigen Anzeige-erstattung jedenfalls

      die Wahrheit gesagt zu haben, sodaß die damaligen Angaben den

      Feststellungen und dem Schuldspruch zugrundegelegt wurden ..."

[Translation]

      "It is clear from the informations laid by the police and the

      witness statements and certificates attached thereto which persons

      were induced to pay which sums and when.  The conviction at point

      A and the related findings of fact are based on this evidence.

      Some of these persons were heard as witnesses in the context of the

      trial or the pre-trial proceedings.  It is in the nature of things

      that the witnesses could no longer remember so clearly events which

      happened so long ago.  However, all these witnesses gave the

      impression that they had been stating the truth when their

      informations were laid, such that the findings of fact and the

      conviction were based on the statements made then ..."

      The court also referred to the evidence given by individuals who had

acted as sales representatives of the defendants, finding that the

instructions they had been given were consistent with the charges against

the defendants.  It noted that the applicant had worked for a

considerable time with the printing firm which, according to the

defendants, had produced a catalogue of inadequate quality.  It

considered that the applicant would have known what to expect from the

firm, and that in any event the print run of 500 was far too small to be

effective publicity.  The court rejected an argument that the catalogue

was merely "provisional" on the ground that no serious attempts were made

to have a proper catalogue printed.  It found that the facts as

established led only to the conclusion that the defendants all had the

requisite criminal intent, as they had all worked together in the scheme

(the applicant as treasurer) over a lengthy period of time.

      The applicant made a plea of nullity (relating to his conviction)

and an appeal against sentence.

      On 6 December 1989 the Supreme Court (Oberster Gerichtshof) rejected

the applicant's plea of nullity.  As regards his plea under Article 6

para. 1 of the Convention that his trial had been unfair   due to the

effluxion of so much time since the witness statements were originally

taken that the trial court had had to have recourse to the original

statements rather than being able to rely on the witnesses,  the Supreme

Court noted that the applicant had not raised this matter as a ground of

nullity.  In order to do so, he would have had to make

a specific request at the trial and if his request was unsuccessful he

could then have raised the point as a plea of nullity (Article 281 para.

1 (4) of the Code of Criminal Procedure (Strafprozeßordnung)).

      The applicant's appeal against sentence was rejected by the

Innsbruck Court of Appeal (Oberlandesgericht) on 15 February 1990.  The

applicant's representative received the judgment on 2 March 1990.

COMPLAINTS

      The applicant alleges a violation of Article 6 paras. 1 and 3 (d)

of the Convention.  He complains both of the length of proceedings as

such, and of the fact that, because of the effluxion of time between the

original witnesses' statements and the trial, his representative was no

longer able effectively to question witnesses at the trial, as they had

forgotten what had happened in the meantime.

PROCEEDINGS BEFORE THE COMMISSION

      The application was introduced on 9 May 1990 and registered on

25 July 1990.

      On 1 April 1992 the Commission decided to communicate the case to

the respondent Government for observations on its admissibility and

merits.  The Government submitted their observations on 20 July 1992 and

the applicant submitted his observations in reply on 12 October 1992.

THE LAW

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

Convention by virtue of the length of the proceedings against him.

Article 6 para. 1 (Art. 6-1) of the Convention provides, as far as

relevant, 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. ..."

      The Commission notes that a decision to open proceedings against the

applicant was, taken on 30 January 1983, and that the applicant was

questioned on 15 March 1983.  The final decision in the case, that of the

Innsbruck Court of Appeal, is dated 15 February 1990 and was received by

the applicant's representative on 2 March 1990.

      According to the applicant, the length of the proceedings - a period

of almost seven years - is in breach of the "reasonable time" requirement

of Article 6 para. 1 (Art. 6-1) of the Convention.  The Government take

the opposite view.

      The Commission considers, in the light of the criteria established

by the case-law of the Convention institutions on the question of

"reasonable time" (the complexity of the case, the applicant's conduct

and that of the competent authorities), and having regard to all the

information in its possession, that an examination of this complaint is

required as to the merits.

2.    The applicant also alleges a violation of Article 6 para. 1

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

that by the time the matter came to trial, the proceedings had already

lasted so long that witnesses could no longer remember the events

concerned.  From this, the applicant deduces that he was unable properly

to question witnesses such that the rights of the defence were not

respected.

      The Government point out that all the applicant's requests for

witnesses to be heard were granted by the first instance court, and

consider that he was able to put all the questions he wanted to all the

witnesses he wanted.  They consider that it was inevitable that some

witnesses' memories had faded with the passage of time, but point out

that there was a large amount of other evidence.  The applicant considers

that the Government have misunderstood his complaint, as it relates to

his inability effectively to question the witnesses, not an inability to

call them.  He considers that he should have had the opportunity to

question the witnesses while events were still fresh in their minds.

      The Commission recalls that all the evidence must normally be

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

to adversarial argument (Eur. Court H.R., Asch judgment of 26 April 1991,

Series A no. 203, p. 10, para. 27).  In the present case, the witnesses

who gave evidence were present in the court, but the court was obliged

to supplement that evidence by the witness statements made by the same

witness earlier in the proceedings, because by the time the matter came

to trial, events had faded in witnesses' memories.

      The Commission recalls that the European Court of Human Rights has

held that it may, in certain circumstances, be permissible not to hear

certain witnesses at all, but rather to rely on their previous statements

(cf, eg, Eur. Court H.R., Artner judgment of 28 August 1992, Series A no.

242).  In the present case the witnesses were in fact present, and the

role of the earlier witness statements was limited to filling the gaps

in witnesses' memories.  The applicant was not prevented from questioning

the witnesses about the events, not would he have been prevented from

putting inconsistencies to them.  In the light of these circumstances,

together with the other evidence available to the court, such as the

statements from the persons who had worked for the defendants, the

advertisements and orders which the defendants had placed, and the

admissions made by the applicant as to his participation, the Commission

finds no indication that the applicant was deprived of a fair trial.

      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.

      For these reasons, the Commission unanimously

      DECLARES ADMISSIBLE the complaint concerning the length of the

      proceedings against the applicant, without prejudging the merits;

      and

      DECLARES INADMISSIBLE THE REMAINDER OF THE APPLICATION.

Secretary to the First Chamber       President of the First Chamber

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