AS TO THE ADMISSIBILITY OF

                      Application No. 12463/86

                      by Mehmet SEN

                      against Austria

        The European Commission of Human Rights sitting in private

on 8 September 1988, the following members being present:

              MM. C.A. NØRGAARD, President

                  G. SPERDUTI

                  E. BUSUTTIL

                  G. JÖRUNDSSON

                  A.S. GÖZÜBÜYÜK

                  A. WEITZEL

                  J.-C. SOYER

                  G. BATLINER

                  H. VANDENBERGHE

             Mrs.  G.H. THUNE

             Sir  Basil HALL

             MM.  F. MARTINEZ

                  C.L. ROZAKIS

             Mrs.  J. LIDDY

             Mr.  J. RAYMOND, Deputy Secretary to the Commission

        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 October 1986

by Mehmet SEN against Austria and registered on 17 October 1986 under

file No. 12463/86;

        Having regard to the report provided for in Rule 40 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 Turkish citizen born in 1948, is a labourer

resident at Rankweil in Austria.  Before the Commission he is

represented by Dr.  W.L. Weh, a lawyer practising in Bregenz.

        The facts submitted by the applicant may be summarized as

follows:

I

        In the evening of 20 October 1984, a number of persons, among

them the applicant, were at the A.-Restaurant in Bregenz, a locality

frequented mainly by Turkish citizens.  At closing time after about

1 am on 21 October 1984, some persons were standing outside the

restaurant.  Some shots were fired.  Thereafter, the applicant and two

other persons, S.E. and A.Si, got into a car and drove off.

        In the morning of 21 October 1984, one of the two managers of

the restaurant, N.I., found bullet shells in front of the restaurant.

He reported this to the police.  As a political motive could not be

excluded, the investigations were handed over to the Vorarlberg Police

Direction (Sicherheitsdirektion).

        Various persons were questioned by the Bregenz police, whereby

their statements were recorded as minutes (Niederschrift).  Thus, N.I.

stated on 3 December 1984 that he had been present when on 21 October 1984

at 2 am, among a group of about 20 persons, a man fired some shots.

N.I. noticed how A.Sö. apparently pushed this man into the car.  When

he asked A.Sö. what was happening, he was told to mind his own

business.

        Also on 3 December 1984, K.I., the son of the other manager,

told the police that he had been in the restaurant and had not seen

the goings-on, though he had heard that this person had been sitting

at the same table as A.Sö.

        On 4 December 1984, A.Sö. stated before the Bregenz police

that he had been present when a person unknown to him fired three or

four shots sideways into the ground.  However, he was able to describe

to the police the features of the person concerned.  He, A.Sö., had

been sitting with this person at the same table in the restaurant

during the evening.  A.Sö. also explained that it was customary in

certain parts of Turkey to fire shots after a festive occasion.

        Also on 4 December 1984, S.E. and A.Si. told the police that

they had not been able to see who had fired the shots.  Both had then

got into a car and driven off together with the applicant.

        The applicant explained on 4 December 1984 to the police that

he had not heard any shots while being in the restaurant, and that

after leaving the locality he had driven away in a car.

        On 12 December 1984 A.Sö. made a further statement before the

Rankweil police.  He stated that at the Rankweil police station he had

been confronted with a man, apparently the applicant.  He recognised

this man without doubt as being the person who had fired the shots at

1 am on 21 October 1984 and with whom he had previously been sitting

at the table in the restaurant.

        On 12 December 1984 the Vorarlberg Police Direction filed with

the Bregenz District Court (Bezirksgericht) a criminal report (Straf-

anzeige) according to which the applicant was urgently suspected of

having fired four shots among a group of people, without a licence and

without any particular purpose.  The Report reiterated various

statements made before the police.  It noted that A.Sö. had identified

with certainty the applicant as the person who had fired the shots.

The Report also stated that S.E. and A.Si. were urgently suspected of

having given false testimony before the police in order to protect the

applicant.

        S.E. and A.Si. were later acquitted of these charges.  However,

on 11 March 1985 the Bregenz District Court issued a Criminal Order

(Strafverfügung) in which it convicted the applicant of the offence of

having unlawfully possessed and carried a handgun (Faustfeuerwaffe),

and sentenced him to 30 daily rates of 150.-AS or, alternatively, to

15 days' imprisonment.

II

        The applicant filed an objection (Einspruch) against the

Criminal Order of 11 March 1985, thus initiating oral proceedings.

        His trial opened before the Bregenz District Court on

23 April 1985.  The applicant who was assisted by an interpreter was

heard first.  He stated that when the events had happened on

21 October 1984 he had been so strongly under the influence of alcohol

that he would not have been able to hold a handgun in his hand.

        S.E. and A.Si. were then heard as witnesses.  They stated that

they were unaware of who had fired the shots.  N.I. stated that he was

seeing the applicant for the first time at the hearing.

        The proceedings were then adjourned, inter alia, in order to

obtain the address of A.Sö.

        At a further hearing on 22 July 1985, K.I. stated that as he

had been in the restaurant he was unaware of the person who had fired

the shots.  A.Sö. was then heard as a witness.  He stated that he was

able to understand colloquial German, but not special expressions such

as "doubtless" ("zweifelsfrei").  In his testimony he altered his

previous statements before the police to the extent that he was now no

longer sure whether or not the applicant had been the person firing

the shots, as he had only seen the person concerned from the back.

Moreover, he had not been sitting with the applicant at the same

table.  As to the confrontation with the applicant, A.Sö. stated that

on that occasion he had been sitting in a police car.  A man, possibly

the applicant, was sitting in a van, about 30 metres away.  This man

was requested to get out of the van, walk to the police station, and

back again to the van.  In A.Sö.'s recollection this man looked

similar to the man who had fired the shot.

        The proceedings were then adjourned, inter alia, to hear the

police officers who had originally questioned the various witnesses.

        A further hearing took place on 22 October 1985.  A.Sö.

was heard again.  He declared that his statement before the police

was incomplete as no interpreter had then been present.  The two

police officers were then heard.  One officer, who was also

questioned by the applicant's lawyer, stated that he had not had any

language difficulties when questioning A.Sö., either on 4 or on

12 December 1984 and an interpreter had therefore been regarded as

unnecessary.  The other officer also stated that there had been no

difficulties in communicating with A.Sö.  Later, when sitting in the

police car, A.Sö. had definitely identified the applicant as the

person concerned.  He, the police officer, had specially instructed

A.Sö. to look closely at the person, whereupon A.Sö. had repeated his

statement.

        On 22 October 1985 the Bregenz District Court convicted the

applicant of having unlawfully possessed and carried a handgun and

sentenced him to 30 daily rates at 120.-AS or, alternatively, to 15

days' imprisonment.

        The Court considered that A.Sö. had been manager of the

A.-restaurant from 1982-1984, and that his grasp of the German

language was correspondingly good.  The statements of the two police

officers also clearly disproved A.Sö.'s testimony before the Court

concerning his knowledge of German.  The Court found that the testimony

of N.I. and in particular A.Sö. made it clear that the applicant, who

at that time had probably been slightly under the influence of

alcohol, had fired the shots.  A.Sö. had in fact on two occasions, on

4 and 12 December 1984, incriminated the applicant, on 4 December by

stating that the latter had been sitting with him at the same table

and on 12 December by identifying him.  Later, at the hearings of

22 July 1985 and 22 October 1985, A.Sö. had modified his statement by

explaining that on the evening in question he had not sat at the same

table as the applicant and had only from the back seen the man firing

the shots.

III

        The applicant filed a plea of nullity (Nichtigkeitsbeschwerde)

and an appeal (Berufung).  Thereby he relied on S. 281 para. 4 of the

Austrian Code of Criminal Procedure (Strafprozessordnung).  According

to this provision, a plea of nullity may be filed, if during the

trial, and contrary to the application of the person concerned, an

interim decision (Zwischenerkenntnis) is handed down which disregards

or interprets incorrectly, inter alia, a law, the observance of which

would be required in a procedure securing the rights of the defence.

        The applicant submitted in his plea of nullity that the

District Court had disregarded such a law, namely Article 6 of the

Convention, inasmuch as A.Sö. had been questioned by the police

without an interpreter being present.  The applicant submitted further

that no witness at the trial had incriminated him.  The Court had had

to rely for its decision on the police minutes of A.Sö.'s statement.

Yet, when A.Sö. had been questioned, before the police, the applicant

had not been able to put questions.  In his appeal, the applicant

requested a conditional sentence.

        After a further hearing, the Feldkirch Regional Court

(Landesgericht) on 9 April 1986 suspended the applicant's sentence on

probation.  The remainder of his appeal and his plea of nullity were

dismissed.

        The Regional Court found that a plea of nullity according to

S. 281 para. 1 (4) required an application of the person concerned as

well as an interim decision of the Court during the trial.  In the

present case such an interim decision had not been given.  The Court

therefore decided to examine the applicant's plea of nullity under

S. 281 para. 1 (3) of the Code of Criminal Procedure, which provision

permits such a remedy if during the trial a legal provision has been

disregarded, the compliance with which the law orders under a threat

of nullity.  The Court found that Article 6 of the Convention did not

extend para. 1 (3) of S. 281.  The Regional Court finally considered that

the District Court had been obliged, under S. 252 para. 2 of the Code

of Criminal Procedure, to read out the police minutes and that its

assessment of the evidence could not be reproached.

COMPLAINTS

        The applicant now complains under Article 6 of the Convention

that before the Austrian Courts concerned not one element of proof was

adduced which would have incriminated him in a concrete manner.  Not

one witness identified before the Courts the applicant as the person

who had fired the shots.  The applicant thus claims that the

proceedings were not fair in that the District Court had to rely for

its judgment on police minutes recording a statement of A.Sö. before

the police which he later retracted.  Yet A.Sö. had been questioned by

the police without an interpreter being present.  It was possible

therefore that the minutes were wrong.  Before the District Court,

when an interpreter was present, A.Sö. no longer identified the

applicant as the person concerned.  This testimony should therefore be

regarded as the more credible one.  It was arbitrary (unsachlich) that

the District Court regarded A.Sö.'s statement before the Court as

wrong and yet did not prosecute him.  On the other hand, the two

police officers heard before the District Court were merely giving

hear-say evidence.

        The applicant sees a further breach of Article 6 of the

Convention in that the Court of Appeal decided to examine under S. 282

para. 1 (3) of the Code of Criminal Procedure his plea of nullity

complaints rather than under (4) of that provision, and that the

Court did not find Article 6 of the Convention relevant for his plea

of nullity.

THE LAW

        The applicant complains that he was convicted by the District

Court although not one witness identified him before that Court as the

person who had fired the shots.  He also complains that he did not

have a fair trial within the meaning of Article 6 (Art. 6) of the Convention.

        With regard to the judicial decisions of which

the applicant complains, the Commission recalls that, in accordance

with Article 19 (Art. 19) of the Convention, its only task is to ensure the

observance of the obligations undertaken by the Parties in the

Convention.  In particular, it is not competent to deal with an

application alleging that errors of law of 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

constant case-law (see e.g.  No. 485/59, Dec. 29.3.60, Yearbook 3 pp.

222, 236; No. 5258/71, Dec. 8.2.73, Collection 43 pp. 71, 77; No.

7987/77, Dec. 13.12.79, D.R. 18 pp. 31, 45).  It follows that in the

present case the Commission cannot examine for instance whether or not

the testimony of the witnesses was credible.

        It is true that the applicant also complains under Article 6

(Art. 6) of the Convention that the District Court had to rely for its

judgment on police minutes recording a statement of A.Sö.  Yet when

the latter had made his statement before the police an interpreter had

not been present.  The applicant also complains that the Regional

Court decided to examine his plea of nullity complaint under S. 282

para. 1 (3) instead of (4) of the Code of Criminal Procedure and that

the Court found Article 6 (Art. 6) of the Convention irrelevant.

        As regards the court proceedings in general, the Commission

sees no indication that the applicant who was represented by a lawyer

could not present his case properly before the District Court or the

Regional Court, or that the proceedings were improperly conducted by

these Courts.  Thus, at the trial the applicant was heard by the

District Court together with a number of witnesses.  Throughout the

trial an interpreter was present.  When reaching its judgment the

District Court considered both the incriminating and exculpatory

testimony of various witnesses.  The Court thereby regarded the

incriminating evidence concerning the applicant as sufficiently

credible and it based its conviction thereupon, whereby it considered

that the grasp of the witness concerned of the German language was

good.

        The applicant has also complained of the recourse by the

District Court to the police minutes when reaching its judgment.  The

Commission has examined this complaint under Article 6 paras. 1 and

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

reading out of statements at the trial, to which the judgment later

has recourse, cannot in itself be regarded as being inconsistent with

these provisions.  Nevertheless, the use made of these statements must

comply with the rights of the defence.  A person charged with a

criminal offence must have the opportunity to examine or have examined

witnesses against him, particularly if he has not had the opportunity

at an earlier stage in the proceedings to question the persons whose

statements are read out at the trial and later are relied upon in the

judgment of the Court concerned (see Eur.  Court H.R., Unterpertinger

judgment of 24 November 1986, Series A No. 110, p. 14f., para. 31).

        In the present case the Commission notes that the District

Court relied in its judgment of 22 October 1985 on the statements made

by N.I. and A.Sö. before the police.  Upon the applicant's plea of

nullity, the Regional Court held that the District Court had been

obliged under S. 252 of the Code of Criminal Procedure to read out the

police minutes at the trial.

        In this respect, however, the applicant has not alleged before

the Commission that he could not inform himself of the contents of the

police minutes before the trial.  Moreover, the Commission observes

that in particular the witnesses N.I. and A.Sö. appeared at the trial

and that the applicant had the opportunity to question them.  It

follows that the recourse by the District Court to the police minutes

cannot be regarded as being inconsistent with Article 6 para. 1 or 3

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

        Insofar as the applicant complains that the Regional Court

decided to examine his plea of nullity under S. 282 para. 1 (3)

instead of (4) of the Code of Criminal Procedure, and that the Court

did not consider Article 6 (Art. 6) of the Convention as relevant in this

context, the Commission recalls that Article 6 para. 1 (Art. 6-1) does

not prevent the High Contracting Parties from regulating the manner in

which the public shall have access to courts in order to ensure the

proper administration of justice (see No. 6916/75, Dec. 8.10.76, D.R.

6 p. 107).  In the present case the Commission notes that the Regional

Court decided that the conditions under S. 281 para. 1 (4) were not

met and then proceeded to examine the applicant's plea of nullity

under para. 1 (3).  Nevertheless, the Commission observes that in fact

the Regional Court examined in substance the applicant's complaints

concerning in particular the recourse by the District Court to the

police minutes.  Thereby the Regional Court concluded that the

District Court had been obliged to read out the police minutes and

that its assessment of the evidence could not be reproached.

        As a result, the above complaints do not disclose any

appearance of a violation of the rights set out in Article 6 (Art. 6)

of the Convention.  The Commission concludes 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

        &_DECLARES THE APPLICATION INADMISSIBLE.

Deputy Secretary to the Commission    President of the Commission

           (J. RAYMOND)                    (C. A. NØRGAARD)