AS TO THE ADMISSIBILITY OF

                      Application No. 11831/85

                      by Manfred SCHMID

                      against Austria

        The European Commission of Human Rights sitting in private

on 9 December 1987, the following members being present:

              MM. C.A. NØRGAARD, President

                  J.A. FROWEIN

                  S. TRECHSEL

                  G. SPERDUTI

                  E. BUSUTTIL

                  G. JÖRUNDSSON

                  A.S. GÖZÜBÜYÜK

                  A. WEITZEL

                  J.-C. SOYER

                  H.G. SCHERMERS

                  H. DANELIUS

             Mrs.  G.H. THUNE

             Sir  Basil HALL

             MM.  F. MARTINEZ

                  C.L. ROZAKIS

             Mrs.  J. LIDDY

             Mr.  H.C. KRÜGER 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 28 August 1985

by Manfred Schmid against Austria and registered on 14 October 1985

under file N° 11831/85;

        Having regard to the Commission's decision of 2 March 1987 to

give notice of the application to the respondent Government and to

invite them, in accordance with Rule 42 para. 2 (b) of the Rules of

Procedure, to submit observations in writing on the admissibliity and

merits;

        Having regard to the Government's observations of 19 May 1987,

and the applicant's observations in reply of 15 June 1987;

        Having deliberated;

        Decides as follows:

THE FACTS

        The applicant, an Austrian citizen born in 1938 who resides at

Mils, Tyrol, was formerly a practising lawyer and has been debarred

since 1981.  He complains of criminal proceedings in which he has been

convicted of an offence under the Foreign Exchange Act (Devisengesetz).

An earlier application lodged with the Commission (No. 10670/83)

related to the detention and bail conditions imposed on him in

connection with the same proceedings.  It was declared inadmissible on

9 July 1985.

        The facts agreed between the parties may be summarised as

follows:

        The criminal proceedings in question originated in two

different sets of investigation proceedings.

        In one case, which involved charges of criminal bankruptcy

(Sections 12, 156 (1) and (2) of the Penal Code) against the applicant

and another person, the public prosecutor's office in Innsbruck

submitted an indictment on 27 November 1980.  In this case the

applicant filed an objection (Einspruch) against the indictment which

was rejected by the Innsbruck Court of Appeal (Oberlandesgericht) on

22 January 1981.

        In the other case, which involved inter alia a charge

based on Section 24 (1) of the Foreign Exchange Act, the indictment

was submitted on 30 June 1981.  It was deposited for the applicant at

the post office on 19 August 1981 and he raised no objections in this

case.

        In the first case, the charges against the applicant were

severed from those against his co-accused by a decision of the

Innsbruck Regional Court (Landesgericht) of 26 March 1981.  By a

subsequent decision of the same court, of 2 May 1983, these charges

were joined to those in the second case.

        On 10 October 1984, the Regional Court found the applicant

guilty of the criminal offence stipulated by Section 24 (1) of the

Foreign Exchange Act, committed by the purchase of 4 kg of gold ingots

in Liechtenstein without the required permission from the National

Bank.  The Court sentenced him to a conditional fine of AS 4,800.-

subject to a probation period of three years.  At the same time the

applicant was acquitted of all other charges which had been preferred

against him.

        The applicant filed a plea of nullity (Nichtigkeitsbeschwerde)

against his conviction, and the public prosecutor appealed against the

sentence (Berufung).

        In the plea of nullity, the applicant complained that at the

(first) trial on 11 July 1983 the Court had violated Section 250 of

the Code of Criminal Procedure (Strafprozessordnung) in that it had

failed to inform him of the statement of a co-defendant who had been

examined in his absence.  He further complained that his requests for

the hearing of certain witnesses had been rejected, and that the

judgment lacked a detailed assessment of the evidence.

        The Supreme Court (Oberster Gerichtshof) rejected the plea of

nullity by a decision of 21 March 1985.  It held that any possible

ground of nullity regarding the trial of 11 July 1983 had become

without object as the trial had been repeated on 10 October 1984.

The applicant had not made similar allegations concerning the latter

trial.  As regards the applicant's requests for evidence, it was true

that he had asked in writing for the hearing of certain witnesses, but

he had failed to repeat these requests at the trial on 10 October

1984, and therefore he was barred from claiming an irregularity of the

proceedings in this respect.  Finally as regards the reasoning of the

Regional Court's judgment, the Supreme Court considered that it showed

in a logical and conclusive manner why certain of the co-defendant's

statements had been regarded as true.

        The prosecution's appeal against the sentence was not examined

by the Supreme Court itself, but was referred to the Innsbruck Court

of Appeal.  In this appeal, the prosecution applied to increase the

conditional fine and to impose, in addition, a substitute fine in lieu

of forfeiture (Verfallsersatzstrafe) amounting to the value of the

traded gold.  Section 29 (2) of the Foreign Exchange Act provides for

the imposition of such a penalty if objects liable to forfeiture

cannot be seized.  The prosecution submitted that the aim of this

provision was to prevent that the proceeds of the criminal transaction

remain in the hands of the offender.  Accordingly the gold ingots

concerned in the present case should have been declared forfeited, and

as they were no longer available, a substitute penalty should have

been imposed.

        On 12 June 1985, the Court of Appeal partly allowed the

prosecution's remedy.  It declared the traded gold forfeited and

imposed a substitute fine of AS 900,000.- to be replaced, in case of

default, by ten months' imprisonment (Ersatzfreiheitsstrafe).  The

conditional fine of AS 4,800.-, however, was not increased.  In the

reasons for this decision it was stated that, in view of the scope of

the applicant's illegal transactions, it was appropriate to make a

declaration of forfeiture in accordance with Section 29 of the Foreign

Exchange Act.  As it was certain that the gold could not be seized, a

substitute fine had to be imposed in lieu of the unenforceable

forfeiture.  Regarding the applicant's doubts as to the prosecution's

right to claim forfeiture in the appeal proceedings after it had

announced an appeal against the sentence, the Court observed that also

ancillary penalties (Nebenstrafen) such as forfeiture are part of the

sentence and can be requested in appeal proceedings.

&_COMPLAINTS&S

1.      The applicant now complains, under Article 6 para. 3 (d) of

the Convention, that at his trial several witnesses proposed by him

were not heard, and that he was thereby treated differently from the

prosecution.  He further submits that his conviction was essentially

based on the statements of a co-defendant which had been considered as

true although it was simultaneously established that allegations by

the same person as to the involvement of the applicant's brother were

incorrect.  In this context the applicant criticises the joinder of

the cases against himself and the co-defendant, because this measure

deprived him of an effective defence.  As an accused the co-defendant

allegedly was not obliged to tell the truth nor to reply to any

questions.  Had he instead been summoned as a witness, he could have

been questioned and would have been obliged to tell the truth, and the

applicant would further have had the possibility to throw doubt on his

credibility by requesting his psychiatric examination.  All these

possibilities allegedly did not exist against a co-defendant.

2.      The applicant further complains under Article 6 para. 1 of the

Convention that on appeal his case was not heard by an impartial

tribunal.  The Court of Appeal, when deciding on the imposition of the

substitute penalty, comprised two judges who had earlier taken part in

the decision of the same Court of 22 January 1981 concerning objections

of the applicant against the bill of indictment.  Furthermore, the

applicant claims that the proceedings were unfair because he was

deprived of a remedy against the substitute penalty by virtue of the

fact that this penalty was imposed on him only in the appeal

proceedings.

3.      The applicant finally claims that the alternative prison

sentence pronounced in default of payment of the forfeiture

substitution fine lacked a sufficient base in law.  It is true that

Section 32 of the Foreign Exchange Act mentions a prison sentence as a

substitute penalty of forfeiture, but it does not lay down any precise

criteria as to the conditions on which it applies.  In the present

case the substitute penalty was moreover pronounced despite the

prosecution's failure to apply for it in the trial proceedings, and

without the Court having verified whether or not the ingots struck by

the primary sanction of forfeiture were still available.  The

applicant states that he risks the actual enforcement of the

substitute prison sentence as the substitute fine is uncollectable and

he considers that his imprisonment on this basis would violate

Article 5 para. 1 of the Convention.

&SPROCEEDINGS&-

        The application was introduced on 28 August 1985 and

registered on 14 October 1985.

        On 2 March 1987 the Commission decided to give notice of the

application to the respondent Government and to invite them, in

accordance with Rule 42 para. 2 (b) of the Rules of Procedure, to

submit observations in writing on the admissibility and merits.

        It was specified that the observations should be limited to

the complaints concerning the appeal proceedings before the Innsbruck

Court of Appeal and in particular the complaint that this court was

not impartial.  The Government were invited to comment on this

complaint in the light of the Commission's Report of 7 May 1985 on

Application No. 9976/82, Ben Yaacoub v.  Belgium.

        The time limit for the submission of the Government's

observations was fixed at 15 May 1987.  At the Government's request it

was subsequently extended until 31 May 1987.

        The Government submitted their observations on 19 May 1987.

The applicant replied on 15 June 1987.

&SSUBMISSIONS OF THE PARTIES&-

        A. The Government

        Insofar as the applicant alleges the lack of impartiality of

the Court of Appeal, the Government refer to Section 68 para. 2 of the

Code of Criminal Procedure which provides for the exclusion from the

trial, that is the direct oral hearing in a court of first instance,

of any judge who has previously acted as an investigating judge in the

same case or who has participated in the decision on objections

against the indictment.  Section 69 defines special reasons for the

exclusion of members of higher courts.  However, there exists case-law

according to which the grounds of exclusion stipulated in Section 68

for the trial before a court of first instance are also applicable to

a renewed trial before an appellate court, if a new decision is to be

taken on the merits after the previous decision has been quashed by

the Supreme Court.  This does not apply, however, if the appellate

proceedings do not deal with questions of fact or guilt but merely

with the penalty.

        In the present case, the Regional Court of Innsbruck found the

applicant guilty only of the offence stipulated by Section 24 para. 1

(a) of the Foreign Exchange Act.  It acquitted him of all other

charges, including those contained in the indictment of 27 November

1980 which originally belonged to separate proceedings and were joined

to the present case on 2 May 1983.  The Court of Appeal had to deal

exclusively with the public prosecutor's appeal concerning the

sentence imposed according to the Foreign Exchange Act.  The charges

of the Bill of Indictment to which the applicant had raised objections

had long been legally settled by the applicant's above acquittal.

        The Government consider that partiality within the meaning of

Article 6 para. 1 of the Convention cannot be inferred from the fact

that members of the Court of Appeal had participated in a decision

rejecting objections against the indictment in another, already

legally terminated case against the applicant.

        The two judges of the Court of Appeal did not decide twice on

one and the same matter when they dealt with the objection against the

bill of indictment and when they decided the appeal in the present

case.  However, it follows from the Piersack and De Cubber judgments

of the Court (Eur.  Court H.R., Piersack judgment of 1 October 1982,

Series A no. 53;  De Cubber judgment of 26 October 1986, Series A

no. 86)  as well as from the Commission's Report in the Ben Yaacoub

case (Application No. 9976/82, Ben Yaacoub v.  Belgium, Comm.  Report

7.5.85),  that the decisive point was the fact that the judge had

far-reaching powers in the preliminary proceedings, from which it

could be gathered that he had acquired profound knowledge of the case,

which enabled him to play a leading part in the taking of the decision

at the trial.  In the present case, the two judges had not acquired a

profound knowledge of the case simply because the earlier decision

concerned a different matter.

        If the applicant had nevertheless feared that these two judges

might not be impartial he could have voiced his reasons in the

appellate proceedings, either personally or through his counsel as

soon as he learned that the two judges would participate.  It would

have been incumbent upon the Court of Appeal to take a decision based

on the analogous application of the provisions governing the trial of

first instance.  Motions to disqualify individual members of the

tribunal that are not filed in the appellate proceedings are decided

upon by the President of the Court of Appeal.  In the present case it

must, however, be assumed that the applicant's motion would not have

been allowed.

        As regards, finally, the lawfulness of the Court of Appeal's

decision to impose a forfeiture substitution fine and a substitute

prison sentence, the Government refer to Section 283 para. 2 of the

Code of Criminal Procedure which stipulates that an appeal to the

detriment of the defendant may be filed if the Court has not

pronounced the harshest legally admissible penalty or has not imposed

a legally admissible ancillary penalty or if the fine or prison

sentence imposed did not reach the maximum level provided for by the

law.  The forfeiture substitution fine as provided for in Section 29

para. 2 of the Foreign Exchange Act is an ancillary penalty which,

according to Section 283 of the Code of Criminal Procedure, may be

imposed to the detriment of the defendant in appeal proceedings.  There

is no necessity for the Bill of Indictment to include a special motion

in order to apply Section 29 of the Foreign Exchange Act.  Furthermore,

the Court can immediately impose a forfeiture substitution fine

instead of the non-enforceable forfeiture.  The Court of Appeal did

not transgress its punitive power when it imposed a substitute prison

sentence of 10 months since Section 32 para. 1 of the Foreign Exchange

Act specifically provides for a substitute prison sentence for fines

in lieu of forfeiture and since the scope of this provision was not

exceeded in the concrete case.  Accordingly, the substitute prison

penalty is provided for by law and admissible under Article 5 para. 1

(a) of the Convention.

        The Government therefore request the Commission to reject the

application as being manifestly ill-founded or, alternatively, to find

no violation of the Convention.

        B.  The applicant

        The applicant observes that the two proceedings concerning

offences under the Foreign Exchange Act and fraudulent bankruptcy were

joined and tried together.  Therefore it is correct to say that there

were judges of the Court of Appeal who had earlier participated in a

decision on objections against the indictment concerning a part of the

proceedings.

        The Government admit that Austrian law would not allow the

challenge of the two judges.  Furthermore it is impossible to separate

conviction and sentence.  The Foreign Exchange Act gives the court

discretion to impose a fine in lieu of a forfeiture.  An unbiased

court would not have used this discretion.  Therefore the public

prosecutor did not request such a penalty in the first instance

proceedings because the impartial chamber of that court would not have

granted the request.  Instead the prosecutor pressed the matter before

the biased Court of Appeal.  This inserts itself in a campaign by the

public prosecutor's office in Innsbruck against the applicant.

        The applicant could not challenge the judges under Sections 68

or 69 of the Code of Criminal Procedure.  If they were biased, the

judges should have stood down on their own initiative (cf.  Section 73

of the Code of Criminal Procedure).

        As regards the lawfulness of the additional penalty, the

applicant maintains that its imposition in the appeal proceedings was

inadmissible because he was thereby deprived of a remedy.  He further

observes that Section 32 para. 1 of the Foreign Exchange Act does not

provide a sufficiently precise legal basis for the substitute prison

sentence.

THE LAW

1.      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 or 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. 458/59, 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).

2.      The applicant complains under Article 6 para. 3 (d) (Art. 6-3-d) of

the Convention of the trial proceedings which led to his conviction.

        Article 6 para. 3 (d) provides (Art. 6-3-d):

        "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 applicant claims that the Court unjustifiedly refused to hear

certain witnesses proposed by him and that he could not put questions

to the co-accused on whose evidence his conviction was primarily

based.

        The Commission notes that the applicant has in substance

raised these complaints in the domestic proceedings by including them

in his plea of nullity to the Supreme Court.  However, as regards the

refusal to hear certain witnesses the plea of nullity was rejected on

the ground that the applicant had not repeated his requests for

evidence at the trial itself as required under Section 246 of the Code

of Criminal Procedure.  The Commission recalls its case-law according

to which "an applicant is normally required to comply with the formal

conditions of the domestic law as regards his requests for witnesses'

evidence, otherwise he will be considered as having failed to exhaust

the domestic remedies in good order" (Application No. 10498/83,

Prasser v.  Austria, dec. 7.12.1984, to be published).  In the present

case the applicant did not comply with the conditions of Austrian

law as regards his requests for the hearing of the witnesses in

question.  He therefore has not exhausted the domestic remedies in conformity

with the requirements of Article 26 (Art. 26) of the Convention.  This part of

the application must accordingly be rejected under Article 27 para. 3

(Art. 27-3).

        Insofar as the applicant had complained of the impossibility

to put questions to the co-accused, his plea of nullity was rejected

on the ground that it related only to a trial which was subsequently

repeated, and that he had not raised similar complaints regarding the

ultimate and decisive trial of his case.  In these circumstances it

appears that the applicant again has not exhausted the domestic

remedies in good order.  Moreover, even assuming that the applicant may

nevertheless be regarded as having exhausted the domestic remedies

insofar as he complains of the applicable legislation which allegedly

did not allow him to question a co-accused, as distinguished from a

witness in the formal sense, his submissions are contradicted by the

Code of Criminal Procedure itself.  Section 248 (4) provides that the

accused shall be asked immediately after the examination of any

witness, expert or co-accused whether or not he wishes to reply to the

latter's testimony.  Section 249 further provides that inter alia the

accused and his defence counsel have the right to put questions to any

person heard by the Court, subject to control by the President of the

Court as to whether any questions so put are inappropriate.  Section

250 finally provides that, in the exceptional cases where a witness or

co-accused is heard in the absence of the accused, the latter must

after his readmission to the courtroom be informed, under sanction of

nullity, of any development of the proceedings which has taken place

in his absence, and in particular of the depositions which have been

made.  In these circumstances there is no appearance of an

infringement of the rights of the defence as laid down in Article 6 para. 3 (d)

(Art. 6-3-d) of the Convention.  This part of the application must accordingly

be rejected as being manifestly ill-founded within the meaning of Article 27

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

3.      The applicant further complains under Article 6 para. 1 (Art. 6-1) of

the Convention of the proceedings before the Innsbruck Court of Appeal.

        Article 6 para. 1 (Art. 6-1), first sentence, provides:

        "In the determination of his civil rights and

        obligations or 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 applicant alleges on the one hand that two of the judges lacked

impartiality because of their involvement in a previous decision

concerning objections against the indictment, and on the other hand

that it was unfair to impose additional sanctions on him in the appeal

proceedings.

        As regards the first complaint, the Commission notes that the

applicant did not challenge the judges under Sections 72 and 73 of the

Code of Criminal Procedure.

        However, according to the Government the remedy in question

did not have any prospects of success;  it must therefore be regarded

as ineffective.  In these circumstances the applicant was not, under

Article 26 (Art. 26) of the Convention, required to exhaust this remedy.

        The applicant submits that the Court of Appeal which imposed

an additional sanction on him was not impartial because two judges had

in an earlier decision of the same court rejected an objection raised

by the applicant against the indictment.  However, that decision, which

was given on 22 January 1981, concerned a different case.  The relevant

proceedings, which involved charges of criminal bankruptcy, were at

that time conducted separately from those which involved the charge

under the Foreign Exchange Act.

        It is true that the two sets of proceedings were subsequently

joined by a decision of 2 May 1983 and that in first instance all

charges were the subject of the same trial before the Regional Court

of Innsbruck.  However, the applicant was eventually convicted only

under the Foreign Exchange Act and acquitted of all other charges.

The appeal proceedings of which he now complains concerned exclusively

the offence under the Foreign Exchange Act.  The proceedings

concerning the charges of criminal bankruptcy against whose admission

the applicant had filed an objection, and of which he had been

acquitted, were then no longer pending.

        According to the principles developed by the Court (Eur.  Court

H.R., Piersack judgment of 1 October 1982, Series A no. 53;  De Cubber

judgment of 26 October 1986, Series A no. 86) and the Commission

(Application No. 9976/82, Ben Yaacoub v.  Belgium, Comm.  Report 7.5.85), the

judicial "impartiality" required by Article 6 para. 1 (Art. 6-1) of the

Convention may be jeopardised if a judge takes part in several consecutive

stages of the proceedings.  In particular in the Ben Yaacoub case the

Commission found that a judge who had taken part in a decision concerning the

admission of the indictment should not participate in the subsequent trial

proceedings (Comm.  Report, loc. cit. paras. 108-109).  In the Commission's

view he should also be excluded from the appeal proceedings.

        However, as the Government rightly observe, these principles

only apply where participation in different stages of the same

proceedings is concerned.  A judge is not necessarily biased merely

because he has been involved in other proceedings concerning the same

person.  In the present case other proceedings were temporarily

combined with the present case and two Court of Appeal judges had

earlier participated in a decision concerning those proceedings.

This, however, does not in the Commission's view justify the finding

that the judges concerned were not impartial, as required by Article 6 para. 1

(Art. 6-1).  Their involvement in the criminal bankruptcy case, although

concerning the same person, is not sufficient a reason to assume that they were

prejudiced in the foreign exchange case.

        It follows that the applicant's first complaint concerning the

Court of Appeal's proceedings is manifestly ill-founded within the

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

        As regards the second complaint, the Commission notes that

the imposition of an additional sanction in the appeal proceedings

deprived the applicant of the possibility of filing an appeal which he

would have had if the sanction had been pronounced by the trial Court

itself.  However, this circumstance cannot in itself be considered as

unfair as no right to criminal appeal proceedings can be derived from

the Convention and in particular from Article 6 (Art. 6) (cf. the constant

case-law, e.g.  Eur.  Court H.R. Sutter judgment of 22 January 1984,

Series A no. 74, p. 13 para. 28).  The Commission further notes that

in the present case the prosecution had requested the additional

sanction in its grounds of appeal and that the applicant was able to

make submissions in reply.  Furthermore an oral hearing took place

before the Court of Appeal in which the applicant was represented by

counsel and therefore was able to defend himself.  It has not been

substantiated that the principles of a fair hearing, including the specific

principles enshrined in Article 6 para. 3 (Art. 6-3) of the Convention, have

been disregarded at this hearing.  It follows that the applicant's above

complaint is manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

4.      The applicant finally complains that the alternative sanction

imposed on him in the appeal proceedings, i.e. a term of imprisonment

to be served in default of the payment of the fine replacing the

forfeiture (Ersatzfreiheitsstrafe für die Verfallsersatzstrafe),

lacked a sufficient legal basis.  In this respect, the applicant

invokes Article 5 para. 1 (Art. 5-1) of the Convention, claiming that the

imminent deprivation of his liberty on this basis would be unlawful.

        The Commission considers that the substance of the applicant's

above complaint, namely his allegation that a penal sanction was

imposed on him without a sufficient legal basis, comes within the

scope of Article 7 para. 1 (Art. 7-1) of the Convention.

        This provision reads as follows:

        "No one shall be held guilty of any criminal

        offence on account of any act or omission which

        did not constitute a criminal offence under

        national or international law at the time when

        it was committed.  Nor shall a heavier penalty be

        imposed than the one that was applicable at the

        time the criminal offence was committed."

        The second sentence of this provision clarifies that not only

the definition of any criminal offence, but also the penalties which

may be imposed for it, must in principle be determined by the law

prior to the commission of the offence in question.  A sufficient

legal basis of the "applicable penalty" is in fact presupposed when it

is stated that no heavier penalty than the one "applicable" at the

time of the commission of the offence may be imposed.

        However, with regard to the particular facts of the present

case the Commission notes that the penalty complained of, i.e.

imprisonment as an alternative sanction for a fine replacing

forfeiture, is indeed mentioned in Section 32 of the Foreign Exchange

Act.  It provides that imprisonment as an alternative to a fine

replacing forfeiture, and imprisonment as an alternative to another

fine, taken together, shall not exceed the total length of eighteen

months.  This shows that the sanction complained of was provided for

by law and limited as to its scope.  The Commission considers this to

be a sufficient legal basis for the purposes of Article 7 (Art. 7).

        As to the imposition of the challenged penalty in this

particular case the Commission notes that under Austrian law an

ancillary sanction such as this could lawfully be imposed in appeal

proceedings, and that the conditions for replacing forfeiture by a

fine or imprisonment were also met because the Courts had actually

established that the ingots were irretrievable.  The applicant has not

substantiated in any way that this latter finding was based on wrong

factual assumptions, in particular he has not made any submissions

that the ingots were still in his possession.

        The applicant's above complaint that this penal sanction

lacked a sufficient legal basis is therefore manifestly ill-founded and must

also be rejected under Article 27 para. 2 (Art. 27-2) of the Convention.

        For these reasons, the Commission

        DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission               President of the Commission

    (H.C. KRÜGER)                               (C.A. NØRGAARD)