AS TO THE ADMISSIBILITY OF

                      Application No. 13372/87

                      by A.

                      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

                  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 7 October 1987

by A. against Austria and registered on 12 November 1987

under file No. 13372/87;

        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 is a Yugoslav, born in 1942 and

presently detained in prison of Garsten/Austria.  He is represented by

Dr.  K. Lichtl, a lawyer in Linz.

        On 12 January 1987 the Court of Assizes (Geschworenengericht)

at the Regional Court (Landesgericht) in Linz found the applicant

guilty by seven votes against one of the murder of three persons whom

he had shot in the head from a distance of less than two metres.  The

jury thereby implicitly denied the question, put in eventu, whether the

killing constituted homicide only.

        In the jury's notes (Niederschrift) it is explained that the

murder charge was confirmed because the break of family relations

could not explain the killing of three people.  The killing was

considered as the eruption of internal aggressions.  Furthermore,

the jury found the applicant guilty of unlawful possession of a

firearm.  As to the question of whether or not the applicant was

criminally responsible for the murder the jury followed the expert

opinion according to which the applicant was criminally responsible.

        The applicant was sentenced to sixteen years' imprisonment.

        According to the minutes of the trial the applicant admitted

the killing.  The victims were two women and a man who was the brother

of one of the women and the friend of the other.  This other woman had

formerly been the applicant's concubine.  The applicant had visited

the three allegedly to collect clothes of his children who had

previously lived with their mother, the applicant's concubine.  He

left the children outside in his car.  After some discussion he went

to fetch a pistol which he kept in his car and then returned to the

house where he shot the three persons.  Before the Court he alleged

that he only wanted to frighten the victims.  He also alleged that he

was afraid of the friend of his concubine, who allegedly jumped up and

grasped for a knife.  Allegedly the applicant then shot, without aiming

at a particular part of the body and without knowing how often he

shot.  He had allegedly lost control over himself.

        After the killing the applicant tried to commit suicide but

only hurt himself seriously, causing some brain damage and

necessitating his hospitalisation.

        The expert heard by the Court considered that the killing had

been an emotional act but not an act committed in a state of mind

beyond the applicant's control.  As regards the applicant's alleged

fear of being attacked by the male victim the expert submitted that such

fear might at best have been a marginal circumstance (Randerscheinung),

as otherwise the applicant would not have shot the women likewise.   A

certain imaginative fear could, however, possibly have increased his

tension.

        According to the record of the trial, no motions were

submitted by the defence requesting amendments or supplements to the

questions which had been put to the jury.

        The applicant lodged an appeal (Berufung) and a plea of

nullity.  He complained, inter alia, that the trial court did not put

the question to the jury whether or not in killing the male victim, he

had acted in real or putative self-defence.  Furthermore, he

complained that the question whether the killing constituted murder

or homicide had not been put in respect of each victim separately.

        In its decision of 14 April 1987, the Supreme Court (Oberster

Gerichtshof) stated that the applicant's description of the events

given in the course of the investigation proceedings and at the trial

was contradictory but even if the version given at the trial was

correct, the situation described by him was not such as to justify the

shooting as a defensive measure or to give the applicant the

impression that he had to defend himself by shooting the male victim.

        Furthermore, it had not been necessary, in the opinion of the

Supreme Court, to put the question separately with regard to each

victim whether the killing in each case constituted murder or

homicide.  The Supreme Court pointed out that the jury had been

instructed that they could also answer a question in the affirmative

but with a reservation.  Furthermore, the guidelines for jury members

explained that that question could be answered in part.

COMPLAINTS

        The applicant considers that the criminal proceedings both

before the Court of Assizes and the Supreme Court violated Article 6

of the Convention.  He maintains that the question should have been

put to the jury for their decision whether or not he killed the male

victim in self-defence or in putative self-defence, because the

determination of this question necessitated an evaluation of evidence.

The Supreme Court wrongly evaluated the evidence itself while it would

have been the task of the jury to decide whether or not facts could be

considered to be established which justified the applicant's action as

a measure of putative self-defence.

        The principle of a fair trial also required that the jury be

informed that the question was of importance as to whether the killing

of each of the three victims constituted murder or homicide.  It was

evident that this question raised distinct problems in relation to the

male victim, in relation to his former concubine, who had deceived

him, and in relation to the third victim.  As the jury's attention had

not been drawn to these particular and distinct situations he had been

deprived of the possibility that the jury qualified at least the

killing of the male victim and/or his concubine as an act of homicide

instead of murder.

        Finally, the applicant complains that no reasons are given for

the verdict of a jury and that a convict is consequently deprived of

the possibility of effectively preparing an appeal as he does not know

which consideration lead the jury to affirm his guilt.  While in the

Anglo-Saxon jury trials the transcript of the trial and the judge's

summing up served as a basis to prepare an appeal there was no summing

up under Austrian procedural law and the record of the trial was of no

relevance for the preparation of a plea of nullity in accordance with

Section 345 (1) of the Code on Criminal Procedure (StPO).

13372/87

THE LAW

1.      The applicant has complained that in his trial on charges of

murder or homicide the question was not put to the jury of whether or

not he acted in self-defence vis-à-vis one of the three victims or at

least in putative self-defence.  He further complains that the

question of whether the killing constituted either murder or homicide

only was put globally instead of individually, i.e. in regard of each

victim.

        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).

        As to the alleged violations of Article 6 (Art. 6) of the Convention,

the Commission notes that the question of whether or not there had

been a real or imagined self-defence situation was also examined and

denied by the Supreme Court.  This court's finding is however,

contrary to the applicant's submission, not based on the evaluation of

evidence as the Supreme Court proceeded on the assumption that the

applicant's ultimate description of the events was correct.

        The Supreme Court furthermore pointed out that the jury had

been adequately instructed as to the possibility of its answering only

in part or with reservations the questions put to it.

        In this context the Commission also notes that the applicant

did have the possibility of requesting the trial court, in accordance

with Section 310 (3) of the Austrian Code on Criminal Procedure (StPO),

to amend or to supplement the questions that were put to the jury.

        In these circumstances there is no appearance of a violation

of Article 6 (Art. 6) of the Convention and this part of the

application would have had to be rejected as being manifestly

ill-founded within the meaning of Article 27 (2) (Art. 27-2) of the

Convention had the applicant exhausted remedies.

2.      The applicant has further complained that the conviction by

a Court of Assizes under the relevant Austrian procedural law, is

incompatible with the notion of a fair trial within the meaning of

Article 6 (Art. 6) of the Convention because no reasons are stated in the

judgment as to the verdict of the members of the jury and consequently

an effective control of the judgment was impossible.  The applicant

points out that unlike in jury trials before British courts there is,

under the Austrian system, no summing up by the presiding professional

judge.  Furthermore, he submits that according to Section 345 (1)

of the Austrian Code on Criminal Procedure the record of the trial

cannot be the basis for substantive grounds of appeal, unlike the

transcript of the trial before British courts.

        The Commission first points out that it is not competent to

examine in the abstract the compatibility of a given legislative

regulation with the Convention (Eur.  Court H.R., Case of Klass and

others, judgment of 6 September 1978, Series A no. 28, p. 18, para. 33).

As regards the particular circumstances of the proceedings in the

applicant's case the Commission notes that according to the

uncontested content of the record of the trial the applicant had

admitted shooting his former concubine, her new friend and the sister

of the latter.  The Commission further notes that under Section 331 (3)

of the Austrian Code on Criminal Procedure the jury's spokesman has to

indicate in writing the jury's considerations which were determinative

for their answers to the questions put to them by the Court.  This

provision was complied with in the applicant's case and the jury's

notes were available to him.

        In these particular circumstances an examination by the

Commission of this complaint as it has been submitted does not

disclose any appearance of a violation of the rights and freedoms set

out in the Convention and in particular in Article 6 (Art. 6).

        It follows that the application is manifestly ill-founded

within the meaning of Article 27 (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)