AS TO THE ADMISSIBILITY OF


                      Application No. 12477/86
                      by E.S.
                      against Austria


        The European Commission of Human Rights sitting in private
on 12 December 1987, the following members being present:

              MM. C.A. NØRGAARD, President
                  J.A. FROWEIN
                  S. TRECHSEL
                  F. ERMACORA
                  G. SPERDUTI
                  E. BUSUTTIL
                  G. JÖRUNDSSON
                  A.S. GÖZÜBÜYÜK
                  A. WEITZEL
                  J.-C. SOYER
                  H.G. SCHERMERS
                  H. DANELIUS
                  J. CAMPINOS
                  H. VANDENBERGHE
             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 21 August 1986
by E.S. against Austria and registered on 20 October 1986
under file N° 12477/86;

        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, an Austrian national born in 1927, is a
pensioner.  He is presently detained in Garsten prison, Upper Austria.

        On 20 November 1985 he was convicted by the Innsbruck Regional
Court (Landesgericht) of burglary (schwerer Diebstahl durch Einbruch)
and of using false documents (Urkundenfälschung).

        During the trial the applicant had to leave the Court room
while several witnesses were examined by the Court.  His defence
counsel was present during their examination which mainly concerned
the question of the alibi of the applicant's co-accused.

        At the trial the applicant had also requested the examination
of two anonymous witnesses.

        In its judgment the Court, which had examined the police
officers who had interrogated these anonymous witnesses, referred to
their statements before the police.

        On the basis of the testimony of the police officers the Court
found that the two witnesses had noticed the applicant's car during
the night when the burglary was committed, and that they had also seen
two men in the vicinity of the place of the crime and had later
recognised the applicant as one of them.  The Court, which was not
aware of the identity of these witnesses either and had not examined
them in person, found them to be credible persons.

        The applicant's request to have these witnesses summoned and
to be confronted with them was rejected by the Court on the ground
that the police officers concerned were not allowed by their superiors
to reveal the identity of these witnesses and that otherwise this
prohibition would be circumvented.  Moreover, the scope of their
perceptions sufficiently resulted from the statements of the police
officers.

        The Court also took into account that the applicant had
admitted having been at the locality in question during the night of
the offence and that a screwdriver with stains of paint was found at
the place of the offence and another screwdriver with identical stains
was later found at the applicant's home.  Furthermore, part of the
stolen money consisted of 5- and 10-AS coins of a value between 8000
and 10000 AS, and a considerable sum of money, including a large
number of coins, was discovered in the possession of the applicant
when he was arrested two days after the offence.  Finally, the Court
believed the applicant capable of such a crime in view of his previous
convictions.

        As regards the conviction for use of false documents the Court
found that the applicant had produced a falsified Italian driving licence
when asked to prove his identity after having been arrested by the
police on 22 May 1985.  He had also shown this driving licence at a
traffic control during the spring of 1985.

        The applicant's plea of nullity (Nichtigkeitsbeschwerde) was
rejected by the Supreme Court (Oberster Gerichtshof) on 20 March 1986.
The Supreme Court concluded that the examination of the two anonymous
witnesses had not been necessary as their testimony was not relevant
in view of the fact that the applicant had admitted having been at the
locality of the crime at the relevant time.  The Court also rejected
the applicant's complaint that he had not been informed of the
testimony of his co-accused who had been examined by the trial court
in his absence.  The Court found that according to the minutes of the
trial both accused had been confronted with each other's statements.
Finally, the Supreme Court rejected the applicant's complaint that the
Court had based its judgment - as far as the use of false documents
was concerned - on the applicant's wife's statement before the police
although she had made use of her right to refuse to testify at the
trial.

        On 24 April 1986 the applicant's appeal against sentence
(Berufung) was dismissed by the Supreme Court.


COMPLAINTS


        Before the Commission the applicant complains of the refusal
of the trial Court to summon the two anonymous witnesses and to
examine them in Court.  He invokes Article 6 para. 3 (d) of the
Convention.

        He also complains that he was unable to put questions to
other witnesses because he had been removed from the Court room during
their examination.

        He also alleges that the police did not find a
screwdriver at the place of the crime and that the statement to the
contrary made by a police officer at the trial was untrue.

        He further contends that he did not produce the false driving
licence when asked by the police to prove his identity, but that this
licence was found on him when he was searched.  Therefore he did not
"use" a falsified document and consequently he did not commit an
offence under Austrian law.

        By letter of 29 June 1987 the applicant added a further
allegation of a violation of Article 13 of the Convention.  Apparently
this allegation relates to the refusal, on 25 June 1986, of the Review
Chamber (Ratskammer) of the Innsbruck Regional Court to institute
criminal proceedings against two police officers who allegedly had
given false testimony at the applicant's trial.

THE LAW


1.      The applicant complains that he was wrongly convicted and
sentenced on 20 November 1985 by the Innsbruck Regional Court and also
of the court proceedings concerned.

        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 p. 222;
No. 5258/71, Dec 8.2.73, Collection 43 p. 71; No. 7987/77, Dec.
13.12.79, D.R. 18 p. 31).

        Consequently, the Commission will not re-evaluate the evidence
given or interpret the relevant Austrian law as applied in the instant
case.  In particular, as far as the question of the applicant's
Italian driving licence and of the screwdriver is concerned, the
Commission notes that the applicant had, according to the minutes of
the trial, the opportunity to put questions to the two police officers
giving testimony on these points before the trial Court.  The
Commission finds no indication that any of the applicant's rights
under the Convention was violated in this respect.  On the other hand,
the evaluation of evidence obtained in accordance with the guarantees
provided for in the Convention is, in principle, for the trial Court
which establishes the facts of the case by weighing the - conflicting,
as the case may be - evidence before it.

        It is true that in this case the applicant also complains that
the Regional Court did not itself hear the two anonymous witnesses.  In this
connection he alleges a violation of Article 6 para. 3 (d) (Art. 6-3-d) of the
Convention.

        However, Article 6 para. 3 (d) (Art. 6-3-d) does not grant the defence
total freedom to call any potential witness at any time in the proceedings, but
allows a refusal to call witnesses whose statements are not likely, with regard
to the charge, to assist in ascertaining the truth (cf. e.g.  No. 8231/78, Dec.
6.3.82, D.R. 28 p. 1. [25]; No. 9000/80, Dec. 11.3.82, D.R. 28 p. 127 [135]).

        In the present case, the Supreme Court, whose decision must
also be taken into account when assessing the fairness of the
proceedings, found that the testimony of the two anonymous witnesses
was not relevant to the applicant's conviction.  Again, the Commission
will not re-assess such a finding unless there are indications that it
is based on arbitrary or unreasonable considerations.  The Commission
notes in this context that the applicant had admitted having been in
the vicinity of the place of the crime during the night in question and
that the testimony of these two witnesses was limited to the statement
that they had seen the applicant (and another man) and his car at this
place during this very night.  Under the circumstances the Commission
cannot find that the refusal to hear these two witnesses in person was
unjustifiable or arbitrary although the reasons given therefor by the
Regional Court might in different circumstances raise an issue under
the Convention.

        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.


2.      The applicant also complains that he was removed from the
Court room during the examination of several witnesses and that he had
no opportunity to put questions to them.

        It is true that the removal of an accused from the
Court room when witnesses are heard in a case against him may raise an issue
under Article 6 para. 3 (d) (Art. 6-3-d) of the Convention (cf.  No. 8395/78,
Dec. 16.12.81, D.R. 27 p. 50 [54]).  However, under Article 26 (Art. 26) of the
Convention, the Commission may only deal with a matter after all domestic
remedies have been exhausted according to the generally recognised rules of
internation law.

        The Commission notes that in the instant case the applicant
did not raise this particular complaint in his plea of nullity.  It is
true that before the Supreme Court he complained that he had not been
duly informed of the statement of his co-accused who had been examined
in his absence - an issue which he does not pursue in the present
application - but he did not complain of his removal from the Court
room during the examination of witnesses.  He has not therefore
exhausted the remedies available to him under Austrian law.  Moreover,
an examination of the case does not disclose the existence of any
special circumstances which might have absolved the applicant,
according to the general recognised rules of international law, from
exhausting the domestic remedies at his disposal.

        Accordingly, this part of the application must be rejected
pursuant to Article 27 para. 3 (Art. 27-3) of the Convention.

3.      As regards, finally, the applicant's allegation of a violation
of Article 13 (Art. 13) of the Convention, the Commission recalls that the
Convention does not as such guarantee a right to institute criminal
proceedings against third persons (No.  7116/75, Dec. 4.10.76; D.R. 7
p. 91).  In particular, Article 13 (Art. 13) does not confer upon a convicted
person the right to challenge the trial Court's findings by way of
instituting criminal proceedings against witnesses who allegedly gave
false testimony.

        This part of the application must therefore be rejected as
being incompatible ratione materiae with the provisions of the
Convention within the meaning of Article 27 para. 2 (Art; 27-2).


        For these reasons, the Commission


        DECLARES THE APPLICATION INADMISSIBLE



Secretary to the Commission         President of the Commission



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