AS TO THE ADMISSIBILITY OF

                      Application No. 12489/86
                      by W.
                      against Austria

        The European Commission of Human Rights sitting in private
on 14 December 1988, the following members being present:

              MM. C.A. NØRGAARD, President
                  J.A. FROWEIN
                  G. SPERDUTI
                  E. BUSUTTIL
                  G. JÖRUNDSSON
                  A.S. GÖZÜBÜYÜK
                  A. WEITZEL
                  J.-C. SOYER
                  H.G. SCHERMERS
                  H. DANELIUS
                  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 2 October 1986
by W. against Austria and registered on 23 October 1986 under file No.
12489/86;

        Having regard to:

-       the observations submitted by the respondent Government on
        10 March 1988 and the observations in reply submitted by
        the applicant on 11 May 1988;

        Having deliberated;

        Decides as follows:

THE FACTS

        The facts of the case, apparently not in dispute between the
parties, may be summarised as follows:

        The applicant is an Austrian national, born in 1933, and a
pensioner.  He is presently serving a sentence in Stein prison,
Krems (Lower Austria).  Before the Commission he is represented by
Mr.  W. Nowak, a Rechtsanwalt practising in Innsbruck.

        On 20 November 1985 the Innsbruck Regional Court (Landes-
gericht) convicted the applicant and a co-accused of burglary
(schwerer Diebstahl durch Einbruch) committed at Stams.  The applicant
was sentenced to three years' imprisonment.  In the criminal
proceedings the applicant was represented by counsel.

        In its judgment the Court referred to the statements made by
two anonymous witnesses before the police.  The police officers who had
interrogated them had been examined by the Court.

        On the basis of the testimony of the police officers the Court
found that the two witnesses had seen two men in the vicinity of the
place of the crime at Stams during the late evening when the burglary
was committed and that they later recognised the applicant as one of
them without any doubt.  The Court, which was not aware of the
identity of these witnesses and had not examined them in person, found
the two women to be credible persons.  The applicant denied having
been at the locality at Stams but maintained that he was in Innsbruck
throughout the night in question.

        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 had promised the two witnesses who
feared retaliation not to reveal their identity.  The police officers
were not allowed by their superiors to give evidence.  The Court found
that the scope of the witnesses' perceptions sufficiently resulted
from the statements of the police officers.

        The Court also considered that another witness had told the
applicant about the victim and his financial situation.  Moreover, the
Court, having heard several witnesses on the applicant's behalf, found
that he had failed to establish his alibi.  Finally, the Court believed
him capable of such a crime.

        On 20 March 1986 the Supreme Court (Oberster Gerichtshof)
rejected the applicant's plea of nullity (Nichtigkeitsbeschwerde).  The
Supreme Court found that the request to summon and hear the two
anonymous witnesses would have been futile.  Failing a precise
indication of how the identity of these witnesses could be
established, this request would have necessitated an intervention of
the police authorities.  However, as matters stood it was not possible
to establish the witnesses' identity by asking the police.   The
applicant had not, for example, asked the Court to take evidence on the
identity of the two anonymous witnesses by hearing X whom the witnesses
stated to have met late in the evening in question.  X might have known
the two witnesses and remembered to have met them.

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


COMPLAINTS

        The applicant complains under Article 6 para. 3 (d) of the
Convention that the Regional Court convicted him exclusively on the
basis of evidence given by two anonymous witnesses who were not heard
by the Court and whom he had no opportunity to examine.  These two
witnesses were the only witnesses against him.  He lists several
questions which he would have put to these witnesses.  The Regional
Court refused to hear the witnesses on the sole ground that the police
authorities had refused to disclose their identity.

        The applicant submits that the Regional Court's refusal to
hear the witnesses was not justified.  In particular, there was no
basis for possible fear of retaliation by his co-accused.  Moreover,
it would have been possible to exclude the public during the
witnesses' examination or to have them examined by the investigating
judge in the presence of the Public Prosecutor and of defence counsel
if the Court had wished to protect them.


PROCEEDINGS BEFORE THE COMMISSION

        The application was introduced on 2 October 1986 and
registered on 23 October 1986.

        On 12 December 1987 the Commission decided to invite the
respondent Government, pursuant to Rule 42 para. 2 (b) of its Rules of
Procedure, to submit written observations on the admissibility and
merits of the application.

        The Government's observations were submitted on 10 March 1988,
the applicant's observations in reply on 11 May 1988.

        On 15 July 1988 the Commission decided to grant the applicant
legal aid.


SUBMISSIONS OF THE PARTIES

        A.  The Government

1.      The Government consider that the applicant did not properly
exhaust the remedies available to him under Austrian law (Article 26
of the Convention) to the extent that he did not request the Austrian
courts to take evidence on the identity of the two anonymous witnesses
by hearing X.

2.      The Government argue that Article 6 para. 3 (d) of the
Convention does not grant the accused an unlimited right to secure the
appearance of witnesses before the court with a view to having them
cross-examined.  A police informant may well have a legitimate
interest in remaining anonymous.  In particular, the use of indirect
testimony does not render proceedings unfair if it was not the only
item of evidence.  They refer, in this respect, to the Commission's
case-law (cf.  No. 4428/70, Dec. 1.6.72, Collection 40 p. 1; No.
8417/78, Dec. 4.5.79, D.R. 16 p. 200).

        The Government consider that in the present case there was a
legitimate interest not to reveal the identity of the two anonymous
witnesses.  Their fear of retaliation was not unreasonable.

        Furthermore, the Government contend that the applicant's
conviction was not solely based on the statements of the two anonymous
witnesses.  The Innsbruck Regional Court took further evidence and in
particular heard several other witnesses.  It established that the two
accused had met in Innsbruck on the evening in question.  The
applicant failed to prove his alibi that he had spent the whole
evening in Innsbruck.  Taking into account the applicant's previous
convictions, he might have been capable of committing the burglary in
question.  The Government also submit that the two anonymous witnesses
were no eye-witnesses and their statements could, therefore, not have
been the decisive item of evidence in the criminal proceedings against
the applicant.

3.      The Government request the Commission to declare the
application inadmissible as being manifestly ill-founded within the
meaning of Article 27 para. 2 of the Convention.


B.  The applicant

        The applicant maintains that the hearing of the two anonymous
witnesses would have served both his interest in a fair trial and
the public interest in criminal justice.  Witnesses alleging that they
fear retaliation should not be easily allowed to refuse evidence
before the competent court.  He finds that in the present case there
was no legitimate interest not to reveal the two witnesses' identity.

        Furthermore, the applicant considers that the statements of
the two anonymous witnesses were of decisive importance in assessing
the evidence.  In particular, the Regional Court, assuming that the
applicant had been in the vicinity of the place of the crime at Stams,
was not inclined to believe the witnesses on his behalf who stated
that he had been in Innsbruck at the time in question.


THE LAW

        The applicant complains under Article 6 para. 3 (d) (Art.
6-3-d) of the Convention that he was convicted on the basis of
statements made by anonymous witnesses to the police without having
had the opportunity to examine them.

        Article 6 para. 3 (d) (Art. 6-3-d)of the Convention provides
that everyone charged with a criminal offence has the right 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 Commission notes first that the respondent Government
raised the issue that the applicant did not expressly request the
Innsbruck Regional Court to examine the witness X on the question of
the two anonymous witnesses' identity, and did not, in this respect,
properly exhaust domestic remedies.  However, they did not request the
Commission to declare the application inadmissible for non-exhaustion
of domestic remedies.

        The Commission considers that the applicant has raised his
complaints under Article 6 para. 3 (d) (Art. 6-3-d) of the Convention
which he now makes before the Commission in the domestic court
proceedings and can therefore be considered to have exhausted the
domestic remedies under Austrian law within the meaning of Article 26
(Art. 26) of the Convention.

        The Government furthermore contend that the applicant's rights
under Article 6 para. 3 (d) (Art. 6-3)d) of the Convention were
respected.  They submit in particular that the police authorities had
a legitimate interest not to reveal the identity of the two anonynous
witnesses and that the applicant's conviction was not exclusively
based upon their statements.

        The Commission, however, considers that the applicant's
complaints raise complicated issues of fact and law which can only be
resolved by an examination of the merits.  The application cannot,
therefore, be declared manifestly ill-founded and no other grounds for
inadmissibility have been established.

        For these reasons, the Commission


        DECLARES THE APPLICATION ADMISSIBLE

        without prejudging the merits of the case.






Secretary to the Commission             President of the Commission



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