AS TO THE ADMISSIBILITY OF

                      Application No. 23194/94
                      by Gerhard STADLER
                      against Austria

     The European Commission of Human Rights (First Chamber) sitting
in private on 6 September 1995, the following members being present:

           Mr.   C.L. ROZAKIS, President
           Mrs.  J. LIDDY
           MM.   E. BUSUTTIL
                 A.S. GÖZÜBÜYÜK
                 A. WEITZEL
                 M.P. PELLONPÄÄ
                 G.B. REFFI
                 B. CONFORTI
                 N. BRATZA
                 I. BÉKÉS
                 E. KONSTANTINOV
                 G. RESS
                 A. PERENIC

           Mrs.  M.F. BUQUICCHIO, Secretary to the Chamber

     Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;

     Having regard to the application introduced on 23 December 1993
by Gerhard STADLER against Austria and registered on 6 January 1994
under file No. 23194/94;

     Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;

     Having deliberated;

     Decides as follows:

THE FACTS

     The applicant is an Austrian citizen, born in 1940, and general
manager of the S.G. company, a company incorporated under Austrian law
doing business as haulage contractor.  Before the Commission he is
represented by Mr. L.J. Kempf, a lawyer practising in Peuerbach
(Austria).

     The facts of the case, as submitted by the applicant, may be
summarised as follows.

A.   Particular circumstances of the case

     In April and July 1988 an inspection of the S.G company by tax
inspectors (Betriebsprüfung) was carried out in the course of which
irregularities in the company's book-keeping were discovered.

     On 10 June 1991 the Wels Public Prosecutor's Office
(Staatsanwaltschaft) preferred a bill of indictment against the
applicant charging him under the Code of Tax Offences
(Finanzstrafgesetz) with evasion of turnover tax, commercial tax and
property tax.

     On 21 January 1992 the trial against the applicant took place
before the Wels Regional Court (Landesgericht).  A representative of
the Grieskirchen Tax Office (Finanzamt), which had joined the criminal
proceedings as a private party (Privatbeteiligter), participated at the
trial.

     The Regional Court heard several witnesses, inter alia, the
applicant's tax consultant, employees of the S.G. company and
representatives of firms which had business relations with the S.G.
company.  The Regional Court adjourned the trial to hear further
witnesses.

     On 19 August 1992 the Public Prosecutor's Office submitted a
report from the Grieskirchen Tax Office, dated 31 July 1992, to the
Regional Court.  According to this report the applicant had in the
course of a further inspection by tax officers carried out in July 1992
submitted a self-incriminating report in which he had admitted tax
evasion by entering sham investments into the book-keeping and making
unjustified claims for input tax (Vorsteuerabzug).  The Regional Court
filed this report without serving it on the applicant.

     On 17 November 1992 the trial continued before the Regional
Court.  The applicant requested the court to take further evidence,
namely to hear again his tax consultant and representatives of the Graz
and Grieskirchen Tax Offices and to have the tax files of the R.
company, a sister company of the S.G. company, produced in order to
prove that the R. company, at the time of the alleged offences, had
considerable value added tax reimbursement claims.

     The Regional Court dismissed the applicant's request to hear
further witnesses, as it found this evidence irrelevant for the charges
of tax evasion.  Even if it were true that the R. company had value
added tax reimbursement claims, the applicant had failed to make tax
declarations concerning the facts he was charged with, so that an off-
set against the reimbursement claims, if at all possible, could not
have been effectuated.

     According to the record of the hearing, several documents were
read out by the Regional Court, including the report from the
Grieskirchen Tax Office of 31 July 1992.  The applicant did not react
thereto.

     On 17 November 1992 the Wels Regional Court convicted the
applicant of tax evasion and sentenced him to a fine of 2 million AS
and 5 months' imprisonment in default.  Half of the fine was suspended
for a probationary period of three years.

     The Regional Court found that in September 1986 the applicant had
bought several trucks from the D. company and, although the trucks had
not actually been delivered, had entered their value in the company's
book-keeping as assets and had claimed input tax.  On the applicant's
request the contract had been cancelled in February 1987 and a credit
note (Gutschrift) had been issued by the D. company, which, however,
had not been entered into the book-keeping of the S.G. company.  A
similar transaction had been made with the T. company, another truck
retailer, in December 1987, with refunding by credit note in January
1988.  Furthermore, in 1981 and 1982, the applicant had requested
estimates of costs (Kostenvoranschläge) regarding repair works of
trucks of the S.G. company.  Though these repair works had eventually
never been carried out, the applicant had treated the estimates of
costs in the book-keeping of the S.G. company as invoices and had
claimed input tax.

     The Regional Court noted the applicant's defence that he had
returned the credit notes to the D. company and the T. company in order
to negotiate the amount of the credit notes and that these documents
had apparently got lost there so that he could not have entered them
into his book-keeping.  The booking of the estimates of costs as
invoices had been merely a mistake.

     The Regional Court did not accept the applicant's defence.  It
found that there were no indications that the applicant had returned
the credit notes.  Also the argument of further negotiations regarding
the credit notes was in itself implausible as it was against the rules
of ordinary book-keeping - with which the applicant as an experienced
business man was familiar - that after the cancelling of a contract a
credit note be issued which did not correspond to the previous
contract.  It also noted the fact that the same kind of transaction
occurred twice and that in both cases the ordering of the trucks had
taken place shortly before the end of the year and the cancelling of
the contracts shortly after the beginning of the new year.  As regards
the booking of estimates of costs as invoices, the Regional Court found
that this did not happen by mistake because the respective amounts were
treated as debts until 1988 although an error would have been
discovered much earlier.  Moreover, the applicant had been asked by his
book-keeper about the open account and had decided to leave it in the
book-keeping.

     On 11 March 1993 the applicant lodged a plea of nullity and an
appeal against the sentence.  He complained, inter alia, about the
Regional Court's refusal to take the evidence he had requested and
submitted that the Regional Court had failed to decide on his request
to have tax files of the R. company produced.  He further attacked the
assessment of evidence made by the Regional Court as, in his view,
parts of some witnesses' statements could also be understood as
exonerating him.

     On 24 March 1993 the Grieskirchen Tax Office, as a private party,
submitted observations on the applicant's plea of nullity, covering
some two and a half pages.  These observations were not served on the
applicant.

     On 18 May 1993 the Procurator General's Office (General-
prokuratur) submitted its observations on the applicant's plea of
nullity and appeal against the sentence, which subsequently were served
on the applicant.

     On 22 June 1993 an oral hearing on the plea of nullity and appeal
took place before the Supreme Court (Oberster Gerichtshof).  In this
hearing the applicant, his defence counsel and a representative of the
Procurator General's Office participated.  In the course of the hearing
the Supreme Court read out the Grieskirchen Tax Office's submissions
of 24 March 1993.

     On the same day the Supreme Court dismissed the applicant's plea
of nullity and partly granted his appeal reducing the fine to 1.4
million AS and the imprisonment in default to 4 months.

     The Supreme Court found that the Regional Court had acted
correctly when it dismissed the applicant's requests for a further
hearing of his tax consultant and of representatives of the Graz and
Grieskirchen Tax Offices as their statements would have been irrelevant
to the proceedings.  The Supreme Court noted that the Regional Court
should have also explicitly refused the further request, namely to
produce the tax file of the R. company.  However, this procedural
mistake did not infringe the applicant's defence rights since his
request for production of the tax files concerned the same issue with
regard to which the Regional Court had correctly refused the taking of
further evidence.

     The Supreme Court further found that the Regional Court had
correctly established the facts and assessed the evidence.  It added
that in assessing the evidence a court was not bound to rely only on
logically cogent deduction but, in applying the principle of free
assessment of evidence, it could also rely on deductions based on
probability and common knowledge.

     Relevant domestic law:

     According to S. 45 para. 2 of the Code of Criminal Procedure
(Strafprozeßordnung), the Investigating Judge shall permit the defence
counsel to inspect the court files, except the records of
deliberations, and to make copies thereof; alternatively the
Investigating Judge may also deliver copies.  Under the same conditions
the defence counsel can inspect the file during the trial.

     According to S. 258 of the Code of Criminal Procedure all
evidence must normally be taken at the trial, in particular witnesses
and experts must make their statements orally before the court.
Documents may only be used as evidence if they have been read out in
court.  According to S. 252 para. 2 documents must be read out in court
if the parties do not waive this right.

     The tax authorities have, by law, the position of a private party
(Privatbeteiligter) in criminal proceedings before the ordinary courts
(S. 200 of the Code of Tax Offences).

     S. 365 et seq. of the Code of Criminal Procedure regulate the
position of the private party.  The private party is the alleged victim
of a criminal offence and can join the criminal proceedings to have its
civil law compensation claim against the offender determined by the
criminal court.  He has the right to inspect the files and to
participate at the trial, but he can lodge an appeal against a judgment
of the Criminal Court only under specific circumstances.  Under S. 200
para. 2 of the Code of Tax Offences the tax offence authorities can,
however, lodge an appeal in the same way as the Public Prosecutor.

COMPLAINTS

1.   The applicant complains under Article 6 paras. 1 and 3 of the
Convention that the criminal proceedings conducted against him were
unfair.

a.   He submits that the Regional Court refused to take the evidence
he had requested.

b.   He further submits that at the court hearing on 17 November 1992
the Presiding Judge did not actually read out the report of the
Grieskirchen Tax Office of 31 July 1992, which had not been served on
him, but merely mentioned it and referred to its number in the file.
Thus, the applicant did not become aware of its contents until the
Public Prosecutor in its concluding remarks referred to it.  He
therefore was deprived of the possibility to comment on this report at
the hearing and could not object to it being read out.

c.   He also submits that in the proceedings on his plea of nullity
and appeal the written observations of the private party had not been
transmitted to him but were, unexpectedly, read out by the Supreme
Court at the hearing on 22 June 1993.  Since the applicant and his
defence counsel were only informed at the hearing about the contents
of the private party's submissions they had no adequate possibility to
react thereto.  He submits that usually no written observations are
submitted by private parties who make their statements orally in the
hearing of the plea of nullity.  The applicant alleges a violation of
the principle of equality of arms and that he was not given sufficient
time to prepare his defence in this respect.

2.   The applicant also complains about a violation of the principle
of presumption of innocence as guaranteed by Article 6 para. 2 of the
Convention.  He submits that there was not sufficient evidence to find
that with regard to the mistakes occurred in the book-keeping he had
had the intention to evade taxes.  He also submits that the opinion
expressed by the Supreme Court, namely that a court was not bound to
rely only on logically cogent deduction but could also rely on
deductions based on probability and common knowledge, infringed the
principle of presumption of innocence.

THE LAW

1.   The applicant complains under Article 6 paras. 1 and 3
(Art. 6-1, 6-3) of the Convention that the criminal proceedings
conducted against him were unfair.

     Article 6 paras. 1 and 3 (Art. 6-1, 6-3) of the Convention,
insofar as relevant, read as follows:

     "(1) In the determination 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. (...)

     (3) Everyone charged with a criminal offence has the
     following minimum rights: (...)

     (b) to have adequate time and facilities for the
     preparation of his defence; (...)

     (d) to examine witnesses 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 recalls that the guarantees contained in paragraph
3 of Article 6 (Art. 6-3) of the Convention are specific aspects of the
general concept of fair trial set forth in paragraph 1 of this Article.
In the circumstances of the present case, it will consider the
applicant's complaint under the two provisions taken together (see Eur.
Court H.R., Isgrò judgment of 19 February 1991, Series A no. 194-A, p.
12, para. 31).  In order to determine whether the aim of Article 6
(Art. 6) - a fair trial - has been achieved, regard must be had to the
entirety of the domestic proceedings conducted in the case (Eur. Court
H.R., Imbrioscia judgment of 24 November 1993, Series A no. 275, pp.
13-14, para. 38).

a.   Insofar as the applicant submits that the Regional Court refused
to take the evidence he had requested, the Commission recalls that
Article 6 para. 3 (d) (Art. 6-3-d) of the Convention does not give an
absolute right to examination of every witness proposed by the defence
(Eur. Court H.R., Engel and others judgment of 6 June 1976, Series A
no. 22, p. 38, para. 91).  In particular a court is justified in
refusing to summon witnesses when it considers that their statements
could not be of relevance to the case (see No. 4124/69, Dec. 13.7.70,
Collection 35 p. 132; No. 10486/83, Dec. 9.10.86, D.R. 49, p. 86 at
102).

     In the present case the applicant on 17 November 1992 requested
the Regional Court to take further evidence in order to prove that the
R. company, at the time of the alleged offences, had considerable value
added tax reimbursement claims.  The Regional Court rejected the
request to hear the applicant's tax consultant and representatives of
the Graz and Grieskirchen Tax Offices, as it found their evidence
irrelevant for the charges of tax evasion:  Even if it were true that
the R. company had value added tax reimbursement claims, the applicant
had failed to make tax declarations concerning the facts he was charged
with, so that an off-set against the reimbursement claims, if at all
possible, could not have been effectuated.  The Regional Court did not
deal with the applicant's further request for the production of tax
files of the R. company.  On 22 June 1993 the Supreme Court found that
the Regional Court had acted correctly when it dismissed the
applicant's requests for the hearing of witnesses, but noted that the
Regional Court should have also refused explicitly the further request,
namely to produce the tax file of the R. company.  However, this
procedural mistake did not infringe the applicant's defence rights
since his request for production of the tax files concerned the same
issue with regard to which the Regional Court had correctly refused the
taking of further evidence.

     The Commission finds that the Regional Court and the Supreme
Court sufficiently explained why the evidence requested by the
applicant was irrelevant to the proceedings.

     Accordingly there is no appearance of a violation of the
applicant's right to a fair hearing under Article 6 paras. 1 and 3 (d)
(Art. 6-1, 6-3-d) of the Convention in this respect.

b.   The applicant further submits that at the court hearing on
17 November 1992 the Presiding Judge did not actually read out the
report of the Grieskirchen Tax Office of 31 July 1992, which had not
been served on him, but merely mentioned it and referred to its number
in the file.  Thus, he had not been aware of its contents until the
Public Prosecutor in its concluding remarks referred to it.  He
therefore was deprived of the possibility to comment on this report at
the hearing and could not object to it being read out.

     The Commission observes, however, that according to the record
of the court hearing of 17 November 1992 the report in question was
read out by the Presiding Judge.  The applicant, at no stage of the
proceedings, submitted that the record of the court hearing was
incorrect in this respect.  Even assuming that the relevant report had
been treated as read out, the Commission notes that such practise was
only permissible with the consent of the applicant.  However, the
applicant does not submit that the Presiding Judge had acted in this
respect contrary to the relevant provisions of the Code of Criminal
Procedure.  Moreover, the Commission notes that the document at issue
had been added to the file on 19 August 1992 and that the next court
hearing took place on 17 November 1992.  There is nothing to show that
the applicant's defence counsel could not have inspected the file
before the hearing to learn about this document.

     The Commission therefore finds no appearance of a violation of
the applicant's right to a fair hearing under Article 6 paras. 1 and
3 (b) (Art. 6-1, 6-3-b) of the Convention in this respect.

c.   The applicant also submits that in the proceedings on his plea
of nullity and appeal the written observations of the private party had
not been transmitted to him but were, unexpectedly, read out by the
Supreme Court at the hearing on 22 June 1993.  Since the applicant and
his defence counsel were only informed at the hearing about the
contents of the private party's submissions they had no adequate
possibility to react thereto.  He alleges a violation of the principle
of equality of arms and that he was not given sufficient time to
prepare his defence in this respect.

     The Commission recalls that the principle of equality of arms is
only one feature of the wider concept of a fair trial, which also
includes the fundamental right that criminal proceedings should be
adversarial.  The right to an adversarial trial means, in a criminal
case, that both the prosecution and defence must be given the
opportunity to have knowledge of and comment on the observations filed
and the evidence adduced by the other party.  Various ways are
conceivable in which national law may secure that this requirement is
met.  However, whatever method is chosen, it should ensure that the
other party will be aware that observations have been filed and will
get a real  opportunity to comment thereon (Eur. Court H.R.,
Brandstetter judgment of 28 August 1991, Series A no. 211, pp. 27-28,
paras. 66-67).  In particular it is inherently unfair for the
prosecution to make submissions to a court of which the defence is
unaware and on which the defence has no opportunity to comment (M.B.
v. Austria, Comm. Report 8.9.94, para. 56).

     The Commission finds that the Grieskirchen Tax Office, as a
private party to the criminal proceedings against the applicant, may
be perceived by the applicant as his adversary.  The Commission
therefore has to examine whether in the relation between the applicant
and the Tax Office the principle of equality of arms has been observed.

     In the present case the applicant lodged a plea of nullity and
an appeal against the sentence on 11 March 1993.  On 24 March 1993 the
Grieskirchen Tax Office, as a private party, submitted observations on
the applicant's plea of nullity, covering some two and a half pages.
These observations were not served on the applicant.  On 18 May 1993
the Procurator General's Office submitted its observations on the
applicant's plea of nullity and appeal against the sentence, which were
served on the applicant.  On 22 June 1993 an oral hearing on the plea
of nullity and appeal took place before the Supreme Court, in which the
applicant, his defence counsel and a representative of the Procurator
General's Office participated, but no representative of the Tax Office.
In the course of the hearing the Supreme Court read out the
Grieskirchen Tax Office's submissions of 24 March 1993.

     The applicant, according to his own submissions, expected that
the Tax Office would make oral submissions at the Supreme Court's
hearing.  He was informed at the hearing about the fact that the Tax
Office had submitted observations and these observations were read out
by the court.  The applicant, who was assisted by counsel, did not show
that he could not duly comment on the Tax Office's observations.
Moreover, once confronted with these observations, he did not request
that the hearing be adjourned on the ground that he needed more time
to prepare a reply thereto.

     In these circumstances the Commission cannot find that the fact
that the Tax Office's written observations were read out by the court
infringed the principle of equality of arms as protected by Article 6
para. 1 (Art. 6-1) of the Convention.

     The Commission therefore finds no appearance of a violation of
the applicant's right to a fair hearing within the meaning of Article
6 para. 1 (Art. 6-1) of the Convention in this respect.

     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 about a violation of the principle
of presumption of innocence as guaranteed by Article 6 para. 2
(Art. 6-2) of the Convention.  He submits that there was not sufficient
evidence to find that with regard to the mistakes occurred in the
book-keeping he had had the intention to evade taxes.  He also submits
that the opinion expressed by the Supreme Court, namely that a court
was not bound to rely only on logically cogent deduction but could also
rely on deductions based on probability and common knowledge, infringed
the principle of presumption of innocence.

     Article 6 para. 2 (Art. 6-2) of the Convention reads as follows:

     "Everyone charged with a criminal offence shall be presumed
     innocent until proved guilty according to law."

     The Commission recalls that the presumption of innocence will be
violated if, without the accused's having previously been proven guilty
according to law, a judicial decision concerning him reflects an
opinion that he is guilty (Eur. Court H.R., Barberá, Messegué and
Jabardo judgment of 6 December 1988, Series A no. 146, p.38, para. 91).

     The Commission notes that the applicant does not argue that
during the proceedings, and in particular the trial, the Regional Court
had taken decisions or attitudes reflecting such an opinion.  Having
regard to the applicant's submissions, the Commission rather finds that
the essence of his complaint is that the Austrian courts, in convicting
him, had committed errors of fact in that they assessed the evidence
incorrectly.  However, the Commission cannot determine this issue, as
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 (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).

     It follows that also this part of 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, unanimously,

     DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber        President of the First Chamber

     (M.F. BUQUICCHIO)                        (C.L. ROZAKIS)