CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 6 avril 1995

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                            AS TO THE ADMISSIBILITY OF                         Application No. 20864/92                       by Neville Noah FEINGOLD                       against Austria        The European Commission of Human Rights (First Chamber) sitting in private on 6 April 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                  B. MARXER                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  E. KONSTANTINOV              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 12 October 1992 by Neville Noah FEINGOLD against Austria and registered on 28 October 1992 under file No. 20864/92;        Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;   -     the Commission's decision of 2 March 1994 to communicate the      application;   -     the observations submitted by the respondent Government on      15 June and 1 July 1994 and the observations in reply submitted      by the applicant on 16 September 1994;        Having deliberated;        Decides as follows:   THE FACTS        The applicant is a citizen of the United Kingdom born in 1951. He has lived in Austria since 1978 and is married to an Austrian.   He is represented before the Commission by Mr. G. Lansky, a lawyer practising in Vienna.   The facts of the case may be summarised as follows.   Particular circumstances of the case        On 10 January 1991 an indictment was brought against the applicant, accusing him of having caused damage of over AS 203 million to the Sun Insurance Office.   The prosecutor requested an order for the confiscation of the unjust enrichment, pursuant to Article 20a of the Criminal Code (Strafgesetzbuch).        On 12 April 1991 the applicant, by his then representative, made a request under Article 224 of the Code of Criminal Procedure (Strafprozeßordnung) for further witnesses to be heard.   On 3 May 1991 the applicant's present representative went on the court record, and on 8 May 1991 the applicant's representative requested further evidence, the adjournment of the trial (as the representative had only just been appointed) and, in the alternative, the summoning of witnesses and experts at the trial.   It appears that the judge who had been nominated as presiding judge, Judge Gallent, took no decision on the request.        Judge Gallent did not participate as trial judge when the main proceedings opened on 14 May 1991 as he had been promoted.        On 20 September 1991 the applicant was convicted by the Vienna Regional Court (Landesgericht) of 6 counts of disloyalty ("Untreue"), contrary to Article 153 of the Criminal Code.   Two of the counts related to attempt, one of them related to the full offence in part and attempt in part.   The operative part of the judgment provided that the applicant had "between 28 August 1981 and 17 March 1988 ... as principal authorised agent of the Sun Insurance Office Ltd. ... knowingly abused his authority to ... enter into obligations on behalf of the Sun Insurance Office Ltd. ... and thereby caused actual financial harm to the said firm of ... AS 126,164,366.86 and attempted financial harm ... of AS 75,249,500.00 ..." by entering into various guarantees on behalf of the Sun Insurance Office in respect of bank loans granted to himself and to the Sun Unternehmens- verwaltungsges.m.b.H (SU), an Austrian company, by granting liens over accounts of the Sun Insurance Office in order to secure claims by third parties against the SU, and by permitting a bank to undertake book transfers in the name of the SU against accounts of the Sun Insurance Office.        The applicant was sentenced to 81/2 years' imprisonment and ordered to pay AS 37,477,570.13 pursuant to Article 20a of the Criminal Code. In respect of the AS 37,477,570.13, the Court noted that it did not accept his claim that he was entitled to the money as commission was paid by different channels, as the applicant would then have been the only broker who received commission without it passing through the SU. Moreover, there was no record of any entitlement to commission, and this was confirmed by several witnesses.   No order was made in respect of the private parties to the criminal proceedings, who were referred to the civil proceedings available.        In the part of the judgment headed "Reasons for the decision" ("Entscheidungsgründe") the court found, inter alia, as follows:        "... This authority empowered the AAA [the predecessor to the SU]      to enter into insurance contracts ....   Point 4 of the authority      empowers the AAA to open and run bank accounts in the name of the      Sun Insurance, but "without power to overdraw such account or      accounts or otherwise pledge the credit of the Company" ...        The SU's losses accrued partly through Feingold's business      policies, and partly, to approximately one half, through      expenditure for which it was not possible to establish any      business need, Feingold's excessive personal drawings, travel,      hotel expenses, ... etc.   ... Feingold doubled his salary in 1985      ...      On 16 April 1984 the accused, in the name of the Sun Insurance      Office, gave a guarantee for a loan of AS 3,000,000.00, which the      Austrian Länderbank had given the accused in his personal      capacity.        On 4 March 1987 the accused, in the name of the Sun Insurance      Office, pledged a Sun Insurance Office credit of AS 5,000,000.00      to secure all the Länderbank's claims against the SU...        On 17 December 1987 Feingold, in the name of the Sun Insurance      Office and the SU, authorised a book transfer relating to the      accounts 624 220 000/018 ... (SU) ... On examination of the      accounts ... it transpired that two of the SU's loan accounts      were not contained in the books: ... With regard to a total of      AS 37,477,570.13, examination of the coupons established no      business necessity for the expenditure (betrieblich bedingte      Erfordernisse dieser Ausgaben).   Only Feingold, who dealt with      the banks, was authorised to sign for these accounts. ...        The accused admits that he signed all the declarations at issue      ...   He claims that ... he was not aware of any misuse of his      agency authority or, in the alternative, that no misuse of the      agency authority took place.        The accused's position is not tenable.   That he was well aware      of the limits of his authority from the very beginning is      apparent from the fact that he fulfilled the other duties of his      agency contract. ... "        The applicant entered a plea of nullity with respect to the conviction and an appeal against the sentence.   The Supreme Court (Oberster Gerichtshof) rejected the plea of nullity in camera on 25 February 1992 as partly clearly unfounded under Article 285d para. 1 (2) of the Code of Criminal Procedure, and partly as not made in accordance with the law, under Article 185d para. 1 (1) of the Code of Criminal Procedure.   The Procurator General had filed the following comment:        "In the view of the Procurator General's office, the plea of      nullity submitted by the accused, Neville Noah Feingold, meets      the criteria for a decision pursuant to Article 285d of the Code      of Criminal Procedure.   The transmission of a copy of the      decision is requested."        The applicant was not served with a copy of this comment, and was not given the opportunity to make representations on it.        The Supreme Court found, in connection with the ground of nullity that the applicant had not been fit to participate at the trial, that although the applicant's fitness to participate had at times been in doubt - largely due to his misuse of alcohol - the first instance court had kept the position under review and had reduced the length of the court sittings on the advice of the expert attending.   The allegations of unfitness were in any event first raised on the appeal, and so were in any event inadmissible.        In connection with a ground of nullity that the Regional Court had failed to call two named witnesses, the Supreme Court noted that the Regional Court had expressly stated that one was not necessary as the evidence was available in documentary form.   The Supreme Court found that it was not clear how the evidence the witnesses could have provided could have helped the applicant.        The Supreme Court regarded the defence request at trial for all papers and accounts to be sequestered and examined for indications of improper payments as inadmissible because they were merely "fishing expeditions".   The fact that the first instance court had not formally replied to this request did not affect the validity of the judgment. Similarly, there was no reason to suppose that acceding to the request would have indicated that the sums referred to in the report of Mr. Bohle could have been received by anybody else, or that the applicant could have been entitled to them.        The Supreme Court underlined that the offence of disloyalty was committed where abuse of authority gave rise to financial disadvantage to the principal.   What subsequently happened to the money was irrelevant.        The Supreme Court found that the plea of nullity under Article 281 para. 1 (5) of the Code of Criminal Procedure was an inadmissible attempt to challenge facts rather than the reasoning underlying the judgment and that the court had adequately reasoned its decision; under Article 281 para. 1 (5a) (that there is considerable doubt as to the accuracy of the fact on the basis of which the court took its decision), the Supreme Court found that the applicant had not raised issues based on the case-file, but had laid out a scenario which was favourable to him, and compared it with the decision of the Regional Court.        In connection with the plea of nullity under Article 281 para. 1 (11) of the Code of Criminal Procedure (error of law in sentencing), the Supreme Court noted that the Regional Court had found as a fact that the applicant had unlawfully enriched himself in the sum of AS 37,477,570.13, and it found that the statements in the plea of nullity that an expert's opinion did not necessarily lead to that conclusion took no account of the findings of fact of the Regional Court.        On 14 April 1992 the Vienna Court of Appeal (Oberlandesgericht), in which Judge Gallent participated, granted the applicant's appeal against sentence in part.   It found that the Regional Court had failed to take into account the mitigating circumstance that the applicant was only partly convicted for the full offence, and partly for attempt. It reduced the sentence to 7 years' imprisonment.   Relevant Domestic Law        Article 20a of the Criminal Code (confiscation of enrichment) provides, so far as relevant, as follows:        "(1)   If an offender has unlawfully enriched himself by      committing one or more punishable acts, he shall be convicted to      pay a sum equivalent to the extent of the enrichment where the      enrichment exceeds one million Schillings".        Article 153 of the Criminal Code (disloyalty) provides, so far as relevant, as follows:        "(1)   Any person who knowingly abuses authority bestowed on him      by ... a legal operation and thereby causes a third party      financial disadvantage (Vermögensnachteil) ... shall be sentenced      to ...".        Article 133 of the Criminal Code (criminal conversion) provides, so far as relevant, as follows:        "(1) Any person who, with the intention of unlawfully enriching      himself or a third party, appropriates property with which he has      been entrusted shall be sentenced to ..."   COMPLAINTS        The applicant alleges a violation of Article 14 of the Convention in connection with Articles 5 and 7 of the Convention in that he was charged with the offence under Article 153 of the Criminal Code rather that under Article 133.        He also alleges a violation of Article 6 of the Convention in several respects:   (a)   He alleges that he was unfit to take part in the proceedings, and that they should not have been permitted to continue;   (b)   He complains that there was not a public hearing before the Supreme Court, and that he did not have the opportunity to comment on the Procurator General's submissions;   (c)   He complains that two named witnesses were not called from London;   (d)   He complains of the participation of Dr. Gallent as judge at the Vienna Court of Appeal on 14 April 1992 as Dr. Gallent had previously (in his capacity as judge initially nominated as trial judge) failed to deal with an application for the case to be remitted to the investigating judge for further investigation.   The applicant states that the decision should in fact have been taken by the Review Chamber (Ratskammer), and that if Dr. Gallent had continued to act as trial judge, he would have been excluded from the appeal proceedings by virtue of Article 69 para. 2 of the Code of Criminal Procedure;   (e)   He complains that, although interpretation was available before the investigating judge and the Regional Court, there was no interpretation before the Vienna Court of Appeal in the appeal against sentence;   (f)   He complains that the Vienna Court of Appeal failed to deal with some of his grounds of appeal;   (g)   He complains that the order requiring him to repay the sums by which he had enriched himself violated both Article 6 and Article 7 of the Convention.   He complains under Article 7 that the order was made in his case even though he was not accused of offences involving unlawful enrichment.   Under Article 6 he complains that the effect of the order was to subject him to a criminal penalty even though he had not been charged with unlawfully enriching himself in any way, and that there were no proceedings in which he could defend himself against this charge.   PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 12 October 1992 and registered on 28 October 1992.        On 2 March 1994 the Commission decided to communicate the application to the respondent Government, pursuant to Rule 48 para. 2 (b) of the Rules of Procedure.        The Government's written observations were submitted on 15 June 1994, after an extension of the time-limit fixed for that purpose. Further observations were submitted on 1 July 1994. The applicant replied on 16 September 1994, also after an extension of the time-limit.   THE LAW   1.    The applicant alleges a violation of Article 14 (Art. 14) of the Convention in connection with Articles 5 and 7 (Art. 5, 7) of the Convention in that there is a difference between the offence under Article 133 of the Criminal Code (criminal conversion - Veruntreuung) and that under Article 153 (disloyalty - Untreue), with which he was charged.   The applicant complains that both offences deal with cases of misuse of a position of confidence, and that to deal with them differently is discriminatory.        However, and assuming that the applicant has complied with the requirement of exhaustion of domestic remedies in this respect, the substantive content of domestic criminal law is a matter in the first place for the domestic legislator, and the mere fact that the applicant was charged with an offence under one provision rather than another cannot raise issues under the provisions of the Convention the applicant refers to, or otherwise.        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 alleges that he was unfit to take part in the first instance proceedings, and that Article 6 para. 1 and para. 3 (c) (Art. 6-1, 6-3-c) have been violated.   Article 6 (Art. 6) of the Convention provides, so far as relevant to the present case, 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:              c.     to defend himself in person ...              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;              e.     to have the free assistance of an interpreter if he      cannot understand or speak the language used in court."        Article 6 (Art. 6) of the Convention guarantees the right to take part in the hearing before the domestic courts (see, for example, Eur. Court H.R., Colozza judgment of 12 February 1985, Series A no. 89, p. 14, para. 27).   Whilst questions of a person's fitness to plead may be relevant to Convention issues - such as whether the "interests of justice" require legal aid, or whether an individual should have representation for the purposes of Article 5 para. 4 (Art. 5-4) (see, for example, Eur. Court H.R., Megyieri judgment of 12 May 1992, Series A no. 237, pp. 11-13, paras. 21-27) - it is in the first place for the domestic authorities to consider the matter.   The Convention organs can then consider whether the way in which the domestic authorities dealt with the question is in conformity with the relevant provisions of the Convention.        In the present case, as the Supreme Court noted, the first instance court kept the question of the applicant's fitness to plead - which was largely induced by alcohol abuse - under constant review and reduced the length of the court sittings on the advice of the expert. The applicant did not, through his lawyer, raise questions of fitness to plead in the course of the trial, but only on appeal.        In these circumstances, the Commission finds that it is not established that the applicant's alleged unfitness to plead and the way in which the domestic authorities dealt with it gives rise to any issues under Article 6 (Art. 6) of 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.   3.    The applicant complains of the absence of a hearing before the Supreme Court, again alleging a violation of Article 6 para. 1 (Art. 6-1) of the Convention.        The Government consider that the Austrian reservation to Article 6 (Art. 6) of the Convention prevents the Commission from considering this complaint.   They point out that, in any event, the applicant's plea of nullity was rejected as inadmissible pursuant to Article 285d para. 1 of the Code of Criminal Procedure, that is, that it could have been rejected by the court of first instance or (in the case of grounds of nullity based on Article 281 para. 1 (1) to (8) and (11)) the Supreme Court was of the unanimous opinion that it was unfounded.   They consider that the Supreme Court was therefore not acting as an instance of fact, and that such decisions do not call for a hearing.   They add that the Court of Appeal did hold a hearing on the applicant's appeal against sentence.        The applicant considers that the Austrian reservation to Article 6 (Art. 6) of the Convention is irrelevant because it deals not with the question of whether a hearing should be held, but who should be present if a hearing does take place.   He deduces a right to have a hearing at the appeal stage from Article 2 of Protocol No. 7 (P7-2). The applicant accepts that a hearing is not necessary for the court to form its own impression of the parties when an appeal is solely on points of law, but he points to Article 281 para. 1 (5) of the Code of Criminal Procedure, which is a ground of nullity based on doubts as to the facts.   Moreover, Article 281 para. 1 (5a) of the Code of Criminal Procedure, which was introduced in 1987, adds a further factual ground of nullity which was raised in the present case.        The Commission recalls that even where an appeal court has jurisdiction to review a case both as to the facts and as to the law, and provided a public hearing has been held at first instance, Article 6 (Art. 6) does not always require a right to a public hearing irrespective of the issues to be decided.   In particular, leave to appeal proceedings and proceedings involving only questions of law may be in conformity with Article 6 (Art. 6) of the Convention even in the absence of a hearing (cf. Eur. Court H.R., Jan-Åke Andersson judgment of 29 October 1991, Series A no. 212-B, p. 27, p. 45; No. 17358/90, M.B. v. Austria, Comm. Report 8.9.94, pending before the European Court of Human Rights, paras.42-51).        A hearing was held at first instance.        The applicant's plea of nullity was rejected by the Supreme Court under Article 285d para. 1 of the Code of Criminal Procedure.   That provision does not formally constitute a leave to appeal procedure as referred to by the Court in the above-mentioned case of Jan-Åke Andersson, but its effect is similar in that it enables the courts to consider whether an appeal has sufficient merits to warrant further consideration (see the above-mentioned M.B. case, para. 47).        Whilst it is true that the applicant claims that his plea of nullity, which alleged nullity inter alia under Article 281 para. 1 (5) and (5a), raised questions of fact as well as questions of law, the Commission notes that the Supreme Court regarded the first of these grounds of nullity as an inadmissible attempt to challenge the first instance court's findings of fact (rather than the underlying reasoning), and the second as laying out a scenario which was favourable to him, and comparing it with the decision of the Regional Court.        The Commission is not satisfied that the applicant's plea of nullity raised questions of fact which could have called for a hearing and therefore finds that Article 6 para. 1 (Art. 6-1) of the Convention did not require the Supreme Court to hold a hearing on the applicant's plea of nullity.        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.   4.    The applicant alleges a violation of Article 6 (Art. 6) of the Convention in that the trial court did not call two witnesses from London whose presence the applicant had requested.        The Commission recalls that Article 6 para. 1 (Art. 6-1) of the Convention and Article 6 para. 3 (d) (Art. 6-3-d) of the Convention do not give the right to an unlimited number of witnesses, and that the domestic courts may refuse to call witnesses requested by the defence if, for example, it is considered that their evidence would be irrelevant (see, for example, No. 10563/83, Ekbatani v. Sweden, Dec. 5.7.85, D.R. 44 p. 113, 117; No. 10486/83, Hauschildt v. Denmark, Dec. 1.10.86, D.R. 49 p.86, 102).        In the present case, the Supreme Court found that the evidence of both of the witnesses whom the applicant wanted to call was irrelevant, in the case of one as the evidence was available in documentary form, and in the other as it was not clear how the evidence could have assisted the applicant.        Accordingly, this part of the application does not disclose any appearance of a violation of Article 6 para. 1 and Article 6 para. 3 (d) (Art. 6-1, 6-3-d) of the Convention.   It follows that it is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   5.    The applicant complains that the judge initially nominated as trial judge failed to deal with a request of 12 April 1991 for further investigations, whereas he should have forwarded the request to the Review Chamber if he was minded to refuse it.   The same judge then participated in the proceedings before the Court of Appeal on the applicant's appeal against sentence.   The applicant alleges a violation of Article 6 (Art. 6) of the Convention.        The Government accept that, under Article 225 para. 1 of the Code of Criminal Procedure, when a presiding judge intends to reject an application under Article 224 of the Code, he is required to obtain the consent of the Review Chamber.   They submit that in the present case, however, the judge did not reject the request, because he granted a subsidiary request to include the evidence requested in the trial.   The Government consider that this very minor involvement - which extended only to agreeing to a subsidiary request - did not give the judge the opportunity to form an opinion about the strength of the case against the applicant, and did not mean that he should not have taken part in the appeal proceedings.   They point out that, in any event, the applicant failed to challenge the judge on grounds of bias (although they accept that a challenge under Article 72 et seq. of the Code of Criminal Procedure would have had no prospect of success), and the Court of Appeal in fact reduced the applicant's sentence on appeal.        The applicant stresses that as the judge decided on the subsidiary, alternative application, he must have decided to reject the principal one.   He has submitted an application of 8 May 1991 in which he requested certain evidence, the adjournment of the trial (because of the recent appointment of his present representative) and, in the alternative, the summoning of witnesses and experts to the trial.   He considers that the judge must have formed an opinion for his decision not to take the evidence immediately, and that the failure to involve the Review Chamber was a decision taken to his detriment.   He states that he only found out that the same judge had participated twice when he received the Court of Appeal's decision, and considers that the double participation led to bias on the part of the judge.        The Commission has not been furnished with any decisions taken by the judge concerned which shed light on his involvement in the case during the "intermediary proceedings" (Zwischenverfahren), that is the period between the entry into force of the indictment and the formal opening of the trial (Hauptverhandlung).   It appears, however, that he did not in fact take any formal decisions as to the gathering of evidence.   The Commission regards it as likely that, by acceding to the applicant's request to take evidence at the trial, the judge was avoiding taking a decision on the strength of the case against the applicant, rather than finding against him.        In these circumstances, the Commission finds that the applicant has not made out his allegations that the judge had preconceived notions of the applicant's guilt before the judge took part in the applicant's hearing in the appeal against sentence.   Accordingly, the Commission considers that the nature and extent of the pre-trial measures taken by the judge were so limited that any fears the applicant may have had as to the judge's impartiality were not objectively justified (cf. Eur Court H.R., Fey judgment of 24 February 1993, Series A no. 255, pp. 11-14, paras. 25-36).   The judge's personal impartiality has not been challenged.        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.   6.    The applicant complains that he was not given interpretation for his appeal against sentence, although interpreters were present for his trial.   He alleges a violation of Article 6 para. 3 (e) (Art. 6-3-e) in this respect.        The Government submit that, by not requesting an interpreter at the appeal hearing, the applicant has failed to exhaust domestic remedies, but argue that in any event there was no need for an interpreter at the appeal hearing because the applicant, who has lived in Vienna since 1978 and who is married to an Austrian, speaks excellent German.   They refer to a statement from the judge who eventually presided at the applicant's trial and who comments that the applicant spoke excellent German, and to a comment from a member of the Austrian President's office, to which the applicant had presented a plea for clemency, that the applicant spoke German "like a native". The Government also submit that the interpretation had been present at the trial largely for the benefit of foreign witnesses, and on four occasions (31 May, 24 June, 22 July and 14 August 1991) when no foreign witnesses and no English documents were translated, no interpreter was present and the applicant did not complain.   Finally, they mention that appeals against sentence are in any event limited in scope, and a defendant is usually asked, after the parties' representatives have pleaded, whether he wishes to make further submissions or whether he shares the views of his representative.   In the present case, the applicant stated that he shared his lawyer's views, and the Government consider that he thereby waived his right to the assistance of an interpreter.        The applicant states that almost all his business activities were carried out in English, and that when necessary he could and did use translators.   He also regards an ability to deal with everyday German as insufficient reason to deny a person the services of an interpreter in court, especially where, as here, the proceedings concerned complicated business transactions in a language other than the language in which he worked.        The Commission recalls that Article 6 para. 3 (e) (Art. 6-3-e) of the Convention guarantees the assistance of an interpreter if the person charged with a criminal offence "cannot understand or speak the language used in court".        In the present case, the applicant had been responsible for setting up and developing business in Austria.   He accepts that his everyday German is adequate.   The Commission notes that the applicant did not protest on those occasions when no interpreter was present during his trial, and he has not even hinted that he had any specific difficulties in following the (partly successful) appeal against sentence.        In these circumstances, the Commission finds that the Austrian courts were not under an obligation to provide, of their own motion, an interpreter for the applicant at the hearing of his appeal against sentence.   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.   7.    The applicant complains of the imposition on him of an order to pay AS 37,477,570.13 by way of an additional penalty under Article 20a of the Criminal Code.   He complains under Article 7 (Art. 7) of the Convention that the order was made even though he was not accused of offences involving unlawful enrichment, and under Article 6 (Art. 6) that the effect of the order was to subject him to a criminal penalty for unlawful enrichment without either a charge or proceedings in which he could defend himself.        Article 7 (Art. 7) of the Convention provides as follows:        "1.    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 Government, by reference to the Commission's opinion in the case of Welch v. the United Kingdom (Comm. Rep. 15.10.93, to be published in Eur. Court H.R., Series A no. 307-A), consider that the order in the present case was not a penalty, such that Article 7 (Art. 7) is not applicable.   They consider that Article 20a is explicit in requiring repayment of sums in excess of AS 1 million, such that Article 7 (Art. 7) is complied with in any event.   In connection with Article 6, the Government consider that the imposition of the order did not involve a criminal charge separate from the charge under the substantive law, and that the civil limb of Article 6 (Art. 6) is complied with by the proceedings which preceded the making of the order.        The applicant considers that, notwithstanding the Commission's opinion in the case of Welch, the confiscation of enrichment in the present case was a penalty, and that even if it is not, the Convention must nevertheless give full procedural rights.   He considers that he was denied these rights as none of the evidence in the case went to the question of enrichment.        The Commission recalls that since the parties in the present case submitted their observations, the European Court of Human Rights has given judgment in the case of Welch (Eur. Court H.R., Welch judgment of 9 February 1995, Series A no. 307-A).   The Court there considered that there had been a violation of Article 7 (Art. 7) of the Convention as, at the time the offence was committed, the provisions for the confiscation order did not exist.   It considered that the order was a penalty.        In the present case, too, the Commission finds that the order for confiscation of enrichment was a penalty.        The applicant alleges a violation of Article 7 (Art. 7) of the Convention on the ground that a criminal penalty was imposed without being based on any findings of fact.   The provision, however, relates rather to the question whether an offence or a penalty was in force at the time the offence was committed.   The applicant has not referred to this question at all, but in any event, he failed to raise it in his ground of nullity under Article 281 para. 1 (11), and so has not exhausted domestic remedies in this respect.        The applicant also alleges a violation of Article 6 (Art. 6) of the Convention in connection with his complaint that he was penalised by the order for confiscation of enrichment without the courts ever establishing that he unlawfully enriched himself.        The Government in this connection point to the way in which the court calculated the figure of AS 37,477,570.13.   They underline that the figures, which were not challenged by the applicant in the trial, were included in the report of Mr. Bohle and were confirmed by several witnesses who confirmed that none of them knew of any entitlement of the applicant to commission.        The applicant regards the Government's comments as coming close to an "inadmissible anticipatory assessment of the evidence", pointing out that none of the witnesses was heard on the question of the enrichment.        The Commission recalls that, pursuant to Article 19 (Art. 19) of the Convention, its role is to ensure the observance of the Convention. It is not competent to deal with allegations that errors of law or of fact have been committed by domestic courts, except where it considers that such errors might have involved a possible violation of the rights and freedoms set out in the Convention.        The Commission has above found that the order for confiscation of enrichment was a "penalty" within the meaning of Article 7 (Art. 7) of the Convention.   That penalty was imposed in the framework of the criminal proceedings brought against the applicant for disloyalty, and the applicant was able to put questions to witnesses in connection with this penalty in the same way as if, for example, the question had related to his ability to pay a fine.   In particular, the Commission notes that the applicant did not make any submissions at the trial (such as requests for a named person to be heard who would have given evidence that the applicant was entitled to commission) which could have cast doubt on the evidence of Mr. Bohle.   The Commission therefore finds that the way in which the domestic courts dealt with the issue of whether an order should be made under Article 20a, and if so in what amount, discloses no appearance of a violation of Articles 6 or 7 (Art. 6, 7) of 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.   8.    Finally, the applicant complains of the passing of a statement from the Procurator General to the Supreme Court.   He alleges a violation of Article 6 (Art. 6) of the Convention on the ground that he was not given a copy of the statement and was not able to comment on it.        The Government submit that the Procurator General's statement that the case could be dealt with under Article 285d of the Code of Criminal Procedure is not at all the same as the "croquis" at issue in the Brandstetter case (Eur. Court H.R., Brandstetter judgment of 28 August 1991, Series A no. 211) because in the statement in the present case, the Procurator General did not in fact comment on the substance of the plea of nullity.   They add that the Procurator General did not participate in the proceedings before the Supreme Court.        The applicant considers that a statement that Article 285d   of the Code of Criminal Procedure is applicable is inevitably a comment on the merits of the plea of nullity because it was tantamount to saying that the grounds of nullity were not present, and that the plea was "obviously ill-founded" within the meaning of Article 285d para. 1 (2) of the Code of Criminal Procedure.        The Commission considers that this complaint raises questions of law and fact which require a determination as to their merits, no other ground of inadmissibility having been established.        For these reasons, the Commission, unanimously,        DECLARES ADMISSIBLE, without prejudging the merits, the      applicant's complaint that he was unable to challenge the      statement of the Procurator General;        DECLARES INADMISSIBLE the remainder of the application.   Secretary to the First Chamber        President of the First Chamber        (M.F. BUQUICCHIO)                         (C.L. ROZAKIS)