CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 6 septembre 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. 21842/93                       by George KEMPERS                       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 16 April 1993 by George Kempers against Austria and registered on 13 May 1993 under file No. 21842/93;        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 a Dutch national born in 1949, who is currently detained in Austria at Karlau prison.   Before the Commission he is represented by Mr. F. Insam, a lawyer practising in Graz.        The facts of the case, as submitted by the applicant, may be summarised as follows.   A.    Particular circumstances of the case        On 30 April 1991 at 24.00 hours the applicant was arrested in Graz on suspicion of having committed offences against the Drug Offences Act (Suchtgiftgesetz).   C.S., H.A. and I.H. were arrested at the same time as co-suspects.        On 1 May 1991 at 4.30 hours the applicant was brought to the police station (Gendarmerieposten) in Seiersberg.   At 10.30 hours he was transferred to the Styria Regional Police Headquarters (Landesgendarmeriekommando) and brought back to the Seiersberg police station at 22.00 hours.   On 2 May 1991 at 8.50 hours he was brought again to the Regional Police Headquarters and from there at 18.15 transferred to the Regional Court prison house (Landesgerichtliches Gefangenenhaus).        On 3 May 1991 at 10.30 hours the Investigating Judge at the Graz Regional Court (Landesgericht) heard the applicant and ordered the institution of pre-trial investigations (Voruntersuchung) against him. The applicant admitted that he had tried to sell 5 kg Cocaine in Graz on 30 April 1991 together with his co-suspects.   He also admitted a previous drug transaction which had taken place in Aachen (Germany) in the beginning of April 1991.   At this questioning the applicant was not assisted by an interpreter.        On the same day the Investigating Judge ordered that the applicant be taken into detention on remand.   The Investigating Judge found that there was a danger of collusion, or danger that he might commit offences and a danger of the applicant's absconding.   Pursuant to Section 45 para. 3 (1) of the Code of Criminal Procedure (Strafprozeßordnung) the applicant's contact with his defence counsel took place under the surveillance of the Investigating Judge for a period of 14 days after the order of detention on remand as the order had been based on the ground inter alia of the danger of collusion.        On 14 May 1991 the Investigating Judge extended the surveillance of the applicant's contact with his defence counsel, pursuant to Section 45 para. 3 (2) Code of Criminal Procedure, until service of the bill of indictment on the applicant.   The Investigating Judge found this measure necessary because the applicant was suspected of being a member of a gang of drug traffickers, further members of the gang had not yet been discovered and the applicant had made contradictory statements.   Thus, contacts between the applicant and his defence counsel could prejudice the further investigations, a considerable part of which had to be undertaken outside Austria.   The applicant appealed against this decision.        On 29 May 1991 the Judges' Chamber (Ratskammer) of the Graz Regional Court dismissed the applicant's appeal.   It found that the order of the Investigating Judge did not involve any criticism of the defence counsel or any reproach against him of conduct contrary to law or the disciplinary rules of members of the bar, but merely had the purpose of preventing any contact whatsoever with third persons in order not to endanger the success of the criminal investigations.   The applicant was suspected of drug trafficking on a large scale as a member of a gang which was active in several European States and some members were still at large.   In such circumstances the police investigations had to be conducted with utmost care and even the slightest possibility of collusion had to be prevented.        On 3 June 1991 R.M., V.B. and T.M. were arrested by the police when they attempted to sell drugs in Bregenz. These persons were suspected of being members of the same gang as the applicant.        On 2 July 1991 the applicant's defence counsel requested a complete copy of the case file.   On 5 July 1991 he received a set of copies.   According to the applicant it was apparent from the page numbering of these copies that they did not contain the complete case file.        On 6 August 1991 the Graz Public Prosecutor's Office preferred a bill of indictment charging the applicant and C.S., J.S., H.A., I.H., R.M., V.B and T.M. with drug trafficking.   The charge against the applicant, C.S., I.H., R.M., V.B. and H.A. concerned a drug deal which had taken place in Graz in April 1991.   The charge against R.M., V.B. and T.M. concerned a drug deal which had taken place in Bregenz in June 1991.   The bill of indictment also referred to a previous drug deal in the beginning of April 1991 in Aachen without, however, charging the applicant formally in this respect.        On 8 August 1991 the bill of indictment was served on the applicant.   From that time onwards the applicant could meet his defence counsel without surveillance.        On   16 September 1991 the Graz Court of Appeal (Oberlandes- gericht) dismissed the applicant's objections against the bill of indictment.        On 8 November 1991 the Graz Court of Appeal, following a request by the Regional Court, authorised the applicant's detention on remand for a maximum duration of 9 months.   The Court of Appeal found that investigations were complicated because of the number of suspects involved and their connections to other countries which made the preparation of the trial complicated.        On 15 January 1992 the trial against the applicant and the co-accused took place before the Graz Regional Court.        At the trial an interpreter for the Dutch language appeared before the court.   After the Dutch speaking accused, including the applicant, had stated that they had sufficient command of German in order to understand the proceedings, the interpreter was dismissed by the court.        In his statement before the court the applicant admitted the facts as regards the drug transaction in April 1991 in Graz, but pleaded not guilty and submitted that he had been incited to the drug deal by undercover agents acting on behalf of the Austrian State.   As regards the drug transaction in Aachen in April 1991 the applicant stated that his submissions before the police and the Investigating judges were wrong.   He had made them merely because he had felt cheated by the co-accused who, after his arrest, were still at large.        In the course of the trial the Public Prosecutor extended the bill of indictment against the applicant and C.S. charging them also with the drug deal which had taken place in Aachen in the beginning of April 1991.   The Public Prosecutor submitted that he could not have raised this charge formally in the bill of indictment since at that time it had not been clear whether the applicant would be extradited with regard to this charge.   The applicant opposed the extension of the bill of indictment and requested that this issue be referred back to the Investigating Judge.   The Regional Court allowed the extension of the bill of indictment and dismissed the applicant's objection.   It found that the Public Prosecutor could not have raised this charge earlier and, since the trial had not terminated, could validly extend the bill of indictment.   It was not necessary to refer the charge back to the Investigating Judge as no further pre-trial investigations appeared necessary and the charge could be examined at the trial.   The applicant did not request to be heard on this charge after the extension had been granted.        At the trial the Regional Court rejected the applicant's request to hear the police officers, including the Federal Minister for Internal Affairs (Bundesminster für Inneres), who were responsible for the measures of undercover investigation, the undercover agents and the police informants, in order to prove that the accused had been incited by the police authorities to commit the offences they were charged with.   The Regional Court found that the evidence requested was irrelevant to the proceedings.        On 16 January 1992 the Graz Regional Court convicted the applicant under the Drug Offences Act of having, together with his accomplices R.M., C.S. and V.B. and together with C.S. attempted in April 1991 to sell a large quantity of drugs in Graz and Aachen respectively.   The Court also convicted R.M. and V.B. of a drug transaction which had taken place in Bregenz in June 1991.   The Court sentenced the applicant to six years' imprisonment and to a fine of 1,4 million AS or 6 months' imprisonment in default.        The Regional Court found that the applicant, who knew drug suppliers in the Netherlands, had contacted R.M. in Switzerland in December 1990.   They agreed that the applicant would procure drugs in the Netherlands while R.M. would look for potential buyers.   In the beginning of April 1991 the applicant sold drugs he had procured from C.S. to R.M.   This drug transaction took place in Aachen.   R.M. brought the drugs to Switzerland and sold them to other persons, amongst them V.B., who also informed him about potential buyers in Graz. Subsequently, between 22 and 27 April 1991, negotiations took place between V.B., acting for these potential buyers, R.M., who financed the transaction, and the applicant and C.S., who procured the drugs in the Netherlands.   It was agreed to bring the drugs to Germany close to the Austrian border and to meet the potential buyers in Graz on 28 April 1991.   As the potential buyers insisted that the drugs be brought to Graz the transaction did not take place and the drugs were sent back to the Netherlands.   After further negotiations a new meeting in Graz was arranged for 30 April 1991.   On that day H.A. brought the drugs by car to Graz, where also the applicant and C.S. were present.   At the meeting with the potential buyers they were arrested by the police. In June 1991 R.M. organised a further drug transaction with potential buyers who V.B. had found in Bregenz.   R.M. procured the drugs in Switzerland and hired T.M. for the transport.   On 3 June 1991, when attempting to hand over the drugs to the presumed buyers, R.M., V.B. and T.M. were arrested.        In establishing these facts, the Regional Court relied on the statements of the accused, made in the course of the pre-trial investigations and at the trial, and also on a written police report in regard to which police officer G.T. was heard by the court.   The Regional Court had also regard to a report drawn up by the Dutch police.        As regards the applicant's request for hearing witnesses concerning the involvement of undercover agents in the criminal investigations to prove that the accused had been instigated by the police authorities to commit the offences they were charged with, the Regional Court found that the evidence requested was irrelevant to the proceedings.   It was apparent from the police reports and the statements of police officer G.T. as witness that the drug offences had been discovered by means of undercover investigation.   Furthermore, the applicant, V.B., C.S. and R.M. had already been engaged in drug trafficking before V.B. put them in contact with presumed Austrian drug buyers.   The accused including the applicant - apart from T.M. and H.A. who only had acted as drug couriers - had admitted this when questioned by the police and by the Investigating Judge in the course of the pre- trial investigations.   In such circumstances it could not be said that their intention to engage in drug trafficking was merely a result of measures of undercover investigation.   In any event, even the fact that someone had been incited to an offence by officials carrying out investigations could not lead to exemption from conviction for these offences.        On 13 May 1992 the Graz Public Prosecutor's Office lodged an appeal against the sentence regarding the applicant, V.B and C.S.        On 20 May 1992 the applicant lodged a plea of nullity and an appeal against the sentence.   He complained that the Regional Court had refused to hear as witnesses the persons responsible for the ordering of the undercover investigations and the police informants.   Their evidence would have proven that the criminal offence had been committed on the instigation of the Austrian police.   He also complained about the length of the criminal proceedings and about the surveillance of the contact with his defence counsel at the pre-trial stage and invoked Article 6 of the Convention.   Moreover, he complained that after the extension of the bill of indictment by the Public Prosecutor in the course of the trial, he had not been heard by the court, which interfered with his right to an effective defence.        As regards his appeal against the sentence, he submitted that the Regional Court had failed to take mitigating circumstances into account, in particular that the offence had been provoked by the Austrian authorities.        On 16 September 1992 the Supreme Court rejected the plea of nullity.   According to the written text of the decision the Supreme Court decided in camera and "after consideration of the Procurator General Office's submissions" ("nach Anhörung der Generalprokuratur"). It further referred the case to the Graz Court of Appeal for deciding on the appeal against sentence.        The Supreme Court found that the Regional Court had acted correctly when it refused the applicant's requests for taking of further evidence.   The requested evidence was irrelevant for the proceedings as it had already been clarified at the trial that the offences in question had been discovered by measures of undercover investigation.   Furthermore, the extent to which these measures had incited the accused to the commit the offences at issue was of no importance for the proceedings as it did not concern any fact of relevance for the finding of guilt.   The offence of drug trafficking is also committed if the potential buyer of the drugs cooperates with the police.        As regards the applicant's complaints about the length of the proceedings and the surveillance of the contact with his defence counsel at the pre-trial stage, the Supreme Court noted that the applicant in this respect relied on provisions of the Convention, which, however, did not constitute reasons for nullity as provided for in the Code of Criminal Procedure.   As regards his complaint that he had not been heard after the Regional Court had granted the extension of the bill of indictment, the Supreme Court found that the applicant had not requested to be heard again so that it could not deal with this complaint.        On 28 October 1992 the Graz Senior Public Prosecutor's Office (Oberstaatsanwaltschaft) submitted its observations on the applicant's appeal against the sentence.        On 21 December 1992 the Graz Court of Appeal decided on the applicant's appeal.   It upheld the sentence as regards the term of imprisonment and reduced the fine to 1 million AS and the imprisonment in default to 4 months.   The Court of Appeal found that the mitigating circumstance of Section 34 para. 4 of the Penal Code, namely that the accused had been instigated to commit the offence by a third person, did not apply to the applicant.        The Court of Appeal observed that measures of undercover investigation were an indispensable means for fighting organised crime as it allowed the police access to the men who pull the strings (Hintermänner) in such an organisation.   Nevertheless, the instigation by police authorities to commit an offence, made in the course of undercover investigations, even if not unlawful, could at least be considered as problematic.   However, there was no room for such reservations if a person who had already shown himself willing to commit a certain kind of criminal offences came across a police informant.   In the present case, the applicant had, according to his own statements, already been selling drugs before he committed the offences at issue.   In committing these offences he had only been misled as to the seriousness of the intention of the potential drug buyers to conclude the drug transactions.   He therefore could not rely on the mitigating circumstance of Section 34 para. 4 of the Penal Code. This decision was served on the applicant on 11 March 1993.   B.    Relevant domestic law        According to S. 12 para. 1 of the Code of Criminal Procedure the Judges' Chamber at the First Instance Court supervises all measures taken by the Investigating Judge at the First Instance Court in the course of preliminary investigations.          According to S. 45 para. 2, first sentence, the Investigating Judge shall permit the defence counsel on request to inspect the court files, except the records of deliberations, on the premises of the court, and to make copies thereof; alternatively the Investigating Judge may also deliver photocopies to counsel.        According to S. 45 para. 3 a person taken into detention on remand may meet his defence counsel in the absence of the Investigating Judge.   However, if detention on remand has been ordered on the ground of the danger of collusion the Investigating Judge may, during the first 14 days of the detention, be present when the remand prisoner meets his defence counsel.   If, based on specific circumstances, the danger exists that the contact with the defence counsel may interfere with evidence the Investigating Judge may order that the surveillance of the contact with the defence counsel be extended until the bill of indictment is served.   Surveillance of the contact with the defence counsel may only be exercised as long as the detention on remand is based on the danger of collusion (S. 180).        S. 113 provides in particular that anybody affected by a decision of the Investigating Judge or by a delay in the course of preliminary investigations or in the proceedings after indictment, may apply for review by the Judges' Chamber, which decides in private after having heard the Investigating Judge and the Public Prosecutor. According to S. 114 there is a further appeal against decisions of the Judges' Chamber to the Court of Second Instance, if these decisions concern the separation of proceedings, the institution or discontinuation of the preliminary investigation, bail, or detention on remand without a hearing concerning release having taken place.        Under S. 180 paras. 1 and 2 a person may be held in detention on remand if he is seriously suspected of having committed a criminal offence and if there is a risk of his absconding, of collusion or that the person might commit offences. According to S. 193, detention may not last more than two months where its sole justification is the risk of collusion; it may not last more than six months where one of the other grounds is relied on. The Court of Appeal may, however, if so requested by the Investigating Judge or the Public Prosecutor and if the difficulty or the scope of the investigations makes it necessary, extend the detention. In such cases the maximum duration of detention is three months where the measure is based on a risk of collusion alone, and one year, or even two years, if the term of imprisonment which the suspect risks is ten years or more, in the other circumstances provided for.        By virtue of SS. 194 and 195, it is open to the suspect to apply for release at any time. Such an application and any appeal against a decision ordering detention on remand must be examined by the Judges' Chamber at a private hearing in the presence of the accused or his defence counsel.        According to S. 31 the Public Prosecutor attached to the Court of First Instance takes part in all pre-trial investigations and trials before this Court.   S. 32 provides that the Senior Public Prosecutor represents the prosecution in all proceedings before the Court of Appeal.   Furthermore the Senior Public Prosecutor supervises the Public Prosecutors and, if he wishes to do so he may act instead of them in all matters which fall into their competence.   COMPLAINTS   1.    The applicant raises several complaints regarding his detention on remand.   He submits that it is not clear from the written decision of the Investigating Judge on the institution of pre-trial investigations of 3 May 1991 whether he was correctly informed about the charges laid against him.   Furthermore, the Investigating Judge had decided on his detention on remand and prepared a draft decision before hearing him.   He also submits that after his arrest on 30 April 1991 he was not brought promptly before a judge.   After his arrest 58 hours passed before he was finally heard by the competent Investigating Judge.   Lastly, he submits that the Court of Appeal violated the principle of equality of arms because, when deciding on 8 November 1991 to prolong the maximum duration of his detention on remand, it heard the prosecution but neither him nor his defence counsel.   He relies on Article 5 paras. 2 and 3 of the Convention.   2.    He complains under Article 6 para. 3 (b) and (c) of the Convention that his right to defence had been prejudiced because at the pre-trial stage the contact with his defence counsel was under the surveillance of the Investigating Judge.   3.    He complains under Article 6 para. 3 (b) and (c) of the Convention that his right to defence had been prejudiced in that he was not given a complete copy of the file.   He submits that although on 2 July 1991 the defence had requested a complete copy of the file only parts of it were given to the defence on 5 July 1991.   4.    He complains that at the trial the Public Prosecutor extended the bill of indictment charging him with a further drug transaction.   In this respect he was not given sufficient time to prepare his defence. He invokes Article 6 of the Convention.   5.    He complains under Article 6 para. 3 (d) of the Convention that at his trial the court refused to take evidence as regards the involvement of undercover agents.   6.    He complains that he was not assisted by an interpreter before the Investigating Judge, nor at the trial. He does not invoke any specific provision of the Convention in this respect.   7.    He complains under Article 6 para. 1 of the Convention about a violation of the principle of equality of arms in the proceedings on his plea of nullity before the Supreme Court.   He submits that the Procurator General apparently made submissions to the Supreme Court of which the applicant was not informed and to which he had no possibility to react.   8.    He complains under Article 6 para. 1 of the Convention about a violation of the principle of equality of arms in that on 28 October 1992 the Graz Senior Public Prosecutor's Office submitted observations on his appeal against the sentence, while, in his view, only the Public Prosecutor's Office was entitled to do so.   9.    Lastly, he complains under Article 6 para. 1 of the Convention that the criminal proceedings against him were not conducted within a reasonable time.   He submits in particular that an unnecessary delay occurred in that the transcript of the trial and the judgment of the Regional Court of 15 January 1992 were not served on his defence counsel before 6 May 1992.   THE LAW   1.    The applicant raises several complaints under Article 5 (Art. 5) of the Convention regarding his detention on remand.        However, the Commission is not required to decide whether or not the facts alleged by the applicant disclose any appearance of a violation Article 5 (Art. 5) of the Convention as, under Article 26 (Art. 26) of the Convention, it may only deal with a matter after all domestic remedies have been exhausted according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken.        In this respect the Commission observes that the applicant's pre- trial detention of which the applicant complains ended with his conviction by the Regional Court on 16 January 1992 while the present application was introduced on 16 April 1993.   It follows that the applicant has not complied with the six months' time-limit contained in Article 26 (Art. 26) of the Convention.        This part of the application must, therefore, be rejected under Article 27 para. 3 (Art. 27-3) of the Convention.   2.    The applicant complains under Article 6 para. 3 (b) and (c) (Art. 6-3-b, 6-3-c) of the Convention that his right to defence was prejudiced because at the pre-trial stage his contacts with his counsel were placed under the surveillance of the Investigating Judge.        The Commission considers that it cannot, on the basis of the file, determine the admissibility of this complaint and that it is therefore necessary in accordance with Rule 48 para. 2 (b) of the Rules of Procedure, to give notice of this part of the application to the respondent Government.   3.    The applicant complains under Article 6 para. 3 (b) and (c) (Art. 6-3-b, 6-3-c) of the Convention that his right to defence was also prejudiced in that he was not given a complete copy of the file. He submits that although the defence had requested a complete copy of the file on 2 July 1991, only parts were given to the defence on 5 July 1991.        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 international law.        In this respect the Commission observes that the applicant has not shown that he appealed to the Judges' Chamber against the alleged refusal of access to parts of the case file.   It follows that in this respect the applicant has not complied with the requirement as to the exhaustion of domestic remedies contained in Article 26 (Art. 26) of the Convention.        This part of the application must, therefore, be rejected under Article 27 para. 3 (Art. 27-3) of the Convention.   4.    The applicant complains that at the trial the Public Prosecutor extended the bill of indictment charging him with a further drug transaction.   In this respect he was not given sufficient time to prepare his defence.   He invokes Article 6 (Art. 6) of the Convention.        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 international law.        The Commission recalls that domestic remedies within the meaning of Article 26 (Art. 26) of the Convention have been exhausted if, before the highest domestic body, the applicant has submitted at least in substance the complaint he is raising before the Commission, even without particular reference to the Convention (No. 7299/75 and 7496/76, Dec. 4.12.79, D.R. 18 p. 5; No. 12164/86, Dec. 12.10.88, D.R. 58 p. 63).        In the present case, the Public Prosecutor in the course of the trial extended the bill of indictment against the applicant and C.S. charging them with a further drug deal.   The applicant opposed this extension and requested that this count be referred back to the Investigating Judge.   The Regional Court allowed the extension of the bill of indictment and dismissed the applicant's objection.   The applicant did not request to be heard on this charge after the extension had been granted.   In his plea of nullity the applicant complained that after the extension of the bill of indictment in the course of the trial he was not heard again by the court.   On 16 September 1992 the Supreme Court held that it could not deal with this complaint as the applicant had not requested at the trial to be heard again.        The Commission finds that the applicant did not raise in substance before the Supreme Court the complaint he raises now before the Commission.   While his complaint before the Commission concerns the granting of the extension of the bill of indictment which allegedly violated the applicant's right to have sufficient time for the preparation of the defence, he complained before the Supreme Court that he had not been heard by the Regional Court after the extension of the bill of indictment had been granted.        It follows that in this respect the applicant has not satisfied the requirement as to exhaustion of domestic remedies contained Article 26 (Art. 26) of the Convention and that this part of the application, therefore, is inadmissible by virtue of Article 27 para. 3 (Art. 27-3) of the Convention.   5.    The applicant complains under Article 6 para. 3 (d) (Art. 6-3-d) of the Convention that the Regional Court refused to take evidence as regards the involvement of undercover agents.        The Commission finds that this complaint falls to be examined under Article 6 para. 1 and para. 3 (d) (Art. 6-1, 6-3-d) of the Convention which, as far as relevant, reads as follows:        "(1) In the determination of ... any criminal charge      against him, everyone is entitled to a fair and public      hearing ... by an independent and impartial tribunal      established by law. ...        (3) Everyone charged with a criminal offence has the      following minimum rights:        (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."        The Commission recalls that as a general rule it is for the national courts, and in particular the court of first instance, to assess the evidence before them as well as the relevance of the evidence which the accused seeks to adduce (Eur. Court H.R., Barberà, Messegué and Jabardo judgment of 6 December 1988, Series A no. 146, p. 31, para. 68).   Article 6 para. 3 (Art. 6-3) of the Convention does not give the accused an unlimited right to have witnesses called (No. 8417/78, Dec. 4.5.79, D.R. 15 p. 200).   In particular a court is justified in refusing to summon witnesses when it considers that their statements could not be of any relevance to the case (No. 10486/83, Dec. 9.10.86, D.R. 49 p. 86 at p. 102).   Domestic courts may thus exercise some discretion, provided that the Convention and particularly the right to a fair hearing are respected, in deciding whether the hearing of a defence witness is likely to help to establish the truth (No. 8231/78, Dec. 6.3.82, D.R. 28 p. 5).        In the present case, the Regional Court refused to take evidence requested by the applicant as it found the proposed evidence irrelevant to the case.   In the course of the pre-trial investigation and the trial the applicant, and also the co-accused, had admitted the essential facts they were charged with.   The issue of the requested evidence was whether they had been incited to do so by police informants and undercover agents.   The Regional Court found that this question was of no relevance to the proceedings as, even assuming that such incitement had occurred, this would have had no effect for establishing the guilt of the applicant.   The Supreme Court confirmed these findings of the Regional Court.   Also the Court of Appeal observed that the applicant had, according to his own statements, already been selling drugs before he committed the offences at issue and in committing these offences he had only been misled as to the seriousness of the intention of the potential drug buyers to conclude the drug transactions.   It found that the mitigating circumstance of Section 34 para. 4 of the Penal Code, namely that the accused had been instigated to commit the offence by a third person, did not apply to such circumstances.        The Commission therefore is satisfied that the Austrian Courts, in particular the Regional Court and the Court of Appeal, have sufficiently explained why the evidence requested by the applicant was irrelevant to the proceedings.        Under these circumstances the Commission finds that there is no appearance of a violation of the applicant's rights under Article 6 para. 1 and para. 3 (d) (Art. 6-1, 6-3-d) of the Convention as regards the taking of evidence by the Austrian courts.        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 neither before the Investigating Judge, nor at the trial was he assisted by an interpreter. He does not invoke any specific provision of the Convention in this respect.        The Commission finds that this complaint falls to be examined under Article 6 para. 3 (e) (Art. 6-3-e) of the Convention which provides as one of the minimum rights of everyone charged with a criminal offence the right "to have the free assistance of an interpreter if he cannot understand or speak the language used in court".        The Commission observes, however, that the applicant, when heard by the Investigating Judge on 3 May 1991 did not request the assistance of an interpreter.   Moreover, at the trial on 15 January 1991 an interpreter for the Dutch language appeared before the court who subsequently left as the applicant and other Dutch speaking co-accused had declared that they had sufficient command of German.        Under such circumstances there is no appearance of a violation of Article 6 para. 3 (e) (Art. 6-3-e) 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.   7.    The applicant complains under Article 6 para. 1 (Art. 6-1) of the Convention about a violation of the principle of equality of arms in the proceedings on his plea of nullity before the Supreme Court.   He submits that the Procurator General apparently made submissions to the Supreme Court of which the applicant was not informed and to which he had no possibility to react.        The Commission considers that it cannot, on the basis of the file, determine the admissibility of this complaint and that it is therefore necessary in accordance with Rule 48 para. 2 (b) of the Rules of Procedure, to give notice of this part of the application to the respondent Government.   8.    The applicant complains under Article 6 para. 1 (Art. 6-1) of the Convention about a further violation of the principle of equality of arms in that on 28 October 1992 the Graz Senior Public Prosecutor's Office submitted observations on his appeal against the sentence, while, in his view, only the Public Prosecutor's Office was entitled to do so.        The Commission recalls that the principle of equality of arms is only one feature of the concept of 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 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 (Eur. Court H.R., Brandstetter judgment of 28 August 1991, Series A no. 211, p. 27, paras. 66-67).        Having regard to the relevant provisions of the Code of Criminal Proceedings, the Commission observes that it is up to the Senior Public Prosecutor's Office to present the case for the prosecution before the Courts of Appeal.   The Commission cannot find that the fact that the Senior Public Prosecutor's Office made submissions to the Court of Appeal on the applicant's appeal against the sentence infringed in any way the principle of equality of arms.   In this respect, the Commission notes that the applicant does not argue that he was not aware of these submissions or that he could not react thereto.        Under these circumstances the Commission finds that there is no appearance of a violation of the applicant's rights under 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.   9.    The applicant finally complains under Article 6 para. 1 (Art. 6-1) of the Convention that the criminal proceedings against him were not conducted within a reasonable time.   He submits in particular that an unnecessary delay occurred in that the transcript of the trial and the judgment of the Regional Court of 15 January 1992 were not served on his defence counsel before 6 May 1992.        The Commission observes that the relevant period to be taken into account under Article 6 para. 1 (Art. 6-1) of the Convention started when the pre-trial investigations against the applicant were instituted on 3 May 1991 and ended on 21 December 1992 when the Court of Appeal decided on the applicant's appeal.   They lasted therefore one year, seven   months and two weeks.   The case was of some complexity as it involved charges against seven accused.   Moreover, during the relevant period the case was examined by three different courts.        Under these circumstances the Commission finds that the length of criminal proceedings against the applicant can be considered as reasonable within the meaning of Article 6 para. 1 (Art. 6-1) 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.        For these reasons the Commission, unanimously,        DECIDES TO ADJOURN the examination of the applicant's complaint      concerning the surveillance of the contact with his defence      counsel by the Investigating Judge at the pre-trial stage and his      complaint that he was not given the possibility to react to      submissions made by the Procurator General in the proceedings      before the Supreme Court;        DECLARES INADMISSIBLE the remainder of the application.   Secretary to the First Chamber    President of the First Chamber        (M.F. BUQUICCHIO)                    (C.L. ROZAKIS)