Application No. 11894/85

Stefan TOTH

against

AUSTRIA

REPORT OF THE COMMISSION

(adopted on 3 July 1990)

                        TABLE OF CONTENTS

                                                              Page

I.      INTRODUCTION

        (paras. 1-17)  ....................................     1

        A.      The application

                (paras. 2-4)  .............................     1

        B.      The proceedings

                (paras. 5-12)  ............................     1

        C.      The present Report

                (paras. 13-17)  ...........................     2

II.     ESTABLISHMENT OF THE FACTS

        (paras. 18-65)  ...................................     4

        A.      The particular circumstances of the case

                (paras. 18-60)  ...........................     4

                a.  Preliminary investigations

                    (paras. 18-40)  .......................     4

                b.  Indictment and trial

                    (paras. 41-60)  .......................     7

        B.      Relevant domestic law

                (paras. 61-65)  ...........................     10

III.    OPINION OF THE COMMISSION

        (paras. 66-135)  ..................................     12

        A.      Points at issue

                (para. 66)  ...............................     12

        B.      Article 5 para. 3 of the Convention

                (paras. 67-116)  ..........................     12

                a.  Compliance with Article 5 para. 3 of

                    the Convention

                    (paras. 68-115)  ......................     12

                    (para. 116)  ..........................      18

        C.      Article 5 para. 4 of the Convention

                (paras. 117-134)  .........................      18

                a.  Compliance with Article 5 para. 4 of the

                    Convention

                    (paras. 118-133)  .....................      18

                    1.  Appeal proceedings

                        (paras. 119-129)  .................      18

                    2.  Proceedings brought by the

                        investigating judge

                        (paras. 130-133)  .................      20

                b.  Conclusion

                    (para. 134)  ..........................      21

        D.      Recapitulation

                (para. 135)  ..............................      21

CONCURRING SEPARATE OPINION OF Mr.  H.G. SCHERMERS AND

MESDAMES G.H. THUNE AND J. LIDDY  .........................      22

APPENDIX I:     HISTORY OF THE PROCEEDINGS  ...............      23

APPENDIX II:    DECISION ON THE ADMISSIBILITY  ............      24

I.    INTRODUCTION

1.      The following is an outline of the case, as submitted to the

European Commission of Human Rights, and of the procedure before the

Commission.

A.      The application

2.      The applicant, born in 1953, is an Austrian citizen residing

at Graz in Austria.  Before the Commission, he is represented by

Ms.  K. Hermann, a lawyer practising in Graz.

        The application is directed against the Republic of Austria

whose Government were represented by their Agent, Ambassador Helmut

Türk, Head of the International Law Department at the Federal Ministry

of Foreign Affairs.

3.      The application relates to the applicant's detention on remand

in criminal proceedings against him on suspicion of having committed

various instances of aggravated fraud.  The applicant was remanded in

custody from 11 January 1985 until 18 February 1987.  During his

detention the applicant filed numerous requests for release which were

eventually dismissed by the Review Chamber at the Salzburg Regional

Court and, upon appeal, by the Linz Court of Appeal.  The Linz Court

of Appeal on a number of occasions also decided to prolong the

applicant's detention on remand.  On 26 May 1988 the applicant was

sentenced to four and a half years' imprisonment.

4.      The applicant complains under Article 5 para. 3 of the

Convention that the length of his detention on remand, lasting 25

months, exceeded a reasonable time within the meaning of this

provision.  Under Article 5 para. 4 he complains that neither he nor

his lawyer were present in the proceedings concerning his detention

before the Linz Court of Appeal.

B.      The proceedings

5.      The application was introduced on 12 October 1985 and

registered on 10 December 1985.

6.      On 7 July 1987 the Rapporteur decided to request information

from the respondent Government pursuant to Rule 40 para. 2 (a) of the

Commission's Rules of Procedure.  The information was provided by the

respondent Government on 21 September 1987, and comments thereon were

submitted by the applicant on 12 October 1987.

7.      On 9 March 1988 the Commission decided to bring the

application to the notice of the respondent Government and to invite

them to submit written observations on its admissibility and merits

pursuant to Rule 42 para. 2 (b) of its Rules of Procedure in respect

of the applicant's arrest, the length of detention, and the

proceedings in which the legality of his detention was decided.  The

respondent Government's observations were submitted on 31 May 1988 and

the reply thereto by the applicant on 18 July 1988.

8.      On 15 December 1988 the Commission decided in accordance with

Rule 42 para. 3 (a) of the Rules of Procedure to invite the Government

to submit written observations in respect of the appeal proceedings in

which the legality of the applicant's detention was decided.  The

respondent Government's further observations were submitted on

10 February 1989 and the reply thereto by the applicant on 13 March 1989.

9.      On 15 December 1988 the Commission also decided to invite the

parties to a hearing on the admissibility and merits of the

application insofar as it raised issues under Article 5 paras. 3 and

4 of the Convention.

10.     The hearing took place on 8 May 1989.  The applicant, who was

present, was represented by Ms.  K. Hermann.

        The respondent Government were represented by their Agent,

Ambassador H. Türk, as well as by Mr.  W. Okresek of the Federal

Chancellery at Vienna, Ms.  J. Gartner of the Federal Ministry of

Justice at Vienna, and Ms.  U. Plassnik of the Permanent Representation

of Austria to the Council of Europe at Strasbourg, as advisers.

11.     Following the hearing the Commission declared the application

admissible with regard to the applicant's complaints under Article 5

para. 3 of the Convention concerning the length of his detention on

remand, and under Article 5 para. 4 of the Convention concerning the

proceedings before the Linz Court of Appeal.  The remainder of the

application, including a complaint under Article 6 para. 1 of the

Convention concerning the length of the proceedings, was declared

inadmissible.

12.     After declaring the application admissible, the Commission,

acting in accordance with Article 28 para. 1 (b) of the Convention,

also placed itself at the disposal of the parties with a view to

securing a friendly settlement of the case.  Consultations with the

parties took place between 17 May 1989 and 18 January 1990.  In the

light of the parties' reaction, the Commission now finds that there is

no basis upon which a settlement can be effected.

C.      The present Report

13.     The present Report has been drawn up by the Commission in

pursuance of Article 31 of the Convention and after deliberation and

votes, the following members being present:

        MM.  S. TRECHSEL, Acting President

             E. BUSUTTIL

             G. JÖRUNDSSON

             A. S. GÖZÜBÜYÜK

             H. G. SCHERMERS

             H. DANELIUS

             G. BATLINER

        Mrs.  G. H. THUNE

        Sir  Basil HALL

        Mr.  C.L. ROZAKIS

        Mrs.  J. LIDDY

14.     The text of this Report was adopted on 3 July 1990 and is now

transmitted to the Committee of Ministers of the Council of Europe in

accordance with Article 31 para. 2 of the Convention.

15.     The purpose of the Report, pursuant to Article 31 para. 1 of

the Convention, is:

        i)      to establish the facts, and

        ii)     to state an opinion as to whether the facts found

                disclose a breach by the State concerned of its

                obligations under the Convention.

16.     A schedule setting out the history of the proceedings before

the Commission is attached hereto as Appendix I and the Commission's

decision on the admissibility of the application as Appendix II.

17.     The full text of the parties' submissions, together with the

documents lodged as exhibits, are held in the archives of the

Commission.

II.    ESTABLISHMENT OF THE FACTS

A.      The particular circumstances of the case

        a.  Preliminary investigations

18.     On 1 June 1984 the Salzburg Regional Court (Landesgericht)

issued a warrant of arrest (Haftbefehl) against the applicant, who was

then of unknown abode, on suspicion of having committed, inter alia,

the offence of aggravated fraud (schwerer Betrug) according to Section

147 para. 3 of the Austrian Criminal Code (Strafgesetzbuch), together

with a certain J.M.  In particular, the applicant had allegedly made

out various uncovered cheques, drawn from bank accounts opened by

J.M., and induced J.M. to cash them in other banks.  The warrant of

arrest stated with reference to Section 175 of the Austrian Code of

Criminal Procedure (Strafprozessordnung) that there was a danger of

absconding in view of the fact that the applicant's place of residence

was not known, and that there was also a danger of repetition, namely

that he would commit new offences of the same kind, since he had

previously been convicted on a number of occasions.

19.     On 24 August 1984, the Salzburg Regional Court issued an

international search warrant (Steckbrief) against the applicant.

Therein, the Court referred to eleven instances of attempted or

completed fraud regarding a total amount of over one million AS and

concerning financial institutions in various towns in the Federal

Republic of Germany and in Austria.  The warrant of arrest mentioned as

a third co-accused a certain Ch.B.

20.     In January 1985 the applicant was residing at Graz without

being duly registered.

21.     On 11 January 1985 at 23h00 the applicant was arrested at Graz

airport where he was awaiting the arrival of a friend.  The applicant

was brought to the Feldkirchen constabulary.  On 12 January 1985 he

was heard by the investigating judge at the Graz Regional Court.  According

to the document "Interrogation of the accused" ("Vernehmung des

Beschuldigten"), the applicant was informed that a warrant of arrest

and a search warrant had been issued against him on suspicion of the

offence of aggravated fraud.  He also noted that temporary custody

(Verwahrungshaft) was being imposed on him according to Section 175

of the Code of Criminal Procedure on the grounds of a danger of

collusion (recte: repetition) and of absconding.

22.     On 17 January 1985 the applicant was transferred to Vienna and

on 22 January 1985 to Salzburg.  The co-accused J.M. was arrested on

17 December 1984.

23.     On 23 January 1985 a judge at the Salzburg Regional Court

heard the applicant.  According to the document "Interrogation of the

accused", which was signed by the applicant, the applicant was

informed that preliminary investigations (vorläufige Untersuchung)

were being instituted against him and he would not object thereto.

The applicant was informed that his detention on remand had been

ordered on the grounds of a danger of absconding and of repetition

according to Section 180 paras. 1 and 2 of the Code of Criminal

Procedure.

24.     In its decision of 23 January 1985 the Salzburg Regional Court

ordered, with reference to the instances mentioned in the search

warrant of 24 August 1984, the applicant's detention on remand, inter

alia, on suspicion of attempted and completed fraud according to

Section 147 para. 3 of the Criminal Code.  The Court stated that the

applicant had previously attempted to avoid prosecution by changing

his residence for which reason there was a danger that, if he remained

in liberty, he would abscond or hide in view of the prospective

punishment.  The Court also saw a danger of repetition as the applicant

was not socially integrated and without employment.  For this reason,

it was to be feared that he would commit further offences, with severe

consequences, of the same kind as the ones in respect of which he had

twice been convicted previously.

25.     This decision was handed to the applicant on 24 January 1985.

He was heard by the investigating judge as to the reported facts

(Anzeigetatbestände) on 25, 28, 29, 30 and 31 January and 1 February

1985.  On 7 February the Swiss authorities announced their intention

to prosecute the applicant.

26.     On 15 February 1985 the applicant filed an application for his

release from detention.  Therein he claimed that he could now

demonstrate a permanent residence at his sister's, and that there were

prospects for a particular job.  On 19 February 1985, further

investigations were instituted with regard to offences allegedly

committed by the applicant in Switzerland.

27.     On 27 February 1985 the Review Chamber (Ratskammer) at the

Salzburg Regional Court refused the application.  According to the

decision, the applicant and his lawyer were present at the hearing

concerning the examination of the applicant's detention on remand

(Haftprüfungsverhandlung).  The Chamber found that there was a grave

suspicion that he had committed attempted or completed aggravated

fraud together with two other persons.  Moreover, there was a danger

of absconding in view of the fact that previously the applicant had

attempted to avoid prosecution by repeatedly changing his residence

and that, in view of the severity of his prospective sentence, he

would flee or hide.  The Chamber also saw a danger of the applicant

committing further offences in view of his previous two convictions

which concerned offences of the same type and as he was not socially

integrated and without regular employment.  Finally, the Chamber found

that the purpose of detention could not be attained by other more

lenient measures.

28.     On 1 March 1985 the case-file was again sent back to the

investigating judge who was, however, on holiday until 15 April 1985.

On 30 April 1985 the investigating judge heard the applicant with

regard to the co-accused J.M.  From 26 April to 1 May 1985 the

applicant served a prison sentence apparently relating to a customs

contravention.  On 15 May and 24 June 1985 the investigating judge

requested information from two German banks.

29.     On 19 June 1985, upon application of the investigating judge,

the Linz Court of Appeal (Oberlandesgericht) decided in camera to

allow an extension of the applicant's detention on remand for up to

eight months as from 23 January 1985.  The Court stated that there was

a grave suspicion that the applicant had committed the offence of

aggravated fraud, involving damages of more than two million AS.  The

Court thereby referred to various reports to the police (Anzeigen),

the police inquiries, and the statements made by the co-accused.

The Court also noted that the proceedings had become extraordinarily

voluminous due to the multitude of facts and the contradictory

statements of the applicant and other accused.  The Court found that,

in the light of new results of the inquiries and the great volume and

difficulty of the case, the Prosecution would first require an

adequate period of time carefully to prepare the indictment and,

possibly, the subsequent proceedings before the Jury Court.  The Court

also assumed a danger of absconding and of committing further offences

whereby it referred to the decision of 27 February 1985 as well as the

applicant's previous convictions.  The Court considered that other,

more lenient measures would not suffice.

30.     The applicant filed an appeal against this decision to the

Supreme Court (Oberster Gerichtshof) in which he referred to a

permanent address in Austria, to prospective employment and to the

strong attachment to his life companion.  The appeal was rejected as

being inadmissible by the Supreme Court on 22 August 1985.  The

case-file was returned to the investigating judge on 11 September 1985.

31.     On 12 September 1985 the applicant again applied for his

release.

32.     On 18 September 1985 the Linz Court of Appeal, upon

application of the investigating judge, decided in camera that the

applicant's detention on remand could be extended for up to 11 months.

With regard to the danger of absconding and of committing further

offences the Court found no changes in the relevant circumstances for

which reason it referred to the grounds given in the decisions of the

Review Chamber of 27 February and of the Court of Appeal of 19 June

1985.  The Court also considered that these reasons for detention on

remand excluded other, more lenient measures.

33.     On 24 September 1985 the Regional Court decided that the

preliminary investigations instituted against the applicant should be

extended also to the offence of arson (Brandstiftung) committed in

Switzerland.  The applicant's appeal (Beschwerde) against this

decision was rejected on 2 October 1985 by the Review Chamber which

found, inter alia, that the applicant had failed to motivate his

appeal.

34.     Upon termination of the preliminary investigations the

case-file was sent to the Public Prosecutor's Office (Staatsanwalt-

schaft) on 2 October 1985.  The latter applied on 31 October 1985 for

the continuation of the preliminary investigations in order to

complete the case-file.  These applications were granted on 7, 15 and

19 November 1985.  The case-file was then transmitted to the Linz

Court of Appeal on 3 December 1985 for decision on the prolongation of

the applicant's detention.

35.     On 11 December 1985, upon application of the investigating

judge and the Public Prosecutor's Office, the Linz Court of Appeal

extended in camera the applicant's detention on remand for up to 15

months.  After recalling the offences of which he was suspected and,

with reference to previous decisions, the danger of committing further

offences and of fleeing, which in the Court's view could not be

prevented by a less severe measure, it stated in addition that the

applicant was further suspected of having incited another person to

burn down a restaurant in Switzerland, causing damages of 300,000 SFr.

The Court concluded that the investigations had not yet been completed

on account of the voluminous materials.

36.     Following the requests of the applicant and J.M. for release

from detention on remand the case-file was transmitted to the Review

Chamber at the Salzburg Regional Court.

37.     On 2 January 1986 the Review Chamber dismissed the requests.

At the deliberations a lawyer was present.  The Chamber found that

according to the results obtained so far in the investigations the

applicant was suspected of forgery as well as of having caused damages

of up to 2 million AS to various financial institutions by issuing

uncovered cheques.  With regard to the danger of absconding and of

committing further offences the Chamber referred to the decision of

11 December 1985.  It noted that the situation had not changed and

that no other more lenient measures would suffice to meet the purpose

of detention on remand.

38.     Also on 2 January 1986 the applicant was heard by an

investigating judge and confronted with a certain S.R.  A final

interrogation of the applicant took place on 22 January 1986.

39.     The applicant's further appeal against the decision of

2 January 1986 was dismissed in camera on 22 January 1986 by the Linz

Court of Appeal.  The decision states that it was taken "after hearing

the Senior Public Prosecutor's Office" ("nach Anhörung der

Oberstaatsanwaltschaft").  The Court found that if the applicant was

released there would be a danger of his absconding.  Insofar as the

applicant stated that he had no identity papers enabling him to

travel to other countries, that in Switzerland criminal proceedings

were pending against him, and that he was not permitted to enter

Germany, the Court found that the applicant could illegally cross the

border.  The Court further assumed a danger of committing further

offences whereby it referred to five previous convictions of the

applicant, in particular one by the District Court (Amtsgericht) of

Stuttgart in Germany which had sentenced the applicant to 20 months'

imprisonment on charges of fraud and forgery.  In view of the sentence

to be expected in the case of conviction the Court of Appeal did not

regard the length of detention so far as disproportionate.  It found

that the grounds for detention on remand disclosed such intensity as

to exclude other, more lenient measures.

40.     A petition for release, which the applicant addressed to the

Constitutional Court (Verfassungsgerichtshof), was dismissed by that

Court as inadmissible in a decision issued on 28 February 1986.

        b.  Indictment and trial

41.     Meanwhile, on 26 February 1986 the preliminary investigations

were closed and on 12 March 1986 the Salzburg Public Prosecutor's

Office indicted the applicant on the grounds of partly attempted and

partly completed aggravated professional fraud according to Section

147 para. 3 of the Criminal Code, as well as of having forged a

particularly protected document.

42.     According to the bill of indictment, which numbered 17 pages,

the applicant had drawn a number of cheques on various banks in

Germany and Austria and given them to Ch.B. and J.M. to cash them

in other banks in these countries.  The bill of indictment mentioned

the applicant's previous two convictions on charges of fraud and of

receiving stolen goods, respectively, and stated that he was being

sought in the Federal Republic of Germany for nineteen instances of

cheque fraud.  It referred to damages of 950,000 AS concerning

completed fraud and 1,250,000 AS concerning attempted fraud.  In the

bill of indictment the Public Prosecutor's Office stated that further

investigations would be pursued in respect of the suspicion of arson

and other instances of aggravated professional fraud.

43.     The applicant's objection against the bill of indictment was

dismissed, on 11 April 1986, by the Linz Court of Appeal which found

that the results of the investigations sufficed to suspect the

applicant of having committed the alleged offences, and it therefore

committed the applicant for trial.

44.     In a separate decision of 11 April 1986, upon application of

the investigating judge, the Court of Appeal extended in camera the

applicant's detention on remand for up to 17 months in view of the

volume and difficulties of the investigations.  The Court referred to

the bill of indictment of 12 March 1986 and found that no changes had

occurred to the advantage of the applicant in respect of the findings

of its previous decision of 22 January 1986.

45.     On 30 April 1986 the case-file was transferred to the trial

judge who on 23 May 1985 ordered the hearing to take place on 11 June

1986.  On 5 June 1986 the applicant's lawyer stated that he would no

longer represent the applicant after 11 June 1986.

46.     The applicant's trial commenced, and a first hearing took

place, on 11 June 1986.  Thereafter, the hearing was adjourned.  Also

on 11 June 1986, an official defence counsel was appointed.

47.     On 16 June 1986 the applicant requested his release from

detention, claiming that he had permanent residence in Austria and

confirmation of secure employment.  This request was dismissed on

25 June 1986 by the Salzburg Regional Court and upon appeal on 9 July

1986 by the Linz Court of Appeal.  Both courts referred to the reasons

previously given.  The Court of Appeal further decided that detention

on remand was no longer called for in respect of J.M. who had by then

been remanded in custody for 25 months, though with regard to the

applicant it found that no other, more lenient, measures could be

employed.  According to its decision the Court of Appeal decided in

camera "after hearing the Senior Public Prosecutor's Office" ("nach

Anhörung der Oberstaatsanwaltschaft").

48.     On 24 July 1986 the Salzburg Regional Court contacted the

Vienna Regional Court as to the date of release of Ch.B.  On 29 July

1986 a German court was requested to transmit a decision which arrived

on 18 August 1986.

49.     Meanwhile, on 25 July 1986 the applicant filed a further

request to be released from detention, claiming that he was

economically and socially integrated and that he lacked the financial

means to abscond.  This request was dismissed by the Salzburg Regional

Court on 30 July 1986 and, upon the applicant's appeal, the Linz Court

of Appeal on 20 August 1986, both of which referred to the reasons

stated in previous decisions as to the grounds of detention.  The

Court of Appeal gave its decision "after hearing the Senior Public

Prosecutor's Office" ("nach Anhörung der Oberstaatsanwaltschaft").

50.     On 22 September 1986 letters rogatory (Rechtshilfeersuchen)

were transmitted to the Swiss Federal Office for Police and to a

German court in respect of the witness D.  The file was then sent to

a forensic expert who prepared an expert opinion in respect of J.M. on

8 October 1986.

51.     The Salzburg Regional Court again decided in camera on

12 November 1986, with reference to the grounds given in previous

decisions, not to release the applicant.  On 26 November 1986 the Linz

Court of Appeal, "after hearing the Senior Public Prosecutor's

Office" ("nach Anhörung der Oberstaatsanwaltschaft"), rejected the

applicant's appeal.  The Court found that J.M. had considerably

implicated the applicant who had not refuted the suspicion of his

having committed the offences at issue.  The Court upheld the previous

decision with regard to the grounds of detention finding that they

were still valid and did not permit more lenient measures.  In view of

the damages stated in the bill of indictment, exceeding one million

AS, and the applicant's previous convictions of offences of the same

type, the Court concluded that the length of detention was not yet

disproportionate.

52.     Meanwhile, on 12 November 1986 the applicant unsuccessfully

attempted to discharge his officially appointed lawyer.  On

17 November 1986 the applicant complained that no date had been fixed

for a hearing.  This complaint was to no avail, as the authorities

were awaiting evidence from Germany.  On 3 December 1986 a German

court transmitted further evidence to the Austrian authorities as to

the witness D.

53.     Following the applicant's complaints about his officially

appointed lawyer, the Bar Association stated on 16 December 1986

that they saw no reason to appoint a new lawyer.

54.     On 12 and 16 December 1986 the trial judge requested the

Dornbirn and Bregenz Constabularies to provide the addresses of Ch.B.

and S.R.  A similar request in respect of Ch.  B. was filed with the

Salzburg Federal Police Direction on 22 January 1987.

55.     On 28 January 1987 the Review Chamber at the Salzburg Regional

Court refused the applicant's request of 21 January for release from

detention.

56.     Upon the applicant's appeal the Linz Court of Appeal decided

on 18 February 1987 to release the applicant.  It considered that

after nearly 25 months of detention the danger of absconding and of

committing further offences had substantially subsided and more

lenient measures could be applied.  The applicant was released on

condition that he pledged not to abscond or hide until the termination

of the trial or to impede the investigations.  He was also ordered to

take permanent residence in Austria and inform the Court thereof as

well as to report every two days to the police.  Finally, the Court

decided provisionally to withdraw the travel papers in the applicant's

possession.

57.     On 9 July 1987 the Salzburg Public Prosecutor's Office

indicted the applicant in respect of further instances of fraud.  The

bill of indictment which numbered 9 pages stated that the applicant

had, together with a certain S.R., attempted fraudulently to cash

uncovered cheques, whereby the damages amounted to approximately

800,000 AS.  The offences concerned banks in Germany, Austria and

Switzerland.  The bill of indictment was sent to the applicant on

17 July 1987.  The applicant's appeal against the indictment of 9 July

1987 was dismissed by the Linz Court of Appeal on 30 September 1987.

58.     On 30 September 1987 the Salzburg Regional Court partly

granted the applicant's further complaint in that it decided that

henceforth he had to report weekly to the police.  His appeal against

this decision was dismissed on 4 November 1987 by the Linz Court of

Appeal.

59.     On 22 February 1988 the hearing was fixed for 25 and 26 May

1988.

60.     On 26 May 1988 the Salzburg Regional Court convicted the

applicant of aggravated fraud and sentenced him to four and a half

years' imprisonment.

B.      Relevant domestic law

61.     The charges brought against the applicant concerned, inter

alia, the offence of aggravated fraud which, according to Section 147

para. 3 of the Criminal Code, shall be punished with imprisonment

lasting between one and ten years if the damage exceeds 100,000 AS.

62.     The Code of Criminal Procedure states in Section 180 paras. 1

and 2 that detention on remand is imposed if the accused is seriously

suspected of having committed a criminal offence, and if there is a

danger of absconding, collusion, or of committing a further offence.

According to para. 3 of Section 180, a danger of absconding is not to

be assumed if the accused is suspected of a criminal offence which

will not be punished more severely than with five years' imprisonment;

if the accused lives in orderly circumstances; and if he has a

permanent residence in Austria, except if he has already attempted to

abscond.

63.     Section 193 para. 4 of the Code of Criminal Procedure states

that if the investigation is particularly voluminous or difficult the

Court of Appeal can decide, upon application inter alia of the

investigating judge, that detention on remand may last up to two years

if it is ordered on the ground of a danger of collusion or for another

reason, and if the offence at issue is threatened with a punishment

which exceeds five years.  According to Section 193 para. 5 this

time-limit for detention on remand no longer applies once the trial

has commenced, as long as there are other grounds of detention than

only the danger of collusion.

64.     According to Section 194 para. 2 of the Code of Criminal

Procedure the detainee has at all times the possibility to request an

examination as to the lawfulness of the decision to impose or to

continue his detention on remand.  As a result, a hearing is conducted

(Haftprüfungsverhandlung) before the Regional Court or the Review

Chamber which, according to Section 12 of the Code of Criminal

Procedure, is a chamber of that Court.  Section 195 of the Code of

Criminal Procedure provides that at the hearing before the Regional

Court or the Review Chamber the detainee is present.  He has the

possibility of filing an appeal against the decision to the Court of

Appeal.

65.     Section 180 para. 4 of the Code of Criminal Procedure provides

that detention on remand may not be maintained where the purposes of

the prisoner's detention can be achieved by one or several of more

lenient measures mentioned in para. 5 of this provision.  These more

lenient measures are, inter alia: the pledge not to flee or hide, or

to leave one's residence without the investigating judge's permission;

the pledge not to hinder the investigations; the order to reside in a

specific place, or to avoid a locality, or alcoholic beverages; the

order to notify changes of the place of residence; the temporary

withdrawal of travel papers or of papers required to drive a vehicle;

bail; and the provisional appointment of a probation officer.

According to Section 190 release on bail is possible if the offence is

not punished with a minimum sentence of ten years and if detention on

remand is imposed on account of a danger of absconding.

III.   OPINION OF THE COMMISSION

A.      Points at issue

66.     The points at issue are

a)  whether there has been a violation of Article 5 para. 3 (Art. 5-3)

of the Convention, in that the applicant's detention on remand

exceeded a reasonable time;

b)  whether there has been a violation of Article 5 para. 4

    (Art. 5-4) of the Convention, in that neither the applicant

    nor his lawyer was present at the proceedings before the Linz

    Court of Appeal concerning the prolongation of his detention on

    remand and his requests to be released from detention on remand.

B.      Article 5 para. 3 (Art. 5-3) of the Convention

67.     Article 5 para. 3 (Art. 5-3), insofar as relevant, provides

as follows:

        "Everyone arrested or detained in accordance with the

        provisions of paragraph 1 (c) (Art. 5-3-c) of this Article

        ... shall be entitled to trial within a reasonable time or

        to release pending trial.  Release may be conditioned by

        guarantees to appear for trial."

        a.  Compliance with Article 5 para. 3 (Art. 5-3) of the Convention

68.     The applicant was arrested on suspicion of fraud and remanded

in custody on 11 January 1985.  During his detention he served a

prison sentence from 26 April to 1 May 1985.  He was released from

detention on remand on 18 February 1987.  The period of detention on

remand to be considered under Article 5 para. 3 (Art. 5-3) of the

Convention therefore lasted two years, one month and two days.

69.     The applicant maintains that this period of detention on

remand was excessive as there were no valid reasons to assume a danger

of his absconding or committing further offences.

70.     The Government emphasise the particular complexity of the

proceedings.  There were also convincing grounds for suspecting the

applicant of having committed the offences with which he was charged

and for assuming a danger of his absconding and committing further

offences.  Moreover, the applicant contributed to the length of his

detention by frequently filing requests for his release.

71.     The Commission recalls that the reasonableness of the time

spent by an accused person in detention up to the beginning of the

trial must be assessed in relation to the very fact of his detention.

Until conviction he must be presumed innocent, and the purpose of the

provision under consideration is essentially to require his

provisional release once his continuing detention ceases to be

reasonable.  Likewise, in determining in a given case whether or not

the detention of an accused person exceeds a reasonable limit, it is

for the national judicial authorities to seek all the facts arguing

for or against the existence of a genuine requirement of public

interest justifying a departure from the rule of respect for

individual liberty.  It is essentially on the basis of the reasons

given in the decision on applications for release pending trial and of

the true facts mentioned by the applicant in his appeals that the

question whether or not there has been a violation of the Convention

has to be determined (Eur. Court H.R., Neumeister judgment of 2 June

1968, Series A no. 8, p. 37, paras. 4 et seq.).  Article 5 para. 3

(Art. 5-3) relates to persons charged and detained.  It implies that

there must be special diligence in the conduct of the prosecution of

the cases concerning such persons.  Even if the duration of the

preliminary investigation is not open to criticism, that of the

detention must not exceed a reasonable time (see Eur. Court H.R.,

Stögmüller judgment of 10 November 1969, Series A no. 9, p. 40, para.

5).

72.     The grounds relating to the public interest cited by

the national judicial authorities may be very pertinent and sufficient to

justify keeping a person in detention pending trial, but that does not

free the authorities from their obligations under the Convention if

they themselves are seen to have conducted the case in such a way as

to entail an unreasonable prolongation of detention of the accused

pending trial and thus inflicting on him in the interests of public

policy a greater sacrifice than that which would normally be demanded

of a person presumed innocent (see No. 8118/77, Schertenleib v.

Switzerland, Comm. Report 11.12.80, D.R. 23 p. 190).  With the passage

of time the grounds for detention will themselves diminish in

pertinence when balanced against the right to liberty guaranteed by

Article 5 (Art. 5) of the Convention of the person provisionally

detained (see No. 12325/86, Kemmache v.  France, Comm.  Report,

8.6.90).

73.     The Commission has first examined the reasons given by the

Austrian authorities when prolonging the applicant's detention on

remand and refusing his applications to be released on bail.

74.     The Commission notes that the authorities suspected the

applicant of having committed the offences of attempted and completed

fraud, involving damages of up to 2 million AS, which according to

Section 147 of the Austrian Criminal Code shall be punished with

imprisonment lasting between one and ten years.

75.     In this respect the Commission recalls that the persistence of

reasonable suspicion alone cannot suffice to justify a protracted

period of detention on remand, such as in the present case.  The

Commission must therefore examine the other grounds which persuaded

the Austrian authorities to decide that the detention on remand should

be continued, in particular whether they were "relevant" and

"sufficient" (see Eur. Court H.R., B. judgment of 28 March 1990,

Series A no. 175, para. 42; Matznetter judgment of 10 November 1969,

Series A no. 10, p. 34, para. 12).

76.     The applicant claims that in his case there were not

sufficiently concrete reasons for assuming a danger of his absconding

or committing further offences.  He had the possibility of employment

and residence in Austria and was socially integrated.  His previous

convictions could not be sufficient justification.  Other, more lenient

measures were called for.  Nevertheless, his requests for release on

bail were refused.

77.     The Government submit that the primary responsibility for

examining the grounds of detention on remand falls to the domestic

authorities who, furthermore, need not in every decision mention every

consideration of their examination.  With regard to the danger of the

applicant committing further offences, the Government refer to the

applicant's attempts to avoid prosecution by frequently changing his

residence which he did not register with the authorities.  The

Government also submit that even if the applicant's sister had on

26 February 1985 confirmed that he could live and work as a concierge

in an apartment house belonging to her life companion, it could not be

said that he had sufficient professional or social ties.  As regards

the danger of absconding the Government refer to the applicant's

previous convictions and to the fact that he was suspected of the

offence of attempted and completed fraud.  Finally the Government

emphasise that the authorities constantly examined the possibility of

other measures instead of detention.  Bail was not considered in view

of the applicant's apparent lack of financial resources.

78.     The Commission notes that in the present case the grounds

given by the Austrian courts to justify the applicant's detention on

remand were the danger that he might commit further offences and the

danger of his absconding.

79.     As regards the danger of the applicant committing further

offences, the Austrian courts considered that he had previously been

convicted of offences of the same type and that he was not socially

integrated and that he was without regular employment.  The Commission

refers here to the decisions of the Salzburg Regional Court of 23

January 1985 (para. 24 above), of the Review Chamber at that Court of

27 February 1985 (para. 27 above), and of the Linz Court of Appeal of

19 June 1985 and 22 January 1986 (paras. 29 and 39 above).

80.     As regards the danger of absconding, the Commission recalls

that the possibility of a severe sentence is not sufficient after a

certain lapse of time to justify the length of detention (see Eur.

Court H.R., Wemhoff judgment of 27 June 1968, Series A no. 7, p. 25,

para. 14).

81.     In the present case the Austrian courts assumed a danger of

absconding on account of the severity of the applicant's prospective

sentence.  In addition, they considered that he had previously

attempted to avoid prosecution by changing his residence.  The

Commission refers here to the decisions of the Salzburg Regional Court

of 23 January 1985, of the Review Chamber at that Court of 27 February

1985, and of the Linz Court of Appeal of 22 January 1986.

82.     It is true that on various occasions, particularly after the

Linz Court of Appeal's decision of 22 January 1986, the examination of

the Austrian courts as to the danger of the applicant absconding and

committing further offences limited itself to a confirmation of the

findings of previous decisions.  However, the Commission observes that

the courts thereby considered that the circumstances leading to the

earlier conclusions had not changed and therefore referred to the

previous decisions for reasons of procedural economy.

83.     Finally, the Commission notes that the Austrian courts, when

deciding on the applicant's detention on remand, regularly considered,

and as a result dismissed, the possibility of other, more lenient

measures instead of detention on remand.  Insofar as the applicant

claims that he requested to be released on bail, the Commission notes

that according to Section 190 of the Code of Criminal Procedure

release on bail is only possible if detention on remand is imposed on

the ground of a danger of absconding, whereas with regard to the

present applicant the Austrian courts also assumed a danger of his

committing further offences.  The Commission further notes the

submissions of the respondent Government according to which the

authorities did not consider bail in view of the applicant's apparent

lack of financial resources.

84.     As a result, the Commission accepts that in reaching each of

their decisions to prolong the applicant's detention on remand the

Austrian courts could reasonably conclude that there was a risk of the

applicant absconding or committing further offences.  The question

however remains whether, as the detention continued and these grounds

diminished in pertinence, there was still a sufficient justification

for the continued detention for the purpose of Article 5 para. 3

(Art. 5-3) of the Convention (see No. 12325/86, Kemmache v.  France,

Comm.  Report ibid.).

85.     In that connection, the complexity of the case falls to be

considered first.  Thus, the Austrian authorities, for instance the

Linz Court of Appeal in its decisions of 19 June and 11 December 1985,

also referred to the great volume and complexity of the case and of

the extent of the investigations required when deciding on the

applicant's detention on remand.  Likewise, before the Commission the

respondent Government have also referred to the complexity of the

case.

86.     The Commission considers that the complexity of a case cannot

stem from the fact that a detainee has filed various requests to be

released from detention on remand, or that the courts concerned

regularly examine the necessity of prolonging his detention.

87.     In the present case the Commission notes that the criminal

proceedings instituted against the applicant comprised a number of

charges relating to fraud, in particular cheque fraud, and receiving

stolen goods.  The charges involved three other persons, at times of

unknown residence, and concerned banks in Austria and the Federal

Republic of Germany.  Investigations were also conducted with regard

to the offence of arson committed in Switzerland.

88.     In the Commission's opinion the charges in particular relating

to fraud would have necessitated investigations with regard to a

number of accounts of banks in different towns in the countries

concerned, often requiring proceedings of letters rogatory.  Moreover,

accomplices of the applicant were at times of unknown residence.

89.     The Commission is thus satisfied that the investigations

raised to some extent difficult questions of fact which may have

contributed to the duration of the proceedings.  Nevertheless, these

difficulties cannot in the Commission's opinion serve to justify the

applicant's continuing detention on remand for a period of 25 months.

90.     It remains to be considered whether the Austrian authorities

displayed the diligence required by the Convention in the case of a

detained person, in particular whether detention was not prolonged

unduly by the manner in which the case was conducted (see Schertenleib

v. Switzerland, Comm. Report, loc. cit. p. 197 et seq.).  The

Commission is thus called upon to review the authorities'

investigations of the case as well as the manner in which they dealt

with the complaints and appeals which the applicant filed in order to

obtain a more detailed preparation of the trial.

91.     The applicant contends that at the time of his indictment the

authorities had still not concluded various investigations.  The trial

was fixed for 11 June 1986 merely as thereafter detention on remand

could be imposed without a time-limit.

92.     The Government, referring to a time-chart of the proceedings,

submit that essentially the authorities pursued their investigations

throughout the applicant's detention on remand.

93.     The Commission notes that, after the applicant was transferred

to Salzburg prison on 22 January 1985, the investigating judge heard

him as to the reported facts on six occasions between 25 January and

1 February 1985 (see para. 25 above).  On 7 February 1985 the Swiss

authorities announced their interest in prosecuting the applicant.

On 19 February 1985 investigations were instituted with regard to

offences committed in Switzerland.

94.     However, between 19 February and 30 April 1985, i.e. during a

period of over two months, the authorities undertook no investigations.

95.     On 30 April 1985 the investigating judge heard the applicant

with regard to the co-accused J.M.  On 15 May and 24 June 1985,

information was requested from two German banks.

96.     There follows a further period of inactivity of three months

between 24 June and 24 September 1985.

97.     On 24 September 1984 the Regional Court extended the

preliminary investigations against the applicant to the offence of

arson.  His appeal against this decision was rejected by the Review

Chamber on 2 October 1985.  On the same day, the investigations were

closed.  On 7, 15 and 19 November 1985 the Regional Court granted the

applications of the Public Prosecutor's Office to continue the

preliminary investigations.

98.     Between 19 November 1985 and 2 January 1986 there is a third

period of inactivity of approximately one and a half months.

99.     On 2 January 1986 the investigating judge confronted the

applicant with a certain S.R.  On 22 January 1986 a final

interrogation of the applicant took place.

100.    Thereupon, the authorities undertook no investigations during

one month until 26 February 1986.

101.    On 26 February 1986 the preliminary investigations were

closed, and on 12 March 1986 the applicant was indicted.  His

objection thereto was dismissed by the Linz Court of Appeal on

11 April 1986.  On 30 April 1986 the case-file was transferred to the

trial judge who on 23 May 1986 ordered the hearing to take place on

11 June 1986.  On this day a hearing took place.  The hearing was then

adjourned.

102.    Here, there is a fifth period of inactivity lasting from

11 June until 24 July 1986, i.e. approximately one and a half months.

103.    On 24 July 1986 the Salzburg Regional Court contacted the

Vienna Regional Court as to Ch.B.  On 29 July 1986 a German court was

requested to transmit a decision.  The latter arrived on 18 August 1986.

104.    Between 18 August and 22 September 1986 a further month passed

during which the case was not actively pursued.

105.    On 22 September 1986 letters rogatory were transmitted to the

Swiss Federal Police and to a German court in respect of the witness

D.  The applicant's case-file was then sent to a forensic expert who

prepared an opinion in respect of J.M. on 8 October 1986.

106.    There follows a seventh period of inactivity of approximately

one month from 8 October until 12 November 1986.

107.    On 12 November 1986 the applicant unsuccessfully attempted to

discharge his official defence counsel.  On 3 December 1986 the

German court filed information as to the witness D.  On 12 and 16

December 1986 and on 22 January 1987 two constabularies and a Police

Direction were asked to provide the addresses of Ch.B. and S.R.  On

18 February 1987 the applicant was released.

108.    As a result, there is an overall period of approximately

eleven months during which the authorities did not actively pursue the

case.  This period of time appears substantial.

109.    It is true that in a case such as the present one, which

involved certain difficult elements of fact, time must also be allowed

for studying the case-file and the successive additions to it, for

preparing interrogations and for issuing requests for evidence on

letters rogatory.  Time must also be allowed for the routine work

which the judge does in his chambers.  All these elements will only be

indirectly reflected in the procedural documents (see Schertenleib v.

Switzerland, Comm.  Report, loc. cit. p. 198).

110.    Nevertheless even if due account is taken of such activities

which are not reflected in the procedural documents, the Commission

considers that they cannot justify the delays during all the periods

in which the authorities did not pursue the case.

111.    The Government submit that the applicant filed many requests

to be released from detention, at times immediately after the Linz

Court of Appeal had rejected a previous appeal, and is thus to some

extent himself responsible for the length of his detention.

112.    The Commission recalls that a distinction must be made between

applications for release which are in fact aimed at shortening the

period of detention, and other appeals which may delay the proceedings.

Applications for release from detention on remand do not justify delay

in bringing an accused to trial.  As regards the other appeals, if the

applicant has a choice between faster proceedings and a more detailed

preparation of the trial, he must, if he chooses the latter, bear the

consequences of his choice (see Schertenleib v.  Switzerland, Comm.

Report, loc. cit. p. 137 at p. 199 et seq.).

113.    In the present case the applicant filed a number of complaints

and appeals which must have led to delays in the proceedings.  Thus, he

unsuccessfully appealed against the decision of the Regional Court of

24 September 1985 which extended the investigations instituted against

the applicant.  The applicant also objected, though to no avail,

against the bill of indictment of 12 March 1986.  On 12 November 1986

the applicant unsuccessfully attempted to discharge his official

defence counsel.

114.    On the whole, the Commission considers that this conduct of

the applicant must have caused certain delays in the case coming to

trial.  The number of complaints and appeals nevertheless does not

appear excessive.

115.    The Commission therefore finds, having regard to the overall

length of the investigation and to the fact that the authorities do

not appear to have at all times acted with the necessary diligence and

expedition, that there was not a sufficient justification for the

continuation of the detention during the whole period at issue.

Consequently, the detention on remand exceeded a reasonable time

within the meaning of Article 5 para. 3 (Art. 5-3) of the Convention.

        b.  Conclusion

116.    The Commission concludes, by a unanimous vote, that there has

been a violation of Article 5 para. 3 (Art. 5-3) of the Convention in

that the applicant's detention on remand exceeded a reasonable time.

C.      Article 5 para. 4 (Art. 5-4) of the Convention

117.    Article 5 para. 4 (Art. 5-4) of the Convention provides:

"Everyone who is deprived of his liberty by arrest or detention

shall be entitled to take proceedings by which the lawfulness

of his detention shall be decided speedily by a court and his

release ordered if the detention is not lawful."

        a.  Compliance with Article 5 para. 4 (Art. 5-4) of the Convention

118.    The Government submit that the applicant's detention on remand

was the object of two different types of proceedings before the Linz

Court of Appeal.  In one type of proceedings, the Court of Appeal

decided as the only instance, upon application of the investigating

judge, whether or not to prolong the applicant's detention on remand.

In the other type of proceedings, the applicant filed a request to be

released from detention on remand.  Thereafter, first the Review

Chamber at the Salzburg Regional Court and, then, upon the applicant's

appeal, the Linz Court of Appeal decided on the applicant's request.

        1.  Appeal proceedings

            ------------------

119.    The Commission has first examined the proceedings whereby the

Court of Appeal decided, upon appeal, on the lawfulness of the

applicant's detention on remand.  This occurred on 22 January, 9 July,

20 August and 26 November 1986.  On 18 February 1987 the Linz Court of

Appeal decided to release the applicant.

120.    The applicant submits that these appeal proceedings did not

comply with the requirements of Article 5 para. 4 (Art. 5-4) of the

Convention. The Linz Court of Appeal decided in his absence on his

detention on remand whereas a member of the Senior Public Prosecutor's

Office was present and could reply to questions of the Court.

According to the principle of equality of arms the applicant should

have had the opportunity to comment on such replies.

121.    The Government submit with reference to the Neumeister case

that Article 5 para. 4 (Art. 5-4) of the Convention does not require a

full contradictory and oral procedure (see Eur.  Court H.R.,

Neumeister judgment of 27 June 1968, Series A no. 8, p. 44, para. 24).

Rather, the accused must at some stage have had the possibility of

participating in proceedings in which the lawfulness of his detention

is examined.  In the present case the applicant could at any time file

a request to be released from detention.  The resulting proceedings

before the Review Chamber were contradictory; the applicant or his

lawyer could be present and comment on statements made by the

investigating judge or the prosecuting authorities.  In the subsequent

appeal proceedings before the Linz Court of Appeal a member of the

Senior Public Prosecutor's Office was present but only replied to

questions rather than make statements or file requests.

122.    The Commission recalls the case-law of the Convention organs

according to which in matters of detention Article 5 para. 4

(Art. 5-4) of the Convention need not always be attended by the same

guarantees as in Article 6 para. 1 (Art. 6-1) of the Convention for

matters of civil or criminal litigation (see Eur.  Court H.R.,

Winterwerp judgment of 24 October 1979, Series A no. 33, p. 24, para.

60).  Nevertheless, it is essential in such proceedings, in which the

lawfulness of a person's detention on remand is reviewed, that the

person concerned has access to a court and is afforded the fundamental

procedural guarantees applied in matters of deprivation of liberty

(see Lamy v.  Belgium, Comm.  Report 8.10.87, para. 87, Eur.  Court

H.R., Series A no. 151, p. 23).

123.    Among these fundamental guarantees features the opportunity of

the person concerned to be heard by the court in person, or where

necessary through some form of representation (see Eur.  Court H.R.,

Winterwerp judgment, loc. cit.).  In addition, where the prosecuting

authorities are granted the possibility of consulting the file or

expressing their views in these proceedings, the person concerned must

have had the benefit of a "procedure that was really adversarial" (see

Eur.  Court H.R., Lamy judgment of 30 March 1989, Series A no. 151,

p. 17, para. 29; Sanchez-Reisse judgment of 21 October 1986, Series A

no. 107, p. 19, para. 51).

124.    In the present case, in the proceedings before the Linz Court

of Appeal a member of the Senior Public Prosecutor's Office was

present whereas the applicant and his lawyer were not.

125.    As regards the functions of the representative of the Senior

Public Prosecutor's Office before the Court of Appeal, the Commission

notes that the decisions of that Court were taken "after hearing the

Senior Public Prosecutor's Office" ("nach Anhörung der Oberstaats-

anwaltschaft").  The Government submit that in fact the latter only

replied to questions but did not make statements or file requests.

126.    The Commission considers that, by replying to questions from

the Court, the Senior Public Prosecutor's Office was able to put

forward views of the prosecuting authorities.  Since neither the

applicant nor his lawyer was present the applicant was deprived of the

possibility to plead his case and to address the Court on issues such

as whether there continued to exist a danger of committing further

offences or of absconding, or whether other more lenient measures were

called for instead of detention on remand.

127.    Thus, the procedure before the Court of Appeal did not afford

the applicant an opportunity of challenging appropriately the views

expressed by the Senior Public Prosecutor's Office.  Accordingly, he

did not have the benefit of a "procedure that was really adversarial"

as required by Article 5 para. 4 (Art. 5-4) of the Convention.

128.    The Government submit that the applicant's presence before the

Court of Appeal was not required as he had already been present in the

first instance proceedings before the Review Chamber at the Salzburg

Regional Court.

129.    The Commission notes that, once the lawfulness of a person's

detention has been examined by a court, there is no right under

Article 5 para. 4 (Art. 5-4) of the Convention to a second court

examination on appeal.  Nevertheless, where under domestic law such

appeal proceedings have been instituted and the investigating or

prosecuting authorities may present their views at an appeal hearing,

the detained person must be granted the same opportunity in order to

benefit from an adversarial procedure.

        2.  Proceedings brought by the investigating judge

            ----------------------------------------------

130.    Finally, the Commission turns to the proceedings before the

Linz Court of Appeal in which the latter decided, upon application of

the investigating judge, to prolong the applicant's detention on

remand.  The Commission refers here to the decisions of 19 June,

18 September and 11 December 1985 and 11 April 1986.  The applicant

was again not present in these proceedings.

131.    The Commission observes that the applicant frequently applied

to the Review Chamber to be released from detention on remand.  He was

thus "entitled to take proceedings" before a court in order to test

the lawfulness of his confinement within the meaning of Article 5

para. 4 (Art. 5-4) of the Convention.

132.    On the other hand, in the proceedings concerning the

prolongation of the applicant's detention, the Court of Appeal

determined the maximum possible period of detention on remand.  These

proceedings were conducted separately from and in addition to the

proceedings which the applicant was entitled to take within the

meaning of Article 5 para. 4 (Art. 5-4) of the Convention.

133.    In the Commission's opinion, therefore, the proceedings before

the Court of Appeal concerning the prolongation of the applicant's

detention fall outside the scope of Article 5 para. 4 (Art. 5-4)

of the Convention.

        b.  Conclusion

134.    The Commission concludes, by a unanimous vote, that there has

been a violation of Article 5 para. 4 (Art. 5-4) of the Convention in

that neither the applicant nor his lawyer was present at the appeal

proceedings before the Linz Court of Appeal concerning his requests to

be released from detention on remand.

D.      Recapitulation

135.    The Commission concludes, by a unanimous vote, that there has

been a violation of Article 5 para. 3 (Art. 5-3) of the Convention in

that the applicant's detention on remand exceeded a reasonable time

(para. 116).

        The Commission concludes, by a unanimous vote, that there has

been a violation of Article 5 para. 4 (Art. 5-4) of the Convention in

that neither the applicant nor his lawyer was present at the appeal

proceedings before the Linz Court of Appeal concerning his requests

to be released from detention on remand (para. 134).

    Secretary to the Commission        Acting President of the Commission

           (H.C. KRÜGER)                          (S. TRECHSEL)

        Concurring separate opinion of Mr.  H.G. SCHERMERS and

                      Mesdames G.H. THUNE and J. LIDDY

        We agree that in the present case there has been a violation

of Article 5 para. 4 of the Convention in that neither the applicant

nor his lawyer was present at the appeal proceedings before the Linz

Court of Appeal concerning his requests to be released from detention

on remand.

        However, we consider that the proceedings before the Linz

Court of Appeal concerning the prolongation of the applicant's

detention on remand do not fall outside the scope of Article 5 para. 4

of the Convention (see para. 133 of the Report).

        It is clear that according to the relevant decisions of the

Linz Court of Appeal the latter examined the various conditions under

Austrian law as to the lawfulness of the applicant's detention, namely

the suspicion that he had committed the offences at issue and whether

there existed a danger of his committing further offences or of

absconding.

        We are therefore satisfied that the Linz Court of Appeal in

fact reviewed the lawfulness of the applicant's detention on remand

within the meaning of Article 5 para. 4 of the Convention.  As a

result, it must be examined whether these proceedings complied with

the requirements under this provision.

        It is not in dispute between the parties that the applicant

was not present in the proceedings before the Court of Appeal.  On the

other hand, it has also not been claimed that other parties were

present in these proceedings.  The decisions of the Court of Appeal,

while stating that the Court decided upon application of the

investigating judge, make no reference to other parties.

        We consider that the issues examined by the Court of Appeal,

namely whether there existed in the applicant's case a danger of

absconding and of committing further offences, were of direct

relevance to the prolongation of the applicant's detention.  It would

thus have been essential for him to be present in these proceedings in

order to put forward his own case as to the lawfulness of his

detention.  In addition it would have been important for him to

challenge any grounds mentioned by the investigating judge in his

application which militated in favour of prolonging the applicant's

detention on remand.

        Accordingly, the applicant was not afforded fundamental

guarantees required in matters of deprivation of liberty, namely his

presence in the proceedings, as required by Article 5 para. 4 of the

Convention.

        We thus conclude that there has also been a violation of

Article 5 para. 4 of the Convention in that the applicant was not

present at the proceedings before the Linz Court of Appeal concerning

the prolongation of his detention on remand and his requests to be

released from detention on remand.

                                APPENDIX I

                         HISTORY OF PROCEEDINGS

Date                    Item

__________________________________________________________________

12 October 1985         Introduction of the application

10 December 1985        Registration of the application

Examination of admissibility

7 July 1987             Rapporteur's request for information

                        from the Government

21 September 1987       Government's information

12 October 1987         Applicant's comments in reply

9 March 1988            Commission's decision to invite the

                        Government to submit observations on

                        the admissibility and merits of the

                        application

31 May 1988             Government's observations

18 July 1988            Applicant's observations in reply

15 December 1988        Commission's decision to invite the Government

                        to submit further observations and to invite

                        the parties to a hearing on the admissibility

                        and merits of the application concerning

                        issues under Article 5 paras. 3 and 4 of the

                        Convention

10 February 1989        Government's further observations

13 March 1989           Applicant's further observations in reply

8 May 1989              Hearing and Commission's decision to declare

                        the application partly admissible

Examination of the merits

10 July 1989            Government's supplementary observations

26 July 1989            Applicant's supplementary observtions

7 October 1989 and      Commission's consideration of the state

10 February 1990        of the proceedings

7 June 1990             Commission's deliberations on the merits

                        and final vote

3 July 1990             Commission's adoption of the Report