AS TO THE ADMISSIBILITY OF

                      Application No. 28475/95

                      by Christian GRATZER

                      against Austria

     The European Commission of Human Rights (First Chamber) sitting

in private on 2 July 1997, the following members being present:

           Mrs.  J. LIDDY, President

           MM.   M.P. PELLONPÄÄ

                 E. BUSUTTIL

                 A. WEITZEL

                 C.L. ROZAKIS

                 L. LOUCAIDES

                 B. CONFORTI

                 N. BRATZA

                 I. BÉKÉS

                 G. RESS

                 A. PERENIC

                 C. BÎRSAN

                 K. HERNDL

                 M. VILA AMIGÓ

           Mrs.  M. HION

           Mr.   R. NICOLINI

           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 17 July 1995 by

Christian GRATZER against Austria and registered on 8 September 1995

under file No. 28475/95;

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

of Procedure of the Commission;

     Having deliberated;

     Decides as follows:

THE FACTS

     The applicant is an Austrian citizen, born in 1971 and residing

in Voitsberg. Before the Commission he is represented by Mr. M. Zoller,

a lawyer practising in Innsbruck.

     The facts of the case, as they have been submitted by the

applicant, may be summarised as follows.

A.   Particular circumstances of the case

     On 10 March 1995 the Investigating Judge at the Innsbruck

Regional Court (Landesgericht) heard the applicant, who was suspected

of having committed various counts of fraud and burglary. The

applicant, having been informed of the suspicion against him, stated

that he could understand that the court investigated these charges and

that he was willing to make a statement. After having heard the

applicant the Investigating Judge ordered that the applicant be taken

into detention on remand and stated that this decision was valid until

21 March 1995. The Investigating Judge found that there was a serious

suspicion that the applicant had committed theft and burglary and that

there existed a danger of absconding and the applicant committing

further offences of the same kind. The applicant waived his right to

appeal, requested that an ex-officio defence counsel be appointed for

him and stated that nobody needed to be informed about his detention

on remand.

     On the same day the Investigating Judge ordered that an ex-

officio defence counsel be appointed for the applicant. The

Investigating Judge also fixed a hearing on the continuation of the

detention on remand (Haftverhandlung) for 20 March 1995 and ordered

that the Public Prosecutor, the defence counsel to be appointed for the

applicant and the applicant himself be summoned to the hearing. On

15 March 1995 the Tyrol Bar Association appointed Mr M.L. as the

applicant's defence counsel.

     On 20 March 1995 the hearing on the continuation of the detention

on remand took place in the presence of the Public Prosecutor, the

applicant and his defence counsel. The Investigating Judge ordered the

continuation of the applicant's detention on remand until

20 April 1995.

     On 19 April 1995 a further hearing on the continuation of the

applicant's detention on remand took place in the presence of the

Public Prosecutor, the applicant and his defence counsel. The

Investigating Judge ordered the continuation of the applicant's

detention on remand until 19 June 1995.

     On 21 April 1995 the applicant, assisted by his defence counsel,

filed an appeal.  He submitted that his social worker

(Bewährungshelfer) had been summoned neither to the hearing on

20 March 1995 nor to the hearing of 19 April 1995.  The applicant's

defence counsel had discovered this when he had inspected the file on

13 April 1995. However, a social assistant had been appointed for him

after his release from prison on 30 August 1994 and it was mandatory

under Section 182 para. 1 of the Code of Criminal Procedure that the

social worker be summoned to the hearings. His detention on remand was

therefore unlawful. Furthermore it was not clear from the transcript

of the applicant's questioning by the Investigating Judge on

10 March 1995 that he had been sufficiently informed of his rights.

     On 9 May 1995 the Court of Appeal dismissed the appeal. It found

that under Section 182 para. 1 of the Code of Criminal Procedure a

social worker had to be informed of the hearing but need not be

summoned. The Investigating Judge had failed to inform the social

worker of the hearing but this failure did not render the Investigating

Judge's order unlawful. The Court of Appeal had made additional

enquiries and according to information given by the social worker by

phone, she had only seen the applicant once and he had later been

unavailable to her. She could not comment in any way on the applicant's

detention on remand. As regards the suspicion against the applicant,

the Court of Appeal found that this suspicion was partly based on the

police investigations and partly on the applicant's own confession. As

regards the reasons for detention on remand, the Court of Appeal noted

that the applicant had not raised doubts as to the existence of a risk

of his absconding and of his committing further offences. As regards

the submission that the applicant had not been properly informed of his

rights, the Court of Appeal found that it was clear from the transcript

of the questioning that the applicant had been sufficiently informed

of the suspicion against him and of his right to remain silent or to

make a statement.

     On 16 May 1995 the applicant filed a fundamental rights complaint

(Grundrechtsbeschwerde) with the Supreme Court (Oberster Gerichtshof)

against the above decision. He complained that his social worker had

not been summoned to the hearing which constituted a serious procedural

mistake which could not be remedied by a simple phone call. In his view

the law unambiguously required the summoning of a social worker. The

mere fact that the law used another word, namely "to inform"

(verständigen) instead of "to summon" (laden) was not decisive. He

further maintained that he had not been sufficiently informed by the

Investigating Judge about his right to request the assistance of a

defence counsel and his right to remain silent.

     On 1 June 1995 the Supreme Court dismissed the complaint. It

found that it was not required to deal with the complaints concerning

the allegedly incomplete information of the applicant on his rights,

as the applicant had not appealed against the decisions of

10 March 1995 and 20 March 1995. The fact that the Court of Appeal, in

an obiter dictum, had commented on these complaints was irrelevant.

     As regards the applicant's further complaint, the Supreme Court

found that under the Code of Criminal Procedure the social worker had

to be informed about a hearing on the continuation of detention on

remand. The Investigating Judge's failure to inform the applicant's

social worker did not, in the circumstances of the case, infringe the

applicant's rights. The applicant had not contested that there existed

reasons for his detention on remand and he or his defence counsel, at

latest at the hearing itself, had had the possibility of drawing the

Investigating Judge's attention to the failure to inform the social

worker and of requesting the Investigating Judge to remedy this

mistake. The applicant had failed to substantiate in his fundamental

rights complaint how the absence of his social worker at the hearing

could have raised doubts as to the existence of grounds for detention

on remand. In these circumstances it was not necessary to consider the

fact that on the occasion of ordering his detention on remand the

applicant had stated that nobody need to be informed about his arrest.

B.   Relevant domestic law

1.   Detention on remand

     On 1 January 1994 the Code of Criminal Procedure Amendment Act

(Strafprozeßrechtsänderungsgesetz) entered into force which changed

some of the provisions governing detention on remand. The following

description takes these changes into account.

     Under Section 180 paras. 1 and 2 of the Code of Criminal

Procedure (Strafprozeßordnung), a person may be held in detention on

remand if there are serious grounds for suspecting him of having

committed a criminal offence and if there is a risk of his absconding,

of collusion or of his committing further offences.

     Section 181 of the Code of Criminal Procedure provides that

decisions ordering or prolonging detention on remand are only valid

within a certain time-limit, the expiry of which has to be mentioned

in the decision. Before the expiry of the time-limit there must either

be a hearing for the review of the detention order (Haftverhandlung)

or the accused has to be released (paragraph 1).

     Detention on remand may for the first time be ordered for a

period of 14 days, it may be prolonged the first time for one month and

thereafter repeatedly for two months.  Before any prolongation a

hearing (Haftverhandlung) before the Investigating Judge must take

place. Section 194 provides for a maximum duration of detention on

remand.  Detention on remand may last up to two months if it is based

only on a danger of collusion.  If it is based on other grounds, it may

last up to six months if the suspicion concerns a minor criminal

offence (Vergehen), up to one year if it concerns a crime (Verbrechen)

for which the minimum sanction is five years imprisonment, and two

years for the most serious crimes. If detention on remand would exceed

six months, the court ordering detention on remand must show that the

prolongation of detention on remand is necessary because of the

particular complexity of the case or because of the need for extensive

investigations. After the maximum duration of detention on remand has

expired a person may be taken again into detention on remand for a

period not exceeding six weeks if the bill of indictment has been

served on him or her and if the detention is necessary to secure his

or her appearance before the trial court.

     Before deciding on the prolongation of detention on remand the

Investigating Judge has to hold a hearing in accordance with

Section 182 paras. 1 to 3. Against the Investigating Judge's decision

an appeal can be lodged with the Court of Appeal within three days

(Section 182 para. 4). A detainee may waive his right to a hearing if

two hearings have already taken place (Section 181 para. 5).

     Section 182 paras. 1 to 3 read as follows:

     "1.   The hearing on the issue of detention is conducted by the

     Investigating Judge. It shall be non-public. The suspect, his

     defence lawyer, the Public Prosecutor and the social worker have

     to be informed of the date.

     2.    The suspect must be brought to the hearing, unless this is

     impossible because of an illness of the suspect. He or she must

     be assisted by counsel.

     3.    The hearing starts with the Public Prosecutor's

     presentation of the request for continuation of detention on

     remand and the reasons for this request. The suspect and the

     defence counsel have the right to reply thereto. The social

     worker may give his or her view on the issue of detention. The

     parties may request the court to make further findings on the

     basis of the case file. The Investigating Judge may, ex-officio

     or on request of the parties, hear witnesses or take other

     evidence if he or she finds it appropriate; the parties have the

     right to ask questions. The hearing must not endanger the purpose

     of the criminal investigations. The suspect or his defence

     counsel has the right to make the last statement. Thereupon the

     Investigating Judge decides whether detention on remand should

     be prolonged; this decision shall be pronounced orally and

     subsequently issued in writing. ..."

     The accused may, at any time, lodge an application for release

with the Investigating Judge (S. 193 para. 5). If the public prosecutor

does not oppose the application, the detained person must be released.

If the public prosecutor opposes it, the Investigating Judge must fix

a hearing without delay.

     According to Section 179 para. 1 every person arrested must be

heard by the Investigating Judge within 48 hours following his or her

arrest. At the beginning of the interrogation the Investigating Judge

has to inform the arrested person about the suspicion against him or

her and that he or she is free to remain silent or to make a statement

and to contact a defence counsel.

2.   Fundamental Rights Complaint Act (Grundrechtsbeschwerdegesetz)

     Under this act, which entered into force on 1 January 1994, every

detained person may lodge a complaint to the Supreme Court, which has

to examine whether the fundamental right to personal freedom, as

guaranteed by the Constitutional Act on Personal Freedom

(Bundesverfassungsgesetz über den Schutz der persönlichen Freiheit) and

Article 5 of the Convention, has been violated by a decision of a

criminal court. If the Supreme Court has found a violation, the court

concerned must take immediately the necessary steps for complying with

the decision. The person complaining must exhaust existing remedies and

lodge the complaint within a time-limit of 14 days. The complaint must

be presented by a lawyer and legal aid is available for such

proceedings.

COMPLAINTS

1.   The applicant complains under Article 5 para. 1 (c) of the

Convention that his detention on remand was unlawful because the

Investigating Judge had failed to summon his social worker to the

hearings on the continuation of his detention on remand.

2.   He further complains under Article 6 of the Convention that the

criminal proceedings against him are unfair because the Investigating

Judge who questioned him on 10 March 1995 did not inform him

sufficiently on his right to remain silent and to contact a defence

lawyer, as required by Section 179 para. 1 of the Code of Criminal

Procedure.

THE LAW

     The applicant complains that his detention on remand was unlawful

because the Investigating Judge had failed to summon his social worker

to the hearings on the continuation of his detention on remand. He

relies on Article 5 para. 1 (c) (Art. 5-1-c) of the Convention which

reads as follows:

     "1.   Everyone has the right to liberty and security of person.

     No one shall be deprived of his liberty save in the following

     cases and in accordance with a procedure prescribed by law:

           ...

           c.    the lawful arrest or detention of a person effected

     for the purpose of bringing him before the competent legal

     authority on reasonable suspicion of having committed an offence

     or when it is reasonably considered necessary to prevent his

     committing an offence or fleeing after having done so ..."

     The Commission recalls that on the question whether detention is

"lawful", including whether it complies with "a procedure prescribed

by law", the Convention refers back essentially to national law and

lays down the obligation to conform to the substantive and procedural

rules thereof. However, it requires in addition that any deprivation

of liberty should be consistent with the purpose of Article 5 (Art. 5),

namely to protect individuals from arbitrariness (Eur. Court HR,

Wassink v. the Netherlands judgment of 27 September 1990, Series A no.

185-A, p. 11, para. 24; Quinn v. France judgment of 22 March 1995,

Series A no. 311, pp. 18-19, para. 47). The national courts are

normally in a better position than the Convention institutions to

determine whether domestic law has been complied with (Eur. Court HR,

Quinn v. France judgment, loc. cit.)

     In the present case, the Court of Appeal and the Supreme Court

found that the failure to inform the applicant's social worker of the

hearings on the continuation of his detention on remand while not

entirely in accordance with the relevant provisions of the Code of

Criminal Procedure did not render his detention on remand unlawful. The

Supreme Court carefully examined the particular circumstances of the

case. It noted in particular the following elements: the applicant had

not contested the existence of reasons for his detention on remand; he

or his defence counsel could have requested the hearing of the social

worker; the social worker who had been contacted by the Court of Appeal

had stated that she could not make any statements with regard to the

grounds for detention on remand; the applicant had failed to

substantiate in his fundamental rights complaint how the absence of his

social worker could have raised any doubts as to the existence of

reasons for detention on remand.

     The Commission further notes that neither at the time when the

Investigating Judge ordered the applicant's detention on remand, nor

at any of the subsequent hearings did the applicant request that his

social worker be informed of his detention on remand or that she be

present at the hearings. According to the submissions of the

applicant's defence counsel made in the domestic proceedings, he had

become aware of the court's failure to inform the social worker about

the hearing on 13 April 1995 while the hearing took place on

19 April 1995.

     The Commission finds that in these circumstances there is no

appearance that the applicant's detention on remand has not been

ordered in accordance with the law as required by Article 5 para. 1 (c)

(Art. 5-1-c) 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.

2.   The applicant further complains under Article 6 (Art. 6) of the

Convention that the criminal proceedings against him are unfair because

the Investigating Judge who questioned him on 10 March 1995 did not

inform him sufficiently on his right to remain silent and to contact

a defence lawyer.

     Article 6 para. 1 (Art. 6-1) of the Convention, insofar as

relevant, reads as follows:

     "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."

     The Commission finds that this part of the application does not

relate to the applicant's detention on remand but to the criminal

proceedings pending against him.

     The Commission recalls that it can only assess the fairness of

criminal proceedings when it is able to consider them in their entirety

(No. 9000/80, Dec. 11.3.82, D.R. 28, p. 127; No. 16156/90, Dec. 7.6.90,

unpublished).  Moreover, an acquittal will normally be regarded as

rectifying procedural errors alleged to have violated the Convention

(No. 5575/72, Dec. 8.7.74, D.R. 1, p. 44; No. 8083/77, Dec. 13.3.80,

D.R. 19, p. 223).

     The Commission notes that the applicant has not shown that in the

criminal proceedings pending against him he has been convicted and that

this conviction has become final.  Until these proceedings have

finished, with the exhaustion of domestic remedies as required by

Article 26 (Art. 26) of the Convention, it is not possible to consider

whether Article 6 (Art. 6) has been complied with in this respect, or

whether any alleged violations that may have taken place have been

remedied by a subsequent acquittal.

     This part of the application is therefore premature and must be

rejected as manifestly ill-founded within the meaning of Article 27

para. 2 (Art. 27-2) of the Convention.

     For these reasons, the Commission, unanimously,

     DECLARES THE APPLICATION INADMISSIBLE.

     M.F. BUQUICCHIO                              J. LIDDY

        Secretary                                 President

   to the First Chamber                      of the First Chamber