AS TO THE ADMISSIBILITY OF

                      Application No. 21444/93

                      by Rudolf-Peter ÖHLINGER

                      against Austria

     The European Commission of Human Rights sitting in private on

2 July 1996, the following members being present:

           MM.   S. TRECHSEL, President

                 H. DANELIUS

                 C.L. ROZAKIS

                 E. BUSUTTIL

                 G. JÖRUNDSSON

                 A.S. GÖZÜBÜYÜK

                 A. WEITZEL

                 J.-C. SOYER

           Mrs.  G.H. THUNE

           Mr.   F. MARTINEZ

           Mrs.  J. LIDDY

           MM.   L. LOUCAIDES

                 J.-C. GEUS

                 G.B. REFFI

                 M.A. NOWICKI

                 B. CONFORTI

                 I. BÉKÉS

                 J. MUCHA

                 D. SVÁBY

                 G. RESS

                 A. PERENIC

                 C. BÎRSAN

                 P. LORENZEN

                 K. HERNDL

                 E. BIELIUNAS

           Mr.   H.C. KRÜGER, Secretary to the Commission

     Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

     Having regard to the application introduced on 23 November 1992

by Rudolf-Peter ÖHLINGER against Austria and registered on

26 February 1993 under file No. 21444/93;

     Having regard to :

-    the reports provided for in Rule 47 of the Rules of Procedure of

     the Commission;

-    the observations submitted by the respondent Government on 27

     January 1995 and the observations in reply submitted by the

     applicant on 11 February 1995 and 26 April 1995;

     Having deliberated;

     Decides as follows:

THE FACTS

     The applicant is an Austrian citizen born in 1946.  He is

retired.  In the proceedings before the Commission he is represented

by Mr. H. Hofstätter, a lawyer practising in Graz.

A.   Particular circumstances of the case

     The facts, as they have been submitted by the parties, may be

summarised as follows.

     On 29 August 1990 the Investigating Judge at the Ried Regional

Court (Kreisgericht) issued an oral warrant of arrest against the

applicant on the ground that he was suspected of having severely

injured and threatened a third person.

     On the same day, the applicant was arrested, brought to the

Mining Police Station and taken in provisional detention (Verwahrungs-

haft).  The applicant was questioned by police officers and then

brought to the Ried Regional Court's Detention Centre

(Kreisgerichtliches Gefangenenhaus).

     Later in the day the Investigating Judge issued the written

warrant of arrest and dispatched it to the Mining Police Station, where

it arrived on 31 August 1990 and was filed.

     On 30 August 1990 the Investigating Judge questioned the

applicant and informed him about the suspicion which existed against

him.  The Judge then decided to institute preliminary investigations

(Voruntersuchung) against the applicant.  On the same day, the

Investigating Judge further ordered, upon the Public Prosecutor's

request, that the applicant be taken into detention on remand.  The

Judge found that a danger of collusion and of the applicant committing

further offences existed.  He noted in particular that the applicant

had already been convicted several times of similar offences, and that,

as the investigations were not yet concluded, the danger existed that

the applicant would hinder the investigations or influence witnesses.

     The applicant, after having been informed about the above

decisions and his right to appeal, waived his right to file complaints

both against the detention on remand (Haftbeschwerde) and against the

institution of preliminary investigations.

     On 9 November 1990 the Public Prosecutor's Office lodged the bill

of indictment (Anklageschrift).  On the same day, the applicant filed

an objection (Einspruch) against the bill of indictment, stating that

he would appoint a defence counsel later.

     On 28 November 1990 the Linz Court of Appeal (Oberlandesgericht),

in private session and after having heard the Senior Public Prosecutor,

dismissed the applicant's objection and ordered the prolongation of his

detention on remand.

     As of 29 November 1990 the applicant was assisted by an

officially appointed defence counsel.

     On 12 December 1990 the Judges' Chamber (Ratskammer) at the Ried

Regional Court dismissed a complaint by the applicant of

30 November 1990, challenging inter alia the belated appointment of a

defence counsel and the lack of a review of his detention on remand

(Haftprüfungsverhandlung) after the expiry of the two months' time

limit under SS. 82 and 194 para. 3 of the Code of Criminal Procedure

(Strafprozessordnung).  The Judges' Chamber also dismissed the

applicant's complaint that he had not been served with a written copy

of the warrant of arrest.

     On 9 January 1991 the Ried Regional Court convicted the applicant

of, inter alia, having caused bodily harm and threatening and of an

offence against the Firearms Act (Waffengesetz).  The applicant was

sentenced to eighteen months' imprisonment.  The period of his

detention on remand was deducted from the sentence.  The applicant

filed a plea of nullity (Nichtigkeitsbeschwerde) and an appeal against

sentence (Berufung).

     On the same day the Ried Regional Court dismissed the applicant's

application for release.

     On 1 February 1991 the Linz Court of Appeal dismissed the

applicant's appeal against the decision of the Ried Regional Court

refusing to release him, as there remained a danger of the applicant

committing further offences.

     However, the Court of Appeal found that the Ried Regional Court

had failed to question the applicant on the grounds for taking him into

detention on remand, to appoint an official defence counsel in time,

to review the applicant's detention, to serve the written warrant of

arrest and to issue a written copy of the decision ordering detention

on remand within the time limit prescribed by the Code of Criminal

Procedure.  The Court of Appeal thus considered that a detention under

such circumstances, and especially the lack of a written decision

ordering detention on remand, severely infringed the Code of Criminal

Procedure and came close to an arbitrary deprivation of liberty.

Therefore, having regard to its supervisory duties (Aufsichtspflicht),

expressly invited the Ried Regional Court to comply with the provisions

of the Code of Criminal Procedure.

     On 8 February 1991 the applicant was served with the written

warrant of arrest of 29 August 1990 and with the decision ordering his

detention on remand of 30 August 1990.

     On 7 May 1991 the Supreme Court (Oberster Gerichtshof) rejected

the applicant's plea of nullity against his conviction as partly

manifestly ill-founded and partly insufficiently substantiated.  The

case was referred to the Linz Court of Appeal for a decision on the

appeal against sentence.

     On 17 June 1991 the Linz Court of Appeal partly granted the

applicant's appeal and reduced the sentence to twelve months'

imprisonment.

     On 4 July 1991 the applicant's counsel, invoking Article 5

para. 5 of the Convention, requested the Attorney General's Department

(Finanzprokuratur) to pay the applicant compensation for unlawful

detention on remand.

     On 2 October 1991 the Attorney General's Department refused the

applicant's claim.  It referred to S. 3 (b) of the Criminal Proceedings

Compensation Act (Strafrechtliches Entschädigungsgesetz), pursuant to

which no right for compensation for unlawful detention arises if the

time a person spent in detention on remand is deducted from the

sentence.

     On 9 October 1991 the applicant, represented by counsel filed an

official liability action (Amtshaftungsklage) with the Linz Regional

Court (Landesgericht) regarding the belated serving of the warrant of

arrest, the lack of appointment of a defence counsel and the lack of

an automatic review of the detention on remand.

     On 20 November 1991 the Linz Regional Court, after having held

a hearing, dismissed the applicant's claim.

     The Court first considered that, contrary to S. 176 of the Code

of Criminal Procedure, the applicant had not been served with a written

copy of the warrant of arrest within 24 hours.  However, since the

applicant was questioned within these 24 hours by the Investigating

Judge, who subsequently ordered that he be detained on remand, the

requirement relating to the serving of the warrant of arrest was

reduced to a mere formality.  Insofar as the applicant complained of

the belated service of the decision ordering his detention on remand,

the Court observed that this question was not part of the compensation

proceedings, and that anyway the applicant had not filed a complaint

in this respect with the Judges' Chamber.

     The Court further found that the Ried Regional Court's failure

to appoint a defence counsel violated the Code of Criminal Procedure.

However, the applicant had not shown that there was a causal link

between the prolongation of the detention on remand and the failure to

designate a lawyer, and thus had not substantiated any resulting

damage.  Moreover, the applicant could also have brought applications

for his release and had not asserted that he was, for lack of legal

knowledge, unable to file such a remedy.

     The Court also noted the Regional Court's failure to hold, ex

officio, a hearing on the applicant's release.  It considered that the

continuation of the applicant's detention on remand without any

judicial body reviewing it was unlawful and in breach of the

Convention.  However, the Court refused to award compensation, as the

applicant had not shown that he had suffered any damage.  It noted that

the detention on remand had been confirmed upon appeal, and had

subsequently been deducted from the sentence imposed by the Ried

Regional Court.  Detention on remand under such circumstances could not

have caused any psychological damage exceeding that of the

corresponding detention to which the applicant had eventually been

sentenced.

     On 12 May 1992 the Linz Court of Appeal dismissed the applicant's

appeal.  The Court of Appeal considered that the applicant could not

claim that the failure to inform him in writing of the reasons of his

detention had caused any psychological harm.  The Court also observed

that the applicant had always been fully aware of the criminal

character of his actions as evidenced by the judgment of the court

convicting him.  Anyway, any potential harm would have been compensated

by the deduction from the sentence.  Moreover, the above breach of the

Code of Criminal Procedure, which occurred after a lawful deprivation

of liberty, was a merely procedural error, since his detention was

otherwise entirely justified.

     On 7 October 1992 the Supreme Court dismissed the applicant's

further appeal on points of law (ordentliche Revision).  The Court

confirmed the findings of the lower courts as to the violations of the

provisions of the Code of Criminal Procedure complained of, as well as

their reasoning that these breaches had not caused any damage to the

applicant.  The Court further noted that throughout the applicant's

detention on remand, a written warrant of arrest existed, which had not

been served in due time.  Thus, the applicant's case was different from

a case in which a warrant of arrest had not even been issued. In any

event, the Supreme Court considered that the applicant had not been

able to offer convincing evidence for his assertion that no damage

would have occurred, if the Ried Regional Court had observed the

existing legal rules.

B.   Relevant domestic law and practice

1.   Detention on remand and procedural safeguards

     According to S. 12 para. 1 of the Code of Criminal Procedure

(Strafprozessordnung), as applicable at the relevant time, the Judges'

Chamber (Ratskammer) at the first instance court supervises all

measures taken by the Investigating Judge  during the preliminary

investigations.

     S. 113 provides in particular that anybody affected by a decision

taken by the Investigating Judge or a delay caused by him in the course

of preliminary investigations may apply for review by the Judges'

Chamber.

     According to S. 175 para. 1 the Investigating Judge may order

that a suspect be brought before the court (Vorführung) or be

provisionally detained (vorläufige Verwahrung), in particular if the

suspect was apprehended in or shortly after the commission of a

criminal offence, if he has absconded or if there is a risk of his

absconding, of collusion or of his committing further offences.  In

such cases the Investigating Judge has to issue a written warrant of

arrest which has to be served upon the suspect at the time of his

arrest or within the following twenty-four hours (S. 176 para. 1).

     S. 177 provides that, exceptionally, provisional detention of a

suspect may be ordered orally by a judge not competent for the case or

by the police authorities (Sicherheitsbehörden) for the purpose of

bringing him before the Investigating Judge, where the suspect was

apprehended in or shortly after the commission of a criminal offence,

or where, in cases of a risk of his absconding, of collusion or of

committing further offences, there is imminent danger (Gefahr im

Verzug). The person provisionally detained must be questioned without

delay by the judge or the police authorities and, in the absence of a

reason justifying his further detention, be released, or be transferred

to the competent court within forty-eight hours.

     S. 179 para. 1 states that any suspect transferred to the court

or brought before the court upon an order of the Investigating Judge

must be questioned by the Investigating Judge within twenty-four hours.

According to S. 179 para. 2, first sentence, the Investigating Judge,

having questioned the suspect, must immediately decide upon his release

or his detention on remand (Untersuchungshaft).

     Under S. 180 paras. 1 and 2 a person may be held in detention on

remand - where there are serious grounds for suspecting him of having

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

of collusion or of his committing further offences.

     According to S. 182 a detainee who has been remanded in custody

for two months has, for the following period of his detention, to be

assisted by an officially appointed defence counsel, unless he has

already chosen counsel himself.

     By virtue of SS. 194 and 195, it is open to the suspect to apply

for release (Haftprüfungsverhandlung) at any time.  Such an application

and any appeal against a decision ordering detention on remand have to

be examined by the Judges' Chamber at a private hearing in the presence

of the accused or his defence counsel.  According to S. 194 para. 3 the

Judges' Chamber automatically reviews the detention when it has lasted

two months or when three months have elapsed since the last hearing and

the accused does not have a lawyer.  The detainee cannot waive his

right to such an automatic review, unless he is assisted by counsel.

     According to S. 210 para. 3 of the Code of Criminal Procedure,

the Court of Appeal, in private session, after having heard the Senior

Public Prosecutor, decides on the suspect's objection against the bill

of indictment (Einspruch gegen die Anklageschrift).  By virtue of S.

214 para. 2, this Court also examines ex officio the necessity of the

detention, if the suspect is still remanded in custody.

     Detention on remand comes to an end, at the latest, when the

sentence has become final and the accused begins to serve it.  The time

spent on remand is automatically deducted (S. 38 of the Criminal Code).

2.   Compensation for detention

     The unlawfulness of a detention has to be established in

proceedings under the Criminal Proceedings Compensation Act

(Strafrechtliches Entschädigungsgesetz).  However, according to S. 3

(b) of this Act, no right to compensation arises if the period of

detention on remand is taken into account in the sentence.

     According to the practice of the Austrian courts, compensation

under Article 5 para. 5 of the Convention has to be claimed in civil

proceedings under the Official Liability Act (Amtshaftungsgesetz).  In

order to be granted compensation, it need to be established that a

material or non-material damage occurred due to an unlawful act of one

of the State's organs.

COMPLAINTS

     The applicant complains that he was arrested on 29 August 1990

without being served a written warrant of arrest, taken in detention

on remand on 30 August 1990 without being served the written decision

ordering his detention and that he was not informed of the reasons for

his detention.  He further complains that he did not have a hearing on

his release from detention on remand and that he was not given defence

counsel in due time.  He also complains that the Austrian authorities

refused his compensation claim regarding his detention on remand.  He

does not expressly invoke any provisions of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

     The application was introduced on 23 November 1992 and registered

on 26 February 1993.

     On 12 October 1994 the Commission decided to communicate the

application to the respondent Government, pursuant to Rule 48

para. 2 (b) of the Rules of Procedure.

     On 7 December 1994 the Commission granted the applicant legal

aid.

     The Government's written observations were submitted on 27

January 1995.

     On 11 February 1995 the applicant submitted observations in

reply.  On 26 April 1995 these observations were supplemented by

counsel after the time-limit set for this purpose had expired.

THE LAW

1.   The applicant complains that he was arrested on 29 August 1990

without being served a written warrant of arrest, taken in detention

on remand on 30 August 1990 without being served the written decision

ordering his detention and that he was not informed of the reasons for

his detention.  He further complains that he did not have a hearing on

his release from detention on remand and that he was not given defence

counsel in due time.

     The Commission considers that these submissions could raise

questions under Article 5 (Art. 5) of the Convention, namely whether

the applicant's detention on remand was "lawful" and "in accordance

with a procedure prescribed by law" (paragraph 1 (c)), whether he was

informed promptly of the reasons for his arrest and of any charge

against him (paragraph 2), and whether he had at his disposal judicial

proceedings for the review of his detention (paragraph 4).

     Article 5 (Art. 5) of the Convention, insofar as relevant, 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;

     ...

     2.    Everyone who is arrested shall be informed promptly, in a

     language which he understands, of the reasons for his arrest and

     of any charge against him.

     ...

     4.    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."

2.   The Government submit that the applicant cannot claim to be a

victim of an alleged violation of the above provisions of the

Convention, as the competent Austrian courts had expressly acknowledged

that the Ried Regional Court had infringed provisions of the Code of

Criminal Procedure.  They had found that the latter court had failed

to serve the applicant within twenty-four hours with a copy of the

written warrant of arrest, stating the reasons for his arrest, and to

fix a date for the ex officio review of his detention on remand after

a period of two months.

     This is disputed by the applicant.

     Under Article 25 para. 1 (Art. 25-1) of the Convention the

Commission "may receive petitions ... from any person ... claiming to

be a victim of the rights and freedoms set forth in (the) Convention".

An applicant can no longer claim to be a victim within the meaning of

Article 25 (Art. 25) when the national authorities have acknowledged

either expressly or in substance, and then afforded redress for, the

breach of the Convention (cf. Eur. Court H.R., Eckle judgment of 15

July 1982, Series A no. 51, p. 30, para. 66; De Jong, Baljet and Van

den Brink judgment of 22 May 1984, Series A no. 77, p. 20, para. 41;

No. 10668/83, Dec. 13.5.87, D.R. 52, p. 177; No. 13020/87, Dec.

13.4.88, D.R. 56 p. 264).  It falls first to the national authorities

to redress any alleged violation of the Convention.  As in many cases

the violation itself can no longer be wiped out with retroactive

effect, only reparation will be possible.  Such reparation may then

constitute a means whereby a State can redress the alleged violation

of the Convention (No. 10668/83, Dec. 13.5.87, D.R. 52 p. 177).

     The Commission notes that the Linz Court of Appeal, in its

decision of 1 February 1991 on the review of the applicant's detention,

considered that the failure to appoint an official defence counsel in

time, to review his detention on remand in due time and to serve the

written warrant of arrest and detention order constituted severe

breaches of the Code of Criminal Procedure which came close to an

arbitrary deprivation of liberty.  Moreover, also in the official

liability proceedings the Austrian courts acknowledged that violations

of the Code of Criminal Procedure concerning the applicant's detention

on remand had occurred.  However the findings of the Court of Appeal

had no further consequences.  In particular, the Court of Appeal did

not annul the Investigating Judge's warrant of arrest and the order by

which the applicant was taken into detention on remand.

     The Commission finds that the Austrian courts have, partly

expressly and partly in substance, acknowledged that the applicant's

arrest and detention on remand had been ordered in breach of the

Convention.  However, the Commission also observes that in the ensuing

official liability proceedings the applicant was refused compensation

for unlawful detention.

     The question therefore arises whether the applicant was granted

adequate redress, as required under the Convention organs' case-law

under Article 25 (Art. 25) of the Convention.

     The Commission notes that the applicant's detention on remand was

counted towards his sentence, but in the Commission's view this measure

did not constitute a means of redress, since the Austrian courts,

irrespective of the lawfulness of the detention on remand, were in any

event bound by law to count the applicant's detention on remand towards

his sentence.  Furthermore, it appears that the applicant's claim for

compensation raised in the official liability proceedings was made

dependent on his ability to show that damage had occurred and was

eventually refused by the Austrian courts.

     In the absence of any reparation, the Commission finds that the

above decisions of the Austrian courts cannot be considered as

appropriate and sufficient redress.

     The Commission therefore considers that the applicant may still

claim to be a victim, within the meaning of Article 25 (Art. 25), of

the alleged violations of Article 5 (Art. 5) of the Convention.

3.   The applicant complains that he was arrested without being served

a written warrant of arrest, taken in detention on remand without being

served the written decision ordering his detention, that he did not

have a hearing on his release from detention on remand and that he was

not given defence counsel in due time.

     The Commission finds that this complaint falls to be examined

under Article 5 para. 1 (c) (Art. 5-1-c) of the Convention.

     The Government submit that the applicant's arrest and subsequent

detention on remand did not violate Article 5 para. 1 (c)

(Art. 5-1-c) of the Convention.  Although the Austrian courts had found

that the Investigating Judge at the Ried Regional Court had disregarded

certain procedural requirements under the Code of Criminal Procedure,

these failures concerned mere formalities.  In its decision of 1

February 1991 the Linz Court of Appeal had established that the

substantive requirements for ordering and maintaining the applicant's

detention on remand had been met.  After having heard the applicant on

30 August 1990 the Investigating Judge had issued a written warrant of

arrest which simply by mistake had not been served on the applicant.

     The applicant submits that his arrest and subsequent detention

on remand had been unlawful and refers to the findings of the Linz

Court of Appeal in its decision of 1 February 1991.  The written order

of detention on remand had been served on him only after his conviction

in first instance.

     The Commission finds that the applicant's complaint about the

lawfulness of his detention on remand involves serious issues of fact

and law under the Convention, the determination of which must be

reserved to an examination of the merits.  This part of the application

cannot therefore be declared manifestly ill-founded within the meaning

of Article 27 para. 2 (Art. 27-2) of the Convention, no other grounds

for declaring it inadmissible having been established.

4.   The applicant further complains that he was not informed

sufficiently of the reasons for his detention on remand.

     The Commission finds that this complaint falls to be examined

under Article 5 para. 2 (Art. 5-2) of the Convention.

     The Government submit that when the applicant was heard by the

Investigating Judge on 30 August 1990 he was sufficiently informed of

the reasons for his arrest for the purpose of Article 5 para. 2

(Art. 5-2) of the Convention.

     The applicant submits that on 30 August 1990 the Investigating

Judge informed him of the suspicion against him which led to his

arrest.  However, he had not been, according to the findings of the

Court of Appeal in its decision of 1 February 1991, questioned on the

grounds for ordering his detention on remand.  Therefore, the

information given by the Investigating Judge had not been sufficient

for the purpose of Article 5 para. 2 (Art. 5-2) of the Convention.

     The Commission recalls that Article 5 para. 2 (Art. 5-2) of the

Convention contains the elementary safeguard that any person arrested

should know why he is being deprived of his liberty (Eur. Court H.R.,

Fox, Campbell and Hartley judgment of 30 August 1990, Series A no. 182,

p. 19, para. 40).  The further purpose behind the guarantee in Article

5 para. 2 (Art. 5-2) is to enable the arrested person to challenge the

reasonableness of the suspicion against him because this is a

substantive requirement for detaining him under Article 5 para. 1 (c)

(Art. 5-1-c).  The arrested person should therefore be informed

sufficiently about the facts and the evidence which are proposed to be

the foundation of a decision to detain him (No. 8098/77, Dec. 13.12.78,

D.R. 16 p. 111).

     In the present case the applicant was heard by the Investigating

Judge on 30 August 1990 about the suspicion against him.  Thereupon,

the Investigating Judge decided to institute preliminary investigations

against him on that suspicion and to take him into detention on remand.

The applicant, after having been informed about the above decisions and

his right to appeal, waived his right to appeal against the decisions

taken by the Investigating Judge.  According to the Court of Appeal's

decision of 1 February 1991 the Investigating Judge, however, had

failed to question the applicant on the grounds for taking him into

detention on remand.  These grounds were, according to the

Investigating Judge's decision of 30 August 1990, the danger of

collusion and of the applicant committing further offences.

     Having regard to the fact that the applicant had been informed

in detail and questioned on the suspicion against him, had been

informed on the decisions ordering the institution of preliminary

investigations and his detention on remand and thereupon waived his

right to appeal, the Commission finds that the applicant had been

informed sufficiently by the Investigating Judge for the purpose of

Article 5 para. 2 (Art. 5-2) of the Convention.  There is, therefore,

no appearance of a violation of Article 5 para. 2 (Art. 5-2) 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.

5.   The applicant further complains that he did not have a hearing

on his release from detention on remand and that he was not given

defence counsel in due time.

     The Commission finds that this complaint falls to be examined

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

     The Government submit that the applicant failed in this respect

to exhaust domestic remedies as required by Article 26 (Art. 26) of the

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

a right to take proceedings for the review of the lawfulness of

detention on remand.  Under S. 194 of the Code of Criminal Procedure

the applicant could have applied at any time for a judicial review of

the lawfulness of his detention on remand.  However, he did not do so.

The Regional Court has failed to review the detention on remand ex

officio within the statutory time limit but this did not prevent the

applicant from filing himself a request for release.

     The applicant submits that S. 194 para. 3 of the Code of Criminal

Procedure requires that a hearing on the continuation of detention on

remand must be held ex officio within two months unless a hearing had

been held on a request for release lodged by the detained person.  The

applicant could not waive his right to the ex officio hearing because

no defence counsel had been appointed for him before the expiry of the

two months period as required by S. 182 of the Code of Criminal

Procedure.  He could not have been required to file a request for

release from detention on remand himself earlier since he had not been

informed sufficiently of the reasons for his detention on remand.

     The Commission recalls that in case an applicant had a remedy at

his disposal which satisfied the requirements of Article 5 para. 4

(Art. 5-4) but did not make use of it the applicant cannot claim to be

a victim of a violation of Article 5 para. 4 (Art. 5-4) of the

Convention as he did not make use in accordance with statutory

provisions of the remedy which was available (cf. No. 7317/75, Dec.

6.10.76, D.R. 6 p. 141; Bonazzi v. Italy, Comm. Report 19.3.81, D.R.

24, p. 55, para. 71).

     In the present case the applicant, under the relevant provisions

of the Code of Criminal Procedure, could at any time after his

detention on remand had been ordered have filed a request for release

from detention on remand.  However, he did not file such a request

himself or requested the appointment of a defence counsel for this

purpose.  Only when an ex officio defence counsel had been appointed

for him on 29 November 1990, the latter filed a request for release on

30 November 1990.  This request was dismissed by the Judges' Chamber

on 12 December 1990.  Upon a further appeal the Court of Appeal, on 1

February 1991, upheld the Judges' Chamber's decision but added that the

Judges' Chamber should have held ex officio a hearing on the

applicant's detention on remand before the 29 October 1990.

     The applicant submits that under Austrian law the courts had the

obligation to hold ex-officio a hearing on the continuation of his

detention on remand.  The Commission recalls however, that the fact

that a domestic court is competent to examine proprio motu grounds

amounting to a violation of the Convention does not absolve the

applicant from the obligation of raising the complaint before the court

himself (see No. 11244/84, Dec. 2.3.87, D.R. 55, p. 98).

     The applicant also submits that he did not have sufficient

information to file a request for release from detention on remand.

However, the Commission refers to its finding under Article 5 para. 2

(Art. 5-2) above.  The Commission also finds that the applicant could

have requested permission to inspect his case file if he considered

himself to be in need of further information.  He does not submit that

access to the file had been refused to him.  Insofar the applicant may

be understood to argue that he had been unable to file a request for

release from detention on remand without the assistance of a lawyer,

the Commission observes that the applicant had failed to request the

courts to appoint a lawyer for him.

     Taking all the above circumstances into account the Commission

cannot find that there is any appearance of a violation of the

applicant's rights under Article 5 para. 4 (Art. 5-4) of the

Convention.

     It follows that this part of the application is also manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

6.   The applicant further complains that the Austrian authorities

refused his compensation claim regarding his detention on remand.

     The Commission finds that this complaint falls to be examined

under Article 5 para. 5 (Art. 5-5) of the Convention.

     The Government submit that in the official liability proceedings

the courts found that violations of provisions of the Code of Criminal

Procedure had occurred but that these violations did not cause any

concrete damage to the applicant.  Even if the Investigating Judge had

observed the provisions of the Code of Criminal Procedure at issue,

this would not have prevented the applicant's detention on remand.  The

applicant failed to prove that he had suffered any damage of a material

or non-material nature as a result of the unlawful omissions by the

Investigating Judge.  Therefore he had not been entitled to any

compensation under Article 5 para. 5 (Art. 5-5) of the Convention. The

Government also refers to the Court's case-law under Article 50

(Art. 50) of the Convention.

     This is disputed by the applicant who maintains that the Austrian

courts should have granted him compensation in the official liability

proceedings and their failure to do so violated Article 5 para. 5 of

(Art. 5-5) the Convention.

     The Commission finds that the applicant's complaint about the

refusal of his compensation claim involves serious issues of fact and

law under the Convention, the determination of which must be reserved

to an examination of the merits.  This part of the application cannot

therefore be declared manifestly ill-founded within the meaning of

Article 27 para. 2 (Art. 27-2) of the Convention, no other grounds for

declaring it inadmissible having been established.

     For these reasons, the Commission, by a majority,

     DECLARES ADMISSIBLE, without prejudging the merits of the case,

     the applicant's complaints that he was arrested on 29 August 1990

     without being served a written warrant of arrest, that he was

     taken into detention on remand on 30 August 1990 without being

     served the written decision ordering his detention, that he was

     held in detention on remand for more than two months without an

     official defence counsel being appointed for him and without an

     ex officio review of his detention on remand and his complaint

     that the Austrian authorities refused his compensation claim

     regarding his detention on remand;

     DECLARES INADMISSIBLE the remainder of the application.

Secretary to the Commission            President of the Commission

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