AS TO THE ADMISSIBILITY OF

                      Application No. 19994/92

                      by Walter THALER

                      against Austria

     The European Commission of Human Rights (First Chamber) sitting

in private on 26 June 1996, the following members being present:

           Mr.   C.L. ROZAKIS, President

           Mrs.  J. LIDDY

           MM.   A.S. GÖZÜBÜYÜK

                 A. WEITZEL

                 M.P. PELLONPÄÄ

                 B. MARXER

                 G.B. REFFI

                 B. CONFORTI

                 N. BRATZA

                 I. BÉKÉS

                 G. RESS

                 A. PERENIC

                 C. BÎRSAN

                 K. HERNDL

           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 20 February 1992

by Walter THALER against Austria and registered on 14 May 1992 under

file No. 19994/92;

     Having regard to the Commission's decision of 7 April 1994 to

communicate the application as regards the complaints concerning the

lawfulness and length of the applicant's detention on remand and the

length of the criminal proceedings against him, and to declare the

remainder of the application inadmissible;

     Having regard to the observations submitted by the respondent

Government on 30 September 1994 and the observations in reply submitted

by the applicant on 30 January 1995;

     Having regard to the reports 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 1952 and now

residing in Niederau (Tyrol, Austria).  In 1982 he emigrated to the USA

and ran a car repair shop in Hampton (Virginia, USA).  Before the

Commission he is represented by Mr. C. Horwath, a lawyer practising in

Innsbruck.

A.   The particular circumstances of the case

     The facts of the case, as submitted by the parties, may be

summarised as follows.

     On 4 February 1989 the Austrian police were informed via Interpol

that on 30 January 1989 in Poquoson (Virginia, USA) E.P., a German

citizen, and H.S., an Austrian citizen, had been killed and that F.W.,

an employee of the applicant in his car repair shop, was suspected of

having killed them.  At that time F.W. had already left the USA.

     On 17 February 1989 the applicant called the Innsbruck police

from the United States and had a telephone conversation with police

officer A. in which he gave his version of events and implicated F.W.

in the murder.

     On 14, 20 and 22 February 1989 the Austrian police submitted

reports on their investigations to the Investigating Judge.  On

9 March, 9 May and 26 May 1989 the Investigating Judge received reports

from the United States authorities on their investigations.

     On 13 July 1989 the applicant was expelled from the United

States.  He returned to Austria on 14 July 1989.

     On 26 July 1989  he was interrogated by the Innsbruck police as

a person who could give information (Auskunftsperson).  He stated that

F.W. had admitted to him having killed E.P. and H.S. and that he had

helped F.W. to search the luggage of the victims and to get rid of it.

     On 27 July 1989 the Investigating Judge of the Innsbruck Regional

Court (Landesgericht) opened preliminary investigations against the

applicant on suspicion of murder.

     On 28 July 1989 the applicant was heard as suspect by the

Investigating Judge.  The latter ordered the applicant's detention on

remand, finding that a serious suspicion existed against him as his

statements were in contradiction with the investigations carried out

by the United States police.  The Investigating Judge further held that

no reasons existed which would exclude the grounds of detention.

     On 31 July 1989 the United States authorities transmitted further

reports to the Investigating Judge.

     On 2 August 1989 the Investigating Judge extended the preliminary

investigations against the applicant to the suspicion of having aided

F.W. after the fact (Begünstigung).

     On 3 August 1989, after a hearing before the Judges' Chamber

presided over by Judge O.O., the applicant was released from detention

on remand.

     On 14 September and 12 December 1989 the Investigating Judge

requested the United States authorities by letters rogatory to hear

several witnesses.

     On 20 February 1990 the Austrian Embassy in the United States

urged the  US authorities to act upon the letters rogatory.

     On 18 May 1990, 6 June and 1 July 1990 the United States

authorities transmitted reports on the hearing of the witnesses

requested and sent items of evidence.

     On 25 June 1990 the public prosecutor drew up a bill of

indictment against F.W. accusing him of murder on two counts and

aggravated robbery.  The public prosecutor further requested the

Investigating Judge to discontinue the preliminary investigations

against the applicant as regards the suspicion of murder, but to

maintain these proceedings as regards the suspicion of having aided

F.W. after the fact.

     On 4 July 1990 the preliminary investigations against the

applicant, as regards the suspicion of murder, were discontinued.

     On 31 October 1990 Judge O.O., the Presiding Judge of the Court

of Assizes (Geschwornengericht) scheduled the date of the beginning of

the trial (Hauptverhandlung) against F.W. for 11 December 1990.  On

2 November 1990 he summoned several witnesses living in the United

States by letters rogatory.

     On 11 December 1990 the trial against F.W. commenced before a

Court of Assizes of the Innsbruck Regional Court sitting with a jury.

     On 13 December 1990 the applicant was heard as a witness in the

trial of F.W.  As the bench of the Court of Assizes found that the

applicant's statements contradicted his prior versions of the events

and the applicant had been incriminated by another witness, he was

arrested in open court.  The arrest was ordered by Investigating Judge

W.S., who had been called to the court room.  The trial against F.W.

was adjourned and the file remitted to the Investigating Judge for

further investigations.

     On 14 December 1990 the Investigating Judge decided that the

preliminary investigations against the applicant for suspicion of

murder should be re-opened and that he should be placed in detention

on remand.

     On 19 December 1990 the Judges' Chamber quashed the decision of

14 December 1990 on the re-opening of the investigations as it found

that it lacked a formal request by the public prosecutor.  On the same

day the Judges' Chamber, upon a formal request by the public

prosecutor, decided to re-open investigations against the applicant.

The Judges' Chamber found that in the trial against F.W. from 11 to

13 December 1990 the applicant had been heard as witness and had made

statements which were in contradiction to statements he had given

earlier.  In particular, he had admitted that his earlier statements

concerning the weapon with which the victims had been killed and where

this weapon could be found were wrong.  He had furthermore admitted

having given instructions after the crime had been committed that

fingerprints should be wiped off the car in which the victims had

presumably been driven and that its tyres should be changed.  Moreover,

witness E.B., a close friend of the applicant's fiancee B.W., had

incriminated the applicant.  As E.B.'s statements constituted new

evidence, the investigations against the applicant had to be re-opened.

     On 27 December 1990 the Judges' Chamber dismissed a request by

the applicant for release from detention.  It found that a serious

suspicion existed against him, as he was now suspected not only of

having aided F.W. after the crime but of having assisted in the

killing.  He also had been seriously incriminated by witness E.B.

Furthermore, there was a danger of absconding as the applicant,

according to results of police observation, had taken steps to emigrate

to Canada.

     On 31 January 1991 the Innsbruck Court of Appeal

(Oberlandesgericht) dismissed the applicant's appeals against the

decisions of the Judges' Chamber' of 19 and 27 December 1990 in which

he had claimed that no suspicion of having committed murder existed

against him and that there was no risk of his absconding, as he had

lived for months in Austria and his brother would be willing to employ

him if he were released.  As regards the refusal to release the

applicant from detention on remand, the Court of Appeal found that

there was a serious suspicion against the applicant that he had

committed murder.  The Judges' Chamber had correctly found that no

facts existed which would exclude the existence of reasons for

detention on remand.

     On 22, 25 and 26 February, 25 March and 4 April 1991 the

Investigating Judge heard further witnesses.  On 4 April 1991 he

requested the hearing of witnesses living in the United States by

letters rogatory.

     Upon a request by the public prosecutor the Innsbruck Court of

Appeal on 18 June 1991 extended the applicant's detention on remand to

a maximum duration of 12 months.  The Court of Appeal found that the

investigations were complicated because numerous foreign witnesses had

to be heard and expert evidence to be taken in the United States.

     On 10 and 11 July 1991 the Norfolk Court in Virginia (USA),

acting on letters rogatory, heard witnesses requested by the defence

of F.W.

     Between 8 and 15 July 1991 Austrian police officers carried out

further investigations in the United States.

     On 16 July 1991 the trial against F.W. was resumed before the

Court of Assizes.

     On 18 July 1991 the applicant was summoned again by the Court of

Assizes as a witness in the trial of F.W.  However, he refused to give

evidence and submitted that criminal proceedings had been instituted

against him in respect of the same offence.  The Court of Assizes did

not accept the applicant's refusal as it found that his evidence was

indispensable because of its special importance to the proceedings

against F.W.  On the same day a coercive fine of 5000 AS was imposed

on the applicant as he persisted in his refusal.

     On 7 August 1991 the Court of Appeal rejected the applicant's

appeal against the imposition of the coercive fine on the ground that

no appeal lay against such an order.

     On 8 August 1991 the Court of Assizes imposed coercive detention

of six weeks on the applicant for having refused to give evidence.  The

applicant's detention on remand was interrupted while he served the

period of coercive detention.  On 19 September 1991 the applicant was

again placed in detention on remand.

     On 24 September 1991 the applicant asked the Attorney General

(Generalprokurator) to introduce a plea of nullity for the preservation

of the law (Nichtigkeitsbeschwerde zur Wahrung des Gesetzes) with the

Supreme Court (Oberster Gerichtshof) as regards the coercive measures.

     On 16 October 1991 the trial against F.W. before the Court of

Assizes was closed and the jury delivered a verdict of not guilty.  The

bench of the Court of Assizes set the jury's verdict aside for error.

     On 24 October 1991 an oral hearing took place before the Judges'

Chamber on a request by the applicant for release from detention on

remand.  The applicant challenged the Presiding Judge O.O. for bias,

submitting that the judge had taken part in the trial against F.W. and

in the arrest of the applicant in open court.  He had also taken part

in the decision to re-open the investigations against the applicant.

The Judges' Chamber allowed the applicant's challenge and adjourned the

hearing to 31 October 1991.

     On 31 October 1991 the Judges' Chamber dismissed the applicant's

request for release from detention on remand.  It found that,

notwithstanding the latest development in the trial against F.W., a

serious suspicion against the applicant existed.

     On 13 November 1991 the applicant appealed against the Judges'

Chamber's decision of 31 October 1991.  He denied that there was a

serious suspicion against him.

     On 20 November 1991 the Supreme Court decided that a re-trial of

F.W. should take place before another Court of Assizes at the Innsbruck

Regional Court.

     On 25 November 1991 the public prosecutor drew up a bill of

indictment against the applicant, accusing him of murder, aggravated

robbery and handling stolen goods.  The public prosecutor also

requested the Court of Appeal to find that the applicant's detention

could be extended to up to 15 months because of the complex nature of

the investigations.

     On 29 November 1991 the Court of Appeal dismissed the applicant's

appeal against the Judges' Chamber decision of 31 October 1991.  It

found that, though there was now some evidence more favourable to the

applicant's position, the circumstantial evidence as a whole still

amounted to a serious suspicion against him.  It dismissed the public

prosecutor's request to extend the detention on remand to 15 months as

such a decision could only be taken during the last six weeks before

the expiry of the time limit for the detention.  This stage had not

been reached in the applicant's case as the period of his coercive

detention could not be taken into account.

     On 18 December 1991 the Court of Appeal decided on the

applicant's objections against the bill of indictment.  It granted the

bill of indictment as regards the charge of murder and robbery, but not

as regards the charge of handling stolen goods (Hehlerei).  The Court

of Appeal now also extended the applicant's detention on remand to a

maximum duration of 15 months.  It found that the extension of the

period was justified as the investigations were complicated because

numerous witnesses from the United States had to be heard.

     On 16 January 1992 the Supreme Court annulled the Regional

Court's decision of 18 July 1991 by which a coercive fine had been

imposed on the applicant for having refused to give evidence and the

decision of 8 August 1991 by which a coercive detention had been

imposed on the applicant for the same reason.  The Supreme Court held

that in imposing these coercive measures the Regional Court had only

taken into account the importance of the charge laid against F.W. and

had failed to balance properly the interest in obtaining a statement

from the applicant against his own interests in refusing to give

evidence.  Since the applicant might have been forced to incriminate

himself of a serious crime, which would violate Article 6 para. 1 of

the Convention, the balancing of interests must be in his favour.

Therefore, the coercive measures were found to be unlawful.

     On 17 January 1992 the Regional Court decided to join the

proceedings against the applicant and F.W.  The applicant appealed

against this decision.

     On 4 March 1992 the trial against the applicant and F.W.

commenced before a Court of Assizes of the Innsbruck Regional Court and

lasted until 18 May 1992.  Court hearings were held on 11, 12, 13, 18,

19, 20, 25 and 27 March, and on 10, 13, 17, 23 and 28 April 1992.  On

30 March 1992 the Presiding Judge of the Court of Assizes requested the

Innsbruck police to conduct supplementary investigations in the United

States.  The result of these investigations were transmitted to the

Court of Assizes on 8 April and 7 May 1992.

     On 26 March 1992, in the course of the trial, the applicant

requested his release from detention on remand.  He submitted that no

serious suspicion existed against him and that there was no risk of his

absconding as his family lived in Austria.  On the same day, the

Presiding Judge of the Court of Assizes dismissed his request, finding

that a serious suspicion against the applicant still existed and that

the risk of his absconding could not be excluded.

     On 13 April 1992, in the course of the trial, the applicant made

a further request for release from detention on remand, submitting that

there was no serious suspicion against him.  On the same day, the

Presiding Judge of the Court of Assizes dismissed this request for the

same reasons as given in his decision of 26 March 1992.

     On 20 May 1992 a further witness was heard in Norfolk, Virgina

(USA) in the presence of the Presiding Judge of the Court of Assizes,

the prosecution and the defence.

     On 3 June 1992 the Court of Appeal dismissed the applicant's

appeals against the Regional Court's decisions of 26 March 1992 and

13 April 1992.  The Court of Appeal confirmed that a serious suspicion

against the applicant existed and referred to its earlier decisions of

31 January, 29 November and 18 December 1991.

     Between 10 and 17 June 1992 further hearings were held by the

Court of Assizes in the trial against the applicant and F.W.

     On 17 June 1992 the Court of Assizes acquitted the applicant of

the charge of murder and armed robbery, but convicted him of handling

stolen goods.  The bench sitting with the jury set the applicant's

sentence at one year's imprisonment.  On the same day the applicant was

released, his detention on remand being counted towards the sentence.

     On 1 September 1992 the applicant introduced a plea of nullity

and an appeal with the Supreme Court.

     On 25 March 1993 the Supreme Court allowed the applicant's plea

of nullity and quashed his conviction as regards the charge of handling

stolen goods.

     On 10 May 1993 the Innsbruck Regional Court discontinued the

criminal proceedings against the applicant.

     On 10 May 1993 the Innsbruck Regional Court asked the applicant

whether he wished to claim compensation for detention under the

Criminal Proceedings Compensation Act (Strafrechtliches

Entschädigungsgesetz).

     On 28 May 1993 the applicant filed his claim for compensation for

detention.

     On 17 November 1993 the Regional Court dismissed the applicant's

compensation claim based on Section 2 para. 1 (b) of the Criminal

Proceedings Compensation Act.

     On 3 December 1993 the applicant appealed against the Regional

Court's decision.

     On 12 August 1994 the Supreme Court dismissed the applicant's

compensation claim under Section 2 para. 1 of the Criminal Proceedings

Compensation Act.  It found that the applicant's detention on remand

had been lawful.  At the time of his detention on remand a serious

suspicion against the applicant of having committed murder had existed,

which had to be assessed in the light of the circumstances at the time

detention was ordered and maintained and not in the light of the

subsequent acquittal.

     The Innsbruck Regional Court and the Innsbruck Court of Appeal

had correctly assumed that there was a high degree of probability that

the applicant had not only aided F.W. after the fact but also had

participated in the robbery and the killings.  The courts had based

their assumption on the testimony given in the course of the trial

against F.W, in particular by the witness E.B, who had stated that

B.W., the applicant's fiancee, had told her that the applicant had

given her US $ 6,200 after the murder, US $ 5200 of which she hid in

the trunk of a car.  Also the applicant, when heard on

13 December 1990, had stated at the trial that he had deliberately

misled the United States investigating officer by indicating to him a

wrong place in the river bed where F.W. allegedly had disposed of the

murder weapon.  He had also admitted having ordered one of his

employees, after F.W. had confessed the killings to him, to wipe the

fingerprints off the car in which the victims had presumably been

driven.

     The Supreme Court further noted that detention on remand had to

be ordered in case a person was suspected of having committed a crime

which carries a minimum sentence of 10 years' imprisonment unless

certain facts justify the assumption that the existence of all grounds

for detention enumerated in Section 180 para. 2 of the Code of Criminal

Procedure may be ruled out.  In this respect it found that in

particular the risk of the applicant's absconding could not have been

ruled out.  The applicant had already lived in the United States since

1981, had been running his business there and his fiancee B.W. lived

in the USA, which meant that his social ties with Austria were

negligible.

     As regards the coercive detention of the applicant between

8 August 1991 and 19 September 1991 the Supreme Court found that such

detention was not detention on remand within the meaning of the

Criminal Proceedings Compensation Act.  The applicant could, however,

claim compensation in official liability proceedings (Amtshaftung)

relying on Article 5 para. 5 of the Convention.  The Supreme Court

found that, in any event, the applicant did not sustain any damage in

this respect, as there was nothing to show that if coercive detention

had not been imposed on him he would have to be released from detention

on remand during this period.

B.   Relevant domestic law

     Under S. 180 paras. 1 and 2 of the Code of Criminal Procedure

(Strafprozeßordnung), as in force at the relevant time, a person may

be held in detention on remand if he is seriously suspected of having

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

of collusion or of committing further offences.  Under S. 180 para. 7

detention on remand must be ordered by the court if the person is

suspected of having committed a crime with a minimum penalty of 10

years imprisonment unless specific facts show that all grounds for

detention can be excluded.

     According to S. 193, detention may not last more than two months

where its sole justification is the risk of collusion; it may not last

more than six months where one of the other grounds is relied on. The

second-instance court may, however, if so requested by the

Investigating Judge or the public prosecutor and if the difficulty or

the scope of the investigations makes it necessary, extend the

detention. In such cases the maximum duration of detention is three

months where the measure is based on a risk of collusion alone, and one

year, or even two years, if the term of imprisonment which the suspect

risks is ten years or more, in the other circumstances provided for.

     Detention founded on a reason other than the risk of collusion

alone is subject to no time-limit as soon as the trial has begun.

     The accused may lodge an application for release at any time

(S. 194 para. 2). Under S. 194 and 195, such an application is to be

examined by the Judges' Chamber (Ratskammer) of the Regional Court in

a private hearing, in the presence of the accused and his lawyer.

COMPLAINTS

1.   The applicant complains under Article 5 paras. 1, 3 and 4 of the

Convention of the unlawfulness of his detention on remand and its

length.  He submits that at no time did any concrete suspicion of

murder and robbery exist against him.

     He further submits that his detention was unlawful as the same

judge decided as a member of the Judges' Chamber in August 1989 on his

detention on remand, presided over the bench of the Court of Assizes

in the trial against F.W. in the course of which the applicant was

heard as a witness, decided as a member of the Judges' Chamber on the

re-opening of the preliminary investigations against him and

participated in the hearing of the Judges' Chamber on 24 October 1991

on the applicant's request for release from detention on remand.

     He also submits that, although he had been taken into detention

on 13 December 1990, the prosecution waited for more than one year

before drawing up a bill of indictment, apparently awaiting the result

of the trial against F.W.

2.   He complains that the criminal proceedings instituted against him

were not concluded within a reasonable time as required by Article 6

para. 1 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

     The application was introduced on 20 February 1992 and registered

on 14 May 1992.

     On 7 April 1994 the Commission decided to communicate to the

respondent Government the applicant's complaints concerning the

lawfulness and length of his detention on remand and the length of the

criminal proceedings against him, and declared the remainder of the

application inadmissible.

     The Government's written observations were submitted on

30 September 1994 after an extension of the time-limit fixed for that

purpose.  The applicant replied on 30 January 1995, also after an

extension of the time-limit.  On 2 February 1995 the Government

submitted a time-schedule of the criminal proceedings against the

applicant.  On 14 March 1995 the applicant commented on the

Government's time-schedule.

THE LAW

1.   The applicant complains under Article 5 paras. 1, 3 and 4

(Art. 5-1, 5-3, 5-4) of the Convention of the unlawfulness of his

detention on remand and its length.

     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:

     ...

           b.    the lawful arrest or detention of a person for non-

     compliance with the lawful order of a court or in order to secure

     the fulfilment of any obligation 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;

     ...

     ...

     3.    Everyone arrested or detained in accordance with the

     provisions of paragraph 1 (c) of this Article shall be brought

     promptly before a judge or other officer authorised by law to

     exercise judicial power and shall be entitled to trial within a

     reasonable time or to release pending trial.  Release may be

     conditioned by guarantees to appear for trial.

     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 applicant complains that his detention was unlawful as the

same judge decided as a member of the Judges' Chamber in August 1989

on his detention on remand, presided over the bench of the Court of

Assizes in the trial against F.W. in the course of which the applicant

was heard as a witness, decided as a member of the Judges' Chamber on

the re-opening of the preliminary investigations against him and

participated in the hearing of the Judges' Chamber on 24 October 1991

on the applicant's request for release from detention on remand.

     The Commission observes that this complaint refers essentially

to this judge's function as presiding judge of the Judges' Chamber.

Since the function of the Judges' Chamber is not to order detention on

remand but to deal with requests for release from detention on remand,

the Commission finds that it has to examine this complaint under

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

     The Commission recalls that Article 5 para. 4 (Art. 5-4) requires

that the procedure followed have a judicial character and give to the

individual concerned guarantees appropriate to the kind of deprivation

of liberty in question.  The judicial proceedings referred to in

Article 5 para. 4 (Art. 5-4) need not always be attended by the same

guarantees as those required under Article 6 para. 1 (Art. 6-1) for

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

12 May 1992, Series A no. 237-A, pp. 11-12, para. 22).

     However, the Commission need not determine in the present case

whether the proceedings referred to in Article 5 para. 4 (Art. 5-4) of

the Convention also require that the authority before which they have

to take place satisfies the requirement of impartiality as interpreted

by the Convention organs in their case-law under Article 6 para. 1

(Art. 6-1) of the Convention (see e.g. Eur. Court H.R., Bulut judgment

of 22 February 1996, Reports 1996, paras. 31-34), as the applicant's

above complaint is, in any event, manifestly ill-founded for the

following reasons.

     The Commission notes that on 3 August 1989 Judge O.O. presided

the Judges' Chamber which heard the applicant's appeal against the

Investigating Judge's order of 28 July 1989 to take the applicant into

detention on remand.  The Judges' Chamber ordered the applicant's

release.  On 13 December 1990 Judge O.O. acted as Presiding Judge of

the Court of Assizes who heard the applicant as witness in the trial

against F.W.  Although it has apparently been the impression which the

applicant made on the Bench of the Court of Assizes which caused the

reopening of the proceedings against the applicant and his being taken

again into detention on remand, this detention was not ordered by the

Court of Assizes itself, but by the Investigating Judge W.S.  At the

hearing before the Judges' Chamber on 24 October 1991 on a request by

the applicant for release from detention on remand he successfully

challenged Judge O.O. for bias.  The hearing was postponed and took

place before the Judges' Chamber in another composition.

     In such circumstances the Commission cannot find any appearance

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

regards the participation of Judge O.O. in proceedings for upholding

the applicant's detention on remand.

     It follows that this part of the application is manifestly

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

Convention.

3.   As regards the applicant's complaint that his detention on remand

was unlawful, the Government submit that it was lawful under Austrian

law.  He was remanded in custody and the detention was subsequently

upheld because of the existence of a serious suspicion against him that

he had committed the crime of murder, which carries a prison sentence

of between 10 and 20 years or a life sentence.  In the circumstances

of the case, grounds for detention on remand, in particular the danger

of absconding, could not be excluded.  In view of the severe sentence

risked by the applicant there was a very high risk of his absconding.

These issues were examined on various occasions by the Austrian courts,

in the context of the applicant's repeated requests for release.  Also

the Supreme Court, in its decision of 12 August 1994, examined in

detail the question whether the applicant's detention on remand had

been lawful and answered this question in the affirmative.

     As regards the applicants' coercive detention, the Government

submit that the Supreme Court found this detention to have been

unlawful.  As a consequence, the detention during the period in

question has to be considered as detention on remand.  As the coercive

detention was annulled, the applicant can no longer claim to be a

victim of an alleged violation of the Convention in this respect.

     The applicant submits that at no stage did there exist a serious

suspicion against him of having committed murder and that there were

no grounds for ordering and upholding his detention on remand.  When

he changed his version of the events when heard as a witness in the

trial against F.W. on 13 December 1990, this could only have given rise

to a suspicion of being an accessory after the fact, but not of having

committed murder.  Furthermore  no danger existed that he would

abscond.  He had come voluntarily to Austria after his expulsion from

the United States and had cooperated with the police.

a)   As regards the applicant's coercive detention between 8 August

and 19 September 1991, the Commission recalls that where national

authorities have acknowledged either expressly or in substance a

violation of the Convention and their decision constitutes appropriate

and sufficient redress thereof, the parties involved cannot claim to

be victims (No. 10259/83, Dec. 10.12.84, D.R. 40 p. 170).

     The Commission observes that on 16 January 1992 the Supreme Court

quashed the Regional Court's order of 8 August 1991 by which a coercive

detention had been imposed on the applicant and declared his coercive

detention between 8 August and 19 September 1991 as unlawful.  The

deprivation of liberty during this time therefore had to be considered

as a period of detention on remand.  Furthermore, in its decision of

12 August 1994 on the applicant's compensation claim for unjustified

detention on remand, the Supreme Court found that there was nothing to

show that if coercive detention had not been imposed on the applicant

he would have had to be released from detention on remand during this

period.

     The Commission finds that in these circumstances the Supreme

Court's decision of 16 January 1992 constitutes appropriate and

sufficient redress.  Having obtained satisfaction from the national

authorities, the applicant can no longer complain to the Commission of

being a victim of an alleged violation of Article 5 (Art. 5) of the

Convention on account of the coercive detention ordered against him.

b)   As regards the applicant's complaint that his detention on remand

was unlawful, the Commission notes that the applicant was detained from

28 July 1989 to 3 August 1989 and from 13 December 1990 to

17 June 1992.  Also the first period of detention on remand has to be

taken into account (see Eur. Court H.R., Ringeisen judgment of

16 July 1971, Series A no. 13, pp. 41-42, para. 101).  Altogether, his

detention thus lasted 1 year, 6 months and 10 days.

     The applicant submits that at no stage did there exist a serious

suspicion against him of having committed murder existed and that there

were no grounds for ordering and upholding his detention on remand.

     The Commission recalls that the "reasonable suspicion" required

by Article 5 para. 1 (c) (Art. 5-1-c) of the Convention need not be

based on facts of the same level as those necessary to justify a

conviction or even the bringing of a charge as it is precisely the

purpose of the official investigation, which the detention is intended

to facilitate, to prove the reality and nature of the offences charged

(see Eur. Court H.R., Murray judgment of 28 October 1994 Series A no.

300-A, p. 27, para. 55; No. 10803/84, Dec. 16.12.87, D.R. 54 p. 35).

     In the present case, the Investigating Judge, when ordering the

applicant's detention on remand on 28 July 1989 relied on the strong

suspicion against the applicant that he had committed murder.

Following a hearing before the Judges' Chamber the applicant was,

however, released on 3 August 1989.  He was taken again into detention

on remand on 13 December 1990.  In the course of the applicant's second

detention on remand the competent judges repeatedly examined the

question whether there was a strong suspicion against the applicant and

whether there were reasons to exclude all grounds for detention on

remand.  In its decisions of 19 and 27 December 1990 the Judges'

Chamber found that a serious suspicion of having committed murder

existed against the applicant as it found that in the trial against

F.W. the applicant, when heard as a witness, had made statements which

were in contradiction to statements he had given earlier.  The Judges'

Chamber also found that there was a danger of absconding as the

applicant, according to the results of police observation, had taken

steps to emigrate to Canada.

     Having regard to the above decisions and subsequent decisions of

31 October 1991, 26 March and 13 April 1992, the Commission finds that

there were sufficient and relevant grounds justifying the applicant's

detention on remand throughout the whole period of his detention.

     Accordingly there is no appearance of a violation of Article 5

para. 1 (Art. 5-1) of the Convention.  It follows that this part of the

application is manifestly ill-founded within the meaning of Article 27

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

4.   As regards the applicant's complaint about the length of his

detention on remand, the Government submit that the criminal

investigations and the subsequent trial concerned an extremely complex

case.  The incident occurred in the United States and the relevant

investigations could therefore only be carried out with the assistance

of the United States authorities.  Furthermore extensive expert

evidence had to be taken.  The whole case-file covered 27 volumes of

some 14000 pages.  23 witnesses from the United States had to be

summoned for the trial, which entailed considerable organisational

efforts.  Nevertheless the Investigating Judge and the police

authorities conducted the investigations expeditiously.  When the

United States authorities did not act speedily on the letters rogatory,

they were urged to do so by the Investigating Judge.  As regards the

conduct of the applicant, the Government acknowledge that he was not

obliged to cooperate with the authorities.  However he had misled the

investigating police officers in the United States on the place where

the presumed weapon had been disposed of and had given orders to

carefully remove any traces from a vehicle which the victims were said

to have used, which also rendered the investigations more difficult.

     This is disputed by the applicant.  He submits that, although he

had been taken into detention on 13 December 1990, the prosecution

waited for more than one year before drawing up a bill of indictment,

apparently awaiting the result of the trial against F.W., thus

unnecessarily prolonging his detention on remand.

     In the applicant's view the case was not a complex one.  The

investigations were delayed because the authorities failed to take the

necessary steps promptly and several expert reports were obtained only

in the last minute and years after the events.  The Austrian

authorities did not properly cooperate with the US authorities.

     Furthermore, the applicant claims that he did not try to hinder

the investigations, on the contrary, he cooperated with the

authorities.  Although he had given a partly incorrect version of the

events at the beginning of the investigations, this was understandable

because he feared repercussions of the investigations against F.W. on

his personal situation, in particular that he would lose his residence

permit and could no longer run his business.

     As regards the period to be taken into consideration for the

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

Commission notes that the applicant's detention on remand lasted 1

year, 6 months and 10 days.

     According to the relevant case-law of the Convention organs, two

elements must be taken into account in assessing the reasonableness of

the length of pre-trial detention.  On the one hand, compelling reasons

which make the detention on remand necessary must exist throughout the

whole period of detention.  On the other hand, the authorities and

courts must conduct the criminal investigations and proceedings

expeditiously during this period.

     As regards the first element, the Commission recalls its finding

above that there were sufficient and relevant grounds justifying the

applicant's detention on remand throughout the whole period of his

detention (see point 3 above).

     It remains to be examined whether the domestic authorities

displayed special diligence in the conduct of the proceedings (cf. Eur.

Court H.R., Letellier judgment, loc. cit.; W. v. Switzerland judgment,

loc. cit.).

     In this respect the Commission recalls that the right of a

detained accused to have his case examined with particular expedition

must not hinder the efforts of the prosecution authorities to carry out

their tasks with proper care (Eur. Court H.R., Tomasi judgment of

27 August 1992, Series A no. 241-A, p. 39, para. 102; W. v. Switzerland

judgment, loc. cit., p. 19, para. 42).

     The Commission notes that the applicant, after a first period of

detention on remand lasting six days in July and August 1989, was taken

again into detention on remand on 13 December 1990 and preliminary

investigations on the suspicion of murder on two counts were reopened

against him.  At that time, the trial against F.W., in the course of

which the applicant had been arrested, was suspended and further

investigations into the crime were carried out.  On 16 July 1991 the

trial against the co-suspect F.W. was resumed and lasted until

16 October 1991.  As the bench of the Court of Assizes set aside the

jury's verdict, the Supreme Court, on 20 November 1991, decided that

a re-trial of F.W. should take place.  On 25 November 1991 the Public

Prosecutor's Office drew up a bill of indictment against the applicant.

On 18 December 1991 the Court of Appeal decided on the applicant's

objections to the bill of indictment and on 17 January 1992 the

criminal proceedings against the applicant and F.W. were joined.  The

trial against the applicant and the co-accused F.W. took place between

4 March 1992 and 17 June 1992.  On that day the applicant was acquitted

of the charge of murder and released from detention on remand.

     The Commission finds that the criminal proceedings instituted

against the applicant were quite complex.  The crime of which the

applicant was accused had taken place in the United States, evidence

had to be gathered there with the assistance of the United States

authorities, while the trial against the applicant had to take place

in Austria.  The Commission does not find that there are significant

periods of inactivity which could be imputed to the Austrian

authorities.  Numerous witnesses appeared at the two trials and

extensive expert evidence had to be taken. It appears that at some

stages letters rogatory addressed to the United States authorities were

not answered right away.  However, in such cases the Investigating

Judge urged these authorities to do so.

     As regards the applicant's submission that the Public

Prosecutor's Office unnecessarily prolonged his detention on remand

after he had been taken into detention on 13 December 1990 by waiting

for more than one year before drawing up a bill of indictment, the

Commission finds that during this period no significant delays in the

proceedings which are attributable to the authorities occurred.  After

the applicant had been arrested on 13 December 1990 further

investigations were carried out, which lasted until the trial against

F.W. was resumed on 16 July 1991.  These investigations were apparently

not only of importance for the preparation of the trial against F.W.

but also concerned the suspicion of murder raised against the

applicant.  Whether or not the applicant's case was ready for trial

after the conclusion of these supplementary investigations is a matter

which the domestic authorities had to decide (see mutatis mutandis Eur.

Court H.R., Boddaert judgment of 12 October 1992, Series A no. 235-D,

p. 82, para. 38).  It could have been preferable to continue the trial

against F.W., as the filing of a bill of indictment against the

applicant at that time and the joinder of the criminal proceedings

would have resulted in a delay of the trial against F.W. who had

already spent a considerable period in detention on remand.

     Taking into account these circumstances the Commission finds that

the length of the applicant's detention on remand did not exceed a

reasonable time.

     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 finally complains that the criminal proceedings

instituted against him were not concluded within a reasonable time as

required by Article 6 para. 1 (Art. 6-1) of the Convention.

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

relevant, reads as follows:

     "In the determination of ... any criminal charge against

     him, everyone is entitled to a fair and public hearing

     within a reasonable time by an independent and impartial

     tribunal established by law."

     The Government refer in this respect to their submission

regarding the complaint about the length of the applicant's detention

on remand and submit that, in view of the circumstances of the case,

the length of the criminal proceedings against the applicant could not

be regarded as unreasonable.  The case was particularly complex and

required extensive investigations abroad.  Nevertheless the Austrian

authorities have dealt speedily with the case.

     This is disputed by the applicant, who also refers to his

submissions regarding the length of his detention on remand.

     The Commission observes that the criminal proceedings against the

applicant lasted from 27 July 1989, when preliminary investigations

against the applicant for suspicion of murder were instituted, until

the discontinuation of the proceedings on 10 May 1993.  The Commission

finds that the period between 4 July 1990 and 13 December 1990 cannot

be deducted since during this period criminal proceedings against the

applicant continued with regard to the same events although on

suspicion of a less serious offence (accessory after the fact).  The

proceedings thus lasted 3 years 9 months and 17 days.

     Having found no failure on the part of the national authorities

in their duty of particular diligence under Article 5 para. 3

(Art. 5-3), the Commission must a fortiori accept that there has been

no breach of the obligation contained in Article 6 para. 1

(Art. 6-1) of the Convention as regards the periods during which the

applicant has been in detention on remand (Schertenleib v. Switzerland,

Comm. Report 11.12.80, D.R. 23, p. 201, para. 191).

     As regards the period between 3 August 1989 and 13 December 1990

and the period following the applicant's release from detention on

remand on 17 June 1992 until the discontinuation of the criminal

proceedings against him on 10 May 1993 ,the Commission also finds that

no delays occurred.  As regards the latter period the Commission

observes that on 1 September 1992 the applicant filed a plea of

nullity, the Supreme Court gave its judgment on 25 March 1993, that is

six months and three weeks later, and the Regional Court discontinued

the criminal proceedings on 10 May 1993, that is six weeks later.

     The Commission therefore finds that the criminal proceedings

against the applicant did not exceed a reasonable time within the

meaning of Article 6 para. 1 (Art. 6-1) 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. 7-2) of the Convention.

     For these reasons, the Commission, unanimously,

     DECLARES THE REMAINDER OF THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber       President of the First Chamber

     (M.F. BUQUICCHIO)                        (C.L. ROZAKIS)