AS TO THE ADMISSIBILITY OF

                      Application No. 25049/94

                      by Ludwig LERCHEGGER

                      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 1 July 1993 by

Ludwig LERCHEGGER against Austria and registered on 31 August 1994

under file No. 25049/94;

     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 1952 and presently

detained at the Graz prison.

     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 5 August 1992 the Graz Public Prosecutor's Office filed a bill

of indictment against the applicant charging him with various counts

of fraud committed between 23 May 1992 and 29 June 1992.

     On 21 November 1992 the applicant was arrested on suspicion of

having meanwhile committed further offences of fraud between 20 June

and 20 November 1992.  On 22 November 1992 an Investigating Judge of

the Graz Regional Court (Landesgericht) ordered that the applicant be

taken into detention on remand.  He found that a serious suspicion of

having committed fraud existed against him.  Furthermore his detention

on remand was necessary as there was a danger of his absconding, of

collusion and of committing further offences.

     On 29 December 1992 the Investigating Judge decided not to

include these charges in the criminal proceedings concerning the bill

of indictment of 5 August 1992, but to institute separate preliminary

investigations.

     On 15 January 1993 the Salzburg Regional Court convicted the

applicant of fraud and sentenced him to two months' imprisonment.

     On 11 March 1993 the trial on the bill of indictment of 5 August

1992 took place before the Graz Regional Court.  On the same day the

Regional Court convicted the applicant of fraud and sentenced him to

an additional term of imprisonment of four months, taking into account

the Salzburg Regional Court's judgment of 15 January 1993.  The

Regional Court further decided to count the detention on remand until

11 March 1993 towards the above sentence and the sentence imposed by

the Salzburg Regional Court.  The applicant waived his right to appeal.

     Between 11 March 1993 and 20 May 1993 the applicant was taken

into detention after conviction.  On 20 May 1993, pursuant to an order

of the Investigating Judge of 18 May 1993, the applicant was taken

again into detention on remand.

     On 26 May 1993 the Judges' Chamber (Ratskammer) of the Graz

Regional Court dismissed the applicant's request for release from

detention on remand.

     On 18 June 1993 the Graz Court of Appeal (Oberlandesgericht)

dismissed the applicant's appeal against the Judges' Chamber's decision

of 26 May 1993.

     On 6 July 1993 the Graz Public Prosecutor's Office filed a

further bill of indictment against the applicant charging him with

fraud on 11 counts.  These charges concerned the events with regard to

which the applicant had been arrested on 21 November 1992.

     On 27 July 1993 the applicant, represented by counsel, filed a

fundamental rights complaint (Grundrechtsbeschwerde) with the Supreme

Court (Oberster Gerichtshof) submitting that his detention on remand

was unlawful.

     On 16 August 1993 the Supreme Court dismissed the above complaint

against the Court of Appeal's decision of 18 June 1993.  The Supreme

Court noted that the applicant had been taken again into detention on

remand on 20 May 1993 and the trial had been scheduled for 26 August

1993.  The Supreme Court found that the applicant had not been in

detention on remand since 21 November 1992 without interruption as he

had argued.  The maximum period of six months of detention on remand

under the relevant provisions of the Code of Criminal Procedure had not

expired as the applicant had meanwhile served a sentence of

imprisonment and the six months' period had started anew on 20 May

1993.  Moreover, the facts in regard to which detention on remand had

been imposed on the applicant on 21 November 1992 were not the same as

meanwhile further charges of fraud had been brought to the notice of

the investigating judge.  A strong suspicion of having committed fraud

existed against the applicant, which justified detention on remand.

Whether the elements gathered in the preliminary investigation were

sufficient to lead to his conviction was a matter to be decided by the

trial court.  As regards the grounds for detention, the Supreme Court

found that the danger of the applicant committing further offences

existed.  In this respect it referred to the applicant's criminal

record and the fact that he was suspected of having continued to commit

criminal offences even after criminal proceedings had been instituted

against him.  There was nothing to show that the criminal proceedings

were not conducted with the necessary diligence.

     On 26 August 1993 the trial of the applicant, who was represented

by counsel, started before the Graz Regional Court.  The applicant made

numerous requests for taking of evidence, including, inter alia, the

obtaining of experts opinions and investigations to be carried out in

the United States on the existence of a firm he had claimed to be the

owner of.  The Regional Court granted these requests and decided, in

view of the complexity of the evidence to be taken, to remit the case

to the Investigating Judge.

     On 22 September 1993 the Judges Chamber dismissed a further

request for release from detention on remand.  On 8 October 1993 the

Court of Appeal dismissed the applicant's appeal.

     On 25 October 1993 the Graz Public Prosecutor's Office filed a

further bill of indictment against the applicant charging him with

fraudulent conversion.

     On 12 November 1993 the Court of Appeal decided that the

applicant's detention on remand might last up to a maximum period of

ten months.

     On 9 December 1993 the Judges' Chamber of the Graz Regional Court

dismissed a request by the applicant for release from detention on

remand.  It found that in view of the results of the preliminary

investigations a serious suspicion against the applicant existed and

that there was a risk that he would commit further offences if

released.  The situation has not changed since the last decision of the

Court of Appeal, taken on 12 November 1993.  Moreover, having regard

to the sentence the applicant risked in case of conviction, the length

of his detention on remand was not disproportionate.

     The applicant appealed against the Judges' Chamber's decision of

9 December 1993.  He submitted that no serious suspicion existed

because the charges against him were absurd and based on manipulated

facts.

     On 15 and 16 December 1993 the police informed the Investigating

Judge of the result of its investigations in the United States

concerning the existence of a firm of which the applicant was allegedly

the owner.

     On 27 December 1993 the applicant challenged all judges of the

Graz Regional Court for bias.

     On 5 January 1994 the Graz Court of Appeal dismissed the

applicant's appeal against the decision of the Judges' Chamber of

9 December 1993.  It further decided that detention on remand might

last up to 5 March 1994.  The Court of Appeal found that the

continuation of the applicant's detention on remand was necessary

because of the difficulties and extent of the investigations.  At the

court hearing on 26 August 1993 the applicant had made numerous

requests for taking of evidence and the case had therefore been

referred back to the Investigating Judge.  In view of the result of the

further investigations a serious suspicion existed against him.  In

this respect the Court of Appeal noted that according to police reports

received by the court, the applicant's allegations that he had founded

and registered a company in the United States had been incorrect.  The

Court of Appeal also found that there was the risk that the applicant

would commit further offences if released and referred in this respect

to its previous decision of 12 November 1993.

     On 18 January 1994 the Judges' Chamber dismissed a further

request for release.

     On 19 January 1994 the Graz Regional Court decided that the

applicant's trial should continue on 10 February 1994.

     On 31 January 1994 the Graz Court of Appeal dismissed the

applicant's challenge for bias of 27 December 1993.  It found that the

applicant had failed to submit any concrete arguments on the basis of

which an examination of the question whether specific members of the

Regional Court were biased against him could be carried out.

     On 10 February 1994 the trial against the applicant was resumed.

On the same day the Regional Court convicted him of fraud on eight

counts, of deception and of fraudulent conversion and acquitted him of

further charges of fraud and deception.  The Regional Court sentenced

him to four and half a years' imprisonment.

     The applicant introduced a plea of nullity and appeal against the

above judgment.

     On 15 March 1994 the Supreme Court dismissed a further

fundamental rights complaint by the applicant.  It found that in view

of the applicant's conviction of 10 February 1994 his arguments against

the existence of a serious suspicion against him were no longer

relevant.

     On 11 May 1994 the Regional Court dismissed a further request by

the applicant for release.  On 27 June 1994 the Court of Appeal

dismissed the applicant's appeal.

     On 28 July 1994 the Supreme Court dismissed the applicant's

fundamental rights complaint against the Court of Appeal's decision of

27 June 1994.  It noted that on 10 February 1994 the Graz Regional

Court had convicted the applicant of fraud and sentenced him to four

and half a years' imprisonment.  In view of the conviction the Supreme

Court found that it no longer had to deal with the arguments of the

applicant against the existence of a serious suspicion.  This issue had

to be dealt with in the proceedings on his plea of nullity.  The

Supreme Court also found that no delays in the proceedings had

occurred.

     On 7 September 1994 the Supreme Court decided on the plea of

nullity.  It quashed the applicant's conviction regarding one count of

fraud and the conviction regarding fraudulent conversion, and confirmed

the conviction as regards the remaining charges.  The Supreme Court

also quashed the applicant's sentence and found that the sentence had

to be fixed once the remaining charges were determined.

     On 15 September 1994 the Regional Court dismissed the applicant's

request for release.  It found that in view of the partial confirmation

of his conviction by the Supreme Court, the applicant's arguments

against the existence of a serious suspicion were not relevant.  The

risk that the applicant would commit further offence if released

continued to exist.

     On 3 October 1994 the Court of Appeal dismissed the applicant's

appeal against the Regional Court's decision of 15 September 1994.

     On 30 December 1994 the Graz Regional Court, upon the request of

the Public Prosecutor's Office, discontinued criminal proceedings

concerning the charges in regard of which the Supreme Court had quashed

the applicant's conviction.

     On 11 January 1995 the Graz Regional Court, after an oral

hearing, fixed again the applicant's sentence concerning his conviction

of 10 February 1994.  It sentenced him to four years' imprisonment.

     On 26 April 1995 the Supreme Court rejected the applicant's

further plea of nullity and on 21 June 1995 the Graz Court of Appeal

dismissed the applicant's appeal against sentence.

B.   Relevant domestic law

1.   Detention on remand under the Code of Criminal Procedure

     (Strafprozeßordnung) as in force until 1 January 1994

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

a person could be held in detention on remand if he was seriously

suspected of having committed a criminal offence and if there was a

risk of his absconding, of collusion or of repetition of 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.

2.   Detention on remand under the Code of Criminal Procedure

     (Strafprozeßordnung) after 1 January 1994

     On 1 January 1994 an amendment to the Code of Criminal Procedure

(Strafprozeßänderungsgesetz 1993) entered into force which changed some

of the provisions governing detention on remand.  According to the new

version of SS. 181 and 182 detention on remand may for the first time

only be ordered for 14 days, prolonged the first time for 1 month and

prolonged subsequently and repeatedly for 2 months.  Before the

prolongation of detention on remand the Investigating judge has to hold

a hearing in camera in the presence of the detained, his counsel and

the public prosecutor.  Against the Investigating Judges' decision an

appeal can be lodged with the Court of Appeal.

3.   Fundamental Rights Complaint Act (Grundrechtsbeschwerde-Gesetz)

     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 the decision of a

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

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

     The applicant complains about the length of his detention remand

and submits that there had been neither a serious suspicion against

him, nor valid grounds for taking him into detention on remand.  He

invokes Article 5 paras. 3 and 4 of the Convention.

THE LAW

     The applicant complains about the length of his detention on

remand.

     The Commission finds that the application has to be examined

under Article 5 para. 3 (Art. 5-3) of the Convention which, insofar as

relevant, provides as follows:

     "Everyone arrested or detained in accordance with the provisions

     of paragraph 1 (c) of this Article ... shall be entitled to trial

     within a reasonable time or to release pending trial."

     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 was arrested on 21 November 1992

and convicted at first instance by the Regional Court on 10 February

1994.  The Commission notes, however, that during this period the

applicant served a term of imprisonment imposed in other criminal

proceedings, namely between 11 March and 20 May 1993.  Furthermore, the

detention on remand between 21 November 1992 and 11 March 1993 was

counted towards these convictions (see No. 8626/79, Dec. 12.3.81, D.R.

25 p. 218; No. 9132/80, Dec. 16.12.82, D.R. 31 p. 154 at p. 173).

Furthermore, the period following the applicant's conviction at first

instance cannot be taken into account for the purpose of Article 5

para. 3 (Art. 5-3) of the Convention (Eur. Court H.R., B. v. Austria,

judgment of 28 March 1990, Series A no. 175, p. 14 para. 36).  Thus the

period of detention on remand to be considered by the Commission is 8

months and 3 weeks.

     The Commission recalls that it is in the first place for the

national authorities to ensure that, in a given case, pre-trial

detention of an accused person does not exceed a reasonable time. To

this end, they must examine all the facts arguing for or against the

existence of a genuine requirement of public interest justifying, with

due regard to the principle of the presumption of innocence, a

departure from the rule of respect for individual liberty and set them

out in their decisions on the question of release. It is essentially

on the basis of the reasons given in these decisions and of the true

facts mentioned by the applicant in his appeals, that the Convention

organs are called upon to review the reasonableness of the length of

detention (Eur. Court H.R., Letellier judgment of 26 June 1991, Series

A no. 207, p. 18, para. 35; W. v. Switzerland judgment of 26 January

1993, Series A no. 254, p. 15, para. 30).

     The persistence of reasonable suspicion that the person arrested

has committed an offence is a condition sine qua non for the validity

of the continued detention, but, after a certain lapse of time, it no

longer suffices; the Convention organs must then establish whether the

other grounds cited by the judicial authorities continue to justify the

deprivation of liberty, and whether the domestic authorities displayed

special diligence in the conduct of the proceedings (Eur. Court H.R.,

Letellier judgment, loc. cit.; W. v. Switzerland judgment, loc. cit.).

     In the present case the applicant's detention on remand was,

according to the findings of the competent courts, based on the strong

suspicion that he had committed several counts of fraud, fraudulent

conversion and deception.  The existence of this suspicion was examined

by the Investigating Judge, the Judges' Chamber, the Court of Appeal

and the Supreme Court on the occasion of the applicant's repeated

requests for his release and answered by the courts to the affirmative.

Furthermore, these courts also found that there was the risk that the

applicant would commit further offences if released.  In substantiating

this risk the courts relied on the applicant's heavy criminal record

and the fact that although criminal proceedings had already been

pending against him, he had been charged with further criminal offences

committed meanwhile.

     The Commission finds that the applicant's continued detention on

remand was thus based on sufficient and relevant grounds.

     The Commission further 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 having served

previous prison sentences, was taken into detention on remand on 20 May

1993.  On 6 July 1993 the Public Prosecutor's Office filed a bill of

indictment against him.  On 26 August 1993 the trial against the

applicant started but the case was remitted to the Investigating Judge

because further evidence requested by the applicant, including an

expert report and police enquiries in the United States, had to be

taken.  On 25 October 1993 the Public Prosecutor's Office filed a

further bill of indictment against him.  On 19 January 1994 the

Regional Court, after the supplementary investigations had been

completed, scheduled the continuation of the applicant's trial for

10 February 1994.  On 31 January 1994 the applicant's challenge for

bias of all judges of the Regional Court was dismissed.  On 10 February

1994 the trial against the applicant was resumed and on the same day

he was convicted.  Furthermore, during this period numerous requests

for release from detention on remand were decided by the courts.

     In these circumstances the Commission considers that the period

of the applicant's detention on remand prior to his conviction by the

Graz Regional Court on 10 February 1994 did not exceed a reasonable

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

Convention.

     The Commission further observes that, should the length of the

applicant's detention between the Supreme Court's judgment of

7 September 1994, partially quashing the applicant's conviction and

quashing his sentence, and the fixing of a new sentence by the Regional

Court on 11 January 1995 be considered under Article 5 para. 3

(Art. 5-3) of the Convention, this period of approximately three months

does not appear unreasonable.

     It follows that the application is manifestly ill-founded within

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

     For these reasons, the Commission, unanimously,

     DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber       President of the First Chamber

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