AS TO THE ADMISSIBILITY OF

                      Application No. 22715/93

                      by E. G.

                      against Austria

     The European Commission of Human Rights (First Chamber) sitting

in private on 15 May 1996, the following members being present:

           Mr.   C.L. ROZAKIS, President

           Mrs.  J. LIDDY

           MM.   E. BUSUTTIL

                 A.S. GÖZÜBÜYÜK

                 A. WEITZEL

                 M.P. PELLONPÄÄ

                 B. MARXER

                 B. CONFORTI

                 N. BRATZA

                 I. BÉKÉS

                 E. KONSTANTINOV

                 G. RESS

                 A. PERENIC

                 C. BÎRSAN

           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 19 August 1993 by

E. G. against Austria and registered on 30 September 1993 under file

No. 22715/93;

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

of Procedure of the Commission;

     Having regard to the Commission's decision of 17 January 1995 to

communicate the application as regards the applicant's complaint

concerning his alleged arrest during the hearing of 6 May 1992 before

the Vienna Regional Criminal Court and to declare the applicant's other

complaints inadmissible;

     Having regard to the observations submitted by the respondent

Government on 6 April 1995 and the observations in reply submitted by

the applicant on 31 May 1995;

     Having deliberated;

     Decides as follows:

THE FACTS

     The applicant, born in 1954, is an Austrian national.  He is a

lawyer by profession, residing and practising in Vienna.

A.   The particular circumstances of the case

     The facts of the case, submitted by the parties with regard to

the remaining part of the application, may be summarised as follows.

     On 6 May 1992 the Vienna Regional Criminal Court (Landesgericht)

held a hearing concerning charges of intimidation (Nötigung), assault

(Körperverletzung) and cruelty to animals (Tierquälerei) against the

applicant, relating to an incident in road traffic in June 1991.

     After the court had heard the applicant, several witnesses and

two experts, the applicant requested to be assisted by counsel. The

judge rejected this request on the ground that the applicant was

experienced enough to present his defense. As regards the following

events, the parties are in dispute:

     The applicant states that the judge subsequently also refused to

let him use the telephone in the courtroom to call a counsel.

Therefore, he went to the door, opened it a bit and lent outside to ask

a colleague, who was waiting there, to call a counsel for him.

Thereupon, the judge, by setting off an alarm, called a security

officer (Justizwachebeamter), whom he instructed to sit in the

courtroom next to the door and to arrest the applicant, should he again

try to leave. The security officer remained there until the hearing

ended two and a half hours later.

     According to the Government, the applicant left the courtroom,

after his request to be represented by counsel had been rejected. The

judge, concluding from the applicant's behaviour that he might abscond

from the whole proceedings, told him to come back to the courtroom and

threatened him with arrest. Since the applicant did not obey the

judge's order, the latter alerted the security service. Only then the

applicant came back to the courtroom. When the security officer

appeared, the judge told him to wait outside the courtroom in order to

be ready should an arrest be necessary. Well before the end of the

hearing, the judge told him that he was no longer needed. The security

officer thereupon returned to the guardroom.

      The minutes of the hearing do not explicitly refer to this

incident. However, they state that the applicant brought a motion

challenging the judge for bias, inter alia on the ground that he had

prevented him to call a counsel and had threatened to arrest him. The

applicant further requested that the hearing be suspended until he got

the assistance of a counsel, as in the circumstances, he did not feel

able to plead his case.  The judge also rejected these requests.

     Subsequently, the Regional Criminal Court heard an additional

statement of the applicant. Moreover, the applicant made a number of

requests for the taking of evidence, which were rejected by the court.

At the end of the hearing the court pronounced its judgment, convicting

the applicant for intimidation, assault and cruelty to animals and

sentencing him to four months' imprisonment suspended on probation.

     On 22 June 1992 the applicant, then represented by counsel,

lodged an appeal on questions of law and fact (Berufung).  As regards

the appeal on questions of law, he complained inter alia that the trial

judge had rejected his request to be assisted by counsel.  He alleged

that the judge had threatened to arrest him and had called a security

officer to prevent him from leaving the court room.

     On 19 October 1992 the Vienna Court of Appeal (Oberlandes-

gericht), after having held a hearing in presence of the applicant and

his counsel, dismissed the applicant's appeal. As regards his complaint

that he was not allowed to call a counsel, the Court considered that

the applicant was himself a lawyer and had been familiar with the

charges against him.  Had he deemed it necessary, he could have come

to the hearing with a counsel.

     The decision was served on the applicant on 23 February 1993.

B.   Relevant domestic law

     The Austrian Code of Criminal Procedure (Strafprozeßordnung)

contains a number of provisions allowing the judge to have a suspect

or an accused brought to court under warrant (Vorführbefehl). They

include the following:

     SS. 173 and 174 deal with the summons to a hearing before the

investigating judge. S. 173 states that the suspect has to be summoned

by a writ signed by the investigating judge. Inter alia it has to

contain a warning that he will be brought before the judge should he

fail to appear. S. 174 states that a written warrant is to be issued

if the suspect fails to appear without a valid excuse.

     S. 221 deals with the preparation of the trial and the summons

to the trial. Paragraph 1 provides that the summons of the accused has

to contain the warning that, if he fails to appear, according to the

circumstances, the trial will either be conducted in his absence, or

he will be brought to the trial under warrant; or, if this was not

possible in time, the trial will be adjourned and he will be brought

before the court.

     S. 269 provides that, if the accused has not appeared for the

pronouncement of the judgment, the presiding judge may order that he

be brought before the court in order to attend it. Or he may order that

the judgment be read out to the accused by a designated judge or that

a copy of it be served on him.

     S. 427 states that if the accused has failed to appear, the trial

may be conducted in his absence, if the charge concerns only a

misdemeanour, if he has already been heard and if the summons have been

served on him personally. In this case, the judgment will be pronounced

to the accused by a designated judge or a copy will be served on him

(paragraph 1). If the trial cannot be held or continued in the absence

of the accused, either because one of the above conditions is not

fulfilled or because the court expects that a completely satisfactory

establishment of the facts will not be possible in the absence of the

accused, the court has to proceed according to S. 221 (paragraph 2).

COMPLAINTS

     The applicant's remaining complaint concerns his alleged arrest

during the hearing of 6 May 1992 before the Vienna Regional Criminal

Court. He submits in particular that the judge, after he had gone to

the door of the courtroom as he wanted to call a counsel, called a

security officer, whom he instructed to sit down next to the door and

to arrest him, should he try to leave.

PROCEEDINGS BEFORE THE COMMISSION

     The application was introduced on 19 August 1993 and registered

on 30 September 1993.

     On 17 January 1995 the Commission decided to communicate the

applicant's complaint concerning his alleged arrest during the hearing

of 6 May 1992 before the Vienna Regional Criminal Court to the

respondent Government, pursuant to Rule 48 para. 2 (b) of the Rules of

Procedure. The Commission declared he remainder of the application

inadmissible.

     The Government's written observations were submitted on

6 April 1995. The applicant replied on 31 May 1995.

THE LAW

     The applicant complains the he was unlawfully deprived of his

liberty during the hearing before the Vienna Regional Criminal Court

of 6 May 1992.

     The Commission will examine this complaint under Article 5

(Art. 5) of the Convention which, so far 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;"

     The Government submit that the measure complained of did not

amount to a deprivation of liberty within the meaning of Article 5

para. 1 (Art. 5-1) of the Convention. They point out that the

restriction of the applicant's freedom of movement was only the

consequence of a measure which was primarily aimed at avoiding a delay

in the proceedings or the necessity to proceed in the absence of the

accused. Referring to case-law of the Commission (No. 8819/79, Dec.

19.3.1981, D.R. 24 p. 158, 161) the Government argue that the measure

at issue should not be considered as an arrest, as its purpose was not

to deprive the applicant of his liberty. Moreover, the judge only

threatened to arrest the applicant but his arrest was never actually

ordered as he made no further attempts to leave the courtroom.

     Further, the Government submit that in any case a deprivation of

liberty was to be considered as lawful arrest under Article 5

para. 1 (c) (Art. 5-1-c) of the Convention. They rely on S. 221 para.

accused, who fails to appear, may be brought to court under a warrant.

The Government argue that it follows from the purpose of the provision

- which obliges the accused to appear and enables the court to hear the

case in his presence - that the power to have the accused brought to

court includes the power to prevent him from leaving the courtroom

during the trial. The opposite view would lead to absurd consequences,

i.e. that the court would have to let the accused leave and to have him

brought to court by force for a new hearing. Further, the power to

prevent the accused from leaving follows from S. 427 para. 2 of the

Code of Criminal Procedure, which states that the court shall proceed

in accordance with S. 221, if the trial cannot be held or continued in

absence of the accused. This is inter alia the case, if the court

expects that a completely satisfactory establishment of the facts will

not be possible without the accused. Finally, the Government refer to

S. 269 of the Code of Criminal Procedure, which allows the judge to

have an accused brought to court under guard to hear the judgment.

     Eventually, the Government argue that the provisions of the Code

of Criminal Procedure, concerning the way in which the trial is to be

conducted, stipulate that in principle the accused shall be present.

Thus, the judge's warning that the applicant would be arrested also

constituted a step to secure the fulfilment of an obligation prescribed

by law within the meaning of Article 5 para. 1 (b) (Art. 5-1-b).

     The applicant submits that in establishing whether there was a

deprivation of liberty, not only the duration and modalities of the

restriction of movement have to be taken into account but also the

effects of the measure on the person concerned and the arbitrariness

of the measure at issue. He argues that the judges' assumption that he

wanted to abscond from the trial was arbitrary, as it was clear in the

circumstances that he only wanted to call a defence counsel, but did

not intend to leave the courtroom.

     The applicant contests the Government's view that his arrest in

the courtroom can be based on S. 221 and S. 427 para. 2 of the Code of

Criminal Procedure. In particular, the trial could have been conducted

in his absence as he had already been questioned and all relevant facts

had been established at the time when he was arrested. Further, the

applicant argues that S. 221 has to be read in conjunction with S. 174,

which requests a written warrant giving reasons. In his case the order

was only given orally without any reasoning. Finally, he submits that

his arrest cannot be based on S. 269. He argues that this provision

enables the court to ensure that the accused gets the necessary

information about the available remedies. Arresting him, who is a

lawyer, appears arbitrary.

     The Commission notes that, although the accounts given by the

parties differ to some extent, the following facts are undisputed:

During the hearing of 6 May 1992 before the Vienna Regional Criminal

Court concerning charges of intimidation, assault and cruelty to

animals against him, the applicant requested to be represented by

counsel. Following the judge's refusal of this request, the applicant

went to the door of the courtroom and opened it. According to the

applicant he was only leaning outside, while in the Government's

version, he actually left the room. It is again undisputed that the

judge subsequently called the security service and instructed the

security officer to arrest the applicant should he try to leave.

     The Commission recalls that in proclaiming the right to liberty,

paragraph 1 of Article 5 (Art. 5) is contemplating individual liberty

in its classic sense that is to say the physical liberty of the person

(Eur. Court H.R., Engel and Others judgment of 8 June 1976, Series A

no. 22, p. 25, para. 58). In order to determine whether circumstances

involve a deprivation of liberty, the starting point must be the

concrete situation of the individual concerned and account must be

taken of a whole range of criteria such as type, duration effects and

manner of implementation of the measure in question (Engel and Others

judgment, loc. cit., para. 59; Guzzardi judgment of 6 November 1980,

Series A no. 39, p. 33, para. 92).

     The Commission considers that the measure complained of has to

be seen in the above factual context. The Commission attaches

particular weight to the applicant's submission that he only wanted to

call a counsel but did not intend to leave the courtroom. It appears,

however, that the judge interpreted the situation differently and made

the necessary arrangements to ensure that the applicant remain in the

courtroom and attend the trial. However, there is no indication that

the applicant wanted to leave in the further course of the hearing. On

the contrary, he took an active part in the trial, exercising his

defense rights in particular by making a number of requests for the

taking of evidence. Thus, the judge, although he had threatened the

applicant with it, never actually proceeded to his arrest. In these

circumstances, the Commission finds that the measure complained of did

not amount to a deprivation of liberty within the meaning of Article 5

(Art. 5) of the Convention.

     It follows that the remaining part of 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 INADMISSIBLE the remainder of the application.

Secretary to the First Chamber       President of the First Chamber

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