AS TO THE ADMISSIBILITY OF

                      Application No. 18696/91

                      by Mezhar ABU SHAER

                      against Austria

      The European Commission of Human Rights (First Chamber) sitting

in private on 18 October 1994, the following members being present:

           MM.   A. WEITZEL, President

                 C.L. ROZAKIS

                 F. ERMACORA

                 E. BUSUTTIL

           Mrs.  J. LIDDY

           MM.   M.P. PELLONPÄÄ

                 B. MARXER

                 G.B. REFFI

                 B. CONFORTI

                 N. BRATZA

                 I. BÉKÉS

                 E. KONSTANTINOV

                 G. RESS

           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 14 June 1991 by

Mezhar ABU SHAER against Austria and registered on 20 August 1991 under

file No. 18696/91;

      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 30

      October 1992 and the observations in reply submitted by the

      applicant on 18 December 1992;

-     the Government's further observations of 15 July 1993 and the

      applicant's further submissions of 3 August 1993;

      Having deliberated;

      Decides as follows:

THE FACTS

      The applicant, an Austrian citizen born in 1942, is a businessman

residing at Salzburg in Austria.  Before the Commission he is

represented by Mr. H. Esterbauer, a lawyer practising in Salzburg.

A.    Particular circumstances of the case

                                  I.

      On 10 December 1990 Mr. Ri., a student, filed a complaint with

the Vienna Federal Police Authority (Bundespolizeidirektion) alleging

that somebody had scratched the side of his mother's car with a tool

and punctured a tyre.

      On 18 December 1990, after midnight, the same car was found

burning in a street in Vienna.  In the morning, Ms. Re., a friend of

Ri., told the Vienna police that she believed that the applicant had

set fire to the car.  She stated that she had once been employed by the

applicant.  When she had wanted to quit, he had proposed to marry her.

Ms. Re. explained that the applicant then started threatening Ri.'s

family and herself by telephone.

      On the same day, Mrs Ri., Mr. Ri.'s mother., rang up a lawyer,

Mr. W., in Vienna, pointing out that her car had been set on fire and

complaining about the "telephone terror" by the applicant for which

reason they now had a confidential number. She also stated that the

applicant had probably not personally set fire to her car, as she had

been telephoning him in his Salzburg apartment immediately after the

fire.

      On 21 December 1990 the Duty Judge (Journalrichter) of the Vienna

Regional Court (Landesgericht) issued an "oral warrant of arrest"

(mündlicher Haftbefehl) against the applicant on the ground that he had

uttered dangerous threats (gefährliche Drohung) and on account of a

danger of committing a criminal offence (Tatbegehungsgefahr).  A

written warrant of arrest of the same date stated that the applicant

was suspected of having uttered dangerous threats against Ms. Re. by

telephone, of having damaged Mrs Ri.'s car tyres, and of having set

fire to that car.  The warrant of arrest further stated that there was

a danger of committing a criminal offence in view of numerous "attacks"

(Angriffshandlungen).

      On 24 December 1990 the applicant was arrested in Salzburg and

remanded in custody.  When questioned, he stated that he would only

reply to the charges before the competent court.  The applicant signed

a document at the police station according to which he had been

informed of the reasons of his arrest.

      On 25 December 1990 the applicant was taken to the Salzburg

Regional Court's Detention Centre (Landesgerichtliches Gefangenenhaus).

      On 26 December 1990 the applicant was heard by the Duty Judge at

the Salzburg Regional Court.  The applicant denied having committed the

offences of which he was charged.  The Duty Judge telephoned a Duty

Judge at the Vienna Regional Court and informed the latter about the

case and of the applicant's submissions.  Thereupon, the Vienna Duty

Judge decided, upon the request of the Vienna Public Prosecutor's

Office, to institute preliminary investigations against the applicant

on account of damage to objects (Sachbeschädigung) and compulsion

(Nötigung) and to order his detention on remand.

       The applicant, informed of this telephone conversation,

declared: "I am raising a complaint against both decisions" ("erhebe

ich Beschwerde gegen beide Beschlüsse").

      On the same day, 26 December, 1990, the Vienna Regional Court

issued a decision confirming the applicant's detention on remand.  The

decision stated that the applicant was suspected of having uttered

dangerous threats to both families Ri. and Re. and of having damaged

Mrs. Ri.'s car.  The decision further stated that there was a danger

that the applicant would carry out the threats.

      As of 27 December 1990 the applicant was represented by a lawyer.

      On 3 January 1991, the applicant was transferred to the Vienna

Regional Court's Detention Centre. The investigating judge in charge

of the case was on leave until Thursday, 10 January 1991.

      On Monday, 14 January 1991 the applicant was heard by the

investigating judge at the Vienna Regional Court.  He explained his

relationship with Ms. Re., alleged to be of an intimate nature, that

she had been in financial need, and that he had often helped her in

this respect.  The applicant denied having uttered threats to Mr. Ri.

on the telephone.  The applicant then stated: "I withdraw my complaint

against the decisions by which preliminary proceedings were instituted

and detention on remand ordered" ("ich ziehe meine Beschwerde gegen die

Beschlüsse auf Einleitung der und der

chungs>-Haft zurück").

      Following a further hearing on 16 January 1991 and after having

taken a vow and deposited his handgun and firearms licence the

applicant was released from detention.

      On 8 March 1991 the applicant was informed that the criminal

proceedings instituted against him had been closed.

                                  II.

      The applicant subsequently claimed compensation in respect of

pecuniary disadvantages during his detention on remand on the ground

that the suspicions levelled against him had been dissipated.  His

claim was rejected by the Review Chamber (Ratskammer) of the Vienna

Regional Court on 3 September 1991 on the ground that the suspicion

against the applicant had not been dissipated.  The Chamber noted inter

alia that the applicant had already threatened Ms. Re. in October 1990.

      The applicant's appeal against this decision was dismissed by the

Vienna Court of Appeal on 17 March 1992.

                                 III.

      The applicant also claimed compensation for unlawful detention.

This request was dismissed on 17 March 1992 by the Vienna Court of

Appeal.  The Court noted that the police had undertaken considerable

investigations in the case and even heard witnesses.  Moreover, the

report to the police and the investigations warranted the conclusion

that there also existed the danger of the applicant committing further

offences.

      The Court further noted that the applicant had in due time

(fristgerecht) been brought before the competent judge at the Salzburg

Regional Court, after the competent Vienna Duty Judge had ordered

regular detention on remand and instituted preliminary investigations.

As a result, no unlawful act could be established (kann ein

gesetzwidriger Vorgang nicht erkannt werden).

      The applicant's further appeal was dismissed by the Supreme Court

(Oberster Gerichtshof) on 20 May 1992, the decision being served on the

applicant on 12 June 1992.  The Court noted that the applicant's arrest

was based on S. 175 of the Code of Criminal Procedure and that his

detention had been ordered pursuant to S. 180 of that Code (see below,

Relevant domestic law).  The Supreme Court considered that it had been

rightly supposed that the applicant was likely to commit further

offences, since according to the contents of the case-file, a strong

suspicion prevailed that the applicant had uttered the dangerous

threats in question and had ordered a third person to damage the car.

The Court further confirmed the findings of the Vienna Court of Appeal

and concluded that, although the applicant was only informed orally

about the decision to remand him in custody, neither the imposition nor

the continuation of the applicant's detention on remand were unlawful.

B.    Relevant domestic law

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

(Strafprozessordnung) the Review 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

of or a delay in the course of preliminary investigations ("durch eine

Verfügung oder eine Verzögerung des Untersuchungsrichters") may file

an application with the Review 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 is 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 if it is likely that offences may be committed.  In

such cases the investigating judge has to issue a written warrant of

arrest which has to be served upon the suspect at his arrest or within

the next twenty- four hours (S. 176 para. 1).

      S. 177 provides that exceptionally provisional detention of a

suspect may be ordered 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 is 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 the likelihood

of the commission of 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 24 hours.  If this

is not possible, the suspect may remain in provisional detention;

however, his questioning must begin as soon as possible, the latest at

the expiry of three days, and the reasons why he was not questioned

earlier have to be recorded.  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 (Unter-

suchungshaft). According to Austrian case-law, the above time-limits

start to run upon transfer of the suspect to the competent court.

      Under S. 180 paras. 1 and 2 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

commission of offences.

      By virtue of SS. 194 and 195, a person detained is to be released

from detention either upon the concurring opinion of the investigating

judge and the public prosecutor, or upon the decision of the review

chamber following a hearing on the detainee's application for release

(Haftprüfungsverhandlung). It is open to the suspect to apply for

release at any time. Such an application has to be examined by the

review chamber at a private hearing in the presence of the accused or

his defence counsel.

      Once a detainee has been released, the unlawfulness of his

detention has to be established in proceedings under the Criminal

Proceedings Compensation Act (Strafrechtliches Entschädigungsgesetz).

This Act provides for compensation for pecuniary loss resulting from

detention on remand and also for unlawful detention.

COMPLAINTS

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

Convention that he was illegally arrested.  He submits that the warrant

of arrest of 21 December 1990 was wrong in that it stated that he had

threatened Ms. Re. and had damaged Mrs. Ri.'s car.  However, Ms. Re.

herself stated on 18 December that he, the applicant, had only

threatened Mr. Ri., not herself;  Mrs. Ri. had also said that they now

had a secret telephone number.  Moreover, the car concerned did not

belong to the Re.s, but to Mrs. Ri. who herself had stated that after

the fire she had been able to contact the applicant at his Salzburg

apartment.

      Under Article 5 para. 3 the applicant complains that the Salzburg

Duty Judge informed him on 26 December 1990 that he was not competent

to release him without the permission of the Vienna Court which had

issued the warrant of arrest.  Thus, the applicant had to wait three

weeks until he was brought before an investigating judge.

      In his observations in reply to the Government dated 18 December

1992 (see below, PROCEEDINGS BEFORE THE COMMISSION) the applicant,

invoking Article 5 para. 5 of the Convention, requests compensation for

the detention imposed on him contrary to Article 5 paras. 1 (c) and 3

of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

      The application was introduced on 14 June 1991 and registered on

20 August 1991.

      On 13 May 1992 the Commission decided to communicate the

application to the respondent Government and invite them to submit

written observations on the admissibility and merits in respect of the

complaint under Article 5 para. 3 of the Convention.

      The Government's observations were submitted on 30 October 1992.

The applicant's observations were submitted on 18 December 1992.

      On 18 June 1993 the Acting President decided to require further

clarification from the Parties on their observations.

      The Government's further observations were submitted on

15 July 1993.  The applicant's further submissions were submitted on

3 August 1993.

THE LAW

1.    The applicant complains under Article 5 paras. 1 (c) and 3

(Art. 5-1-c, 5-3) of the Convention of his unlawful arrest and that it

took three weeks until he was actually brought before the competent

investigating judge.

a)    The Government submit that the applicant has not complied with

the requirement as to the exhaustion of domestic remedies within the

meaning of Article 26 (Art. 26) of the Convention.  Reference is made

in particular to the Review Chamber which supervises compliance with

all provisions of the Code of Criminal Procedure relevant to the

preliminary inquiries and investigations.  Thus, the Review Chamber is

competent to examine the lawfulness of decisions issued by the

investigating judge.  The Chamber is competent to quash or alter any

decision so issued.  Against the Chamber's decision an appeal may be

filed to the Court of Appeal.

      The Government contend that the applicant thus had an effective

remedy at his disposal which he did not raise.  The applicant also

failed to lodge a request for release from detention on remand.

      The applicant submits that when he withdrew his complaint on

14 January 1991 a lawyer was not present to advise him.  Furthermore,

the investigating judge could have released him from remand without his

having withdrawn his complaint.  In this case, the Review Chamber would

no longer have been competent to examine his complaint, as he was no

longer in detention.  Moreover, the investigating judge, when

questioning the applicant on the prevailing suspicion against him,

informed him that his release from custody would be delayed, if he

maintained his complaint. It could not be expected from the applicant

to remain in custody merely to pursue domestic remedies.

      The Commission recalls that Article 26 (Art. 26) of the

Convention only requires the exhaustion of such remedies which relate

to the breaches of the Convention alleged and at the same time can

provide effective redress.

      The Commission also recalls that it is initially for the

individual applicant to select which legal remedy to pursue (Eur. Court

H.R., Airey judgment of 9 October 1979, Series A no. 32, p. 12,

para. 23).  Where therefore there is a choice of remedies open to the

applicant to redress an alleged violation of the Convention, Article

26 ((Art. 26) of the Convention must be applied to reflect the

practical realities of the applicant's position in order to ensure the

effective protection of the rights and freedoms guaranteed by the

Convention (No. 9118/80, Dec. 9.3.1983, D.R. 32 p. 165).

      In the present case, the applicant, after being remanded in

custody, raised a complaint about the unlawfulness of the detention on

remand before the Review Chamber. However, after having been questioned

by the investigating judge, he withdrew his complaint before it could

be forwarded to the Review Chamber.  The applicant was subsequently

released from detention.

      However, the Commission notes that the applicant also filed a

request for compensation for unlawful detention on remand with the

Vienna Court of Appeal and, upon appeal, with the Supreme Court.  Both

courts were competent to establish the unlawfulness of the detention.

However, both Courts concluded that in the present case the applicant's

detention had not been unlawful.

      It follows that the domestic authorities had an opportunity to

address the issues which the applicant is now raising before the

Commission.  This part of the application cannot therefore be declared

inadmissible for non-compliance with the requirements under Article 26

(Art. 26) of the Convention.

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

(Art. 5-1-c) of the Convention of the unlawfulness of the warrant of

arrest in that it did not reflect the reality.

      The Government disagree.  Thus, the warrant of arrest of

21 December 1990 correctly stated that there were good reasons to

suspect the applicant of having threatened Ms. Re., or of having

damaged Mrs. Ri.'s car. The Government moreover point out that the

procedure followed also complied with Article 5 para. 1 (c)

(Art. 5-1-c) of the Convention.  Thus, on 26 December 1990 the Salzburg

Investigating Judge informed the competent judge at the Vienna Regional

Court of the applicant's response to the charges brought against him.

The Vienna Duty Judge thereupon decided to order the applicant's

detention; the Salzburg Duty Judge then informed the applicant thereof.

      The applicant submits that there is a contradiction in that the

warrant of arrest repeatedly stated that the applicant had threatened

Ms. Re., though it did not explain this threat.  As regards the

allegation that the applicant damaged Mrs. Ri.'s car, the applicant

refers to a statement of Mrs. Ri.'s lawyer according to which there was

no concrete evidence in this respect.

      The Commission must examine whether the imposition of detention

on remand on the applicant complied with the conditions laid down in

Article 5 para. 1 (c) (Art. 5-1-c) of the Convention, namely the lawful

arrest effected for the purpose of bringing the person suspected of

having committed an offence before the competent legal authority.

      The Commission has had regard to the findings of the Austrian

Courts in the compensation proceedings for unlawful detention.  These

Courts found in particular that the applicant had been duly brought

before the competent Duty Judge at the Salzburg Regional Court and that

detention on remand had been regularly imposed on the applicant. The

Courts concluded that no unlawful act could be established.  As a

result, the Commission finds no indication that the applicant's

deprivation of liberty was not "lawful" and "in accordance with the

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

Convention.

      The Commission furthermore recalls that the reasonable suspicion

referred to in paragraph 1 (c) of this provision presupposes the

existence of facts or information which would satisfy an objective

observer that the person concerned may have committed the offence (see

Eur. Court H.R., Fox, Campbell and Hartley judgment of 30 August 1990,

Series A no. 182, p. 16, para. 32).  However, Article 5 para. 1 (c)

(Art. 5-1-c) of the Convention does not require that the suspected

person's guilt must at that early stage be proven, and it cannot be a

condition for arrest and detention pending trial that the commission

of the offence with which the person concerned is charged has been

established.  It is precisely the purpose of the official investigation

and detention that the reality and nature of the offences laid against

the accused should be definitely proved (see No. 10803/94, Dec.

16.12.87, D.R. 54 p. 35).

      In the present case the warrant of arrest issued against the

applicant on 21 December 1990 stated that the applicant was suspected

of having uttered dangerous threats against Ms. Re. by telephone, of

having damaged Mrs. Ri.'s car tyres, and of having set fire to this

car.  It was further stated that there was a danger of committing a

criminal offence in view of numerous "attacks". In this respect, the

Commission also notes the findings of the Supreme Court that it was

rightly supposed that a likelihood of committing offences existed,

since according to the contents of the case-file, a strong suspicion

prevailed that the applicant had uttered the dangerous threats in

question and had ordered someone else to damage the car.

      Thus, the Commission accepts that, on the basis of the

investigations at that early stage of the proceedings, there was a

reasonable suspicion against the applicant as required by Article 5

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

      Finally, Article 5 para. 1 (c) (Art. (Art. 5-1-c) of the

Convention also requires that the arrest be effected "for the purpose

of bringing him before the competent legal authority". In this respect,

the Commission recalls that "paragraph 1 (c) forms a whole with

paragraph 3" and "`competent legal authority' is a synonym, of

abbreviated form, for `judge or other officer authorised by law to

exercise judicial power'" (Eur. Court H.R., Ireland v. the United

Kingdom judgment of 18 January 1978, Series A no. 25, p. 75, para. 199;

Schiesser judgment of 4 December 1980, Series A no. 34, p. 12,

para. 29). However, the Commission also recalls that the existence of

such a purpose must be considered independently of its achievement

(Eur. Court H.R., Brogan and others judgment of 29 November 1988,

Series A no. 145-B, p. 29, para. 53).

      The Commission notes that the applicant was arrested upon the

Vienna Duty Judge's warrant of arrest. The applicant was then brought

before the Duty Judge of the Salzburg Regional Court, who, as the

Government concede, was not competent to order release on his own

accord. However, the Commission notes that the applicant, on

3 January 1991, was transferred to the Vienna Regional Court's

Detention Centre and subsequently brought before the Vienna

investigating judge. Thus, the Commission considers that the applicant

was deprived of his liberty for the purpose of bringing him before the

competent legal authority, the Vienna investigating judge, as required

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

      It follows that this part of the application is manifestly ill-

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

Convention.

c)    The applicant also complains under Article 5 para. 3

(Art. 5-3) of the Convention that it took three weeks until he was

brought before the competent investigating judge.

      In the Government's opinion, the requirements of Article 5

para. 3 (Art. 5-3) of the Convention were complied with.  Thus, the

applicant was heard by the Salzburg Duty Judge within 24 hours. It is

in conformity with Austrian law, that the Duty Judge holding the person

immediately contacts the competent investigating judge of the court

which has jurisdiction over the offence.  That judge can then issue his

decision on the detention within the time normally available if the

prisoner had been brought to his jurisdiction.  However, the Government

admit that the Duty Judge at the Salzburg Regional Court was not

competent, on his own accord, to release the applicant from detention

on remand.

      The applicant submits that the Duty Judge who heard him on

26 December 1990 was not competent to release him and in any event did

not have the relevant documents at his disposal.  The applicant points

out that both the Vienna and the Salzburg Courts had fax-machines,

which would have enabled the transmission of relevant documents from

one court to the other. Once the applicant was brought before the

competent investigating judge on 14 January 1991, he was indeed

released from detention.

      The Commission finds that this complaint raises difficult

questions of fact and law which require an examination of the merits.

2.    In his observations in reply to the Government the applicant,

invoking Article 5 para. 5 (Art. 5-5) of the Convention, requests

compensation for the detention imposed on him contrary to Article 5

paras. 1 (c) and 3 (Art. 5-1-c, 5-3) of the Convention.

      Assuming that the applicant may be understood as complaining

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

courts did not award him compensation for the allegedly unlawful

detention, the Commission recalls that according to Article 26

(Art. 26) of the Convention it "may only deal with a matter ... within

a period of six months from the date on which the final decision was

taken."

      In the present case the applicant claimed compensation for

unlawful detention before the domestic authorities.  His request was

dismissed, upon appeal, by the Supreme Court on 20 May 1992, the

decision being served on the applicant on 12 June 1992. This was the

final decision regarding the subject of this particular complaint,

whereas the applicant raised the complaints at issue before the

Commission on 18 December 1992, that is more than six months after the

date of the final decision.  Furthermore, an examination of the case

does not disclose any special circumstances which might have

interrupted or suspended the running of that period.

      It follows that the remainder of the application has been

introduced out of time and must be rejected under Article 27 para. 3

(Art. 27-3) of the Convention.

      For these reasons, the Commission

      unanimously,

      DECLARES ADMISSIBLE, without prejudging the merits of the case,

      the complaint that the applicant was not brought promptly before

      a judge competent to order his release within the meaning of

      Article 5 para. 3 (Art. 5-3) of the Convention; and

      by a majority,

      DECLARES INADMISSIBLE the remainder of the application.

Secretary to the First Chamber       President of the First Chamber

      (M.F. BUQUICCHIO)                        (A. WEITZEL)