AS TO THE ADMISSIBILITY OF

                      Application No. 20602/92

                      by Zoltan SZÜCS

                      against Austria

      The European Commission of Human Rights (First Chamber) sitting

in private on 29 June 1994, the following members being present:

           MM.   A. WEITZEL, President

                 C.L. ROZAKIS

                 F. ERMACORA

                 E. BUSUTTIL

                 A.S. GÖZÜBÜYÜK

           Mrs.  J. LIDDY

           MM.   M.P. PELLONPÄÄ

                 B. MARXER

                 G.B. REFFI

                 B. CONFORTI

                 N. BRATZA

                 I. BÉKÉS

                 E. KONSTANTINOV

           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 24 August 1992 by

Zoltan Szücs against Austria and registered on 9 September 1992 under

file No. 20602/92;

      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 facts of the case, as they have been submitted by the

applicant, may be summarised as follows.

      The applicant is a Hungarian national, born in 1971 and residing

in Halaszetelek (Hungary). Before the Commission he is represented by

Mr. T. Schreiner, a lawyer practising in Eisenstadt (Austria).

A.    The particular circumstances of the case

      On 8 October 1990 the investigating judge of the Wiener Neustadt

Regional Court (Kreisgericht) opened preliminary investigations and

issued a warrant of arrest (Haftbefehl) against the applicant and 3

others for suspicion of aggravated professional fraud committed between

9 and 31 May 1990 in Austria.  The investigating judge found that there

existed a danger of absconding as the suspects had no fixed abode in

Austria and had left Austria after having committed the offences they

were suspected of.  He further found that there existed a danger of

collusion as it was unclear how the suspects had come into possession

of the credit card of Mrs. S.K. which was used in committing the

offences.

      On 25 February 1991 the applicant was arrested upon his entry

into Austria at the Austrian-Hungarian border.

      On 26 February 1991 an investigating judge at the Eisenstadt

Regional Court questioned the applicant, who stated that he had only

accompanied the other suspects on a trip to Italy as their driver and

never had been present when they went shopping.  The investigating

judge ordered the applicant's detention on remand. Referring to the

warrant of arrest of 8 October 1990, he found that there was a

reasonable suspicion that the applicant together with other suspects

had committed aggravated fraud by buying goods for a value of some

200.000 AS in different shops in Austria with a stolen credit card

(issued to Mrs. S.K.).  According to information received from

Interpol, the applicant together with three other suspects had been

arrested on 31 May 1990 in Italy on which occasion they had been found

in the possession of the stolen credit card.  After an interrogation

by the Italian police the applicant had been expelled from Italy.  The

investigating judge also considered that there was a danger of

collusion, a danger of the applicant's absconding and a danger of

repetition.

      On 4 April 1991 the applicant was heard again by the

investigating judge.

      On 12 April 1991 the public prosecutor requested that the expert

opinion of a graphologist be taken for ascertaining whether the

applicant had signed the credit card purchase receipts.

      On 15 April 1991 the applicant requested that an ex officio

defence counsel be appointed and waived his right to a hearing with a

view to the examination of the lawfulness of his detention on remand

(Haftprüfungsverhandlung).  On the same day the investigating judge

ordered that a defence counsel be appointed for the applicant, that a

graphologist prepare an expert report within 10 days and had samples

of the applicant's handwriting taken.

      On 6 May 1991 the graphological expert stated that the signatures

on the purchase receipts were unlikely to have been made by the

applicant.  On the same day, upon a request by the public prosecutor,

the investigating judge decided to discontinue the criminal proceedings

and ordered the applicant's release from detention on remand.

      On the same day the applicant requested compensation for his

detention.

      On 8 May 1991 the Judges' Chamber (Ratskammer) at the Wiener

Neustadt Regional Court dismissed the applicant's claim for

compensation under Section 2 para. 1 (b) of the Criminal Proceedings

Compensation Act (Strafrechtliches Entschädigungsgesetz).  The Judges'

Chamber found that at the time of the applicant's arrest a serious

suspicion against him had existed.  Criminal proceedings had been

discontinued against him because clear evidence could not be produced.

Nevertheless a serious suspicion against him continued to exist (Im

gegenständlichen Fall wurde das Verfahren gegen Zoltan Szücs gemäß

Paragraph 109 Abs. 1 StPO lediglich eingestellt, weil ein eindeutiger

Nachweis für sein strafbares Verhalten, trotz Weiterbestehen

gewichtiger Verdachtsgründe, nicht zu erbringen ist).

      On 27 May 1991 the applicant appealed against this decision to

the Vienna Court of Appeal (Oberlandesgericht).  He submitted, inter

alia, that the Judges' Chamber's finding according to which serious

suspicion against him continued to exist violated the principle of

presumption of innocence.  He also submitted that the length of his

detention had been unreasonable and requested compensation for unlawful

detention under Section 2 para. 1 (a) of the Criminal Proceedings

Compensation Act in this respect.

      On 9 January 1992 the Court of Appeal dismissed the applicant's

appeal.  It found that, as the other suspects could not be traced in

Austria, it had been necessary to establish whether the signatures on

the purchase receipts with the credit card had been made by the

applicant, who could have disguised himself as a woman on the occasion

of the purchases.   The graphological expert had only indicated that

the signatures were unlikely to have been made by the applicant.

Furthermore, these was still the suspicion that he had aided and

abetted the other suspects.  Therefore, the suspicion against the

applicant had not been dissipated.

      On the same day, the Court of Appeal, in a separate decision,

dismissed the applicant's claim for compensation for unlawful detention

under Section 2 para. 1 (a) of the Criminal Proceedings Compensation

Act.  It found that a serious suspicion against the applicant of having

committed the offences in question subsisted at the time of his arrest.

Furthermore, there had existed the danger of the applicant's absconding

as he had been travelling around and had no fixed residence, and the

danger of collusion because there were several suspects and there had

been the risk that they would agree on their statements.  The Court of

Appeal also noted that on 2 November 1990 the Eisenstadt Regional Court

had convicted the applicant of handling stolen goods (Hehlerei).

Moreover, the continuation of the detention on remand until the

graphological expert submitted his report had not rendered the length

of the applicant's detention unreasonable.  The length of the detention

on remand had further not been excessive with regard to the sanctions

applicable to the offences of which the applicant was suspected, nor

had the applicant himself in the meantime produced any exonerating

evidence which would have made the applicant's release obligatory.

Lastly, the applicant's detention could not have been substituted by

a more lenient measure.

B.    Relevant domestic law

1.    Detention on remand

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

(Strafprozeßordnung), a person may be held in detention on remand -

where there are serious grounds for suspecting him of having committed

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

or of repetition of the offences.

2.    Compensation regarding pecuniary damages resulting from detention

      on remand

      The Criminal Proceedings Compensation Act (Strafrechtliches

Entschädigungsgesetz) provides for compensation for pecuniary loss

resulting from detention on remand. The conditions to be met are laid

down in SS. 2 and 3.  S. 2 para. 1 (a) relates to the case of unlawful

detention on remand.  S. 2 para. 1 (b) specifies as conditions that the

accused has been acquitted, or that the proceedings against him have

been otherwise discontinued and that the suspicion that he has

committed the offence in question no longer subsists, or that there is

a bar to prosecution which already existed at the time of his

detention.

      S. 6 para. 1 stipulates that when a court orders or prolongs

detention on remand, the superior court is competent to decide whether

the conditions of S. 2 para. 1 (a) and S. 3 are met.  S. 6 para. 2

stipulates that where a person is acquitted or criminal proceedings

against him are discontinued by a court, the same court is competent

to decide whether the conditions of S. 2 para. 1 (b) and S. 3 are met.

In these proceedings the detained person has to be heard and, if

necessary, evidence has to be taken.  The detained and the Prosecutor's

Office have a right to appeal to the superior court which can take, if

necessary, further evidence. The final decision in these proceedings

is binding on the civil courts.

      If the said courts find that the conditions under S. 2 and 3 are

met, the person concerned has to file a request with the Department of

Finance (Finanzprokuratur) for acknowledgment of his claim. If there

is no decision upon his request within six months or if his claim is

partly or fully refused, the person concerned has to institute civil

court proceedings against the Republic of Austria (SS. 7 and 8).

COMPLAINTS

1.    The applicant complains under Article 5 para. 3 of the Convention

about the length of his detention on remand.  He submits that the only

evidence taken during his detention was the expert opinion of a

graphologist.  This expert opinion was of no relevance, as he was

suspected of having acted as driver for the transport of the loot.

2.    He complains under Article 5 para. 5 of the Convention about the

refusal of compensation for his detention on remand as his detention

was in breach of Article 5 para. 3 of the Convention.

3.    He complains under Article 6 para. 2 of the Convention that the

Austrian courts, in particular the Vienna Court of Appeal, disregarded

the presumption of innocence when refusing his claim for compensation

in that, despite the discontinuation of proceedings, the courts found

that a suspicion against him continued to exist.

4.    He further complains under Article 6 para. 3 (d) of the

Convention that compensation proceedings in general did not comply with

this provision as persons claiming a compensation have no possibility

to question witnesses.

5.    Lastly, the applicant complains under Article 6 para. 1 of the

Convention that in the respective compensation proceedings, the courts'

decisions were not pronounced publicly as required by this provision.

THE LAW

1.    The applicant complains under Article 5 para. 3 (Art. 5-3) of the

Convention about the length of his detention on remand.

      With reference to Article 26 (Art. 26) of the Convention, the

Commission notes that the applicant during this period did not file any

request for release from detention on remand.

      The Commission, even assuming compliance with the requirement of

exhaustion of domestic remedies under Article 26 (Art. 26) of the

Convention, notes that the applicant was arrested on 26 February 1991

and released from detention on remand on 6 May 1991.  His detention

thus lasted for two months and one week.

      The applicant submits that he was only suspected of having aided

and abetted other suspects in acting as driver for the transport of the

loot of a criminal offence and that therefore the preparation of an

opinion of a graphologist was an unnecessary step in the investigation.

The Commission observes, however, that according to the warrant of

arrest of 8 October 1990 and the decision to take the applicant into

detention on remand of 26 February 1991, it does not appear that the

suspicion against the applicant was limited to the issue whether he had

acted as driver for other persons, but that he was suspect of having

committed the offence in the company of the co-suspect.

      The Commission, having regard to the relevant criteria

established in the Convention organs' case law, finds no indication

that the investigations were not handled with the necessary diligence

in this period (see 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-A, p.15, para. 30).  In

these circumstances, the Commission considers that the period of the

applicant's detention on remand did not exceed a reasonable time within

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

2.    The applicant further complains under Article 5 para. 5

(Art. 5-5) of the Convention about the refusal of compensation for his

detention on remand as his detention was in breach of Article 5 para.

3 (Art. 5-3) of the Convention.

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

Convention is only applicable if the Convention organs themselves or

a national authority have established that the detention of a person

constituted a violation of his rights under Article 5 paras. 1 to 4

(Art. 5-1, 5-2, 5-3, 5-4) (No. 7950/77, Dec. 4.3.80, D.R. 19 p. 213 at

p. 215; No. 10371/83, Dec. 6.3.85, D.R. 42 p. 128).

      The Commission notes that two distinct proceedings on the

applicant's claims for compensation for his detention on remand took

place.  The first set of proceedings concerned the applicant's claim

for compensation on grounds that the proceedings had been discontinued

(S. 2 para. 1 (b) of the Criminal Proceedings Compensation Act).  This

claim was dismissed on 8 May 1991 by the Judges' Chamber of the Wiener

Neustadt Regional Court and on 9 January 1992 the Vienna Court of

Appeal confirmed this decision.  Only the second set of proceedings

concerned his claim for compensation  on the ground that his detention

was allegedly unlawful (S. 2 para. 1 (a) of the Criminal Proceedings

Compensation Act).  This claim was dismissed by the Vienna Court of

Appeal on 9 January 1992.  The applicant failed to appeal to the

Supreme Court.

      However, even assuming compliance with the requirement of

exhaustion of domestic remedies under Article 26 (Art. 26) of the

Convention, the Commission, having regard to the domestic courts'

decisions, finds no indication of a violation of the applicant's rights

under paragraph 1 to 4 of Article 5 (Art. 5-1, 5-2, 5-3, 5-4) of the

Convention.  Therefore, the Commission finds that the question of

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

not arise, as neither the domestic courts nor the Commission itself

have established a violation of Article 5 paras. 1 to 4

(Art. 5-1, 5-2, 5-3, 5-4)as regards the applicant's detention on

remand.

      It follows that also this part of the application is manifestly

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

Convention.

3.    He complains under Article 6 para. 2 (Art. 6-2) of the Convention

that the Austrian courts, in particular the Vienna Court of Appeal,

disregarded the presumption of innocence when refusing his claim for

compensation in that, despite the discontinuation of proceedings, they

found that a suspicion against him continued to exist.

      The Commission, notes that on 6 May 1991 the criminal proceedings

against the applicant were discontinued and that the applicant filed

his requests for compensation regarding his detention on remand on 6

and 27 May 1991. The decisions of the Judges' Chamber of the Vienna

Regional Court and the Vienna Court of Appeal refusing this request

were a direct sequel to the discontinuation of the criminal proceedings

against the applicant. Consequently, Article 6 para. 2 (Art. 6-2) may

in principle be invoked with regard to the impugned decisions

(cf. Eur. Court H.R., Englert judgment of 25 August 1985, Series A no.

123, p. 54, para. 35; Nölkenbockhoff judgment of 25 August 1985, Series

A no. 123, p. 79, para. 35).

      The Commission recalls that, following the discontinuation of

criminal proceedings, only statements which reflect the opinion that

the person concerned is guilty, and not statements which merely

describe a state of suspicion, infringe the presumption of innocence

(cf. Eur. Court H.R., Minelli judgment of 25 March 1983, Series A

no. 62, p. 18, para. 37; Lutz judgment of 25 August 1987, Series A

no. 123, pp. 24-26, paras. 58-64; Sekanina judgment of 25 August 1993,

Series A no. 266, p. 13-15, paras. 24-30).

      In the present case, the Austrian courts concerned dismissed the

applicant's compensation claim on the ground that, though the

investigations against him had been discontinued, a suspicion

persisted. The applicant failed to show that the reasoning of the

Austrian courts amounted to any finding of criminal guilt.

      The applicant's submissions in this respect do not, therefore,

disclose any appearance of a violation of the further rights invoked

by him.

      It follows that this part of the application is also manifestly

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

Convention.

4.    The applicant further complains under Article 6 para. 3 (d)

(Art. 6-3-d) of the Convention that compensation proceedings in general

did not comply with this provision as persons claiming a compensation

have no possibility to question witnesses.

      The Commission, assuming that Article 6 (Art. 6) applies to the

proceedings in question, recalls that it is not the function of the

Convention organs to rule in abstracto on the compatibility with the

Convention of certain legal rules (see Eur. Court H.R., Marckx judgment

of 13 June 1979, Series A no 31, p.13, para. 27).

      In the present case, the applicant only generally complains on

a feature of the compensation proceedings under the Criminal

Proceedings Compensation Act without specifying which witnesses the

Austrian Courts failed to hear and that he requested the hearing of any

witness.  There is no indication of unfairness in the proceedings

concerned.

      It follows that this part of the application is also manifestly

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

Convention.

5.    Lastly, the applicant complains under Article 6 para. 1

(Art. 6-1) of the Convention that in the respective compensation

proceedings, the courts' decisions were not pronounced publicly as

required by this provision.

      The Commission considers it cannot, on the basis of the file,

determine the admissibility of this complaint and that it is therefore

necessary, in accordance with Rule 48 para. 2 (b) of the Rules of

Procedure, to give notice of this complaint to the respondent

Government.

      For these reasons, the Commission unanimously

      DECIDES TO ADJOURN its examination of the complaint as regards

      the lack of a hearing before the Supreme Court in the proceedings

      on the applicant's application for compensation;

      DECLARES INADMISSIBLE the remainder of the application.

Secretary to the First Chamber        President of the First Chamber

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