Lexploria

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 7 April 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

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 20 February

1992 by Walter Thaler against Austria and registered on 14 May

1992 under file No. 19994/92;

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 submitted by the applicant, may

be summarised as follows.

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. Horwarth, a

lawyer practising in Innsbruck.

A. Particular circumstances of the case

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. The applicant's statements were

tape recorded by police officer A. and subsequently transmitted

to the investigating judge who conducted the preliminary

investigations against F.W.

On 14 July 1989 the applicant returned to Austria from the

United States.

On 26 July 1989 he was heard as witness

(Auskunftsperson) by the Innsbruck police. He stated that F.W.

had admitted to him that he had 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 investigating judge ordered the

applicant's detention on remand, finding that a serious suspicion

existed against the applicant as his statements were in

contradiction to 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 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 the applicant was released from detention

on remand.

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

indictment against F.W. accusing him of murder 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 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 court.

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 as

regards the weapons with which the victims were killed and where

this weapon could be found were wrong and he had given

instructions after the crime had been committed that fingerprints

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

presumably driven and that its tyres should be changed.

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

fiancee 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 the applicant, 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, taken steps to emigrate to Canada.

On 31 January 1991 the Innsbruck Court of Appeal

(Oberlandesgericht) dismissed the applicant's appeals against the

Judges' Chamber's decisions of 19 and 27 December 1990.

Upon a request by the public prosecutor the Innsbruck Court

of Appeal extended on 18 June 1991 the applicant's detention on

remand to a maximum duration of 12 months. The Court of Appeal

found that investigations were complicated because numerous

foreign witnesses had to be heard and expert evidence taken in

the United States.

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

have 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 the applicant's 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 him.

On 7 August 1991 the Court of Appeal rejected the

applicant's appeal against the imposition of the coercive fine,

as no appeal lay against such an order.

On 8 August 1991 the Court of Assizes imposed a coercive

detention of six weeks imprisonment 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 aside the jury's

verdict 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 for bias, submitting that the judge had taken part in the

trial against F.W. and in the arrest of the applicant in court.

He also had 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 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 in the last six weeks before the expiry of the time

limit for the detention. This was not the case as the period of

the applicant's coercive detention could not be taken into

account.

On 18 December 1991 the Court of Appeal decided on the

applicant's appeal against the bill of indictment. The Court of

Appeal 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 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 quashed 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 in 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 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 of the applicant and F.W.

commenced before a Court of Assizes of the Innsbruck Regional

Court sitting with a jury (Geschwornengericht).

On 26 March 1992 and 13 April 1992 the Regional Court

dismissed further requests by the applicant to be released from

detention on remand.

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 1991, 29 November 1991 and 18

December 1991.

On 17 June 1992 the Court of Assizes acquitted the applicant

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

applicant 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 from detention on

remand.

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. It found that the

applicant had only been acquitted because the evidence was not

sufficient but not because his innocence had been proved. The

Regional Court held further that as regards the applicant's

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

Compensation Act and in particular his coercive detention, the

Innsbruck Court of Appeal had to decide.

On 3 December 1993 the applicant appealed against the

Regional Court's decision.

On 20 January 1994 the Innsbruck Court of Appeal decided to

submit the case to the Supreme Court. It found that the Supreme

Court was competent to decide on the applicant's compensation

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

Compensation Act. Proceedings are still pending before the

Supreme Court.

B. Relevant domestic law

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.

As regards the proceedings, S. 6 stipulates in particular

that the court of second instance regarding the order or

prolongation of the detention on remand is competent to decide

upon whether the conditions under SS. 2 and 3 are met, whether

the detained person has to be heard and, if necessary, whether

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.

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

3 are met, the injured person 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 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 had been 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. The applicant complains under Article 5 para. 5 of the

Convention that, although the Supreme Court by decision of 16

January 1992 had declared his coercive detention unlawful, he has

not received compensation for this detention. He further submits

that he is entitled to compensation for his detention on remand

as this detention was also unlawful.

3. He complains under Article 6 paras. 1 and 3 of the

Convention that the criminal proceedings against him were unfair.

He submits that the judges were biased, that he was forced to

incriminate himself and that secret recordings of telephone

conversations between the applicant and police officers were used

in the trial. He also submits that his lawyer could not assist

him while he was heard as a witness on 13 December 1990. He

further submits that a virulent press campaign against him

rendered the proceedings unfair.

4. 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.

5. He complains under Article 6 para. 2 of the Convention about

a violation of the principle of the presumption of innocence in

that on 13 December 1990 the Presiding Judge at the trial against

F.W. when hearing him as witness took a hostile attitude towards

him.

6. He complains under Article 8 of the Convention that

telephone conversations of B.W., his life companion, with E.B,

her friend had been recorded by the police and that also his

telephone conversations with police officers had been recorded

by them.

7. He complains under Article 13 of the Convention that no

effective remedy against the imposition of the coercive fine and

the coercive detention was available to him. He also complains

under this provision that he could not challenge in the Supreme

Court the Court of Appeal's decision to re-open criminal

proceedings against him. He submits further that neither against

the decision to commit him to trial nor against the decision to

join proceedings against him and F.W. he had an effective remedy.

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. 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 had been 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.

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.

2. The applicant complains under Article 5 para. 5 (Art. 5-5)

of the Convention that, although the Supreme Court by decision

of 16 January 1992 had declared his coercive detention unlawful,

he has not received compensation for this detention. He further

submits that he is entitled to compensation for his detention on

remand as this detention was also unlawful.

Article 5 para. 5 (Art. 5-5) of the Convention reads as

follows:

"Everyone who has been the victim of arrest or

detention in contravention of the provisions of this

Article shall have an enforceable right to

compensation."

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. 6821/74,

Dec. 5.7.76, D.R. 6, p. 65 at p. 70; No. 10371/83, Dec. 6.3.85,

D.R. 42, p. 128; Eur. Court H.R. Brogan and others judgment of

29 November 1988, Series A no. 145-b, p. 35, para. 66).

However, the Commission is not required to decide whether

or not the facts alleged by the applicant disclose any appearance

of a violation of Article 5 para. 5 (Art. 5-5) as, under Article

26(Art. 26) of the Convention, it may only deal with a matter after

all domestic remedies have been exhausted according to the

generally recognized rules of international law.

The Commission notes that on 28 May 1993 the applicant filed

his claim for compensation for detention, that this claim,

insofar as it was based on Section 2 para. 1 (b) of the Criminal

Proceedings Compensation Act was dismissed by the Regional Court

against which decision the applicant appealed and that the

applicant's claim under Section 2 para. 1 (b) of the Criminal

Proceedings Compensation Act was submitted on 20 January 1994 by

the Innsbruck Court of Appeal to the Supreme Court and is still

pending before the latter.

The applicant's complaint under Article 5 para. 5 (Art. 5-5)

of the Convention is therefore premature. The applicant has not

complied with the conditions of Article 26 (Art. 26) of the

Convention in this respect, and this part of the application must

accordingly be rejected under Article 27 para. 3 (Art. 27-3) of

the Convention.

3. He complains under Article 6 paras. 1 and 3 (Art. 6-1, 6-3)

of the Convention that the criminal proceedings against him were

unfair. He submits that the judges were biased, that he was

forced to incriminate himself and that secret recordings of

telephone conversations between the applicant and police officers

were used in the trial. He also submits that his lawyer could

not assist him while he was heard as a witness on 13 December

1990. He further submits that a virulent press campaign against

him rendered the proceedings unfair.

The Commission recalls that any procedural defects which may

have existed at the time of an accused's trial must be considered

to have been rectified by the accused's subsequent acquittal (see

No. 5575/72, Dec. 8.7.74, D.R. 1 p.45; No. 8083/77, Dec. 13.3.80,

D.R. 19 p. 226; No. 15831/89, Dec. 25.2.91, D.R.69 p.317).

The Commission notes that on 17 June 1992 the Court of

Assizes acquitted the applicant of the charges of murder and

robbery, that on 25 March 1993 the Supreme Court quashed the

applicant's conviction by the Court of Assizes as regards the

remaining charge of handling stolen goods and that on 10 May 1993

the Innsbruck Regional Court discontinued the criminal

proceedings against the applicant. It follows that the applicant

cannot now claim to be a "victim" of a violation of the

Convention as required by Article 25 (Art. 25) since he has

sought and regained redress for his complaints in this respect.

This part of the application, therefore, is manifestly

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

of the Convention.

4. The applicant further complains that the criminal

proceedings instituted against him in July 1989 were concluded

within a reasonable time as required by Article 6 para. 1 (Art.

6-1) of the Convention.

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.

5. The applicant further complains under Article 6 para. 2

(Art. 6-2) of the Convention about a violation of the principle

of the presumption of innocence in that on 13 December 1990 the

Presiding Judge at the trial against F.W. when hearing him as

witness took a hostile attitude against him.

The Commission recalls that the presumption of innocence

will be violated if, without the accused's having previously been

proved guilty according to law, a judicial decision concerning

him reflects an opinion that he is guilty (Eur. Court H.R.,

Barberà, Messegué and Jabardo judgment of 6 December 1988, Series

A no. 146, p. 31, para. 67 et seq.).

In the present case, it does not appear from the evidence

that at the applicant's hearing as witness on 13 December 1990

by the Court of Assizes in the trial against F.W. the Presiding

Judge took decisions or attitudes reflecting such an opinion.

The Commission finds that the applicant has not sufficiently

shown in what respects his questioning by the Court of Assizes

or the conduct of the Presiding Judge could be said to amount to

an infringement of the presumption of innocence.

It follows that there is no appearance of a violation of the

applicant's right under Article 6 para. 2 (Art. 6-2) of the

Convention.

This part of the application, therefore, is manifestly

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

of the Convention.

6. The applicant further complains under Article 8 (Art. 8) of

the Convention that the police intercepted telephone calls

between B.W., his life companion, and E.B, her friend and that

his telephone conversations with police officers were also

recorded by them.

Article 8 (Art. 8) of the Convention provides as follows:

"1. Everyone has the right to respect for his private

and family life, his home and his correspondence.

"2. There shall be no interference by a public

authority with the exercise of this right except such

as is in accordance with the law and is necessary in

a democratic society in the interests of national

security, public safety or the economic well-being of

the country, for the protection of health or morals,

or for the protection of the rights and freedoms of

others."

a) As regards the applicant's complaint about the interception

of telephone calls between B.W and E.B. the Commission notes that

these telephone calls took place between third persons and that

the applicant himself was not a party to the calls.

Consequently, the applicant cannot, in this respect claim to be

a victim of an alleged violation of Article 8 (Art. 8) of the

Convention.

It follows that this part of the application is incompatible

ratione personae with the provisions of the Convention in

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

b) As regards the applicant's further complaint that his own

telephone calls to police officers had been recorded by them, the

Commission recalls that the claim to respect for private life is

automatically reduced to the extent that the individual himself

brings his life into contact with public life (Brüggemann and

Scheuten v. Germany, Comm. Report 12 July 1977, para. 56, D.R.

10 p. 100).

In this respect the Commission notes that 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 recounted his version of events and implicated F.W.

in the murder. These statements were tape recorded by police

officer A. and subsequently transmitted to the investigating

judge who conducted the preliminary investigations against F.W.

The Commission finds that from the subject of the telephone

conversation it must have been clear to him that such information

would not be treated as a private telephone conversation but

would become part of the criminal investigations. The Commission

therefore finds that the recording of this conversation does not

constitute an interference with the applicant's private life

within the meaning of Article 8 para. 1 (Art. 8-1) of the

Convention.

This part of the application, therefore, is manifestly

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

of the Convention.

7. The applicant also complains under Article 13 (Art. 13) of

the Convention that no effective remedy against the imposition

of the coercive fine and the coercive detention by the Regional

Court was available to him. He also complains under this

provision that he could not challenge in the Supreme Court the

Court of Appeal's decision to re-open criminal proceedings

against him. He submits further that he had no effective remedy

against the decision to commit him to trial or against the

decision to join proceedings against him and F.W.

Article 13 (Art. 13) of the Convention reads as follows:

"Everyone whose rights and freedoms as set forth in

this Convention are violated shall have an effective

remedy before a national authority notwithstanding

that the violation has been committed by persons

acting in an official capacity."

Even assuming that the applicant had an arguable claim

within the meaning of Article 13 (Art. 13), the Commission notes

that the applicant's complaints are directed against decisions

of courts, namely the decision of the Judges' Chamber of the

Innsbruck Regional Court of 19 December 1990, the Innsbruck Court

of Appeal's decision of 31 January 1991, the Court of Appeal's

decision of 18 December 1991, the Regional Court's decision of

17 January 1992 taken in the course of proceedings at first

instance and the Court of Assizes' decisions of 18 July and 8

August 1991 by which coercive measures were imposed on the

applicant.

It follows that a remedy against a violation of the

Convention allegedly committed by these courts would require the

possibility to appeal against their decisions. However, the

right to appeal is not as such guaranteed by Article 13 (Art. 13)

of the Convention (see Eur. Court H.R., Delcourt judgment of 17

January 1970, series A no. 11, p. 14, para. 25). It follows

therefore that this provision cannot be relied upon in

circumstances where the alleged violation lies in the decision

of a court (see No. 11508/85, Dec. 17.7.86, not published; Nos.

12629 and 13965/88, Dec. 9.11.89, not published).

This part of the application is therefore manifestly ill-

founded in accordance with Article 27 para. 2 (Art. 27-2) of the

Convention.

For these reasons, the Commission unanimously

DECIDED TO ADJOURN its examination of the complaint as

regards the lawfulness and length of the applicant's

detention on remand and the complaint as regards the length

of the criminal proceedings;

DECLARES INADMISSIBLE the remainder of the application.

Secretary to the First Chamber President of the First

Chamber

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

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THALER v. AUSTRIA

THALER v. AUSTRIA

LEXI