AS TO THE ADMISSIBILITY OF

                      Application No. 18249/91

                      by F. K., T. M. and C. H.

                      against Austria

      The European Commission of Human Rights sitting in private on

2 March 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 14 May 1991 by F. K.,

T. M. and C. H. against Austria and registered on 23 May 1991 under file

No. 18249/91;

      Having regard to the observations submitted by the respondent

Government, after two extensions of the time-limit, on 10 April 1992, and

the observations in reply submitted by the applicants on 10 July 1992,

the applicants' further submissions of 11 January 1994;

      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 parties,

may be summarised as follows:

      The first applicant, born in 1945, is a Hungarian national and

resident at Zurndorf, Austria. He is a businessman by profession. The

second applicant, born in 1964, is a Hungarian national and resident in

Vienna. He is unemployed. The third applicant, born in 1966, is also a

Hungarian and resident in Vienna. She is also unemployed. The second and

third applicants are life companions. When lodging their application the

applicants were detained on remand in the Prison at the Vienna Regional

Court (landesgerichtliches Gefangenenhaus). In the course of the

proceedings before the Commission, they returned to Hungary.

      Before the Commission they are represented by Mr. G. Simonfay, a

lawyer practising in Vienna.

A.    The particular circumstances of the case

      On 12 September 1990 the Duty Judge (Journalrichter) at the Leoben

Regional Court (Kreisgericht) issued a search warrant concerning, inter

alia, the premises of MM. N., B. and V. as well as of the first applicant

and of Mr. Simonfay. In the reasons of the search warrant, the Judge

noted that the three men N., B. and V. had been apprehended in a burglary

and arrested during the preceding night. An object stolen on the occasion

of a burglary in August 1990 could be seized, but the major part of the

stolen goods with a value of about AS 600,000 had not yet been found.

Further burglaries in the area concerned had not yet been solved. The

Judge assumed that the three suspects, together with unknown accomplices,

had professionally committed burglaries as a gang. He considered that

there was a reasonable suspicion that, in the above-mentioned premises,

stolen goods, tools and other evidence could be found. This suspicion was

corroborated by the fact that the arrested persons had objects stolen on

the occasion of a burglary in August 1990 with them, but the major part

of stolen goods had not yet been found. As these three men had the

addresses, among others, of the first applicant and Mr. Simonfay with

them, their premises had also to be searched for stolen goods.

      In the afternoon of 13 September 1990, the search of the first

applicant's premises was carried out. The authorities seized various

watches and other objects as well as documents and credit cards. The

first applicant was brought to the Gattendorf Police Station

(Gendarmerieposten), where he was interrogated by two police officers in

the presence of an interpreter from 20 hrs until 22.45 hrs when he was

arrested.

      According to the police records relating to this questioning, he was

shown photographs of the three suspects N., B. and V., and then declared

that he knew B. from the past, and had sold him a car, that B. had taken

over a rented apartment, but that he had never bought anything from B.

Thereupon the first applicant was informed that his questioning was

interrupted for further investigation because of his obviously wrong

statements. He was informed that the Leoben Regional Court had ordered

his arrest. His request to inform his counsel Mr. Simonfay, whose private

telephone number he indicated, was refused on the ground that there was

a court instruction (Gerichtsauftrag) in respect of this person. He could

not name another counsel.

      According to a police report of 13 September 1990 concerning the

various searches, nobody could be found at Mr. Simonfay's address as

indicated in the above search warrant, despite several calls. A

door-plate indicated that Mr. Simonfay was a translator and that his

office was situated at the given address. Apparently there were no

further investigations against him.

      On 14 September 1990, from 21.30 hrs until 23.15 hrs, and on

15 September 1990, from 19 hrs until 21 hrs, the first applicant was

further questioned by police officers in the presence of an interpreter,

in particular upon the suspicion of having been involved in a further

burglary in September 1990 and of having received stolen goods from B.

He stated that he had bought the jewellery for relatives, and denied any

involvement in the criminal offences concerned.

      On 15 September 1990, at 21.45 hrs, the first applicant was

committed to the Prison at the Eisenstadt Regional Court. On 17 September

1990 the Eisenstadt Regional Court, upon the request of the Eisenstadt

Public Prosecutor's Office (Staatsanwaltschaft) of the same day,

transferred the proceedings to the Leoben Regional Court and ordered the

applicant's transfer to the Prison at the Leoben Regional Court. In the

morning of 18 September 1990, the applicant was committed to the Prison

at the Leoben Regional Court.

      On 19 September 1990, at 9.15 hrs, the first applicant was heard by

the Investigating Judge at the Leoben Regional Court on the suspicion

that he had professionally committed burglaries. The Judge decided that

preliminary investigations be instituted against the first applicant and

that he be detained on remand in accordance with S. 180 para. 2 of the

Code of Criminal Procedure (Strafprozeßordnung), namely for danger of

collusion, committing further offences and absconding. The Judge found

in particular that, having regard to the investigations, there was a

reasonable suspicion that the first applicant, as a member of a gang of

thieves, had participated in burglaries in jewellers' shops. Being a

Hungarian national,  he would probably evade prosecution in Austria.

Furthermore, accomplices were still at liberty. Taking the numerous

offences into account, there was also a risk that the first applicant

would commit further offences. The first applicant lodged an appeal

(Beschwerde).

      On 21 September 1990 the premises of the second applicant and the

third applicant were searched on the basis of a search warrant issued by

the Leoben Regional Court on 18 September 1990. The search warrant was

based on the suspicion that the second applicant had received stolen

goods in connection with the above burglaries. Both applicants were

arrested in the evening of 21 September 1990 and detained in the Prison

at the Vienna Regional Court. They were questioned by police authorities

on 22 September 1990, and the third applicant again on 23 September 1990.

The third applicant made detailed submissions. The second and third

applicants were transferred to the Prison at the Vienna Regional Court

on 23 September 1990. The Duty Judge at the Vienna Regional Court

informed the Investigating Judge at the Leoben Regional Court about the

arrests. As by then no warrants of arrest had been issued against the

second and the third applicant, they were released on 25 September 1990.

      Later, on 25 September 1990, the Investigating Judge at the Leoben

Regional Court issued warrants of arrest against the second and the third

applicant. He found in particular that there was a reasonable suspicion

that both applicants had professionally received stolen goods stemming

from burglaries in jewellers' shops. It could not be excluded that they

themselves were involved in the burglaries. Having regard to their

Hungarian nationality and the lack of integration in Austria, there was

a risk that they would abscond. Furthermore, as numerous witnesses still

had to be heard, there was a risk of collusion. In view of the great

number of offences, there was also a risk of repetition. The

Investigating Judge further noted that warrants of arrest were necessary

although the applicants had already once be arrested on 21 September

1990, at 18 hrs, on the ground that, contrary to the submissions of the

police authorities concerned he had not been requested to issue warrants

of arrest, but had only been seized with the case on 25 September 1990

by an oral request of the Leoben Public Prosecutor's Office. At that

time, the applicants therefore had to be released.

      The second and the third applicant were again arrested in Vienna on

26 September 1990, at 12.30 hrs. On 27 September 1990, at 13 hrs, they

were transferred to the Prison at the Vienna Regional Court.

      On 27 September 1990, the Judges' Chamber (Ratskammer) at the Leoben

Regional Court, after a hearing on the question of the first applicant's

release (Haftprüfungsverhandlung) in the presence of the first applicant

and an interpreter, ordered the first applicant's continued detention on

remand. The Regional Court found in particular that there was a

reasonable suspicion that the first applicant had received stolen goods

and been a member of a gang of thieves. The investigations against him

related in particular to an attempted burglary in Kindstatt and, two

further burglaries at Mürzzuschlag and St. Peter. Furthermore, numerous

number-plates had been found at the first applicant's premises which

obviously were used in the course of smuggling cars. However, the

investigations had not yet produced any clear results in this respect.

Having regard to the first applicant's Hungarian nationality, there was

a danger that he would abscond. Moreover, the investigations had not yet

been completed, and, having regard to his denial of any criminal offence,

there was danger of collusion in that the first applicant might influence

accomplices not yet arrested. Finally, taking the various criminal acts

into account, there was a risk that the first applicant, notwithstanding

the criminal proceedings pending against him, would commit further

offences. The first applicant waived his right to appeal.

      On 28 September 1990 the second and the third applicant were

independently questioned by the Duty Judge at the Vienna Regional Court

upon a request of the Leoben Regional Court. They were informed that they

had been arrested on the basis of a warrant of arrest issued by the

Leoben Regional Court and that they to remain in provisional custody

(Verwahrungshaft) until the Investigating Judge at the Leoben Regional

Court had decided upon the matter. On 1 October 1990 the Duty Judge

informed them that the competent Judge at the Leoben Regional Court had

decided that preliminary investigations be instituted against them and

that they be taken into detention on remand on the suspicion of having

received stolen goods. The written copies of these decisions dated

1 October 1990 were handed over to both applicants on 2 October 1990.

Thereupon, they waived their right to appeal.

      In the beginning of October 1990 the first applicant's relatives

informed Mr. Simonfay who then visited the first applicant in prison on

5 October 1990. They discussed the proceedings, and the first applicant

gave him power of attorney. On 10 October 1990 the second and the third

applicant also gave Mr. Simonfay power of attorney.

      On 9 October 1990 the first applicant, represented by Mr. Simonfay,

requested the Leoben Regional Court to permit him to inspect the files

relating to the criminal proceedings against him. The second and third

applicant, also represented by Mr. Simonfay, did so on 10 October 1990.

      On 23 October 1990 the Investigating Judge at the Leoben Regional

Court permitted the applicants' defence counsel to inspect the files

except the folder, the table of contents, the sheet relating to requests

and orders, the records concerning the questioning of the suspects as

well as further pages enumerated in the decision. Any item subsequently

filed required a new decision. To the extent that inspection was

permitted, the files could be copied. The Investigating Judge observed

in particular that until indictment single documents in the files could

be excluded from inspection by counsel, if in the particular

circumstances an immediate information thereof was likely to hinder the

investigations. In the present case, various investigations still had to

be completed and full knowledge of the files was capable of endangering

essential parts of the preliminary investigations.

      On 30 October 1990 the first applicant, represented by Mr. Simonfay,

lodged an appeal with the Leoben Regional Court concerning the refusal

to consult counsel on 13 September 1990.

      On 9 November 1990 the Judges' Chamber at the Leoben Regional Court

dismissed the first applicant's appeal. The Judges' Chamber noted in

particular that the first applicant, in the course of the questioning on

13 September 1990, had given a wrong telephone number of Mr. Simonfay;

furthermore, at the time in question, Mr. Simonfay had not yet been given

power of attorney. In the files there was no indication that the

Investigating Judge at the Leoben Regional Court had decided and given

instructions that the first applicant should not have the right to

consult his counsel on the ground of doubts as to this counsel. In

accordance with S. 12 para. 1 of the Code of Criminal Procedure the

Judges' Chamber was only competent to review court measures taken in the

course of the preliminary investigations not, however, to examine

incidents in the course of questioning by police authorities, such as

legal instructions given to an arrested person by police officers. The

decision was served on 14 November 1990.

      On 15 November 1990 the first applicant applied for release from

detention on remand and requested that his counsel be authorised to

inspect all documents in the files concerning the preliminary

investigations against him. Furthermore, the second applicant filed a

request for full access to the file.

      On 26 November 1990 the Investigating Judge decided to permit the

applicant's counsel to inspect further items in the files, data

concerning police informers and an interim report were excluded from the

inspection.

      On 29 November 1990 the Judges' Chamber at the Leoben Regional

Court, assuming a danger of collusion, conducted separate hearings on the

question of the first and the third applicant's and other suspects'

release in the presence of the suspects, interpreters and the respective

counsels. Subsequent to the hearings, it ordered inter alia the first and

the third applicant's continued detention on remand.

      As regards the first applicant, the Judges' Chamber found in

particular that, considering the results of the extensive and difficult

police investigations, there was a reasonable suspicion that the first

applicant had received stolen goods and was a member of a foreign gang

of thieves, some of its members having absconded. In the course of the

investigations jewellery of a considerable quantity had been found at his

premises. The gang concerned was reasonably suspected of having

repeatedly and professionally broken into various jewellers' shops in

Austria, and caused an overall damage of seven million AS. The Judges'

Chamber referred in particular to seven burglaries, and noted that there

was a suspicion of various other burglaries having been committed in

Austria and abroad. Furthermore, there was a reasonable suspicion that

the first applicant was the main figure in passing on stolen and partly

forged credit cards originating mostly in Hungary. He was also suspected

of having transferred stolen cars to Hungary. The completion of the

latter investigations was not yet in sight. The Judges' Chamber further

considered that, taking a possible sentence of more than five years'

imprisonment into account, there was a danger of absconding. It was also

likely that, being released, the applicant would commit further serious

criminal offences.

      As regards the third applicant, the Judges' Chamber found in

particular that, considering the results of the extensive and difficult

police investigations, there was a reasonable suspicion that the third

applicant, as an accomplice of other suspects some of whom had absconded,

had repeatedly and professionally committed various burglaries in

Austria, and caused an overall damage of seven million AS. Furthermore,

there was a reasonable suspicion that she had participated in burglaries

relating to perfumeries and in offences concerning credit cards. At her

and the second applicant's premises in Vienna, stolen goods had been

found. She was also suspected of having sold the stolen goods in Hungary.

In respect of two burglaries, witnesses had declared to have recognised

the third applicant. The Judges' Chamber further considered that, taking

a possible sentence of more than five years' imprisonment into account,

there was a danger that the third applicant would abscond. It was also

likely that, being released, she would commit further serious criminal

offences.

      As both applicants lodged appeals upon pronouncement of the

decision, the Judges' Chamber finally noted in both decisions that it

would await the written reasons for the appeal and then send the files

to the Graz Court of Appeal.

      On 10 and 11 December 1990 the first and the third applicant,

respectively, both assisted by Mr. Simonfay, submitted their reasons with

regard to their appeals against the decisions of 29 November 1990

refusing their release from detention on remand.

      On 13 December 1990 the Judges' Chamber at the Leoben Regional Court

conducted a hearing on the question of the second applicant's release in

the presence of the applicant assisted by his counsel. Subsequent to the

hearing, it ordered the second applicant's continued detention on remand.

The Judges' Chamber found in particular that, considering the results of

the extensive and difficult police investigations, there was a reasonable

suspicion that the second applicant, as a member of a gang of mostly

Hungarian nationals, had repeatedly and professionally committed

burglaries at various places in Austria, and caused an overall damage of

several millions of Austrian shillings. He had also committed criminal

offences in respect of forged credit cards. Having regard to the

testimony of witnesses there was a suspicion of various other offences;

however, comprehensive charges could not be laid before the end of

January 1991 at the earliest. The Judges' Chamber considered that a

witness had identified the applicant as the accomplice of one particular

burglary. Taking the possible sentence of more than five years'

imprisonment into account, there was a danger that the second applicant

would abscond. There were various discrepancies in his statements which

required clarification. It was also likely that, being released, he would

commit further serious criminal offences. As the applicant lodged an

appeal upon pronouncement of the decision, the Judges' Chamber finally

noted that it would await the written reasons for the appeal and then

send the files to the Graz Court of Appeal.

      On 19 December 1990 the second applicant, assisted by Mr. Simonfay,

submitted his reasons with regard to his appeal against the decision of

13 December 1990 refusing his release from detention on remand. The copy

of a post-receipt dated 19 December 1990 was joined to the application.

      On 27 December 1990 the Graz Court of Appeal dismissed the first and

third applicants' appeals against the decisions of 29 November 1990. The

Court of Appeal found in particular that, considering the contents of the

files, the statements of the first applicant and the result of the

investigations so far, there was a reasonable suspicion that they had

committed the offences as stated in the decisions in question. The Court

of Appeal noted that the third applicant had not yet been heard by the

Investigating Judge at the Leoben Regional Court.

      On 10 January 1991 the Graz Court of Appeal dismissed the second

applicant's appeal against the decision of 13 December 1990. The Court

of Appeal observed that the second applicant had failed to file reasons

for his appeal. It confirmed the reasoning of the Judges' Chamber.

      On 25 January 1991 the Post Office of Vienna 1014 informed counsel

Mr. Simonfay that a letter dated 19 December 1990 and addressed to the

Leoben Regional Court, as indicated in the post-receipt of the same date,

had been duly delivered.

      On 21 March 1991 the Vienna Court of Appeal decided that the three

applicants' and other suspects' detention on remand may last up to one

year. The Court of Appeal noted that the Vienna Regional Court conducted

preliminary investigations against the persons concerned on the suspicion

of professional grave burglary and other offences. Having regard to the

extensive police investigations, there was a reasonable suspicion that

as from summer 1989 they had as members of a gang of mostly Hungarian

nationals committed numerous burglaries in Austria and abroad. The Court

of Appeal, referring in particular to seven cases, also noted that the

damage caused amounted to about fifteen million AS. It considered that

the investigations were particularly difficult and extensive due to the

complexity of the facts and the number of suspects. The fact that the

previous period of the first applicant's and other suspects' detention

on remand had already expired at the time of its decision did not hinder

the prolongation.

      Permission further to inspect the files was granted on 15 and

16 April 1991.

      On 19 September 1991 the Vienna Court of Appeal decided that the

detention on remand regarding the first and the second applicant could

last up to fifteen months.

      On 30 October 1991 the Vienna Public Prosecutor's Office preferred

the indictment against the applicants, which was served upon them in

November 1991.

      The trial against the applicants was held before the Vienna Regional

Court between 30 March and 10 April 1992. At that stage of the

proceedings, Mr. Simonfay did no longer act as their defence counsel.

Following the trial, the Vienna Regional Court convicted the the first

and second applicant, presumably also the third applicant, of having

committed burglary on various counts, and imposed prison sentences.

Having served their sentences, the applicants returned to Hungary.

B.    Relevant domestic law

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

(Strafprozeßordnung) all measures taken by a district court

(Bezirksgericht) or the investigating judge (Untersuchungsrichter) at the

first instance court in the course of preliminary investigations are

supervised by the Judges' Chamber (Ratskammer) at the first instance

court.

      S. 39 para. 1 of the Code of Criminal Procedure provides that in all

criminal cases the suspect (der Beschuldigte) has the right to have a

defence counsel whom he may choose among the persons included in a list

kept by the Court of Appeal. According to S. 43 several persons who are

suspected or accused at the same time may have a common defence counsel.

      S. 45 para. 1 of the Code of Criminal Procedure provides that also

in the course of the preliminary investigations (Vorerhebungen und

Voruntersuchung) the suspect has the right to choose a defence counsel

in order to ensure his rights as regards the court files, which directly

concern the establishment of facts and cannot be exercised at a later

stage, furthermore in order to file particular appeals lodged by him.

According to S. 45 para. 2, first sentence, the investigating judge shall

permit the defence counsel on request to inspect the court files, except

the records of deliberations, on the premises of the court, and to make

copies thereof; alternatively the investigating judge may also deliver

photocopies to the counsel.

      Under S. 45 para. 2, third sentence, the investigating judge may,

until communication of the indictment (Mitteilung der Anklageschrift),

exempt single documents from inspection and copying, if, in the

particular circumstances, there is a risk that direct cognizance of these

documents could hinder the investigations.

      SS. 84 to 115 of the Code of Criminal Procedure concern the

preliminary investigations (Vorerhebungen und Voruntersuchung).

      According to S. 91 para. 1, the committal for trial (Versetzung in

den Anklagestand) must be preceded by a preliminary investigation

(Voruntersuchung) where the case concerns a crime or a criminal offence

coming within the competence of the Assize Court (Geschworenengericht)

or if proceedings are instituted in absentia. In all other cases the

public prosecutor or the private prosecutor may request a preliminary

investigation. S. 91 para. 2 provides that the preliminary investigation

pursues the aim of provisionally examining the criminal charges laid

against a person and of establishing the facts to the extent necessary

to decide whether to discontinue the criminal proceedings or to commit

for trial and prepare the taking of evidence at the trial. According to

S. 93 para. 1 the preliminary investigations are in general conducted by

the investigating judge personally and directly.

      S. 113 provides in particular that anybody affected by a decision

of the investigating judge or a delay in the course of preliminary

investigations or the proceedings after the indictment, may apply for

review by the judges' chamber, which decides in private after having

heard the investigating judge and the public prosecutor. According to S.

114 there is a further appeal against decisions of the judges' chamber

to the court of second instance, if these decisions concern the

separation of proceedings, the institution or discontinuation of the

preliminary investigation, bail, or detention on remand without a hearing

concerning release having taken place. The appeal has to be filed with

the presiding judge of the judges' chamber within fourteen days after

pronouncement of the decision concerned.

      SS. 139 to 149 concern the search of premises and persons and the

seizure of objects. S. 139 para. 1 provides in particular that a search

may only be carried out if there is a reasonable suspicion that on the

premises concerned a person suspected of having committed a crime or

other criminal offence is hiding, or that there are objects the

possession or examination of which is relevant for a particular criminal

investigation.

      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 was

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 of repetition of the offences. 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 following twenty-four hours (S. 176

para. 1).

      S. 177 provides that exceptionally provisional detention of a

suspect may be ordered orally by a judge not competent for the case or

by the police authorities (Sicherheitsbehörden), where the suspect was

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

repetition 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 twenty-four 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 (Untersuchungshaft).

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

repetition of offences. According to S. 193, detention may not last more

than two months where its sole justification is the risk of collusion;

it may not last more than six months where one of the other grounds is

relied on. The court of appeal may, however, if so requested by the

investigating judge or the public prosecutor and if the difficulty or the

scope of the investigations makes it necessary, extend the detention. In

such cases the maximum duration of detention is three months where the

measure is based on a risk of collusion alone, and one year, or even two

years, if the term of imprisonment which the suspect risks is ten years

or more, in the other circumstances provided for.

      By virtue of SS. 194 and 195, it is open to the suspect to apply for

release at any time. Such an application and any appeal against a

decision ordering detention on remand must be examined by the Judges'

Chamber at a private hearing in the presence of the accused or his

defence counsel.

COMPLAINTS

1.    The applicants complain under Article 5 para. 3 of the Convention

that, after their respective arrests, they were not brought promptly

before a judge.

2.    The applicants further complain under Article 5 para. 4 and Article

6 paras. 1 and 3 of the Convention that, at the initial stage of the

criminal proceedings against them, they were not afforded the guarantees

of a judicial procedure for the purposes of the Convention.

      The first applicant submits that upon his arrest on 13 September

1990 he was refused to consult his defence counsel, and that

subsequently, for a period of 23 days, he was not assisted by defence

counsel. At this important stage of the proceedings, which comprised the

initial decisions concerning his arrest, provisional detention and

detention on remand as well as the hearing concerning the question of his

release, he could not duly exercise his rights of defence.

      Moreover, all applicants complain that their counsel was not duly

granted access to all documents in the court files concerning the

criminal proceedings against them. They consider that the exclusion from

inspection of documents concerning evidence against them prevented them

properly to prepare and present their arguments at the respective

hearings concerning the question of their release.

PROCEEDINGS BEFORE THE COMMISSION

      The application was introduced on 14 May and registered on

23 May 1991.

      On 2 December 1991 the Commission decided to communicate the

application to the respondent Government for written observations on its

admissibility and merits.

      After two extensions of the time-limit, observations were submitted

by the Government on 10 April 1992. The applicant submitted observations

in reply on 10 July 1992, and made further submissions on

11 January 1994.

THE LAW

1.    The applicants complain under Article 5 para. 3 (Art. 5-3) of the

Convention that, after their respective arrests, they were not brought

promptly before a judge.

      The Government submit that the time-limits under the relevant

provisions of the Austrian Code of Criminal Procedure, as interpreted by

the Austrian courts, were respected. They also consider that the

applicants were brought promptly before a judge within the meaning of

Article 5 para. 3 (Art. 5-3). In particular, the first applicant had to

be questioned by the police authorities on 14 and 15 September 1990.

Following his transfer from the prison at the Eisenstadt Regional Court

to the prison at the competent Leoben Regional Court where he arrived on

18 September 1990, he was brought before the competent Investigating

Judge within less than twenty-four hours. As regards the second and the

third applicant, the Government state that, after their arrest on 26

September 1990, they were brought promptly before the Investigating Judge

at the Vienna Regional Court on 28 September 1990.

      The applicants submit that the transfer of arrested persons from one

prison to another could not justify delays in bringing them before a

judge competent to decide upon their continued detention or release.

Furthermore, the questioning of the second and the third applicant by the

Duty Judge at the Vienna Regional Court were only of a formal nature and

did not suffice for the purposes of Article 5 para. 3 (Art. 5-3). The

information passed on to the Investigating Judge at the Leoben Regional

Court, who was competent to decide upon their detention on remand or

release, was inadequate.

      The Commission finds that the applicants' complaints under Article 5

para. 3 (Art. 5-3) of the Convention that, after their respective

arrests, they were not promptly brought before a judge raise difficult

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

No other ground for declaring it inadmissible has been established.

2.    The applicants further complain that the proceedings available to

them for a review of the lawfulness of their arrest and detention on

remand did not meet the requirements of Article 5 para. 4 (Art. 5-4) of

the Convention. They also invoke Article 6 (Art. 6) of the Convention in

respect of the criminal proceedings as a whole.

a.    The first applicant complains that, upon his arrest on 13 September

1990, he was refused to consult his defence counsel, and that

subsequently he was not assisted by defence counsel until 5 October 1990.

He submits that, at this important stage of the proceedings, which

comprised the initial decisions concerning his arrest, provisional

detention and detention on remand, he could not duly exercise his rights

of defence.

      The Government maintain that the first applicant failed to exhaust

domestic remedies, as required by Article 26 (Art. 26) of the Convention.

They submit that the applicant, after his committal to prison, could have

again asked for assistance by counsel. Had assistance again been refused

he could have lodged a complaint with the Judges' Chamber under S. 113

of the Code of Criminal Procedure. In any event, the first applicant was

granted the benefit of an adversarial procedure, as required by Article

5 para. 4 (Art. 5-4) of the Convention, on the occasion of the review

proceedings before the Judges' Chamber at the Leoben Regional Court on

27 September 1990.

      Pursuant to Article 26 (Art. 26) of the Convention, the Commission

may only deal with the matter after all domestic remedies have been

exhausted, according to the generally recognised rules of international

law.  The basis of this rule is that, before proceedings are brought in

an international court, the respondent State must have had an opportunity

to redress the alleged damage by domestic means within the framework of

its own legal system (cf. No. 5964/72, Dec. 29.9.75, D.R. 3 p. 57).

      The Commission notes that on 13 September 1990 the Police Officers

at the Gattendorf Police Station refused the first applicant's request

to contact Mr. Simonfay as his defence counsel stating that criminal

inquiries were pending against Mr. Simonfay. According to the police

records, the first applicant was to name another counsel. The first

applicant, having obtained assistance by a defence counsel in the

beginning of October 1990, lodged an appeal with the Judges' Chamber on

30 October 1990. The appeal was dismissed on the grounds that the

applicant, upon his arrest, had indicated a wrong telephone number, that

he had not yet given counsel power of attorney and that, in any way, it

was not competent to review instructions given by the police authorities.

      The Commission finds that there is no indication that this remedy

was clearly ineffective. The other possibilities referred to by the

Government cannot, for the purposes of Article 26 (Art. 26) of the

Convention, be regarded as effective remedies, as a considerable loss of

time could not be excluded and the lack of assistance at the initial

stage of the proceedings would not have been redressed.

      The first applicant must therefore be considered as having

exhausted, as required under Article 26 (Art. 26) of the Convention, the

domestic remedies available to him at this stage of the proceedings.

b.    All applicants complain that their counsel was not duly granted

access to all documents in the court files concerning the criminal

proceedings against them.

      The Government contend that the applicants failed to exhaust the

domestic remedies, as required under Article 26 (Art. 26) of the

Convention. They point out that the second and third applicant did not

use any remedy against the decision of the Investigating Judge only to

grant limited access. Moreover, the first applicant, whose appeal was

inadvertently not forwarded by the Investigating Judge, failed to insist

on a decision by the Judges' Chamber at the Leoben Regional Court.

      According to the Government, these complaints are also manifestly

ill-founded. Access to the file was essentially only restricted as

regards the records and notes taken in the course of the interrogations

of the other suspects. Such a measure was necessary to prevent the

applicants from conceiving their respective defence strategies on those

of the other accused. Furthermore, knowledge of the documents concerned

was not necessary to challenge the lawfulness of the applicants'

detention on remand.

      The applicants contest the Government's assertion as to the

exhaustion of domestic remedies. Furthermore, they submit that the

exclusion from inspection of important documents concerning evidence

against them prevented them properly to prepare and present their

arguments at the respective hearings concerning the question of their

release.

      The Commission notes that on 23 October 1990 the Investigating Judge

at the Leoben Regional Court permitted the applicants' defence counsel

to inspect the criminal files except the folder, the table of contents,

the sheet relating to requests and orders, the records concerning the

questioning of the suspects as well as further pages enumerated in the

decision.

      The first applicant, represented by Mr. Simonfay, who was at the

same time the defence counsel of the other applicants, lodged an appeal

against the decision of 23 October 1990 and, on 15 November 1990, again

requested that his defence counsel be authorised to inspect all documents

in the files. On 26 November 1990 the Investigating Judge only permitted

access to two further items in the files. No decision on the appeal

regarding access to the complete files was taken before the applicants'

hearings on the question of their release from detention on remand on

29 November and 13 December 1990, respectively.

      The Commission, having regard to the failure of the Austrian

authorities to decide upon the first applicant's appeal and further the

short lapse of time between the challenged decisions on access to the

files and the respective hearings to review the applicants' detention on

remand, finds that no effective remedy was available to the applicants

to complain about the restrictions on their access to the criminal files.

      In these circumstances, the Commission considers that the

applicants' complaints about the restrictions on their access to the

files in the course of the investigation proceedings cannot be rejected

for non-exhaustion of domestic remedies within the meaning of Article 26

(Art. 26) of the Convention.

c.    The Commission finds that the applicants' complaints that, at the

initial stage of the proceedings, they were not afforded the guarantees

of a judicial procedure for the purposes of the Convention, raise

difficult questions of fact and of law, which require an examination of

the merits. No other ground for declaring it inadmissible has been

established.

      For these reasons, the Commission, by a majority

      DECLARES THE APPLICATION ADMISSIBLE,

      without prejudging the merits of the case.

Secretary to the First Chamber       President of the First Chamber

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