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AS TO THE ADMISSIBILITY OF

Application No. 20832/92

by A.K.

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 1 December 1993 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

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 17 September 1992

by A.K. against Austria and registered on 22 October 1992 under file

No. 20832/92;

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 national of Zaire, born in 1962, and currently

residing in Vienna. Before the Commission, he is represented by

Mr. H. Pochieser, a lawyer practising in Vienna.

On 24 October 1991 the applicant entered Austrian territory, and

filed a request for asylum with the Baden District Administrative

Authority (Bezirkshauptmannschaft) on 25 October 1991. Pending the

asylum proceedings he was granted a provisional residence permit.

On 3 December 1991 the applicant was arrested by the Traiskirchen

Police Office (Gendarmerieposten) on the suspicion of having forged

his identity card. The Investigating Judge at the Wiener Neustadt

Regional Court (Kreisgericht) issued a warrant of arrest on the same

day.

On 4 December 1991 the Investigating Judge ordered the

applicant's detention on remand on the suspicion of having committed

forgery of documents. The Investigating Judge, referring to S. 180

para. 2 of the Austrian Code of Criminal Procedure (Strafprozeß-

ordnung), found that there was a danger of the applicant's absconding

on the ground that he had no relations to Austria.

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

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.

On 23 December 1991 the applicant, represented by his counsel

Mr. Pochieser, filed an application for release with the Wiener

Neustadt Regional Court. He complained that there was no reasonable

suspicion against him. He also submitted that he would not abscond,

but could, in case of his release, find accommodation and would

produce an affidavit to this effect.

On 9 January 1992 the Judges' Chamber (Ratskammer) at the Wiener

Neustadt Regional Court dismissed the applicant's request and ordered

his continued detention on remand. The Judges' Chamber considered in

particular that there was still a reasonable suspicion that the

applicant had forged his Zaire identity card. Furthermore, there was

a danger of his absconding. In this respect, the Judges' Chamber noted

that other refugees in comparable situations had taken the opportunity

to leave the country without appropriate travelling documents.

Moreover, the applicant had failed to produce the affidavit regarding

his possibility of finding accommodation in Austria. On 15 January

1992 the decision was served upon the applicant.

On 17 January 1992 the applicant lodged a new application for

release, and included the affidavit in question. On 24 January 1992

the applicant was released on oath.

On 5 March 1992 the Vienna Court of Appeal (Oberlandes-gericht)

rejected the applicant's appeal against the decision of 9 January

1992. The Court of Appeal considered that, following his release, the

applicant had no valid interest in a decision on the merits of his

appeal.

COMPLAINTS

1. The applicant complains under Article 5 para. 1 (c) and para. 4

of the Convention about his detention on remand and the review

proceedings before the Judges' Chamber at the Wiener Neustadt Regional

Court. He submits in particular that the Judges' Chamber accepted the

charges of the police authorities against him without having

sufficiently controlled the accuracy of these allegations. Moreover,

the Judges' Chamber should have informed his counsel that the

affidavit was missing. He further complains that the rejection of his

appeal by the Vienna Court of Appeal amounted to a breach of

Article 13 of the Convention.

2. Finally, the applicant complains that his detention was solely

based on his foreign nationality. He invokes Article 14 of the

Convention.

THE LAW

1. The applicant complains under Article 5 para. 1 (c) and para. 4

and Article 13 (Art. 5-1-c, 5-4, 13) of the Convention about his

detention on remand and also the review proceedings concerned.

The Commission notes that the applicant was arrested and taken

into detention on remand on the suspicion of having forged his

identity card. The Austrian authorities based his arrest and detention

on remand on S. 180 of the Code of Criminal Procedure.

The Commission finds no indication that the applicant's

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

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

Furthermore, the Commission considers that, on the basis of the

result of the investigations at that early stage of the proceedings,

there was a "reasonable suspicion", as referred to in Article 5

para. 1 (c) (Art. 5-1-c), that the applicant had committed forgery of

documents. The findings of the Austrian judicial authorities in this

respect do not disclose any appearance of misjudgment or

arbitrariness.

Moreover, the Commission considers that the applicant's arguments

regarding his complaint under Article 5 para. 4 (Art. 5-4) are closely

linked to the afore-mentioned issues under Article 5 para. 1 (c)

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

The Commission finds that the applicant failed to show that the

proceedings before the Judges' Chamber which dismissed his first

request for release from detention on remand on 9 January 1992 did not

give him appropriate guarantees in respect of a review of his

detention on remand. In particular, the applicant, represented by

defence counsel, had an opportunity to put forward his defence and

argue in favour of his release.

As to his further complaint about the decision of the Vienna

Court of Appeal to reject his appeal, the Commission finds that

Article 5 para. 4 (Art. 5-4) has no application for the purpose of

obtaining, after release, a declaration that a previous detention was

unlawful (cf. No. 10230/82, Dec. 11.5.83, D.R. 32 p. 304).

Consequently, there is no appearance of a violation of the

applicant's rights under Article 5 paras. 1 and 4 (Art. 5-1, 5-4) of

the Convention.

In view of the above finding under the lex specialis of Article

5 para. 4 (Art. 5-4) (cf. Eur. Court H.R., De Jong, Baljet and van den

Brink judgment of 22 May 1984, Series A no. 77, p. 27, para. 60),

there is no need for the Commission to examine the applicant's

complaint under Article 13 (Art. 13) of the Convention.

It follows that this part of the application is clearly

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

2. Moreover, the Commission finds that the applicant's submissions

do not disclose any appearance of discrimination against him contrary

to Article 14 (Art. 14) of the Convention. This part of the

application is, therefore, also manifestly ill-founded.

For these reasons, the Commission unanimously

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber President of the First Chamber

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

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A.K. v. AUSTRIA

A.K. v. AUSTRIA