AS TO THE ADMISSIBILITY OF

                      Application No. 19569/92

                      by E.A.

                      against Austria

      The European Commission of Human Rights (First Chamber) sitting

in private on 13 October 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

           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 22 November 1991

by E.A. against Austria and registered on 2 March 1992 under file No.

19569/92 ;

      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, born in 1964, is an Austrian national.  When

lodging his application, he was detained in the prison at the Salzburg

Regional Court (Landesgerichtliches Gefangenenhaus).  Before the

Commission he is represented by Mr. G. Mory, a lawyer practising in

Salzburg.  Mr. Mory was the applicant's defence counsel in the criminal

proceedings set out below.

A.    The particular circumstances of the case

      On 3 December 1990 the applicant was arrested by officers of the

Salzburg Federal Police Department (Bundespolizeidirektion) on the

basis of a warrant of arrest issued by the Salzburg Regional Court

(Landesgericht) on the same day.  According to the warrant of arrest

there was a reasonable suspicion that the applicant had committed rape

of a woman and forced her to acts of sexual indecency early in the

morning.  Having regard to the applicant's previous convictions, his

apparent sexual abnormality and propensity to violence, there was a

danger of repetition.

      On 4 December 1990 the applicant was questioned at the Police

Department, where he admitted that he had forced the victim to acts of

sexual indecency, but denied the rape.

      On 6 December 1990 the Investigating Judge at the Salzburg

Regional Court informed the applicant that preliminary investigations

(Voruntersuchung) had been instituted against him.  He heard the

applicant on the charges against him.  The applicant confirmed his

earlier statements and indicated in particular that, due to his

consumption of alcohol before the events in question, he could not well

remember details.  The Investigating Judge ordered the applicant's

detention on remand.

      On 11 December 1990 the Investigating Judge appointed the

forensic expert Prof. M. to prepare an opinion on the question of the

applicant's criminal responsibility at the time of the offences in

question, his state of drunkenness, and on the necessity to detain him

in a mental hospital or an institution for alcoholics.  He was further

invited to prepare an opinion on the injuries, as well as psychological

damage, suffered by the victim.

      The expert submitted his opinion on the questions relating to the

applicant on 21 December 1990.  The report was based on the criminal

files and the reports of the Salzburg mental hospital, as well as a

psychiatric examination of the applicant.  The expert Prof. M.,

assisted by Dr. D., concluded that the applicant was an alcoholic, that

he could not be held responsible for criminal offences at the time in

question and that the conditions for committing him to an institution

for alcoholic offenders were met.

      On 18 January 1991 the expert Prof. M. amended his opinion as

regards the question whether the applicant was not criminally

responsible at the time of the offence in question, irrespective of his

state of drunkenness.  The expert denied this question.  However, he

stated that the offence resulted from a serious psychiatric

abnormality.

      On 30 January 1991 Prof. M. informed the Investigating Judge that

the victim preferred not to be examined.  For the time being, he had

therefore not prepared an opinion in this respect.

      Following doubts raised by the Public Prosecutor's Office

(Staatsanwaltschaft) as to the opinion prepared by Prof. M., the

Investigating Judge had appointed Prof. K. to prepare a supplementary

opinion, which was submitted on 27 February 1991.  Prof. K., having

inspected the files and examined the applicant on 7 February 1991,

concluded that the applicant's criminal responsibility was not excluded

from a medical point of view.  A lack of criminal responsibility due

to alcohol intoxication was not likely, but could not be excluded.  He

also considered that the applicant suffered from serious psychiatric

abnormality.

      On 12 April 1991 the Investigating Judge requested Prof. K. to

amend his expert opinion.  The amendment was received on 8 May 1991.

      On 22 May 1991 the Linz Court of Appeal (Oberlandesgericht), upon

the Public Prosecutor's request of 3 May 1991, decided, in private

session, to extend the maximum duration of the applicant's detention

on remand to eight months.  The Court of Appeal, referring to S. 193

para. 4, S. 180 paras. 1 and 2 of the Austrian Code of Criminal

Procedure (Strafprozeßordnung), considered that there was a reasonable

suspicion that the applicant had committed in particular rape.  The

reasons to assume a danger of repetition persisted.  The investigations

were particularly difficult as regards the question of the applicant's

criminal responsibility at the time of the offence in question, which

was assessed differently by two experts.  Furthermore, the question of

the applicant's detention in an institution for alcoholics had to be

clarified.

      On 12 June 1991 the Judges' Chamber (Ratskammer) at the Salzburg

Regional Court dismissed the applicant's request for release from

detention on remand (Haftbeschwerde).  The Judges' Chamber found that,

having regard to the result of the investigations, in particular the

testimony of the victim and the statements of the applicant partly

admitting his guilt, there was a reasonable suspicion that he had

committed the offences concerned.  The Judges' Chamber, noting the

applicant's previous convictions of inter alia rape, robbery and theft,

coercion and fraud, as well as his alcoholism and abnormal personality,

further considered that there was a risk of repetition and that he

could not be released subject to conditions.

      On 24 June 1991 the expert Prof. M., upon the request of the

Investigating Judge, submitted a further supplementary opinion.  He

confirmed in particular his earlier conclusions.  Taking into account

the opinion of Prof. K., he explained in particular his conclusion that

the applicant had not been criminally responsible at the time of the

offences in question.

      On 10 July 1991 the Linz Court of Appeal, in private session,

extended the maximum duration of the detention on remand to eleven

months.  The Court of Appeal considered the strong suspicion against

the applicant and the risk of a repetition of offences.  The Court of

Appeal noted that the Investigating Judge, in his request for

prolongation dated 1 July 1991, had indicated the necessity of

requesting a faculty opinion (Fakultätsgutachten).  The Court of Appe

suggested that beforehand, the expert Prof. K. should be informed about

the opinion of Prof. M. and that both experts be summoned to appear

before the Investigating Judge in order to supplement their opinions

orally.

      On 5 August 1991 the Investigating Judge heard both experts.

They agreed that the applicant had been under the influence of alcohol

at the time of the offences in question; that an alcohol intoxication

was unlikely; that further criminal acts with more than light

consequences had to be expected; that the applicant's serious

psychiatric abnormality did not, as such, exclude his criminal

responsibility.  Prof. M. concluded that the applicant had an abnormal

reaction due to his alcohol consumption which excluded his criminal

responsibility.  Prof. K. considered this to be unlikely, but not

impossible.  The Investigating Judge decided that an opinion on this

question had to be prepared by the Faculty of Medicine at the Graz

University.

      On 31 October 1991 the Linz Court of Appeal, sitting in private,

extended the maximum duration of the detention on remand to fifteen

months.  The Court of Appeal referred to the strong suspicion against

the applicant and the danger of repetition.  The Court of Appeal found

that particular problems had been caused in the course of the

investigations due to the divergent expert opinions on the question of

the applicant's criminal responsibility, which had necessitated the

request for a faculty opinion.  The preparation of such an opinion

would take, according to the statement of the Director of the Faculty

of Medicine, at least two months following submission of the criminal

files.  Having regard to the further course of the proceedings until

the trial against the applicant, a prolongation of the detention on

remand up to fifteen months appeared appropriate.

      On 14 November 1991 the Investigating Judge at the Salzburg

Regional Court submitted his request for a faculty opinion, together

with the criminal files, to the Faculty of Medicine at the Graz

University.

      On 28 January 1992 Prof. K., the Dean of the Faculty of Medicine,

submitted the faculty opinion which had been prepared by Prof. Z., and

was also signed by Prof. K. and by Prof. L., who was the Chairman of

the Committee dealing with faculty opinions.  According to the faculty

opinion there had been no abnormal reaction to the alcohol consumption

which could have excluded the applicant's criminal responsibility.  The

opinion confirmed that the applicant ought to be detained in an

institution for mentally abnormal criminals.

      On 12 February 1992 the Linz Court of Appeal, in private session,

extended the maximum period of the applicant's detention on remand to

seventeen months.  The Court of Appeal, referring to the strong

suspicion against the applicant and the danger of repetition, found

that particular problems had been caused in the course of the

investigations due to the divergent expert opinions on the question of

the applicant's criminal responsibility, which had necessitated the

preparation of a faculty opinion.  Having regard to the further course

of the proceedings until the trial against the applicant, a

prolongation of the detention on remand up to seventeen months appeared

appropriate.

      On 25 February 1992 the Salzburg Public Prosecutor's Office

preferred the indictment (Anklageschrift) against the applicant

charging him with rape and coercion.  It was received by the Regional

Court on 3 March 1992.

      The trial against the applicant opened before the Salzburg

Regional Court on 12 March 1992, it continued on 4 May and 10 July

1992.      On 10 July 1992 the Salzburg Regional Court convicted the

applicant of rape and attempted coercion.  It sentenced the applicant

to five years' imprisonment. The period of his detention on remand was

counted towards his sentence.  Furthermore, the applicant's detention

in an institution for mentally abnormal criminals was ordered.

B.    Relevant domestic law

      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.

      According to S. 193, detention may not last more than two months

if it is based only on the danger of collusion, or more than six months

if it is based on the other reasons.

      The second-instance court may however, if the investigating judge

or the prosecuting authorities so request and if the complexity or

scope of the investigation makes it necessary, extend the detention up

to a maximum of three months in the case of suspected collusion, and

one year where the other grounds are relied on, or even two if the

sentence risked exceeds five years. In exercising this power the

appellate court sits in private session in the absence of the detainee

and his lawyer; it gives the principal public prosecutor's office the

opportunity to make submissions.

      Detention founded on a reason other than the risk of collusion

alone is subject to no time-limit as soon as the trial has begun.

      The accused may lodge an application for release at any time

(S. 194 para. 2). Under S. 194 and 195, such an application is to be

examined by the Judges' Chamber (Ratskammer) of the Regional Court in

a private hearing, in the presence of the accused and his lawyer.

COMPLAINTS

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

about the length of his detention on remand.  He considers that the

course of the proceedings relating to the appointment of the two

medical experts to prepare opinions on the question of his criminal

responsibility as well as the order of a faculty opinion could not be

objected to.  However, the decision of the Court of Appeal of

31 October 1991 further to prolong his detention on remand was

disproportionate.

2.    The applicant complains under Article 5 para. 4 of the Convention

that the Linz Court of Appeal did not hear him or his defence counsel

on the requests of the Public Prosecutor to prolong his detention on

remand.  He submits that there was no possibility to have the

lawfulness of these decisions on prolongation reviewed by a higher

tribunal.  He considers that, as a consequence, his continued detention

was unlawful and contrary to Article 5 para. 1 (c) of the Convention.

He also invokes Article 6 para. 1 of the Convention in this respect.

3.    In his submissions of 24 June 1993, the applicant further

complains under Article 6 para. 1 of the Convention about the length

of the criminal proceedings against him.

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.

      Article 5 para. 3 (Art. 5-3), so far as relevant, provides as

follows:

      "Everyone arrested or detained in accordance with the provisions

      of paragraph 1 (c) of this Article ... shall be entitled to trial

      within a reasonable time or to release pending trial."

      The applicant was arrested on 3 December 1990.  His detention on

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

Convention terminated on 10 July 1992 when he was convicted at first

instance (cf. Eur. Court H.R., B. v. Austria judgment of 28 March 1990,

Series A no. 175, pp. 14-16, paras. 36-38).  The period to be taken

into consideration thus lasted one year, seven months and one week.

      The Commission recalls that it is in the first place for the

national authorities to ensure that, in a given case, pre-trial

detention of an accused person does not exceed a reasonable time.  To

this end, they must examine all the facts arguing for or against the

existence of a genuine requirement of public interest justifying, with

due regard to the principle of the presumption of innocence, a

departure from the rule of respect for individual liberty and set them

out in their decisions on the question of release.  It is essentially

on the basis of the reasons given in these decisions and of the true

facts mentioned by the applicant in his appeals, that the Convention

organs are called upon to review the reasonableness of the length of

detention (cf. Eur. Court H.R., Toth judgment of 12 December 1991,

Series A no. 224, p. 18, para. 67; W. v. Switzerland judgment of

26 January 1993, para. 30, to be published in Series A no. 254).

      The persistence of reasonable suspicion that the person arrested

has committed an offence is a conditio sine qua non for the validity

of the continued detention, but, after a certain lapse of time, it no

longer suffices; the Convention organs must then establish whether the

other grounds cited by the judicial authorities continue to justify the

deprivation of liberty, and whether the domestic authorities displayed

special diligence in the conduct of the proceedings (cf. Eur. Court

H.R., Toth judgment, loc. cit.; W. v. Switzerland judgment, loc. cit.).

      The Linz Court of Appeal, referring to the investigations and the

applicant's own statements, found that there was a reasonable suspicion

that he had committed the offences in question.  This view was shared

by the Judges' Chamber at the Salzburg Regional Court upon the review

of the applicant's detention on remand.  Their findings that there was

a risk of repetition was based on the applicant's previous convictions,

his alcoholism and abnormal personality, and appears reasonable in the

circumstances (cf. Eur. Court H.R., Toth judgment, loc. cit., p. 19,

para. 17).  The applicant's continued detention was thus based on

sufficient and relevant grounds.

      As regards the conduct of the proceedings by the domestic

authorities, the applicant accepts the course of the investigations

relating to the appointment of the two medical experts as well as the

court order of a faculty opinion.

      The Commission notes that the preliminary investigations started

in December 1990.  The Public Prosecutor's Office preferred the

indictment on 25 February 1992 and it was received at the Regional

Court on 3 March 1992.  The trial before the Salzburg Regional Court

started on 12 March 1992 and was continued on 4 May and 10 July 1992,

when the applicant was convicted of rape and coercion and sentenced to

five years' imprisonment, and his detention in an institution for

abnormal psychiatric criminals was ordered.

      The Linz Court of Appeal, when ordering further extensions of the

maximum period of detention on remand on 22 May, 10 July, 31 October

1991 and 12 February 1992, examined the progress of the criminal

proceedings against the applicant and considered the question of

reasonableness of the respective prolongation.

      The length of the preliminary investigations, namely one year and

three months, may at first sight appear excessive, given the testimony

of the victim and the statements of the applicant partly admitting his

guilt.  However, the questions of the applicant's criminal

responsibility at the time of the offences concerned and of his

detention in a particular institution for mentally abnormal criminals

required the taking of expert evidence, including the preparation of

a faculty opinion, as the two other experts had expressed divergent

views.

      The Commission recalls that the right of the accused in detention

to have his case examined with particular expedition must not hinder

the efforts of the prosecution authorities to carry out their tasks

with proper care (cf. Eur. Court H.R., Tomasi judgment of 27 August

1992, Series A no. 241-A, p. 39, para. 102; W. v. Switzerland judgment,

loc. cit., para. 42).

      The Commission finds that there were no delays in the appointment

of the medical experts, Prof. M. and Prof. K., nor in the delivery of

their opinions or amendments thereto until 5 August 1991, when the

Investigating Judge decided that a faculty opinion was necessary.

      The preparation of the faculty opinion could in fact only start

in the second half of November 1991, due to the late submission of the

request and files to the Faculty of Medicine.  The only other

procedural step within this period of time, i.e. the request for an

extension of the applicant's detention on remand decided upon by the

Linz Court of Appeal on 31 October 1991, cannot explain this lapse of

time.  The faculty opinion was submitted on 28 January 1992.

      The Commission considers that the Austrian authorities acted with

the necessary diligence in their handling of the applicant's case,

except the period of three and a half months between the decision on

requesting an faculty opinion, and its actual transmission, with the

criminal files, to the Faculty concerned, for which there is no obvious

explanation.  However, the Commission finds that this period could be

regarded as acceptable if viewed in the context of the total duration

of the applicant's detention on remand.

      Consequently, the length of the applicant's detention on remand

does not appear to be unreasonable for the purposes 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 complains under Article 5 para. 4 (Art. 5-4) of the

Convention that the Linz Court of Appeal did not hear him or his

defence counsel on the requests to prolong his detention on remand.

He submits that there was no possibility to have the lawfulness of

these decisions reviewed by a higher tribunal.  He considers that, as

a consequence, his continued detention was unlawful and contrary to

Article 5 para. 1 (c) (Art. 5-1-c) of the Convention.  He also invokes

Article 6 para. 1 (Art. 6-1) of the Convention in this respect.

      Article 5 para. 4 (Art. 5-4), provides that "everyone who is

deprived of his liberty by arrest or detention shall be entitled to

take proceedings by which the lawfulness of his detention shall be

decided speedily by a court and his release ordered if the detention

is not lawful".

      The Commission notes that, in accordance with the relevant

provisions of the Austrian Code of Criminal Procedure, the applicant

could take proceedings before the Judges' Chamber at the Salzburg

Regional Court to have the lawfulness of his detention on remand

reviewed.  He availed himself of this right in June 1991, and he did

not show that this review did not comply with the requirements under

Article 5 para. 4 (Art. 5-4) of the Convention.

      As regards the proceedings before the Linz Court of Appeal

concerning the decisions on extension of the maximum period of the

applicant's detention on remand, the Commission recalls that, in these

circumstances, the appellate court does not itself decide upon the

appropriateness or the necessity of keeping the accused in prison or

releasing him, nor does it undertake a review of the "lawfulness of the

detention".  It confines itself to setting out a framework within which

the investigating judge or the prosecuting authority is free to take

decisions. Article 5 para. 4 (Art. 5-4) does not, therefore, apply to

the proceedings in question (cf. Eur. Court H.R., Toth judgment, loc.

cit., pp. 23-24, paras. 86-87).

      Therefore, no issues arise under Article 5 para. 1 and Article 6

para. 1 (Art. 5-1, 6-1) in this respect.

      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.

3.    In his submissions of 24 June 1993 the applicant further

complains under Article 6 para. 1 (Art. 6-1) of the Convention about

the length of the criminal proceedings against him.

      The Commission notes that the applicant was detained on remand

throughout the course of the criminal proceedings against him which

terminated with his conviction at first instance.  Even assuming that

the applicant lodged this complaint under Article 6 para. 1 (Art. 6-1)

within the period of six months, as required under Article 26

(Art. 26) of the Convention, there is no appearance of a violation of

his right to trial "within a reasonable time", for the reasons set out

with regard to his complaint under Article 5 para. 3 (Art. 5-3) about

the length of his detention on remand.

      Consequently, this part of the application is likewise manifestly

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

Convention.

      For these reasons, the Commission by a majority

      DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber        President of the First Chamber

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