AS TO THE ADMISSIBILITY OF

                      Application No. 13826/88

                      by Tursun KARA

                      against Austria

      The European Commission of Human Rights sitting in private on

8 February 1993, the following members being present:

           MM.   C.A. NØRGAARD, President

                 J.A. FROWEIN

                 S. TRECHSEL

                 F. ERMACORA

                 A.S. GÖZÜBÜYÜK

                 A. WEITZEL

                 J.-C. SOYER

                 H.G. SCHERMERS

                 H. DANELIUS

           Sir   Basil HALL

           Mr.   F. MARTINEZ

           Mrs.  J. LIDDY

           MM.   J.-C. GEUS

                 M.P. PELLONPÄÄ

                 B. MARXER

                 G.B. REFFI

                 Mr. H.C. KRÜGER, Secretary to the Commission

      Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

      Having regard to the application introduced on 21 April 1988 by

Tursun Kara against Austria and registered on 3 May 1988 under file No.

13826/88;

      Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

      Having regard to:

-     the observations submitted by the respondent Government on

      19 October 1990 and the observations in reply submitted by the

      applicant on 28 January 1991;

-     the Commission's decision of 3 September 1991 to postpone further

      examination of the case until after the hearing in the Majerotto

      case (No. 13816/88) on 16 October 1991;

-     the Commission's decision of 16 October 1991 to adjourn further

      examination of the case until other cases concerning the

      reservation at issue have been considered;

      Having deliberated;

      Decides as follows:

THE FACTS

      The facts agreed between the parties may be summarised as

follows.

      The applicant is a Turkish citizen born in 1935 who had lived in

Austria between 1971 and 1985.  He is represented by W.L. Weh, a lawyer

practising in Bregenz.

      He submits complaints in relation to his detention prior to being

expelled to Turkey on 13 February 1985.

      On 9 November 1984 an expulsion order (Aufenthaltsverbot) was

issued against the applicant by the District Authority (Bezirks-

hauptmannschaft) of Dornbirn under the Aliens Act (Fremdenpolizei-

gesetz) on the ground that he was suspected of a criminal offence under

Section 298 of the Penal Code (false allegations of a criminal

offence), having once before been convicted of such an offence in 1980.

      On 20 December 1984 the Vorarlberg Directorate of Public Security

(Sicherheitsdirektion) confirmed the expulsion order which became

enforceable on 4 January 1985.  The applicant's appeals to the

Constitutional Court (Verfassungsgerichtshof) and to the Administrative

Court (Verwaltungsgerichtshof) were subsequently rejected.  Pending

these appeals he also requested the Constitutional Court and the

Administrative Court to order suspensive effect and applied to the

District Authority to stay the execution of the expulsion order at

least until the Constitutional Court had ruled on the request for

suspensive effect. However, on 16 January 1985 the District Authority

rejected his application, ordering him to leave the country before 22

January 1985.  The Administrative Court subsequently granted suspensive

effect on 30 May 1985.  However, by this time the applicant had already

been deported to Turkey.

      Due to his hospitalisation in a psychiatric clinic, the applicant

himself did not receive the District Authority's decision of 16 January

1985. It was served on his lawyer who was not informed of the

applicant's hospitalisation.  The applicant himself, therefore, was not

actually aware of the time-limit by which he was required to leave the

country.  On 23 January 1985 the District Authority ordered his

detention in view of his expulsion (Schubhaft) under Section 5 of the

Aliens Act.  This decision was again only served on his lawyer on

Friday, 25 January.  On the same day the latter lodged an appeal

against the detention order which reached the District Authority on

Monday, 28 January, but was not submitted to the Directorate of Public

Security until 1 February 1985. The Directorate rejected the appeal by

a decision of 7 March 1985, which was notified to the applicant's

lawyer on 19 March 1985, more than one month after the applicant had

been expelled on 13 February 1985.

      The applicant had been arrested on 9 February, following release

from the psychiatric hospital.  His detention on the basis of the above

detention order of the District Authority had lasted 41/2 days, from 0.30

hours on 9 February to approximately 14.00 hours on 13 February.

During this period he had not been brought before any authority, and

he claims that he had been refused permission to contact his la

The Government contest the latter allegation.  The applicant refers to

the testimony of two witnesses.

      On 29 April 1985 the applicant complained to the Constitutional

Court of the detention, the detention order and the refusal of

suspensive effect of his remedies.  On 17 June 1985 the Constitutional

Court declared the complaint inadmissible insofar as it was directed

against the detention because the detention was based on an

administrative decision and therefore did not constitute an act of

immediate administrative compulsion.  It refused to deal with the

complaint against the detention order as confirmed by the Directorate

of Public Security as it considered that the complaint lacked

sufficient prospects of success. It observed that an administrative

decision could violate the constitutional right to personal liberty

only if it had no legal basis, if the law had been applied in a

perverse manner (denkunmögliche Gesetzesanwendung) or if it was

unconstitutional. Having regard to the Constitutional Court's case-law

there was no sufficient prospect of finding unconstitutionality in the

present case which therefore was referred to the Administrative Court.

      This Court rejected the applicant's complaints by a decision of

30 September 1987 which was served on the applicant's lawyer on 21

October 1987.  The Administrative Court considered that there had been

sufficient suspicion of the applicant having committed new criminal

offences and sufficient grounds for the administrative authority to

assume that he would not comply with the expulsion order. As regards

the applicant's complaint that the decision on his appeal had not been

taken speedily by the Directorate of Public Security, the

Administrative Court referred to Section 73 of the General Code of

Administrative Procedure (Allgemeines Verwaltungsverfahrensgesetz)

according to which the time limit for administrative decisions was six

months.

      The applicant then brought a civil action against the State

(Amtshaftungsklage) claiming compensation for unlawful detention.  In

this context he suggested that the civil courts should again seize the

Constitutional Court with the case as the Administrative Court's view

according to which a decision on an appeal against a detention order

could be taken within a period of six months was untenable under

Article 5 para. 4 of the Convention.  However, on 8 April 1988 the

Regional Court (Landesgericht) of Feldkirch rejected the action

essentially on the ground that it was bound by the Administrative

Court's decision.

      The applicant appealed against this decision and suggested a

reference to the Constitutional Court also on the ground that the

relevant provision of the Official Liability Act (Amtshaftungsgesetz)

was unconstitutional if it excluded a reference to the Constitutional

Court of allegations that an administrative act violated constitutional

rights.

      The Innsbruck Court of Appeal (Oberlandesgericht) rejected the

appeal on 30 September 1988.  It considered that the exclusion of the

possibility, in official liability proceedings, to refer the case to

the Constitutional Court on a point of alleged unconstitutionality did

not infringe Article 13 of the Convention because that point could also

be decided by the competent civil court itself.  As regards the main

question whether the applicant's right to a speedy decision on the

lawfulness of his detention (Article 5 para. 4 of the Convention) had

been violated and whether for this reason he was entitled to

compensation under Article 5 para. 5 of the Convention, the Court left

it open whether Article 5 para. 4 was directly applicable in Austria

and had modified the provision in Section 73 of the General Code of

Administrative Procedure according to which administrative decisions

must be taken "without unnecessary delay". Article 5 para. 4 was

applicable only from the moment of actual arrest and would have been

violated only if it had been possible and appropriate for the

Directorate of Public Security to decide earlier on the applicant's

appeal and thereby to shorten his detention. Even taking into account

the fact that the applicant's appeal had been lodged 9 days before his

arrest, the fact that the Directorate's decision had not been handed

down during the five days in which the applicant was actually detained

did not constitute an unlawful delay. An appellate jurisdiction

required the period in question for the preparation of its decision

even in an urgent case, and it could not be held against it that during

the same period it had participated in the preparation of the

applicant's expulsion, a measure which had also led to a reduction of

the length of detention.  After the expulsion the case had no longer

been urgent.  Therefore the handling of the case had infringed neither

Article 5 para. 4 of the Convention nor Section 73 of the General Code

of Administrative Procedure.  Hence the applicant's compensation claim

had to be rejected.

COMPLAINTS

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

that the detention in view of his expulsion was unlawful and

disproportionate in the circumstances of the case.

      The applicant complains of a violation of Article 5 para. 2 of

the Convention in that the detention order was not served upon him, but

only upon his lawyer whom he was refused to contact during his

detention.  He claims that he was never informed personally of the

grounds for his detention.

      The applicant complains of a violation of Article 5 para. 4 of

the Convention in that his appeal against the detention order was not

decided speedily, in particular not before his deportation, despite the

obvious urgency of the matter.

      The applicant finally complains under Article 5 para. 5 and

Article 13 of the Convention that he did not have an effective remedy

by which he could claim compensation on the ground that in the

proceedings concerning his detention Article 5 para. 4 had been

violated.  The competent civil court was bound by the decision of the

Administrative Court, which, however, was not competent to deal with

the alleged violation of a constitutional right while Section 11 of the

Official Liability Act excluded a reference to the Constitutional Court

for the purpose of obtaining a decision on this question.

PROCEEDINGS BEFORE THE COMMISSION

      The application was introduced on 21 April 1988 and registered

on 3 May 1988.

      On 2 July 1990 the Commission decided to give notice of the

application to the respondent Government and to invite them to submit

observations in writing on the admissibility and merits of the case

before 17 October 1990.  Following an extension of the time-limit, the

Government submitted their observations on 19 October 1990. The

applicant replied, also after an extension of the relevant time-limit,

on 28 January 1991.

      The Commission again considered the case on 3 September 1991 and

16 October 1991.

THE LAW

1.    The applicant alleges a violation of Article 5 para. 1

(Art. 5-1) of the Convention.

      Article 5 para. 1 (Art. 5-1) provides, so far as relevant, as

follows:

      "1.  Everyone has the right to liberty and security of person.

      No one shall be deprived of his liberty save in the following

      cases and in accordance with a procedure prescribed by law:

      ...

      f.   the lawful arrest or detention of a person to prevent his

      effecting an unauthorised entry into the country or of a person

      against whom action is being taken with a view to deportation or

      extradition."

      The Commission recalls that, under this provision, the Convention

organs examine the lawfulness of the detention of "the person against

whom action is being taken with a view to deportation".  However, the

review is limited to examining the legality of the detention, including

the lack of arbitrariness.

      In the present case, the detention order was made on 23 January

1985.  It was served on the applicant's representative on 25 January

1985.  The representative lodged an appeal against it on the same day.

The Directorate of Public Security rejected the appeal on

7 March 1985.  The decision was notified to the applicant's lawyer on

19 March 1985, and the applicant subsequently put the case before the

Constitutional and Administrative Courts.

      The Government and the applicant are unanimous in their approval

of the system of notification of detention orders to representatives

rather than to individuals, as the appropriate appeals, if any, may

thus be made.

      The applicant was detained for some four and a half days under

the detention order, from 0.30 hrs. on 9 February to approximately

14.00 hrs on 13 February 1985.

      The Commission recalls that the Constitutional Court, in its

decision of 17 June 1985, observed that an administrative decision

could violate the constitutional right to personal liberty only if it

had no legal basis, if the law had been applied in a perverse manner,

or if it was unconstitutional.  To this, the Administrative Court, on

30 September 1987, added that there had been sufficient suspicion of

the applicant having committed new criminal offences, and sufficient

grounds for the administrative authority to assume that he would not

comply with the expulsion order.

      In the circumstances of the present case, the Commission finds

that there was a legal basis for the detention, namely the detention

order of 23 January 1985 in application of Section 5 of the Aliens Act.

Moreover, it cannot be said that the order was arbitrary.

      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 alleges a violation of Article 5 para. 2 (Art. 5-2)

of the Convention in that his representative, but not he himself, was

informed of the reasons for his detention.

      Article 5 para. 2 (Art. 5-2) of the Convention provides as

follows:

      "Everyone who is arrested shall be informed promptly, in a

      language which he understands, of the reasons for his arrest and

      of any charge against him."

      However, the Commission is not required to decide whether or not

the facts alleged by the applicant in this respect disclose any

appearance of a violation of this provision 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

recognised rules of international law.

      In the present case the applicant has not established that he has

put this complaint to any domestic authority.  In particular, he failed

to raise this matter in his constitutional complaint of 29 April 1985.

Moreover, an examination of the case does not disclose the existence

of any special circumstances which might have absolved the applicant,

according to the generally recognised rules of international law, from

exhausting the domestic remedies at his disposal.

      It follows that the applicant has not complied with the condition

as to the exhaustion of domestic remedies in this respect, and this

part of the application must be rejected under Article 27 para. 3

(Art. 27-3) of the Convention.

3.    The applicant alleges a violation of Article 5 para. 4 (Art. 5-4)

of the Convention in that his appeal against the detention order was

not decided speedily, and in particular that it was not decided before

his deportation.

      Article 5 para. 4 (Art. 5-4) provides as follows:

      "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 Government consider that the effect of the Austrian

reservation to Article 5 (Art. 5) of the Convention is to exclude the

operation of Article 5 para. 4 (Art. 5-4) from the case altogether,

with the result that only Article 73 para. 1 of the General Code of

Administrative Procedure (Allgemeines Verwaltungsverfahrensgesetz)

applies.  They underline that this provision states that decisions on

appeals must be taken within six months after they are received.   In

the alternative, they submit that the effect of the reservation is

either (i) that a prior decision by an administrative authority (the

decision of the Dornbirn District Authority of 23 January 1985) is

sufficient justification for the detention (cf. Eur. Court H.R., Van

Droogenbroeck judgment of 24 June 1982, Eur. Court H.R., Series A no.

50, p. 23, para. 45), or (ii) that the decision of the Directorate of

Public Security of 7 March 1985 (which concerned the lawfulness of the

applicant's detention) complied with the requirements of Article 5

para. 4 (Art. 5-4) with respect to a "court".

The Government consider that the Directorate of Public Security in any

event decided the applicant's appeal against his detention order

"speedily".

      The applicant, who considers that the Austrian reservation to

Article 5 (Art. 5) of the Convention is neither valid nor applicable,

considers that the delay caused by the Directorate of Public Security

was unconscionable, before, during and after the applicant's detention.

      The Commission is not required to decide on the validity or

applicability of the Austrian reservation in the present case as this

part of the application is in any event inadmissible for the following

reasons.

      The Commission notes that the applicant was detained from

0.30 hours on 9 February 1985 until approximately 14.00 hours on

13 February 1985, that is a total of some 41/2 days.  The Directorate of

Public Security decided on the applicant's appeal against the detention

order on 7 March 1985, and the Constitutional Court rejected the

applicant's constitutional complaint on 17 June 1985.  In the

circumstances of the present case, the Commission finds that there must

be considerable doubt as to whether the question of the lawfulness of

the applicant's detention was determined "speedily".  However, the

Commission recalls that it has previously held that a review of

detention pending expulsion is not required by Article 5 para. 4

(Art. 5-4) of the Convention in circumstances where the period of

detention is shorter than that which would have been necessary for the

application of the procedure envisaged by Article 5 para. 4 (Art. 5-4)

(cf. No. 7376/76, Dec. 7.10.76, D.R. 7 p. 123; No. 7447/76, Dec.

13.12.76).  The European Court of Human Rights confirmed this approach

in its judgment in the Fox, Campbell and Hartley case (judgment of 30

August 1990, Series A no. 182, p. 20 para. 45).  The Commission has

held that, in connection with detention justified by Article 5 para.

1 (f) (Art. 5-1-f) of the Convention, a period of up to 10 days may

still fall within the period permissible under Article 5 para. 4

(Art. 5-4) of the Convention. In the present case, too, the applicant's

detention was substantively justified under Article 5 para. 1 (f)

(Art. 5-1-f).  The specific period which falls to be considered is 41/2

days, that is, the period of the applicant's actual detention.  The

Commission, having regard to all the circumstances of the case, finds

that this period is less than that which would be necessary even for

a speedy procedure in conformity with Article 5 para. 4 (Art. 5-4).

      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.

4.    The applicant also alleges a violation of Article 5 para. 5

(Art. 5-5) of the Convention.

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

Convention may only be invoked where the Convention organs or the

domestic authority have established a violation, either formally or in

substance, of one of the other provisions of Article 5 (Art. 5) (cf.

No. 6821/74, Huber v. Austria, Dec. 5.7.76, D.R. 6 p. 65).  The

Commission has found above that there has been no violation of one of

the other provisions of Article 5 (Art. 5) in the present case;  in the

proceedings in Austria, the Administrative and Constitutional Courts,

and the courts dealing with the applicant's official liability action,

found no violation of Article 5 (Art. 5), in form or in substance.

      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.

5.    The applicant also alleges a violation of Article 13 (Art. 13)

of the Convention.  The Commission recalls that Article 5 para. 4

(Art. 5-4) is the lex specialis in relation to complaints under Article

5 (Art. 5) of the Convention.  In any event, to the extent that any of

the applicant's complaints do not fall within the ambit of Article 5

para. 4 (Art. 5-4) of the Convention, the  Commission finds that the

applicant has no "arguable" claim under the Convention which might

necessitate a remedy pursuant to Article 13 (Art. 13) of the Convention

(cf. Eur. Court H.R., Boyle and Rice judgment of 27 April 1988, Series

A no. 131, pp. 23-24, paras. 52-58).

      It follows that the applicant's complaints about a lack of

remedies are also 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 Commission               President of the Commission

      (H. C. KRÜGER)                            (C. A. NØRGAARD)