AS TO THE ADMISSIBILITY OF

                    Application No. 16588/90

                    by H.H.

                    against Austria

     The European Commission of Human Rights (First Chamber) sitting

in private on 2 September 1992, the following members being present:

          MM.  J.A. FROWEIN, President of the First Chamber

               F. ERMACORA

               E. BUSUTTIL

               A.S. GÖZÜBÜYÜK

          Sir  Basil HALL

          Mr.  C.L. ROZAKIS

          Mrs. J. LIDDY

          MM.  M. PELLONPÄÄ

               B. MARXER

          Mr.  M. de SALVIA, Secretary to the First 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 18 July 1989 by

H.H. against Austria and registered on 14 May 1990 under file No.

16588/90;

     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 applicant, a Yugoslav citizen born in 1950, is a labourer residing

at Kladanj in Yugoslavia.  Before the Commission he is represented by

Mr. R. Weiss, a lawyer practising at Spittal a.d. Drau in Austria.

     On 11 April 1983 the applicant, who apparently cannot speak German, was

arrested on suspicion of having contravened the Passport and Registration Act

(Pass- und Meldegesetz) and brought before the Aliens' Police at Spittal.

There, the official L. ordered him to be brought before the Spittal District

Office (Bezirkshauptmannschaft) where on the same day he was convicted of the

contravention mentioned and sentenced to 600 AS or, alternatively, to two

days' imprisonment. As the applicant could not pay, L. ordered his

imprisonment and his subsequent expulsion.  After serving this sentence, the

applicant was detained as from 13 April 1983 awaiting expulsion.

Investigations were then undertaken as to who would pay the costs of his

imprisonment.  On 23 June 1983 the applicant was without any further

explanation released and expelled to Yugoslavia.

     On 5 September 1985 the Klagenfurt Regional Court (Landesgericht)

convicted the official L. of the offence of negligently withdrawing the

applicant's freedom and conditionally sentenced him to three weeks'

imprisonment.

     In 1987 the applicant applied to the Austrian authorities for damages

for the detention suffered from 13 April to 23 June 1983. In 1989 he

introduced an official compensation action against the state

(Amtshaftungsklage) in which he claimed 180,000 AS damages.  The applicant

stated that he had been in Yugoslavia when the proceedings had been

instituted against L.

     On 11 September 1989 the Klagenfurt Regional Court rejected the official

compensation action as it had not been introduced within the statutory

requirement of three years after the damage, namely the detention, had

occurred.  The applicant, who had been imprisoned, had been aware of the

damage.  The applicant was also refused legal aid as the action was

manifestly without prospects of success.  Finally, the applicant was ordered

to reimburse the costs of the Austrian Republic, amounting to 10,980 AS, and

of the official L., who intervened in the proceedings, amounting to 6,588 AS.

The applicant's appeal against this decision, in which he requested in

particular legal aid, was dismissed by the Graz Court of Appeal

(Oberlandesgericht) on 9 November 1989 which found that the action had been

lodged out of time.

     Meanwhile, in 1988, the applicant attempted to join the newly reopened

criminal proceedings against the official L. as a private party concerning

his civil law claim for compensation (Privatbeteiligter). This request was

declared inadmissible by the Spittal District Court (Bezirksgericht) on

19 September 1988.

     On appeal lodged by the applicant the decision on non-admission as a

private party was quashed by the Klagenfurt Regional Court. In its decision

the court pointed out that since the criminal proceedings instituted against

L. had come to an end its decision could have no direct consequences.  The

Court also pointed out that, in any event, in the present case the proper

remedy would have been the official compensation action.

COMPLAINTS

1.   The applicant complains that he has not been granted compensation for

his illegal detention.  He claims that he never received a punishment order

or an expulsion order.  While in Yugoslavia he wrote to the Austrian

authorities within the time-limit of three years, though he never received

a reply.  The applicant relies on Article 5 para. 5 of the Convention.

2.   Under Article 6 para. 1 of the Convention the applicant complains that

the proceedings concerning the compensation action were not fair.  Thus, he

was refused legal aid and he was not permitted to join the criminal

proceedings against L. as a private party.

THE LAW

1.   The applicant complains under Article 5 para. 5 (Art. 5-5) that he was

not granted compensation for his illegal detention.

     The Commission notes that on 11 September 1989 the Klagenfurt Regional

Court and on 9 November 1989 the Graz Court of Appeal rejected the

applicant's claims as being out of time.  However, according to the

Commission's case-law, domestic remedies have not been exhausted within the

meaning of Article 26 (Art. 26) of the Convention where a domestic remedy is

not admitted because of a procedural mistake (see No. 6878/75, Dec. 6.10.79,

D.R. 6 p. 79).  It follows that the application must be rejected under

Article 27 para. 3 (Art. 27-3) of the Convention.

2.   The applicant also complains under Article 6 para. 1 (Art. 6-1) of the

Convention that the various proceedings were unfair, inter alia as he was

refused legal aid and could not participate in the proceedings against L. as

a private party.  The applicant may also be understood as complaining that

the decisions of the Austrian courts to declare his compensation action as

being out of time in fact, contrary to Article 6 para. 1 (Art. 6-1), barred

him the access to a court.

     Insofar as the applicant complains that the Regional Court and the Court

of Appeal refused to grant him legal aid, the Commission considers that the

refusal to grant legal aid for civil proceedings which have no prospect of

success does not constitute a denial of access to a court, provided this

refusal is not  arbitrary (No. 8158/78, Dec. 10.7.80, D.R. 21, p. 101).  In

the present case the Regional Court and the Court of Appeal refused to grant

the applicant legal aid as his claim had become statute-barred and thus

lacked any prospect of success.  Under the circumstances the Commission

considers that the courts' decisions could not be described as arbitrary.

     Insofar as the applicant may be understood to be complaining about the

decision of the Austrian courts to declare his claim for compensation as

being out of time and thus preventing him from having access to a court, the

Commission recalls that Article 6 (Art. 6) of the Convention does not debar

Contracting States from making regulations in the interest of the good

administration of justice concerning the access to courts (No. 6916/75,

Dec. 8.10.70, D.R. 6, p. 107).  In the present case the Commission considers

that it does not render the proceedings unfair if the courts decided not to

deal with the applicant's action as they considered his claim to be

statute-barred.

     Insofar as the applicant complains that he could not participate as a

private party in the proceedings against the official L., and even assuming

that an issue arises here under the Convention, the Commission notes that the

decision of the Spittal District Court of 19 September 1988, quashed by the

Klagenfurt Regional Court did not affect the applicant's alleged claim for

compensation against L. If the applicant would have had an arguable claim

against L., he could without obstacles have instituted a civil law suit for

compensation against L.

     Accordingly these complaints do not disclose any appearance of a

violation of Article 6 para. 1 (Art. 6-1) of the Convention.  This part of

the application must therefore be rejected as being manifestly ill-founded

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

     For these reasons, the Commission unanimously

     DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber       President of the First Chamber

        (M. de SALVIA)                        (J.A. FROWEIN)