AS TO THE ADMISSIBILITY OF

                      Application No. 11894/85

                      by Stefan TOTH

                      against Austria

        The European Commission of Human Rights sitting in private

on 8 May 1989, the following members being present:

              MM. S. TRECHSEL, Acting President

                  F. ERMACORA

                  E. BUSUTTIL

                  G. JÖRUNDSSON

                  A.S. GÖZÜBÜYÜK

                  H.G. SCHERMERS

                  H. DANELIUS

                  G. BATLINER

                  J. CAMPINOS

                  H. VANDENBERGHE

             Mrs.  G.H. THUNE

             Sir  Basil HALL

             Mr.  C.L. ROZAKIS

             Mrs.  J. LIDDY

             Mr.  J. RAYMOND, Deputy 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 12 October 1985

by Stefan Toth against Austria and registered on 10 December 1985

under file No. 11894/85;

        Having regard to:

-       the information provided by the respondent Government on

        21 September 1987 and the reply submitted thereto by the

        applicant on 12 October 1987;

-       the observations submitted by the respondent Government on

        31 May 1988 and the reply submitted thereto by the applicant

        on 18 July 1988;

-       the further observations submitted by the respondent Government

        on 10 February 1989 and the reply submitted thereto by the applicant

        on 13 March 1989;

-       the submissions of the parties at the hearing on 8 May 1989;

        Having deliberated;

        Decides as follows:

THE FACTS

        The applicant, an Austrian citizen born in 1953, is a

tap room assistant (Schankbursche) resident in Graz in Austria.

Before the Commission he is represented by Dr.  K. Hermann, a lawyer

practising in Graz.

A.  Particular circumstances of the case

        The facts of the case, as submitted by the parties, may be

summarised as follows:

I.

        On 1 June 1984 the Salzburg Regional Court (Landesgericht)

issued a warrant of arrest (Haftbefehl) against the applicant, who was

then of unknown abode, on suspicion of having committed, inter alia,

the offence of aggravated fraud (schwerer Betrug) according to Section

147 para. 3 of the Austrian Criminal Code (Strafgesetzbuch) to the

amount of 32,292 AS, together with a certain J.M.  In particular, the

applicant had allegedly made out various uncovered cheques, drawn from

bank accounts opened by J.M., and induced J.M. to cash them in in

other banks.  The warrant of arrest stated with reference to Section

175 of the Austrian Code of Criminal Procedure (Strafprozessordnung)

that there was a danger of absconding in view of the fact that the

applicant's place of residence was not known, and that there was also

a danger of repetition, namely that he would commit new offences of

the same kind, since he had previously been convicted on a number of

occasions.

        On 24 August 1984, the Salzburg Regional Court issued an

international search warrant (Steckbrief) against the

applicant.  Therein, the Court referred to eleven instances of

attempted or completed fraud amounting to over one million AS and

concerning financial institutions in various towns in the Federal

Republic of Germany and in Austria.  The warrant of apprehension

mentioned as a third co-accused a certain Ch.  B.

        In January 1985 the applicant was residing in Switzerland

where he was heard by the Swiss authorities as a confidant (Mitwisser)

to arson committed in Switzerland.

II.

        On 11 January 1985 at 23h00 the applicant was arrested upon

his entry into Austria at Graz airport and taken to the Feldkirchen

constabulary.  On 12 January 1985 at 10h40 he was heard by the

investigating judge at Graz Regional Court.  According to the document

"Interrogation of the accused" ("Vernehmung des Beschuldigten") which

constitutes the minutes of the hearing and was signed by the

applicant, he noted that a warrant of arrest and a search warrant had

been issued against him on suspicion of the offence of aggravated

fraud.  He also noted that temporary custody (Verwahrungshaft) was

being imposed on him according to Section 175 of the Code of Criminal

Procedure on the grounds of a danger of collusion (recte: repetition)

and of absconding, and that the Salzburg Regional Court which would be

competent to order his detention on remand had been informed by

telephone of the custody order.  Finally, the applicant stated: "for

the time being I will not appeal against the custody imposed on me"

("Gegen die Verhängung der Verwahrungshaft erhebe ich vorläufig keine

Beschwerde").

        On 17 January 1985 he was apparently transferred to Vienna and

on 22 January 1985 at 16h45 to Salzburg.  The co-accused J.M. was

arrested on 17 December 1984.

        On 23 January 1985 at 14h40 a judge at the Salzburg Regional

Court heard the applicant.  According to the document "Interrogation

of the accused", which was signed by the applicant, he noted that

preliminary investigations (vorläufige Untersuchung) were being

instituted against him though he would not object thereto.  The

applicant also noted that his detention on remand had been ordered on

the grounds of a danger of absconding and of repetition according to

Section 180 paras. 1 and 2 of the Code of Criminal Procedure.  The

applicant again stated that he did not object thereto.

        In its decision of 23 January 1985 the Salzburg Regional Court

ordered, with reference to the instances mentioned in the search

warrant of 24 August 1984, the applicant's detention on remand,

inter alia, on suspicion of attempted and completed fraud according

to Section 147 para. 3 of the Criminal Code.  The Court stated further

that the applicant had previously attempted to avoid prosecution by

changing his residence for which reason there was a danger that, if he

remained in liberty, he would abscond or hide in view of the prospective

punishment.  The Court also saw a danger of repetition as the applicant

was not socially integrated and without employment.  For this reason,

it was to be feared that he would commit further offences, with severe

consequences, of the same kind as the ones in respect of which he had

twice been convicted previously.

        This decision was handed to the applicant on 24 January 1985.

He was heard by the investigating judge as to the reported facts

(Anzeigetatbestände) on 25, 28, 29, 30 and 31 January and 1 February

1985.  On 7 February the Swiss authorities announced their intention

to prosecute the applicant.

        On 15 February 1985 the applicant filed an application for his

release from detention in which he claimed that he had employment and

a permanent residence in Austria.

        On 27 February 1985 the Review Chamber (Ratskammer) at the

Salzburg Regional Court refused the application.  According to the

decision, the applicant and his lawyer were present at the hearing

concerning the examination of the applicant's detention on remand

(Haftprüfungsverhandlung).  The Chamber found that, while the applicant

had referred to his social integration, there was an urgent suspicion

that he had committed attempted or completed aggravated fraud together

with two other persons.  Moreover, there was a danger of absconding in

view of the fact that previously the applicant had attempted to avoid

prosecution by changing his residence.  There was also a danger of

repetition in view of the applicant's previous two convictions which

concerned offences of the same type.

        On 1 March 1985 the case-file was againt sent back to the

investigating judge who was, however, on holiday until 15 April 1985.

On 30 April 1985 the investigating judge heard the co-accused J.M.

From 26 April to 1 May 1985 the applicant served a prison sentence

apparently relating to a customs contravention.  On 15 May and 24 June

1985 the investigating judge requested information from two German

banks.

        On 19 June 1985, upon application of the investigating judge,

the Linz Court of Appeal (Oberlandesgericht) decided in camera to

allow an extension of the applicant's detention on remand for up to

eight months as from 23 January 1985.  The Court stated that there was

urgent suspicion that the applicant had committed the offence of

aggravated fraud, involving damages of more than two million AS.  The

Court thereby referred to various reports to the police (Anzeigen),

the police inquiries, and the statements made by the co-accused.  The

Court also noted that the proceedings had become extraordinarily

voluminous due to the multitude of facts and the contradictory

statements of the applicant and other accused.  The Court found that,

in the light of new results of the inquiries and the great volume and

difficulty of the case, the Prosecution would first require an

adequate period of time carefully to prepare the indictment and,

possibly, the subsequent proceedings before the Jury Court.

        The applicant's appeal against this decision was rejected as

being inadmissible by the Supreme Court (Oberster Gerichtshof) on

22 August 1985.  The case-file was returned to the investigating judge

on 11 September 1985.

        On 12 September 1985 the applicant again applied for his

release.

        On 18 September 1985 the Linz Court of Appeal, upon

application of the investigating judge, decided in camera that the

applicant's detention on remand could be extended for up to 11 months.

It thereby reiterated the grounds stated in the decision of 19 June

1985.        On 24 September 1985 the Regional Court decided that the

preliminary investigations instituted against the applicant should be

extended also to the offence of arson (Brandstiftung).  The applicant's

appeal (Beschwerde) against this decision was rejected by the Review

Chamber on 2 October 1985 which found, inter alia, that the applicant

had failed to motivate his appeal.

        Upon termination of the preliminary investigations the

case-file was sent to the Public Prosecutor's Office (Staatsanwalt-

schaft) on 2 October 1985.  The latter applied on 31 October 1985 for

the continuation of the preliminary investigations in order to

complete the case-file.  These applications were granted on 7, 15 and

19 November 1985.  The case-file was then transmitted to the Linz

Court of Appeal on 3 December 1985.

        On 11 December 1985, upon application of the investigating

judge and the Public Prosecutor's office, the Linz Court of Appeal

extended in camera the applicant's detention on remand for up to 15

months.  After recalling the offences of which he was suspected and

the danger of fleeing, which in the Court's view could not be

prevented by a less severe measure, it stated in addition that the

applicant was further suspected of having incited another person to

burn down a restaurant in Switzerland, causing damages of 300,000 SF.

The Court concluded that the investigations had not yet been completed

on account of the voluminous materials.

        Following the requests of the applicant and J.M. for release

from detention on remand the case-file was transmitted to the Review

Chamber at the Salzburg Regional Court.

        On 2 January 1986 the Review Chamber dismissed the requests.

At the deliberations a lawyer, either of the applicant or J.M., was

present.  The Chamber found that according to the results obtained so

far in the investigations the applicant was suspected of forgery as

well as of having caused damages of up to 2 million AS to various

financial institutions by issuing uncovered cheques.  On the same date

the applicant was heard by the investigating judge and confronted with

the co-accused S.R.

        Also on 2 January 1986 the applicant was heard by an

investigating judge.

        The applicant's further appeal against the decision of

2 January 1986 was dismissed in camera on 22 January 1986 by the Linz

Court of Appeal which thereby heard the Senior Public Prosecutor's

Office (nach Anhörung der Oberstaatsanwaltschaft).  The Court found

that if the applicant was released there would be a danger of his

fleeing or hiding.  The Court further referred to previous convictions

of the applicant, in particular one by the District Court

(Amtsgericht) of Stuttgart in Germany which had sentenced the

applicant to 20 months' imprisonment on charges of fraud and forgery.

In view of the sentence to be expected in the case of conviction the

Court of Appeal did not regard the length of detention so far as

disproportionate.

        A petition for release, which the applicant addressed to the

Constitutional Court (Verfassungsgerichtshof), was dismissed by that

Court as inadmissible in a decision issued on 28 February 1986.

III.

        Meanwhile, on 26 February 1986 the preliminary investigations

were closed and on 12 March 1986 the Salzburg Public Prosecutor's

Office indicted the applicant on the grounds of partly attempted and

partly completed aggravated professional fraud according to Section

147 para. 3 of the Criminal Code, as well as of having forged a

particularly protected document.

        According to the bill of indictment, which numbered 17 pages,

the applicant had drawn a number of cheques on various banks in

Germany and Austria and given them to Ch.  B. and J.M. to cash them in

in other banks in these countries.  The bill of indictment mentioned

the applicant's previous two convictions on charges of fraud and of

receiving stolen goods, respectively, and stated that he was being

searched in the Federal Republic of Germany for nineteen instances of

cheque fraud.  It referred to damages of 950,000 AS concerning

completed fraud and 1,250,000 AS concerning attempted fraud.  In the

bill of indictment the Public Prosecutor's Office stated that further

investigations would be pursued in respect of the suspicion of arson

and other instances of aggravated professional fraud.

        The applicant's objection against the bill of indictment was

dismissed, on 11 April 1986, by the Linz Court of Appeal which found

that the results of the investigations sufficed to suspect the

applicant of having committed the alleged offences, and it therefore

committed the applicant for trial.

        In a separate decision on the same day, upon application of

the investigating judge, the Court of Appeal extended in camera the

applicant's detention on remand for up to 17 months in view of the

volume and difficulties of the investigations.  The Court referred to

the bill of indictment of 12 March 1986 and found that no changes had

occurred to the advantage of the applicant in respect of the findings

of its previous decision of 22 January 1986.

IV.

        On 30 April 1986 the case-file was transferred to the trial

judge who on 23 May 1985 ordered the hearing to take place on 11 June

1986.  On 5 June 1986 the applicant's lawyer stated that he would no

longer represent the applicant after 11 June 1986.

        The applicant's trial commenced, and a first hearing took place,

on 11 June 1986.  Thereafter, the hearing was adjourned.  An official

defence counsel was appointed.

        On 25 June 1986 the Salzburg Regional Court, and upon appeal

the Linz Court of Appeal on 9 July 1986, dismissed the applicant's

further request for his release from detention on remand, though the

Court of Appeal decided that detention was no longer called for in

respect of J.M. who had by then been remanded in custody for 25

months.  The Court of Appeal thereby decided in camera after hearing

the Senior Public Prosecutor's Office.

        On 24 July 1986 the Salzburg Regional Court contacted the

Vienna Regional Court as to the witness Ch.B.  On 29 July 1986 a

German court was requested to transmit a decision.

        Further decisions authorising continued detention were taken

by the Salzburg Regional Court on 30 July 1986 and, on the applicant's

appeal, by the Linz Court of Appeal on 20 August 1986, both of which

referred to the reasons given in the previous decisions.

        On 22 September 1986 letters rogatory (Rechtshilfeersuchen)

were transmitted to the Swiss Federal Police and to a German court in

respect of the witness D.  The file was then sent to a forensic expert

who prepared an expert opinion in respect of J.M. on 8 October 1986.

        The Salzburg Regional Court again decided in camera on 12

November 1986, with reference to the previous decisions, not to

release the applicant.  On 26 November 1986 the Linz Court of Appeal

rejected the applicant's appeal.  It found that the applicant had been

considerably implicated by J.M. and that he, the applicant, had not

sufficiently substantiated his complaint that there was no longer a

suspicion of his having committed the offences at issue.  In view of

the damages stated in the bill of indictment, which exceeded one

million AS, as well as the fact that he refused to admit the offences

and that he had previously been convicted of offences of the same

type, the length of detention was not yet disproportionate.

        Meanwhile, the applicant unsuccessfully complained on

17 November 1986 that no date had been fixed for a hearing.  On

3 December 1986 a German court transmitted further evidence to the

Austrian authorities as to the witness D.

        Following the applicant's complaints about his officially

appointed lawyer, the Bar Association stated on 16 December 1986

that they saw no reason to appoint a new lawyer.

        On 12 and 16 December 1986 the trial judge requested the

Dornbirn and Bregenz Constabularies to provide the addresses of two

witnesses, Ch.B. and S.R.  A similar request in respect of Ch.  B. was

filed with the Salzburg Federal Police Direction on 22 January 1987.

        On 28 January 1987 the Review Chamber at the Salzburg Regional

Court refused the applicant's request of 21 January for release from

detention.

        Upon the applicant's appeals, the Linz Court of Appeal decided

on 18 February 1987 to release the applicant.  He was ordered to report

every two days at the police station of his district.

        On 9 July 1987 the Salzburg Public Prosecutor's Office

indicted the applicant in respect of further instances of fraud.  The

bill of indictment which numbered 9 pages stated that the applicant

had, together with a certain S.R., attempted fraudulently to cash

uncovered cheques, whereby the damages amounted to approximately

800,000 AS.  The offences concerned banks in Germany, Austria and

Switzerland.  The bill of indictment was sent to the applicant on

17 July 1987.  The applicant's appeal against the indictment of 9 July

1987 was dismissed by the Linz Court of Appeal on 30 September 1987.

        On 30 September 1987 the Salzburg Regional Court partly

granted the applicant's further complaint in that it decided that

henceforth he had to report weekly to the police.  His appeal against

this decision was dismissed on 4 November 1987 by the Linz Court of

Appeal.

        On 22 February 1988 the hearing was fixed for 25 and 26 May

1988.        On 26 May 1988 the Salzburg Regional Court orally pronounced

its judgment whereby the applicant was sentenced to four and a half

years' imprisonment.

B.  Relevant domestic law

        The charges brought against the applicant concerned, inter

alia, the offence of aggravated fraud which, according to Section 147

para. 3 of the Criminal Code, shall be punished with imprisonment

lasting between one and ten years if the damage exceeds 100,000 AS.

Insofar as the applicant was accused of committing offences abroad, in

particular in Switzerland, S. 65 para. 2 of the Criminal Code states

that in such cases the punishment must be determined in such a manner

that, if all the effects are considered together (in der Gesamt-

auswirkung), the perpetrator is not treated less favourably than he

would be under the law of the place where the act has been committed.

        The Code of Criminal Procedure states in Section 175 that the

investigating judge may, upon a person's arrest, impose temporary

custody (vorläufige Verwahrung) on him if there is a reasonable

suspicion that he has committed a criminal offence and if there is a

danger of absconding, collusion or repetition.  Section 176 para. 1

obliges the investigating judge to transmit the warrant of arrest to

the accused immediately or at least within 24 hours after his arrest.

According to Section 113 of the Code of Criminal Procedure an appeal

can be filed, at any time, against an order or a delay (Verfügung oder

Verzögerung) of the investigating judge.

        According to Section 180 paras. 1 and 2, detention on remand

is ordered if the accused is seriously suspected of having committed

a criminal offence, and if there is a danger of absconding, collusion,

or repetition.  However, according to para. 3 of Section 180, a danger

of absconding is not to be assumed if the accused is suspected of a

criminal offence which will not be punished more severely than with

five years' imprisonment; if the accused lives in orderly

circumstances; and if he has a permanent residence in Austria, except

if he has already attempted to abscond.

        Section 193 para. 4 of the Code of Criminal Procedure, in

force since 1983, states that if the investigation is particularly

voluminous or difficult the Court of Appeal can decide that detention

on remand may last up to two years if it is ordered on the ground of a

danger of collusion or for another reason, and if the offence at issue

is threatened with a punishment which exceeds five years.  According

to Section 193 para. 5 this time-limit for detention on remand no

longer applies once the trial has commenced, as long as there are

other grounds of detention than only the danger of collusion.

        According to Section 195 para. 7, if the Public Prosecutor

files a complaint against the decision of the Review Chamber to

terminate detention on remand, the complaint is endowed with

suspensive effect.  This is not the case if the applicant complains

about the decision to continue detention on remand.  Finally, Section

12 of the Code of Criminal Procedure states that the Review Chamber is

a chamber of the court of first instance.

COMPLAINTS

        The applicant complains inter alia that, contrary to Austrian

law, within 24 hours after his arrest he did not receive a warrant of

arrest, and no reasons were given for his arrest.  His temporary

custody contradicted Austrian law in that it exceeded 24 hours.

        He complains further that, contrary to Section 180 of the Code

of Criminal Procedure, the Austrian authorities detained him on remand

despite proof which he was able to furnish in respect of his social

and economic integration and that he lived in orderly circumstances.

        In addition, the applicant complains that his detention on

remand was extended as from 12 January 1985 for eight months, yet he

was not released on 12 September 1985, and the Court of Appeal decided

only on 18 September 1985 on the further extension of his detention on

remand.  Moreover his detention exceeded the maximum period determined

in Section 193 of the Code of Criminal Procedure.

        The applicant further complains of the length of his detention

on remand.

        He submits that preliminary investigations were instituted

against him on 24 September 1985 on the ground of alleged incitement

to arson in Switzerland.  However, this contradicted Section 65

para. 2 of the Criminal Code since when he was heard by the Swiss

authorities in January 1985 he was only questioned as being a

confidant to arson.

        The applicant complains that the Linz Court of Appeal decided

in non-public proceedings on his detention on remand without hearing

him or his lawyer.  Moreover, his complaint against the prolongation

of detention was not granted suspensive effect, whereas, according to

Section 195 para. 7 of the Code of Criminal Procedure, a complaint

filed by the Public Prosecutor against the termination of detention on

remand is endowed with suspensive effect, nor was there any court of

third instance for the applicant's complaints concerning his continued

detention.  He complains that his requests for release from detention

of 8 and 30 May 1985 were not determined.

        The applicant further complains of the obligation, after being

released from detention, to report regularly to the police.  He refers

to Section 193 para. 2 of the Code of Criminal Procedure according to

which detention on remand as well as more lenient measures should be

terminated as soon as the conditions for their imposition no longer

exist.  He submits that, since the conditions for detention on remand

according to Section 180 para. 2 are no longer fulfilled, the

obligation to report is also unlawful.

        The applicant also complains that the authorities did not

decide speedily on his requests to be released from detention, and

that on 11 December 1985 the Linz Court of Appeal extended his

detention on remand to fifteen months although according to Austrian

law this decision may not be taken earlier than six weeks before the

first year of detention has expired.  The applicant also appears to

complain about the length of the criminal proceedings.  He also

complains of his obligation to report regularly to the police.

        The applicant relies on Articles 5 and 6 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

        The application was introduced on 12 October 1985 and

registered on 10 December 1985.  Therein he raised various complaints

under Articles 5 and 6 of the Convention concerning his arrest and

detention.

        The applicant filed a further letter with the Commission on

5 December 1985 in which he complained inter alia that in the

proceedings before the Linz Court of Appeal neither he nor his lawyer

were present and that legal remedies were limited in matters of

detention on remand.  On 4 July 1986 he filed a letter in which, while

referring to his previous submissions, he complained of the "delay

tactics" (Verzögerungstaktiken) of the Salzburg Regional Court and the

Linz Court of Appeal.  On 11 December 1986 he filed new complaints

under Articles 5 and 6 of the Convention against the decision of the

Linz Court of Appeal of 26 November 1986.

        On 7 July 1987 the Rapporteur decided to request information

from the respondent Government pursuant to Rule 40 para. 2 (a) of the

Commission's Rules of Procedure.

        The information was provided by the respondent Government on

21 September 1987, and comments thereon were submitted by the

applicant on 12 October 1987.

        On 9 March 1988 the Commission decided to bring the

application to the notice of the respondent Government and to invite

them to submit written observations on its admissibility and merits

pursuant to Rule 42 para. 2 (b) of its Rules of Procedure in respect

of the applicant's arrest, the length of detention, and the

proceedings in which the legality of his detention was decided.

        The respondent Government's observations were submitted on

31 May 1988 and the reply thereto by the applicant on 18 July 1988.

        On 15 December 1988 the Commission decided in accordance with

Rule 42 para. 3 (a) of the Rules of Procedure to invite the Government

to submit written observations in respect of the appeal proceedings in

which the legality of the applicant's detention was decided.  The

Commission also decided to invite the parties to an oral hearing on

the admissibility and merits of the application.

        The respondent Government's further observations were

submitted on 10 February 1989 and the reply thereto by the applicant

on 13 March 1989.

        At the hearing which was held on 8 May 1989 the parties were

represented as follows:

        For the Government

        Ambassador Helmut TÜRK, Legal Adviser of the Ministry for

        Foreign Affairs, Vienna

        Mr.  Wolf OKRESEK, Adviser, Federal Chancellery, Vienna

        Ms.  Irene GARTNER, Adviser, Federal Ministry of Justice, Vienna

        Ms.  Ursula PLASSNIK, Adviser, Permanent Representation of

        Austria to the Council of Europe, Strasbourg

        For the applicant

        Ms.  Karin HERMANN, Lawyer, Graz

        The applicant was also present at the hearing.

THE LAW

1.      The applicant complains that he did not receive a warrant of

arrest within 24 hours after his arrest.  At the hearing of 12 January

1985 he was not questioned about the case.  His temporary custody

contradicted Austrian law in that it exceeded 24 hours and lasted

until 21 January 1985.  Contrary to Section 65 para. 2 of the Criminal

Code the preliminary investigations were extended to the incitement of

arson.  He could not file a complaint under Section 113 of the Code of

Criminal Procedure as he was not told about this possibility.

Finally, the Linz Court of Appeal extended his detention on remand up

to 15 months before the first year of detention had expired.  The

applicant invokes Articles 5 and 6 (Art. 5, 6) of the Convention.

        The Government observe that the applicant failed to employ a

remedy under Section 113 of the Code of Criminal Procedure.  The

Government further submit that the applicant was arrested on suspicion

of having committed cheque fraud and in view of a danger of absconding

and of repetition, in order to be brought before the investigating

judge at the Graz Regional Court.  He was brought before the

investigating judge within twelve hours after his arrest.  He was

thereby informed that a warrant of arrest had been issued against him

and of the grounds therefor.

        The Commission is not required to decide whether or not the

applicant's above complaints disclose any appearance of a violation of Article

5 or 6 (Art. 5, 6) 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 and only

within a period of six months from the date on which the final decision was

taken.

        Insofar as the applicant complains that he did not receive the

warrant of arrest, the Commission notes that the applicant was

heard on 12 January 1985 by the Graz Regional Court.  He was thereby

informed of an arrest warrant issued against him and the grounds

therefor.  According to the document "Interrogation of the accused" of

12 January 1985 which the applicant signed, he was aware that there

existed the possibility of an appeal.  As a result, he could have

complained at the hearing that the imposition of temporary custody did

not comply with Austrian law since he had not received the warrant of

arrest.  However, according to the document "Interrogation of the

accused", he stated that for the time being he did not raise any

objections against the imposition of temporary custody.  He has

therefore in this respect failed to exhaust the remedies available to

him under Austrian law.

        Insofar as the applicant complains that his temporary custody

contradicted Austrian law in that it exceeded 24 hours, he has also

not shown that he raised the complaint at issue either upon his

interrogation on 23 January 1985 before the Salzburg Regional Court,

or on any other occasion.  In particular, according to the document

"Interrogation of the accused" of 23 January 1985, which was signed

by the applicant, he noted that detention on remand was then being

imposed on him and he expressly stated that he did not object to the

institution of preliminary investigations.  The applicant has

therefore also in this respect not exhausted the remedies available to

him under Austrian law.

        Insofar as the applicant complains that the preliminary

investigations were extended to the alleged incitement to arson, the

Commission notes that he filed an appeal against the extension of the

preliminary investigations which was rejected by the Review Chamber on

2 October 1985.  However, according to that decision the applicant did

not motivate the appeal.  The Commission considers therefore that the

applicant did not raise in the domestic proceedings the complaints

which he is now raising before the Commission.

        The applicant finally complains that on 11 December 1985 the

Linz Court of Appeal extended his detention on remand to fifteen

months, although according to Austrian law this decision may not be

taken earlier than six weeks before the first year of detention has

expired.  However, the Commission notes that this complaint was

submitted by the applicant to the Commission only on 18 July 1988 in

his reply to the Government's observations, that is more than six

months after the date of the contested decision.

        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, or which might have interrupted or suspended the running of

the period of six months respectively.

        It follows that this part of the application must be rejected

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

2.a.    The applicant also complains that, contrary to Sections 175

and 180 of the Code of Criminal Procedure, the Austrian authorities

detained him on remand despite proof which he was able to furnish

concerning his social and economic integration and the orderly

circumstances in which he lived.  The applicant contends that his

detention on remand in fact commenced on 12 January 1985 and was

eventually extended up to eight months; yet he was not released

on 12 September 1985, and the Court of Appeal decided only on

18 September 1985 on the further extension of his detention on remand.

The authorities moreover exceeded the maximum period of detention

determined in Section 193 of the Code of Criminal Procedure.  The

applicant relies on Articles 5 and 6 (Art. 5, 6) of the Convention.

        The Commission has examined these complaints under

Article 5 para. 1 (c) (Art. 5-1-c) of the Convention, which provides that:

        "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:

        ...

        (c)  the lawful arrest or detention of a person effected

        for the purpose of bringing him before the competent legal

        authority on reasonable suspicion of having committed an

        offence or when it is reasonably considered necessary to

        prevent his committing an offence or fleeing after having

        done so".

        The Commission recalls that it is not normally its task to

review the observance of domestic law by the national authorities.  It

may be otherwise in relation to matters where, as here, the Convention

refers directly to that law.  For, in such matters, disregard of the

domestic law entails a breach of the Convention, with the consequence

that the Commission can and should exercise a certain power of review.

However, it is for the national authorities in the first place,

expecially the courts, to interpret and apply domestic law and to

settle any issues arising therefrom (cf.  Bonazzi v.  Italy, Comm.

Report 19.3.81, DR 24 p. 33 ff, p. 53 f).

        Insofar as the applicant complains, first, of his allegedly

unjustified detention, the Commission has considered Sections 175 and

180 of the Code of Criminal Procedure (see Relevant domestic law

above).  It notes that the warrant of arrest issued by the Salzburg

Regional Court referred to the danger of the applicant absconding in

view of his unknown place of residence and of his previous convictions

for offences of the same type.  Later, when he was detained on remand

by the Salzburg Regional Court on 23 January 1985 and the Review

Chamber decided on 27 February 1985 not to release the applicant, both

the Court and the Chamber sufficiently motivated their respective

decisions.  The Review Chamber noted the evidence furnished by the

applicant to show his social integration.  However, both the Court and

the Chamber found that a danger of absconding could not be excluded in

view of the fact that the applicant had previously attempted to avoid

prosecution by frequently changing his residence.  There was also a

danger of repetition in view of the applicant's previous convictions

which concerned offences of the same kind.

        The Commission further accepts that a danger of repetition could

be assumed as the applicant was accused, inter alia, of having

committed aggravated fraud, involving damages of more than 100,000 AS

which, according to Section 147 para. 3 of the Criminal Code, shall be

punished with imprisonment lasting between one and ten years.

        As a result, the Commission finds no indication that the

authorities acted contrary to Sections 175 and 180 of the Code of

Criminal Procedure.

        The applicant further complains that his detention was

extended as from 12 January 1985 for eight months; yet the Court

of Appeal decided only on 18 September 1985 that his detention on

remand could be extended for up to 11 months.  However, the Commission

notes that it was as from 23 January 1985 that the extension of his

detention on remand was calculated.  As a result, the Commission finds

that, when the Regional Court extended his detention on remand on

18 September 1985, it did so before the previous period would run out on

23 September 1985.

        The applicant finally complains that his detention exceeded

the maximum period of detention on remand as determined by Section 193

of the Code of Criminal Procedure.

        The Commission has found above that the applicant was

suspected of having committed, inter alia, the offence of aggravated

fraud which according to Section 147 para. 3 of the Criminal Code

shall be punished with imprisonment lasting between one and ten years.

The authorities thus complied with Section 193 para. 4 of the Code of

Criminal Procedure which states that detention on remand may last up

to two years only if the offence concerned is threatened with a

punishment exceeding five years.  It is true that the applicant was

detained on remand from 23 January 1985 until 13 February 1987, i.e.

for longer than two years.  Nevertheless, Section 193 para. 5 of the

Code of Criminal Procedure states that the time-limit in Section 193

para. 4 no longer applies once the trial has begun, and in cases

where there are other grounds of detention than only the danger of

collusion.  In the present case, the applicant was detained on remand

on the grounds of a danger of absconding and of repetition.  In

addition, the trial commenced and a hearing took place on 11 June

1986.  For these reasons, the time-limit in Section 193 para. 4 no

longer applied to the applicant's detention on remand.  Finally, the

Commission notes that the trial thus commenced before the period of

17 months previously fixed by the Court of Appeal on 11 April 1986 had

expired.

        As a result, the Commission is satisfied that the conditions

for detention under Austrian law have been complied with.  The

Commission concludes that in respect of these complaints the

requirements under Article 5 para. 1 (c) (Art. 5-1-c) of the Convention were

fulfilled.

b.      The applicant also complains that, contrary to Austrian law,

no reasons were given for his arrest within 24 hours thereafter.  The

Commission has examined this complaint under Article 5 paras. 1 (c)

and 2 (Art. 5-1-c, 5-2) of the Convention.  The latter paragraph provides:

        "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."

        The Government observe that the applicant was informed within

twelve hours after his arrest that criminal proceedings had been

instituted against him on suspicion of aggravated fraud.  He was

further informed of the grounds of detention, namely that there

existed in his case a danger of repetition and of absconding.

        As regards the applicant's complaint under Article 5 para. 2

(Art. 5-2) of the Convention, and even assuming that he has exhausted domestic

remedies in this respect within the meaning of Article 26 (Art. 26) of the

Convention, the Commission notes that at 10h40 on 12 January 1985,

i.e. within twelve hours of his arrest on 11 January 1985 at 23h00,

the applicant was orally informed by the investigating judge at the

Graz Regional Court of the grounds of his arrest and detention.  The

Commission considers that the applicant was therefore informed

"promptly" of the reasons of his arrest and of the charges against him

within the meaning of Article 5 para. 2 (Art. 5-2) of the Convention.

        Insofar as the applicant complains that contrary to Austrian

law he was not given this information within 24 hours, the Commission

considers that in fact he received this information within this

time-limit, and no further issue arises in this respect under

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

c.      The applicant complains that his requests for release from

detention of 8 and 30 May 1985 were not determined.  His complaints

against the prolongation of his detention were not granted suspensive

effect, whereas according to Section 195 para. 7 of the Code of

Criminal Procedure a complaint filed by the Public Prosecutor against

the termination of detention on remand is endowed with suspensive effect.  The

applicant relies on Article 5 para. 4 (Art. 5-4) of the Convention, which

states:

        "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."

        Insofar as the applicant complains that his requests for

release from detention of 8 and 30 May 1985 were not determined, the

Commission considers that the applicant has not sufficiently

substantiated his claims that he filed such requests.  Insofar as he

complains that the Court did not decide speedily on these and other

requests, the Commission notes that this complaint was submitted to

the Commission only on 18 July 1988, that is more than six months

after the date of the contested decisions.

        Insofar as the applicant complains that his appeal against

the decision of the Review Chamber was not endowed with suspensive

effect, or that there was no third instance court before which he

could raise his complaints, the Commission finds no issue under

Article 5 (Art. 5) of the Convention.

d.      As a result, the applicant's above complaints do not disclose

any appearance of a violation of the guarantees enshrined in Article 5

(Art. 5) of the Convention.  The Commission concludes that this part of the

application is manifestly ill-founded within the meaning of Article 27

para. 2 (Art. 27-2) of the Convention.

3.      The applicant also complains of the length of his detention on

remand.  He submits that in his case there were no valid reasons to

assume a danger of absconding and of repetition.  He relies on Article

5 para. 3 (Art. 5-3) of the Convention, which provides:

        "Everyone arrested or detained in accordance with the

        provisions of paragraph 1 (c) of this Article shall be

        brought promptly before a judge or other officer authorised

        by law to exercise judicial power and shall be entitled to

        trial within a reasonable time or to release pending trial.

        Release may be conditioned by guarantees to appear for

        trial."

        The Government stress the particular complexity of the

proceedings.  They submit that the compilation of evidence in Austria

and abroad proved to be very difficult; there were convincing grounds

to suspect the applicant of having committed the offences and to

assume a danger of repetition and of absconding.  Moreover, the

applicant contributed to the length of detention on remand by

frequently filing requests to be released and subsequently by

appealing against the decisions concerned.

        The Commission considers that the applicant's complaints under

Article 5 para. 3 (Art. 5-3) of the Convention raise complex issues of fact and

law which can only be resolved by an examination of the merits.  In

this respect the application cannot, therefore, be declared manifestly

ill-founded.  No other grounds for inadmissibility have been

established.

4.      The applicant also complains under Article 5 para. 4 (Art. 5-4) of the

Convention that the Linz Court of Appeal decided on his detention on

remand while hearing the authorities but without hearing him or his

lawyer.

        The Government distinguish between proceedings in which, upon

the applicant's request, the lawfulness of his detention on remand was

decided, and the proceedings in which the permissible length of his

detention was decided.  The Government submit that the applicant only

complained in time about the proceedings before the Linz Court of

Appeal insofar as they concerned the prolongation of his detention on

remand.

        Insofar as the applicant complains about the proceedings

before the Linz Court of Appeal concerning his request to be released

from detention on remand, the Government contend that he did not raise

this complaint in time before the Commission.  In any event, upon his

request to be released from detention on remand, he was entitled to be

present before the Review Chamber.

        The Commission recalls that 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,

and within a period of six months from the date on which the final decision was

taken.

        As regards the requirement of the exhaustion of domestic

remedies, the Commission notes that in the domestic appeal proceedings

the applicant did not expressly require to be present before the Linz

Court of Appeal.  However, the Commission considers with regard to the

applicant's rights under Article 5 para. 4 (Art. 5-4) of the Convention that he

did not have to expect that his case would be decided by the Linz

Court of Appeal after hearing the Senior Public Prosecutor's Office

without him or his lawyer being present.  In these circumstances it

cannot therefore be found that the applicant failed to exhaust

available domestic remedies.

        As regards the requirement under Article 26 (Art. 26) of the Convention

that an application must be filed within six months from the date on

which the final decision was taken, the Commission observes that the

applicant had no legal training, and his main concern was that he was

excluded from the appeal proceedings before the Linz Court of Appeal.

He could thus not be expected fully to appreciate the differences

between the proceedings in which the Linz Court of Appeal decided on

the prolongation of his detention on remand, and, upon appeal, on his

release from detention on remand.

        The Commission further notes that on 5 December the applicant

complained to the Commission of a violation of his right to a legal

hearing in that in the proceedings before the Linz Court of Appeal

neither he nor his lawyer were present.  He also referred to the

limitations of legal remedies in matters of detention on remand.

        Moreover, after the Linz Court of Appeal dismissed the

applicant's appeal on 22 January 1986, the applicant referred within

six months, that is on 4 July 1986, in a further letter to the Commission

to his previous complaints, while also complaining of the "delay

tactics" (Verzögerungstaktiken) of the Salzburg Regional Court and the

Linz Court of Appeal.

        After a further decision of the Linz Court of Appeal on

26 November 1986 concerning the applicant's appeal, he filed within

six months, that is on 11 December 1986, complaints with the

Commission, under Articles 5 and 6 (Art. 5, 6) of the Convention, against this

decision.

        In view thereof and taking the applicant's submissions as a

whole, the Commission finds that this part of the application cannot be

rejected under Article 26 (Art. 26) of the Convention for non-compliance with

the time-limit of six months.

        The Commission further considers that the applicant's

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

proceedings before the Linz Court of Appeal raise complex issues of

fact and law which can only be resolved by an examination of the

merits.  They cannot therefore be declared manifestly ill-founded.  No

other grounds for inadmissibility have been established.

5.      The applicant appears to complain under Article 6 para. 1 (Art. 6-1) of

the Convention of the length of the criminal proceedings in which he

was involved.

        The Commission considers that the relevant period to be

examined under this provision commenced on 11 January 1985.  The

Salzburg Regional Court pronounced its judgment on 26 May 1988.

        According to the constant case-law of the Convention organs,

the reasonableness of the length of the proceedings has to be assessed

in each case according to its particular circumstances and having

regard in particular to the complexity of the case and the conduct of

the judicial authorities (see Eur.  Court H.R., Corigliano judgment of

10 December 1982, Series A no. 57, p. 14 para. 37).

        The Commission has applied these criteria to the circumstances

of the present case.  It considers that the case raises complex issues

and that the many appeals and requests filed by the applicant also

contributed to the duration of the proceedings.  As regards the

conduct of the authorities the Commission recalls that the requirement

of Article 6 para. 1 (Art. 6-1) are less stringent than those of Article 5

para. 3 (Art. 5-3) of the Convention (see Eur.  Court H.R., Wemhoff judgment of

27 June 1968, Series A no. 7, p. 27 para. 20).  In this light the

Commission finds that the conduct of the authorities raises no further

issue.

        As a result, the Commission finds that the length of the

proceedings does not exceed the notion of "reasonable" within the meaning of

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

application is therefore manifestly ill-founded within the meaning of Article

27 para. 2 (Art. 27-2) of the Convention.

6.      The applicant also complains of his obligation to report regularly to

the police and raises further complaints about the Austrian authorities in

general.  The Commission has examined the applicant's complaints as they have

been submitted by him.  However, after considering these complaints as a whole,

the Commission finds that they do not either disclose any appearance of a

violation of the rights and freedoms set out in 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.

        For these reasons, the Commission

        DECLARES ADMISSIBLE, without prejudging the merits of the

        case,  the applicant's complaints under Article 5 para. 3 of

        the Convention concerning the length of his detention on remand,

        and under Article 5 para. 4 of the Convention concerning the

        proceedings before the Linz Court of Appeal;

        DECLARES INADMISSIBLE the remainder of the application.

Deputy Secretary to the Commission      Acting President of the Commission

      (J. RAYMOND)                             (S. TRECHSEL)