AS TO THE ADMISSIBILITY OF

                      Application No. 10803/84

                      by A.F.

                      against Austria

        The European Commission of Human Rights sitting in private

on 16 December 1987, the following members being present:

              MM. C.A. NØRGAARD, President

                  J.A. FROWEIN

                  S. TRECHSEL

                  F. ERMACORA

                  G. SPERDUTI

                  E. BUSUTTIL

                  A.S. GÖZÜBÜYÜK

                  A. WEITZEL

                  J.-C. SOYER

                  H.G. SCHERMERS

                  H. DANELIUS

             Sir  Basil HALL

             MM.  F. MARTINEZ

                  C.L. ROZAKIS

             Mrs.  J. LIDDY

             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 13 December 1984

by A.F. against Austria and registered on 27 January 1984 under

file No. 10803/84;

        Having regard to:

-       the first report of October 1984 provided for under Rule 40 of

        the Rules of Procedure of the Commission;

-       the Commission's decision of 4 December 1984 to bring the

        application to the notice of the respondent Government and invite

        them to submit written observations on the admissibility and

        merits of the application;

-       the observations submitted by the respondent Government on

        15 March 1985 and the reply thereto submitted by the applicant

        on 23 April 1985;

-       the second report of June 1985 provided for under Rule 40 of

        the Rules of Procedure of the Commission;

-       the Commission's decision of 8 July 1985 to invite the parties

        to a hearing on the admissibility and merits of the application;

-       the President's decision of 23 April 1986 to cancel the

        hearing in view of official liability proceedings which the

        applicant in the parallel Application No. 10668/83 had

        instituted before the Austrian courts;

-       the further observations of the applicant submitted on

        19 June 1986 and 20 March 1987, and of the Government on

        24 July 1986 and 16 April 1987;

-       the third report of May 1987 provided for under Rule 40 of

        the Rules of Procedure of the Commission;

-       the Commission's decision of 13 May 1987 to invite the parties

        to a hearing on the admissibility and merits of the

        application;

-       the submissions of the parties at the hearing on

        16 December 1987.

        Having deliberated;

        Decides as follows:

THE FACTS

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

summarised as follows:

        The applicant, an Austrian citizen born in 1965, is a car

mechanic apprentice resident at Lambrechten/Austria.  He is

represented before the Commission by Drs.  B. Binder and H. Blum, lawyers

practising in Linz.

I.

        On 18 October 1982 the applicant and his father parked their

vehicle, a van for transporting school children, at 19.30 hours in

full darkness next to an orchard belonging to the farmer J.L.  The

father then allegedly lay down on the van's back seat.

        The farmer J.L. had for some time suspected that his pears were

being stolen by the applicant's father and had informed the neighbours

in the region of this suspicion.

        A game warden and his wife driving by saw the van which they

recognised as belonging to the applicant's father.  The game warden

also allegedly saw big sacks, some full and some empty, underneath the

pear trees, and a figure vanishing into the darkness.

        The game warden then stopped his car and his wife called J.L.

The three then inspected the van.  As they suspected something on the

back seat, the game warden and his wife drove away to call the police

and another neighbour, while J.L. stayed behind to guard the van.

        The applicant's father then allegedly got up and climbed into

the front seat.  J.L. saw him, told him to wait for the police and

walked to the front of the van.  The applicant's father then started

the van and drove away with J.L. hanging over the bonnet and holding

on to the windscreen wipers.

        After driving a short distance in this manner, the applicant's

father encountered the game warden who was returning in his car from

calling the police.  Thereupon, the game warden followed in his car the

van driven by the applicant's father but could not catch up with it.

A neighbour who saw these occurrences also sat in his car and followed

the van.

        After approximately 2.5 kilometres, the applicant's father

drove into the yard of a farm the owners, Mr. and Mrs.  St., of which

he knew.  He stopped and J.L. descended from the bonnet.

        Later, a private expert opinion of 13 June 1983, ordered by

the applicant's father, concluded that the latter must have driven at

approximately 30 kmh on side-roads, and at 40-50 kmh on

tarred roads.

II.

        Shortly after the incident two newspapers carried headlines

stating "Bus Driver Kidnaps Farmer After Stealing Fruit" and "Pear

Thief Drags Farmer for 3 Kilometres".  The applicant's father

instituted proceedings against these newspapers resulting in two

decisions of the Linz Regional Court (Landesgericht) of 2 March 1983,

which partly upheld the request of the applicant's father.

        The Court ordered in particular each newspaper to publish a

reply drafted by the applicant's father.  This reply had to state that

the applicant's father had not collected fruit on the farm and that

J.L. had indeed climbed on to the van's bonnet to prevent the

applicant's father from driving away.

        The Court did not grant the applicant's further requests for a

reply stating that he had not left the van at the farm; that he had

twice asked J.L. to step down from the bonnet; and that he had driven

at 5 to 10 kmh which meant that there had been no danger for J.L.

The court found in this respect that the applicant's father had indeed

left the van at one stage; that the newspapers had not contradicted

his statement that he had offered J.L. to step down; that there had

clearly been a danger for J.L. on the bonnet; and that the statements

of the applicant's father regarding the speed, namely that he had

driven at 5-10 kmh, were incorrect.

        During these proceedings before the Linz Regional Court,

hearings took place on 2 February and 2 March 1983 in which Mr. and

Mrs.  St., the game warden and his wife, J.L. and his neighbour were

heard as witnesses.  The applicant was also heard as a witness with

regard to the events concerning his father on 18 October 1982.  As a

result the Public Prosecutor instituted criminal proceedings against

the applicant who was charged with false testimony during this hearing.

However, on 6 July 1983 the Public Prosecutor declared that there were

no reasons to prosecute the applicant, and on 13 July 1983 the

investigating judge terminated these proceedings (see infra IV).

III.

        In independent criminal proceedings, the applicant's father

was charged with having compelled J.L. to endure an agonising

situation and having negligently brought about a danger to his life

and health.  A first hearing was held on 26 May 1983 before the

District Court (Kreisgericht acting as Schöffengericht) of Ried im

Innkreis.  The respective witnesses, namely the game warden and his

wife, J.L. and his neighbour, maintained that they had not seen the

applicant in the van and that its doors had been locked.  The

applicant and his father had been driving at 60-80 kmh.

        During a further hearing on 17 June 1983 before the same

Court, the applicant was heard as a witness.

        The applicant stated that on the evening of 18 October 1982

his father had suffered stomach pains and been compelled to lie down

in the back of the van while he, the applicant, had remained seated in

front.  He had not crouched in the vehicle and not all doors of the

van had been locked.  Later, J.L. had banged wildly on the van door,

used offensive language, and had stood on the front bumper.  His

father requested J.L. twice to step down.  When J.L. refused to do so,

they had driven slowly at 5-10 kmh through the countryside.

Moreover, his father had frequently stopped and offered to let J.L.

down, but J.L. had refused to descend.  The official procès-verbal

of the hearing of 17 June 1983 then continues:

        "The Public Prosecutor requests the preparation of a

        separate protocol according to S.277 of the Austrian Code of

        Criminal Procedure on account of suspicion of false

        testimony on the part of the applicant and his immediate

        arrest and interrogation by an investigating judge."

        "In addition the public prosecutor extends the indictment

        against (the applicant's father) as follows:

        (The applicant's father) has in the year 1983 in

        Lambrechten and other places determined the applicant to

        give false testimony as witness before the Court by asking

        (the applicant) as witness during his formal interrogation

        (in the proceedings before the Ried District Court on

        17 June 1983) to state that J.L. had voluntarily, on

        18 October 1982 in Gerhagen, Lamprechten, climbed on the car

        steered by (the applicant's father), that (the applicant's

        father) had driven the car at a maximum of 10 kmh and that

        during the drive to the St. farm he had stopped three to

        four times and he himself (the applicant) had always sat

        upright in the vehicle on that evening.

        He has thereby committed the offence of giving false

        testimony before the Court within the meaning of S.288(1) of

        the Criminal Code as participant (Beteiligter) according to

        S.12 of the Criminal Code. ...

        The applicant's representative submits that there are no

        grounds for arresting the applicant and bringing him before

        the investigating judge.

        The Public Prosecutor adds in respect of (the applicant)

        that the reason for custody lies in the danger of collusion

        according to S.175 para. 1 (3) of the Code of Criminal

        Procedure inasmuch as the witness (the applicant) could

        conspire in the criminal proceedings instituted against him

        with the accused (the applicant's father).  There is also

        the danger of repetition in view of the fact that (the

        applicant) is already facing criminal proceedings concerning

        statements which he has made before the Linz Regional Court

        on 2 February 1983 ...

        The court then holds out once more the facts to the

        applicant and asks him whether he will continue to uphold

        his statement.

        Thereupon (the applicant) states:

        I affirm my previous statement.

        The Court then retires from 0915 to 0920 hours whereupon

        the President orders:

        the arrest of (the applicant) on the ground of detention

        of S.175 para. 1 (3) of the Code of Criminal Procedure

        for the purpose of bringing him before the investigating

        judge on the ground of suspicion of false testimony before

        the Court.

        The applicant is then arrested and led out of the

        Court room by a Court official."

        The applicant was brought on the same day before the

investigating judge at 15.45 hours and released from custody at

approximately 16.30 hours.

        Meanwhile, the Court still heard the testimony of Mr. and Mrs.

St.  On the same day, 17 June 1983, the District Court convicted the

applicant's father of the crime of severe compulsion (schwere Nötigung)

and the misdemeanour of endangering bodily safety (Gefährdung der

körperlichen Sicherheit) and sentenced him conditionally to ten months'

imprisonment.

        In its judgment the Court did not regard as credible the

submission of the applicant's father that they had been driving

through the area to measure the exact distance of a certain trip, and

that he had then suffered severe stomach pains.  The Court found that

the applicant's father had indeed driven at high speed for some

distance with J.L. being forced to hang over the van's bonnet.

J.L. had been in constant danger of falling down and being run over by

the van.

        On 8 August 1983 the applicant's father unsuccessfully

attempted to institute criminal proceedings, inter alia, against J.L.,

the game warden and his wife, and another person, on the grounds that

the latter had given false testimony.

IV.

        On 18 August 1983 the Public Prosecutor in Ried charged the

applicant with false testimony during the hearing of 17 June 1983

(supra III) as well as during the hearings on 2 February and

2 March 1983 before the Linz Regional Court (supra II).  The charge

related to the applicant's statements that the van's door had not been

locked; that his father had driven between 5-10 kmh; and that his

father had thereby frequently stopped.

        The applicant's appeal against this charge was partly

dismissed on 5 October 1983 by the Linz Court of Appeal

(Oberlandesgericht).  In respect of the hearings of 2 February and 2

March 1983 before the Linz Regional Court, the Court of Appeal upheld

the applicant's appeal.  It found that the investigating judge had

terminated the investigations and that the conditions under Austrian

law had not been met to reopen these proceedings.

        In respect of the hearing before the Ried District Court of 17

June 1983, the Court of Appeal found that the applicant had not

sufficiently demonstrated that he could not be suspected of false

testimony.

        On 6 June 1984 the Ried District Court convicted the applicant

of the offence of false testimony in that, at the hearing of

17 June 1983, the applicant had stated that his father had driven at most

5-10 kmh and had frequently stopped.  In view of the applicant's age,

his conviction was provisionally deferred for three years.  His plea

of nullity (Nichtigkeitsbeschwerde) was dismissed by the Supreme Court

(Oberster Gerichtshof) on 11 September 1984.

COMPLAINTS

1.      The applicant complains under Article 5 para. 1 (c) of the

Convention of the illegality of his temporary custody (vorläufige

Verwahrungshaft).  He refers to S.277 of the Austrian Code of Criminal

Procedure which provides:

        "If, during the trial proceedings, there is a probability

        (Wahrscheinlichkeit) that a witness has knowingly given

        false testimony, the president may draw up a protocol of

        this testimony and, after it has been prepared and approved,

        let it be signed by the witness; he may also order the

        arrest of the witness and have him brought before the

        investigating judge."

        The applicant draws attention to the connection between

S.277 and S.175 (1) of the Code of Criminal Procedure.  S.175 (1)

provides:

        "(1) Even without a previous summons the investigating judge

        may order a person suspected of a crime or misdemeanour to be

        brought before him or to be temporarily remanded in custody:

        1.      if the suspected person has been caught in the act

                or is charged on reasonable suspicion (glaubwürdig

                ... beschuldigt) immediately after the crime or

                the misdemeanour of having perpetrated the act,

                or is caught with arms or other objects which

                stem from the crime or misdemeanour or in any other

                way indicate his involvement therein;

        2.      if he is absconding or hiding or if on the basis of

                certain facts there is a danger that he will flee or

                stay in hiding on account of the severity of the

                punishment which he will probably incur or of other

                reasons;

        3.      if he tries to influence witnesses, experts or

                codefendants, to remove the traces of the offence or

                otherwise to impede the discovery of the truth, or if

                on account of certain facts there is the danger that

                he will try to do so; or

        4.      if on the basis of certain facts it is to be expected

                that he will repeat the act or will effect the attempted

                or threatened act."

        The applicant alleges that this provision was incorrectly

applied by the Ried District Court which imposed temporary custody on

him on account of the danger of collusion.

        The applicant submits that it was logically impossible that

there existed in his case a danger of collusion as the Court had

already heard all important witnesses who had testified against his

father.  The Court had not substantiated at all in what respect there

existed in his case a danger of collusion.

        The applicant concludes that the Court's imposition for custody

was intended to constitute a penalty for his testimony in which he was

the only person to give exonerating evidence with regard to his

father.  The Court's decision was inconsistent as other witnesses who

had also made contradictory statements, were not arrested.

2.      The applicant also complains that there was no remedy

available to him under Austrian law which would have enabled him to

have the legality of his custody examined.  In this regard he relies

on Article 5 para. 4 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

        The application was introduced on 13 December 1983 and

registered on 27 January 1984.

        On 4 December 1984 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 the Rules of Procedure.

        The Government's observations were submitted on 15 March 1985

and the reply thereto submitted by the applicant on 23 April 1985.

        On 8 July 1985 the Commission decided to invite the parties to

a hearing on the admissibility and merits of the application.

        On 16 April 1986 the applicant in the parallel Application No.

10668/83 submitted a decision of the Salzburg Regional Court of

29 November 1985 upholding his official liability action.  Following

further submissions of the Government on 22 April 1986 and the

applicant on 23 April 1986 the President decided on 23 April 1986 to

cancel the hearing, pending the official liability appeal proceedings

before the Linz Court of Appeal.

        Further observations were submitted by the applicant on

19 June 1986 and 20 March 1987 and by the Government on 24 July 1986

and 16 April 1987.

        On 13 May 1987 the Commission decided to invite the parties to

a hearing on the admissibility and merits of the application.

        At the hearing which was held on 16 December 1987 the parties

were represented as follows:

        The Government:

Botschafter Dr.  Helmut TÜRK          Head of the International

                                     Law Department, Federal Ministry

                                     of Foreign Affairs, Agent

Ministerialrat Dr.  Wolf OKRESEK      Constitutional Law Department,

                                     Federal Chancellery, Adviser

Judge Dr.  Irene GARTNER              Federal Ministry of Justice,

                                     Adviser

        The applicant:

Dr.  Helmut BLUM                      Lawyer (Rechtsanwalt) practising

                                     in Linz.

SUBMISSIONS OF THE PARTIES

A.      The respondent Government

1.      The facts

        The Government's submissions as to the facts have been

included in THE FACTS above.  The Government also recall that in the

indictment prepared by the Public Prosecutor's Office of Ried im

Innkreis on 1 February 1983 the applicant's father was charged with

the crime of aggravated coercion and with the misdemeanour of

endangering physical safety.  The prosecution charged that the

applicant's father had caused a danger to J.L.'s life, health or

physical safety under particularly dangerous circumstances.

        At the trial before the District Court of Ried im Innkreis on

17 June 1983, the applicant was heard as a witness, having previously

been advised on his rights and responsibilities as a witness.  He said

that his father had driven the school van at a speed of about 5 to 10

kmh or at most 10 kmh and that he had stopped three or four times.  At

the Public Prosecutor's request, the Court then decided to arrest the

applicant for the reason for custody stated in S.175 (1)(3) of the Code

of Criminal Procedure and to bring him before the investigating judge.

2.      Issue under Article 5 para. 1 (c) of the Convention

a.      Unlike the French version the English text of Article 5 para.

1(c) of the Convention mentions "the lawful arrest or detention".

This means that the consistency of an act of arrest or detention with

Article 5 para. 1 (c) depends on it being covered by national legal

provisions.  For their part these national legal provisions must keep

within the limits of the powers to restrict the fundamental right to

personal liberty admissible under Article 5 para. 1 (c).

        The relevant domestic legal provisions are S.277 and

S.175 (1)(1) and (3) of the Code of Criminal Procedure (quoted above

in COMPLAINTS, p. 6).  The District Court of Ried im Innkreis based

itself on S.277 and S.175 (1)(3) when it ordered the applicant's

temporary custody.

         S.277 of the Code does not explicitly stipulate as a

prerequisite of arrest the presence of one of the reasons for custody

listed in S.175 (1).  The reasons for custody listed in S.175 (1) do not

only comprise those cited by the applicant in his complaints, i.e.

danger of absconding, danger of collusion and, in the then

operative version, danger of repetition but also - a

fact not mentioned by the applicant - being caught in flagrante

delicto (S.175 (1)(1) of the Code of Criminal Procedure).

        But this reason for custody, being caught in the act, is always

present in the case contemplated in S.277, and this is why the view is

frequently taken that Parliament for this reason did not state

specific reasons for custody in this provision nor considered a

reference to S.175 necessary.

        S.277 provides sufficient legal cover for having a witness

arrested where there is a probability of false testimony, and for

having him brought before the investigating judge.  An order to this

effect issued by the presiding judge is based on his authority to

conduct the trial.  But arrest in the sense of S.277 only implies the

remanding in temporary custody.  The requirement to bring the witness

before the investigating judge as soon as possible is a sufficient

guarantee against any unjustified prolongation of his detention,

because the investigating judge can only maintain his detention in

accordance with the requirements of S.180 of the Code of Criminal

Procedure - as detention pending investigation - if there is a

sufficient reason for custody, and it must be noted that S.180(2) only

lists danger of absconding (sub-para. 1), danger of collusion

(sub-para. 2) and danger of repetition or perpetration (sub-para. 3)

as grounds for detention pending investigation but does not list being

caught in the act which is enough to justify temporary custody.

        The judicial bodies set up under the Convention have always

made it clear that it is primarily for the national courts to

interpret and apply national law (see Eur.  Court H.R., Winterwerp

judgment of 24 October 1979, Series A no. 33, p. 20, para. 46).

Therefore, in the present case, too, it will be necessary primarily to

base oneself on Austrian law.  Detention under S.277 of the Code is a

lawful arrest effected for the purpose of bringing the prisoner before

the competent legal authority because there is reasonable suspicion

that he has committed an offence.  S.277 is therefore consistent with

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

        The custody imposed on the applicant was materially justified.

The trial judge of the District Court of Ried im Innkreis based the

applicant's arrest on the reason for custody acknowledged by S.175

(1)(3).

b.      Contrary to the applicant's submissions in his application the

assessment of the presence of danger of collusion as a reason for

custody in the applicant's case can only relate to the danger of

influence which he could have brought to bear on his father,

witnesses, the suppression of evidence etc., in the criminal

prosecution instituted against the applicant himself on suspicion of

false testimony.  In particular, it was only in this context that he

was a suspect in this sense within the meaning of S.175, and it cannot

relate to the danger of conspiracy with (other) witnesses in the

criminal prosecution of his father.  Moreover, it was only after the

hearing of 17 June 1983 that the Linz Court of Appeal, on 5 October 1983,

decided that the applicant should not be prosecuted for giving false

testimony on 2 February and 3 March 1983.  In any event the views of

the judge who imposed temporary custody were later confirmed by the

Supreme Court in its decision of 11 September 1984.

        S.175 (1)(3) is completely covered by the exceptions allowed

by Article 5 para. 1 (c) of the Convention.  Both provisions have a

totally analogous structure: they first speak of offences which

actually happened and then of sufficient grounds for suspicion

("reasonable suspicion", "raisons plausibles de soupçonner") (cf. the

phrase "if on account of certain facts there is the danger that he

will try to do so" in S.175 (1)(3) of the Code of Criminal Procedure).

3.      Issue under Article 5 para. 4 of the Convention

        The judge who ordered the applicant's temporary custody did no

more than any security officer can do, namely arrest a person if he is

caught in the act.  Here S.179(1) of the Code of Criminal Procedure

provides sufficient guarantees inasmuch as that person must be brought

within 24 hours before the investigating judge.  After the judge has

interrrogated the person, the latter must either be released, if there

are no further grounds for his detention, or he will be detained on

remand, in which case he can file the normal remedies.  It would be

practically impossible to have a remedy at the moment of arrest.  In

the present case custody was very short; thereafter, the investigating

judge again reviewed the issue whether a danger of collusion existed,

and as a result released the applicant.

4.      Decision of the Supreme Court of 11 December 1986

        Following the decision of the Austrian Supreme Court of

11 December 1986 in the proceedings concerning Application No. 10668/83

(Ernst v.  Austria), the Government point out that, in the light of that

decision, the imposition of temporary custody upon the applicant was

in conformity with Austrian law.  This view is also upheld by certain

authors.  In particular, it is unneccesary for a judge who is

imposing temporary custody on account of false testimony upon a

witness in accordance with S.277 of the Code of Criminal Procedure to

adduce further grounds of detention within the meaning of S.175 (1) of

the Code.

        In view of the decision of the Supreme Court the respondent

Government no longer regard the institution of official liability

proceedings as necessary in the present case in order to comply with

the requirement of the exhaustion of domestic remedies within the

meaning of Article 26 of the Convention.

5.      Conclusion

        The Government therefore request the Commission to declare the

present application inadmissible under Article 27 para. 2 as being

manifestly ill-founded.

B.      The applicant

1.      The facts

        The applicant's submissions as to the facts have been included

in THE FACTS above.  The applicant stresses that only private

denunciations (Privatanzeigen) had been filed against his father, and

that the applicant was the only person who exonerated his father.  Yet

the applicant was not questioned in the preliminary proceedings and

his testimony not considered.  Moreover, the private expert opinion

ordered by the applicant's father clearly showed that the speed with

which he had allegedly driven was technically impossible.  Yet the

private opinion was not considered by the Court.

2.      Issue under Article 5 para. 1 (c) of the Convention

a.      The guarantees enshrined in Article 5 of the Convention

concern the most important rights of a person's freedom and any

restrictions must be narrowly interpreted.  It is irrelevant,

therefore, that in the present case the applicant's custody only

lasted a short time.

        Arrest according to S.277 of the Code of Criminal Procedure is

only permitted if there is a probability that a witness knowingly gave

false testimony.  These conditions were not met in the instant case,

as the Ried District Court, when it imposed custody, did not have

sufficient indications to conclude such probability.  Accordingly, the

temporary custody imposed on the applicant was not lawful within the

meaning of Article 5 para. 1 (c) of the Convention.

        Thus, the Ried District Court could on that occasion only

measure the applicant's statement against those of the other

witnesses.  Moreover, the Court was aware of the two previous

decisions of the Linz Regional Court of 2 March 1983 which were

related to the subsequent Ried proceedings.  There the applicant had

made the same remarks and was not prosecuted for giving false

testimony.  In two decisions of the Linz Regional Court it was stated

that the applicant's father had frequently stopped the van, thus

enabling J.L. to step down.  In respect of this crucial point the

applicant's testimony had therefore been confirmed and proved by an

independent court.   The Ried District Court had already in respect of

this point no indication permitting the accusation of false testimony.

As the applicant's statement in this regard had been proved, the Ried

District Court had also no basis for the finding that the applicant's

statement concerning the speed at which the van had been driven

probably constituted a false testimony.

        The imposition for custody upon the applicant in fact amounted

to a punishment as he was the only one to support his father.  The

arbitrariness of the measure is also demonstrated by the fact that the

statements before the Ried District Court of other witnesses, namely

J.L., his neighbour and the game warden, differed from the statements

made by the same witnesses before the Linz Regional Court.  There were

also considerable divergencies among these witnesses themselves.  Yet

the Ried District Court did not consider imposing custody upon these

witnesses.  Even if the Court was not obliged to consider the private

expert opinion produced by the applicant's father, it should have

appointed an official expert.

b.      The applicant submits that, contrary to the respondent

Government's observations, temporary custody may only be imposed if an

additional reason in the sense of S.175 (1) is given.  While the

actual text of the law does not state this expressis verbis, this is

the prevailing view in Austrian doctrine and jurisprudence.  In fact,

it is impossible to be caught in the act when giving false testimony,

since it must first be considered what the other witnesses have said.

        The Ried District Court imposed temporary custody expressly on

the grounds of S.175 (1)(3), i.e. the danger of collusion, but it did

not examine these grounds.  Contrary to the respondent Government's

submissions, such danger did not exist in the present case.  It is not

surprising that the applicant was released from temporary custody a

few hours later.  This showed that the Court itself was not convinced

that a danger of collusion existed.

        This reason for custody could also not be based on

the false testimony proceedings instituted against the applicant in

view of the fact that all relevant witnesses had already given

complete and extensive testimony in the proceedings instituted against

the applicant's father.  For this reason already no danger of

influencing other witnesses could be assumed.  The reason for the

danger of collusion adduced by the Ried District Court could logically

not exist in the instant case.  In any event shortly afterwards the

applicant's father was convicted.

3.      Issue under Article 5 para. 4 of the Convention

        The applicant also recalls his complaint under Article 5 para.

4, that no remedy had been open to him against the imposition of

temporary custody.  There were no judicial or administrative

proceedings to examine the lawfulness of temporary custody.  In fact,

no such remedy is available under Austrian law.  Yet the detainee

should have the opportunity to put forward the arguments which, in his

opinion, militate against his detention and show its illegality.  He

should have the opportunity to do so even if detention lasts a short

time.

4.      Decision of the Supreme Court of 11 December 1986

        In respect of the official liability proceedings instituted by

the applicant in Application No. 10668/83, the present applicant

submits that there was no effective remedy at his disposal within the

meaning of Article 26 of the Convention.

        On the other hand, if the Supreme Court on 11 December 1986

decided that for the imposition of temporary custody according to

S.277 of the Code of Criminal Procedure it was unnecessary to adduce

the further grounds stated in S.175 of the Code, this implied that

such imposition fell to the discretion of the court concerned.  This

view, which contradicts doctrinal writing in Austrian literature,

would also be contrary to Article 5 para. 1 (c) of the Convention

since temporary custody could be imposed without further reasons.  Yet

Article 5 para. 1 expressly mentions the deprivation of liberty "in

accordance with a procedure prescribed by law".  Article 5 para. 1 (c)

states that for the imposition of detention "respective reasons" must

be given.

THE LAW

1.      The applicant complains that his temporary custody was illegal

in that it did not comply with the requirements under Austrian law,

namely S.175 (1) of the Code of Criminal Procedure.  The Ried District

Court did not have sufficient indications to conclude that there was a

probability of his having committed an offence.  Moreover, it was

logically impossible that there existed in his case a danger of

collusion, as all the important witnesses had already been heard when

he was arrested.  In any event, he had made the same statements

already previously before the Linz Regional Court which had not

regarded his testimony as false.

        The applicant submits further that there were no domestic

remedies at his disposal within the meaning of Article 26 (Art. 26) of the

Convention.  He refers in this respect to the decision of the Supreme

Court of 11 December 1986.  This Court approved the imposition of

temporary custody on the sole basis that the person is suspected of

having committed the offence of giving false testimony.

        The applicant relies in respect of these complaints on Article

5 para. 1 (c) (Art. 5-1-c) of the Convention which states:

"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 Government observe that the Convention organs have left

the interpretation and application of domestic law primarily to the

domestic courts.  Reference is made to S.277 and S.175 (1) of the Code

of Criminal Procedure quoted above in THE COMPLAINTS, p. 6.  In

the present case, S.277 does not explicitly refer to the reasons for

detention listed in S.175 (1) of that Code.  The Government submit

that it suffices under S.277 of that Code that somebody is caught in the

act.  In the Government's view, the decision of the Supreme Court of 11

December 1986 has demonstrated that temporary custody may indeed be

imposed on a person solely on the grounds that he is suspected of the

offence.  Also on the basis of that decision the Government accept

that the applicant had no further domestic remedies at his disposal

within the meaning of Article 26 (Art. 26) of the Convention.

        The Commission has nevertheless examined whether the applicant has

complied with the conditions of the exhaustion of domestic remedies

within the meaning of Article 26 (Art. 26) of the Convention.  The Commission

notes that both parties refer to the decision of the Supreme Court of

11 December 1986 which concerned the case of Ernst v.  Austria, No.

10668/83, Dec. 13.5.87.  According to the decision of the Supreme

Court, it is unnecessary in cases such as the present one, concerning

the offence of false testimony, to adduce any grounds mentioned in

S.175 para. 1 of the Code of Criminal Procedure which warrant

detention on remand, as long as there exists the probability that the

offence has been committed.  The Commission further notes the

Government's conclusion that in view of this decision the applicant

could no longer be expected to file an official liability action under

Austrian law in which he could have claimed the illegality of his

temporary custody.  The Commission therefore considers that in respect

of the complaints which the applicant is now raising before the

Commission he had no further effective remedies under domestic law at

his disposal within the meaning of Article 26 (Art. 26) of the Convention.

        The Commission is therefore called upon to examine the

substance of the applicant's complaints.  In this respect the

Commission notes that it is not confronted here with an issue

concerning the fairness of the proceedings within the meaning of Article 6

para. 1 (Art. 6-1) of the Convention ( cf.  No. 8744/79, Majngarten v. the

Federal Republic of Germany, Dec. 2.3.83, D.R. 32 p. 141; No. 9000/80, Porro v.

Switzerland, Dec. 11.3.82, D.R. 28 p. 127).  Rather the Commission must

examine in the present case whether the imposition of temporary custody imposed

on the applicant complied with the conditions of Article 5 para. 1 (c)

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

        As regards the conditions laid down in Article 5 para. 1 (c) (Art.

5-1-c) the Commission will turn first to the question whether the measure at

issue was "lawful" within the meaning of this provision.  While it is not

normally the Commission's task to review the observance of domestic law by the

national authorities, it is 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.  Nevertheless, it

is for the national authorities in the first place, especially the courts, to

interpret and apply domestic law and to settle any issues arising therefrom

(see Bonazzi v.  Italy, Comm.  Report 19.3.81, D.R. 24 p. 53).

        As regards the present case, S.277 of the Code of Criminal

Procedure provides that temporary custody may be imposed upon a

witness by the judge if, during the trial proceedings, there is a

probability that the witness knowingly gives false testimony.  The

official procès-verbal of the trial hearing at the Ried District Court

of 17 June 1983 discloses that the Public Prosecutor requested the

applicant's arrest during the trial on the basis of S.277.  Thereupon,

the judge imposed temporary custody on the applicant as he saw a

probability that the applicant had given false testimony.

        In this respect, therefore, temporary custody was "lawful" within the

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

arises whether in such cases S. 175 (1) of the Code of Criminal Procedure

requires further grounds for the imposition of temporary custody.  For if

domestic law sets up such further requirements, these must also be complied

with in order for the measure to be "lawful" within the meaning of Article 5

para. 1 (c) (Art. 5-1-c) (see No. 9614/81, Dec. 12.10.83, D.R. 34 p. 119).

        Here, the Commission notes that both parties have referred to

the decision of the Supreme Court of 11 December 1986, mentioned

above.  In that decision the Court confirmed that S.277 of the Code of

Criminal Procedure requires, other than the probability of having

committed the offence, no further grounds under S.175 (1) warranting

detention on remand.

        However, the Commission also notes that the decision of the

Supreme Court did not concern the present case and was handed down

after custody had been imposed on the applicant.  Moreover, the

applicant submits that at the time of his arrest doctrinal writings

assumed that temporary custody under S.277 of the Code of

Criminal Procedure required a further ground in S.175 (1) of the Code

warranting detention on remand.  The applicant claims in this respect

that the judge adduced the additional ground of the danger of

collusion, though in his case such danger could not exist.  For this

reason therefore his detention was also unlawful under Austrian law.

        The Commission need not resolve whether or not the danger of

collusion constituted under Austrian law a further condition for the

applicant's arrest and detention, since, even if this further ground

was necessary, the Commission finds that it was reasonably considered

to exist in the applicant's case for the following reasons.

        The Commission observes that this danger of collusion adduced

by the Ried District Court related to the offence of false testimony,

rather than the offence with which the applicant's father was

charged.  In respect of the offence of false testimony, it could not

in the Commission's opinion be ruled out that the applicant would try

to influence the evidence, in particular try to influence his father

and other witnesses.  In view thereof, the Commission finds that the

Ried District Court could reasonably consider that in the applicant's

case there existed a danger of collusion.

        Even assuming, therefore, that at the relevant time it was

necessary under Austrian law to adduce a further ground stated in

S.175 (1) of the Code of Criminal Procedure, namely the danger of

collusion, the Commission considers that this condition was complied

with in the present case.

        Accordingly, the Commission concludes that the imposition of

temporary custody upon the applicant was "lawful" within the meaning

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

        As a second condition, Article 5 para. 1 (c) (Art. 5-1-c) requires that

there must have been a reasonable suspicion of the arrested person

having committed the offence at issue.

        The Commission recalls that the reasonable suspicion referred to in

Article 5 para. 1 (c) (Art. 5-1-c) of the Convention does not mean that the

suspected person's guilt must at that stage be established and proven, and it

cannot be a condition for arrest and detention pending trial that the

commission of the offence with which the person concerned is charged has been

established.  It is precisely the purpose of the official investigation and

detention that the reality and nature of the offences laid against the accused

should be definitely proved (see No. 8224/78, Dec. 5.12.78, D.R. 15 p. 239).

        In the present case the applicant's testimony before the Ried

District Court was the only one to exonerate his father of the charges

brought against him.  On the other hand, the applicant's testimony

differed in various respects substantially from the statements of other

witnesses which all incriminated the father.  The Commission does not

find the conclusion of the Ried District Court unreasonable that in

these circumstances there existed a suspicion that the applicant's

statements were untrue.

        It is true that the applicant had already made the same

statements in the previous proceedings before the Linz Regional Court.

However, the Commission notes, for instance, that one important

statement of the applicant which gave rise to the suspicion of false

testimony - namely that his father had driven at approximately 5-10

kmh - was not confirmed by the Linz Regional Court.  On the contrary,

that Court expressly found on 2 March 1983 that the statements of the

applicant's father concerning the speed were incorrect.

        Accordingly, the Commission considers that the Ried District

Court could reasonably suspect the applicant of the offence of giving

false testimony.

        The Commission further notes that on the same day the

applicant was brought before the investigating judge and then

released.  Thus, the third condition in Article 5 para. 1 (c) (Art. 5-1-c) was

complied with, namely that the applicant's arrest and detention were

"effected for the purpose of bringing him before the competent legal

authority".

        Finally, the question arises whether Article 5 para. 1 (c) (Art. 5-1-c)

requires compliance with further conditions, in addition in particular to the

suspicion of having committed an offence.  The Commission recalls that the

purpose of detention under Article 5 para. 1 (c) is, inter alia, to allow the

process of investigation to proceed unhindered (see No. 8224/78, Dec. 5.12.78,

D.R. 15 p. 239).  An issue could arise if this purpose was not established, or

if, in view of the nature of the offence which the person is suspected of

having committed, this purpose of detention appeared disproportionate to the

severity of the deprivation of liberty which detention will entail.

        The Commission need not examine this issue any further as it

has just found that in the present case the Ried District Court

ordered the applicant's arrest as it reasonably considered that there

was a danger of collusion, thus attempting to ensure that the process

of investigation proceeded unhindered, and that this assumption was

reasonable.

        As a result, the above complaints do not disclose any

appearance of a violation of the rights and freedoms set out in Article 5 para.

1 (c) (Art. 5-1-c) 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.

2.      The applicant complains that there was no remedy available to

him under Austrian law which would have enabled him to have the

legality of his detention examined.  Thus, he had no opportunity to

put forward the arguments which in his opinion militated against his

detention and showed its illegality.  He claims that he should have

had this opportunity even if detention lasted only a short time.  The applicant

relies on Article 5 para. 4 (Art. 5-4) of the Convention which states:

"4.  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 point out that S.179(1) of the Code of Criminal

Procedure provides sufficient guarantees in that a person upon whom

temporary custody has been imposed must be brought before the

investigating judge within 24 hours.  After interrogation, the person

must be released, or he will be detained on remand in which case he

can file the normal remedies.  It would be practically impossible to

have a remedy at the moment of arrest.

        The Commission recalls that Article 5 para. 4 (Art. 5-4) of the

Convention is designed to provide a safeguard against arbitrary

detention by enabling a person to challenge the legality of his

detention.

        In the present case the Commission notes that temporary

custody was imposed on the applicant during the trial proceedings

against the applicant's father.  The applicant was detained during

seven hours and thereafter brought before the investigating judge who

questioned him and released him from detention.

        Thus, in such circumstances where temporary custody is ordered

by a judge and where shortly thereafter an investigating judge

questions the applicant and then releases him, the Commission

considers that the applicant has suffered no prejudice amounting to a

violation of Article 5 para. 4 (Art. 5-4).

        It follows that the application is also in this respect manifestly

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

Convention.

        For these reasons, the Commission

        DECLARES THE APPLICATION INADMISSIBLE

Secretary to the Commission            President of the Commission

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