AS TO THE ADMISSIBILITY OF

                       Application No. 25852/94

                      by Robert PLANKA

                      against Austria

     The European Commission of Human Rights (First Chamber) sitting

in private on 15 May 1996, the following members being present:

           Mr.   C.L. ROZAKIS, President

           Mrs.  J. LIDDY

           MM.   E. BUSUTTIL

                 A.S. GÖZÜBÜYÜK

                 A. WEITZEL

                 M.P. PELLONPÄÄ

                 B. MARXER

                 B. CONFORTI

                 N. BRATZA

                 I. BÉKÉS

                 E. KONSTANTINOV

                 G. RESS

                 A. PERENIC

                 C. BÎRSAN

                 K. HERNDL

           Mrs.  M.F. BUQUICCHIO, Secretary to the Chamber

     Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

     Having regard to the application introduced on 28 November 1994

by Robert PLANKA against Austria and registered on 5 December 1994

under file No. 25852/94;

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

of Procedure of the Commission;

     Having deliberated;

     Decides as follows:

THE FACTS

     The applicant, born in 1961, is an Austrian national. He is

currently detained at a prison in Stein, Lower Austria. In the

proceedings before the Commission he is represented by Mr. R. Soyer,

a lawyer practising in Vienna.

A.   The particular circumstances of the case

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

summarised as follows.

     On 8 November 1993 the applicant was taken into detention on

remand at the Vienna Regional Criminal Court (Landesgericht für

Strafsachen), inter alia on suspicion of attempted murder. In these and

the following proceedings the applicant was represented by counsel.

     On 23 February 1994 the applicant, referring to Article 4

para. 3 (2) of the 1993 amendment of the Code of Criminal Procedure,

waived his right to have a hearing for the review of the detention

order (Haftverhandlung). According to the same provision, the time-

limit for the applicant's detention expired on 28 February 1994, unless

a decision to prolong it was taken (see below, Relevant domestic law).

     On 25 February 1994 the investigating judge (Untersuchungs-

richter) made a handwritten note in the file, stating that the

applicant's detention on remand be prolonged.

     On 2 March 1994 the applicant's counsel requested that the order

for the prolongation of the detention on remand be served, or

eventually, if such an order had not been issued, that the applicant

be released.

     On 3 March 1994 the investigating judge handed over to the

applicant the order prolonging his detention on remand until 25 March

1994. The order  stated that the suspicion of attempted murder and a

number of other offences subsisted and that there was a danger of the

applicant's absconding and of his committing further offences. There

is an entry in the file, by which the applicant states the following:

"I confirm with my signature the receipt of the order of 25 February

1994 prolonging the detention on remand and waive my right to appeal

against it" ("Ich bestätige mit meiner Unterschrift die Übernahme des

Beschlusses auf Verlängerung der Untersuchungshaft vom 25.2.1994 und

verzichte auf Beschwerde dagegen").

     On 7 March 1994 a copy of the detention order was served on the

applicant's counsel.

     On 10 March 1994 the applicant lodged a complaint against this

detention order. He submitted in particular that the time-limit for his

detention on remand had expired on 28 February 1994. However, the order

prolonging his detention had not been issued in time. Thus, his

detention had not been prolonged in accordance with the procedure

prescribed by law. He, therefore, requested that he be released and

that the court find that his detention since 1 March 1994 had violated

his right to liberty.

     On 24 March 1994 the Vienna Court of Appeal (Oberlandesgericht)

rejected the applicant's appeal.

     Prior to its decision the court requested observations from the

Senior Public Prosecutor's Office (Oberstaatsanwaltschaft). It

submitted that the applicant's appeal had to be rejected as

inadmissible, as he had made a valid waiver. The applicant in his

observations in reply, submitted that, on 10 March 1994, when he had

requested his counsel to file an appeal he had not been aware that he

had made a waiver. In any case, his waiver, which moreover he wished

to revoke, was not valid. He argued in particular that he had not had

a possibility to consult his counsel at the time he made it.

     The court noted that the investigating judge, on 25 February 1994

had prepared a handwritten draft of the decision to prolong the

applicant's detention on remand. On 3 March 1994, i.e. after the time-

limit for the applicant's detention had expired on 28 February 1994,

she had handed over a copy of this decision to the applicant, who

waived his right to appeal against it. As regards the question whether

this waiver was valid, the court found that a waiver could only be made

after the decision in question had been issued. However, this was the

case, as the applicant had received the contested decision on 3 March

1994. Therefore, his appeal had to be rejected as being inadmissible.

     On 6 April 1994 the applicant lodged a complaint with the Supreme

Court (Oberster Gerichtshof) under the Fundamental Rights Complaints

Act (Grundrechtsbeschwerdegesetz). He maintained that his right to

liberty had been violated in that his detention had been continued

after 28 February 1994, without a written decision ordering its

prolongation being issued before the end of the time-limit. Further,

the applicant argued that his waiver as regards the appeal against this

order was not valid. He submitted in particular that, if a party was

represented, decisions had to be served on the counsel. As the order

was only served on the applicant's counsel on 7 March 1994, the

applicant, on 3 March 1994, could not validly waive his right to

appeal. Moreover, at that time he had not had any possibility to

consult his counsel. Even assuming that the order had been duly served

on him on 3 March 1994, and that his waiver was valid, his detention

had in any case been unlawful since 1 March 1994.

     On 11 May 1994 the Supreme Court rejected the applicant's

complaint. The Supreme Court found that the detention order had to be

pronounced to and served on the accused himself. Following the

pronunciation of the said order and service of a copy it, the applicant

had validly waived his right to appeal against it. A complaint under

the Fundamental Rights Complaints Act was only admissible after

exhaustion of the available remedies. If, as in the present case, the

accused had explicitly declared that he did not want to exhaust, a

complaint was inadmissible.

     On 29 and 30 June 1994 the Vienna Regional Criminal Court,

sitting as an Assize court (Geschwornengericht), held the trial of the

applicant. The charges concerned inter alia aggravated robbery

(schwerer Raub). The applicant pleaded not guilty. He argued that he

was only guilty of unauthorised use of a vehicle (unbefugter

Fahrzeuggebrauch), as he only wanted to use the car at issue for

escaping but did not want to keep it. Moreover, although he carried a

weapon he did not use it in order to threaten the victim.

     At the end of the hearing the presiding judge read out the

questions to the jury. Neither the prosecution nor the defence made a

request for amendments of these questions. Subsequently, the jury

retired to their deliberations room, where they received the

explanation of the relevant law (Rechtsbelehrung) from the presiding

judge.

     On 30 June 1994 the Vienna Regional Court, referring to the

jury's verdict, found the applicant inter alia guilty of aggravated

robbery. The court sentenced him to fifteen years' imprisonment.

     As regards the question concerning aggravated robbery, the jury

answered it by a majority with "yes", finding that the applicant,

together with an accomplice, had, acting with the intention to enrich

himself unlawfully, by threatening him with a weapon, forced V.C. to

hand over his car to them and had in the same manner attempted to force

V.C. to give them AS 500. Accordingly, the jury answered two further

questions, concerning theft and unauthorized use of a vehicle, which

had been put in case they found the applicant not guilty of robbery,

unanimously with "no".

     On 27 September 1994 the applicant lodged a plea of nullity and

an appeal (Nichtigkeitsbeschwerde und Berufung) with the Supreme Court

(Oberster Gerichtshof). Under S. 345 para. 1 (8) he submitted in

particular that the explanation of the relevant law had not pointed out

the difference between robbery and unauthorised use of a vehicle, but

only explained the difference between theft and unauthorised use of a

vehicle. Moreover, it had not made it clear that the intention to

enrich oneself unlawfully, was not given if the offender wanted to

return the car. Moreover, it created the wrong impression that

unauthorised use of a vehicle was excluded if the vehicle had been used

for more than a very short period. Finally, as regards the

qualification as aggravated robbery, the explanation of the law had

failed to mention explicitly that the mere carrying of a weapon did not

fulfil the element of "use of a weapon".

     On 15 March 1995 the Supreme Court dismissed the applicant's plea

of nullity. Upon his appeal, it reduced the sentence to twelve and a

half years' imprisonment.

     The Supreme Court found that the explanation of the law had to

be seen in its entirety. It had correctly explained that the difference

between unauthorised use of a vehicle and theft lay in the intention

of the offender, which had to be assessed with a whole range of

criteria including the duration of the use. Thereby it had not created

the impression that unauthorised use of a vehicle only applied to very

short use. Further, it had correctly explained the requirements as

regards the intention to enrich oneself. It had also informed the jury

that theft as well as robbery both required the said intention and in

which respects they differed. Finally, the explanation had also

correctly explained in which cases a robbery was qualified by the use

of a weapon, namely when it served the offender as a means of force or

threat.

B.   Relevant domestic law

     Provisions concerning detention on remand

     The 1993 amendment of the Code of Criminal Procedure

(Strafprozeßänderungsgesetz), Federal Law Gazette (Bundesgesetzblatt)

1993/526, introduced a new system of time-limits for detention on

remand (Haftfristen).

     Article 4 para. 3 of the above amendment states that the new

version of S. 181 of the Code of Criminal Procedure applies to

decisions ordering or prolonging detention on remand, which have been

taken before 1 January 1994, provided that the accused was still

detained on that day, with the following modifications: the entry into

force of the amendment sets off a two months' time-limit, which expires

on 28 February 1994 (subparagraph 1); the accused may in any case waive

his right to a hearing for the review of the detention order. In this

case the decision concerning his release or the prolongation of the

detention on remand has to be issued in writing.

     The relevant provisions of the Code of Criminal Procedure, which

entered into force on 1 January 1994, are as follows:

     S. 181 of the Code of Criminal Procedure provides that decisions

ordering or prolonging detention on remand are only valid within a

certain time-limit, the expiry of which has to be mentioned in the

decision. Before the expiry of the time-limit there must either be a

hearing for the review of the detention order (Haftverhandlung) or the

accused has to be released (paragraph 1).

     According to S. 193 para. 5 the investigating judge has to set

a date for a hearing for the review of the detention order without

delay, if the accused requests his release.

     Provisions concerning the trial before an Assize Court

     S. 310 of the Code of Criminal Procedure provides that the

presiding judge, after the taking of evidence, has to formulate the

questions to be put to the jury. He has to put them in writing as well

as to read them out. A copy of the questions has to be given to the

prosecution and to the defence (paragraph 1). The parties are entitled

to request changes of or additions to the questions (paragraph 3).

     According to S. 321 para. 1 the presiding judge has to prepare

in writing the explanation of the relevant law to be given to the jury.

He has to sign it and to add it to the minutes of the trial.

     S. 323 para. 1 states that the presiding judge has to give the

jury the explanation of the relevant law in their deliberations room.

If he departs from the written version or makes additions, in

particular to respond to questions of the jury, he has to write them

down and add them to the minutes.

     S. 345 para. 1 lays down the specific grounds on which a plea of

nullity may be made against an Assize Court's judgment. They include

the ground that the presiding judge has given the jury an incorrect

explanation of the relevant law (subpara. 8).

COMPLAINTS

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

Convention that his detention on remand, as of 1 March 1994, was not

in accordance with the procedure prescribed by law and, thus, violated

his right to liberty. He submits in particular that the time-limit for

his detention expired on 28 February 1994, while the decision to

prolong it was only served on his counsel on 7 March 1994. Even

assuming that it was duly served on him on 3 March 1994 it was not

given in time.

2.   Further the applicant complains about the courts' finding that

he validly waived his right to appeal against the decision to prolong

his detention on remand. He submits that these decisions were unfair

as he did not have a possibility to consult his counsel when he made

his waiver. Further, they denied him an effective remedy as regards his

complaint that his detention was not in accordance with the procedure

prescribed by law. He invokes Articles 6 and 13 of the Convention.

3.   The applicant complains under Article 6 of the Convention and

Article 2 of Protocol No. 7 that the criminal proceedings against him

were unfair and violated his right to have the judgment reviewed by a

higher tribunal. He submits in particular that neither he nor his

counsel could be present when the presiding judge gave the jury the

explanation of the relevant law. Moreover, the said explanation did not

correctly point out the difference between robbery and unauthorised use

of a vehicle. Further, the applicant complains that the judgment does

not contain any reasons, but only refers to the jury's verdict. He

argues that the lack of reasons restricted his possibility to challenge

the judgment in the appeal proceedings, in particular as regards his

conviction for aggravated robbery.

THE LAW

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

(Art. 5-1-c) of the Convention that his detention on remand, as of

1 March 1994, was not in accordance with the procedure prescribed by

law and, thus, violated his right to liberty.

     In the present case the question arises whether the applicant has

exhausted domestic remedies as required by Article 26 (Art. 26) of the

Convention.

     The Commission notes that the applicant, on 3 March 1994, upon

receipt of the investigating judge's decision of 25 February 1994

prolonging his detention on remand, made a written waiver of his right

to appeal against this decision. On 10 March 1994 the applicant lodged

an appeal against the said decision with the Vienna Court of Appeal

and, subsequently, a complaint with the Supreme Court under the

Fundamental Rights Complaints Act. He submitted that his right to

liberty had been violated as the prolongation order had not been issued

in time. Further, he claimed that the waiver was invalid. In particular

he argued that the contested prolongation order had to be served on his

counsel. As this had only been the case on 7 March 1994, he could not

validly waive his right to appeal on 3 March 1994. However, the Vienna

Court of Appeal as well as the Supreme Court found that the

investigating judge's decision to prolong his detention on remand had

to be served on the applicant. They noted that the applicant had

received this decision on 3 March 1994, and found that he had validly

waived his right to appeal against it. Accordingly, they rejected the

applicant's appeals as being inadmissible.

     The Commission further notes that the applicant has not claimed

that he was not aware of the scope of his waiver, namely that he would

be barred from complaining that the prolongation order was issued

belatedly. It is true that he alleged before the Vienna Court of Appeal

that he was not at all aware of making a waiver. However, the

Commission notes that he did not adduce any reasons to substantiate

this allegation. The Commission finds that it appears unfounded, as the

waiver at issue was done in writing upon receipt of the contested

decision and is worded unequivocally.

     In conclusion, the Commission finds that the applicant failed to

exhaust domestic remedies as required by Article 26 (Art. 26) of the

Convention.

     It follows that this part of the application has to be rejected

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

2.   Further the applicant complains about the courts' finding that

he validly waived his right to appeal against the decision to prolong

his detention on remand. He submits that these decisions were unfair

as he did not have a possibility to consult his counsel when he made

his waiver. Further, they denied him an effective remedy as regards his

complaint that his detention was not in accordance with the procedure

prescribed by law. He invokes Articles 6 and 13 (Art. 6, 13) of the

Convention.

a.   As regards Article 6 (Art. 6) of the Convention, the Commission

notes that the impugned decisions, while relating to criminal

proceedings against the applicant, exclusively dealt with the question

whether his waiver of his right to appeal against the prolongation of

his detention of remand was valid or not. They did not involve any

finding of guilt and, thus, did not constitute the determination of a

criminal charge within the meaning of Article 6 (Art. 6) of the

Convention. This provision is consequently not applicable.

b.   As regards Article 13 (Art. 13) of the Convention, the Commission

recalls, that, where deprivation of liberty is concerned, Article 5

para. 4 (Art. 5-4) of the Convention is a lex specialis in relation to

this provision, the requirements of which are less strict (Eur. Court

H.R. De Jong, Baljet and Van den Brink judgment of 22 May 1984, Series

A no. 77, p. 27, para. 60).

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

does not apply to proceedings concerning the extension of pre-trial

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

A no. 224, pp. 23-24, paras. 86-87).

     The Commission notes that S. 181 para. 1 of the Austrian Code of

Criminal Procedure provides for a system of regular hearings for the

review of the detention order, which remained open to the applicant.

Moreover, S. 193 para. 5 of the Code of Criminal Procedure provides

that the investigating judge has to set a date for a hearing for the

review of the detention order without delay, whenever a remand prisoner

requests his release. The Commission finds that the proceedings which

the applicant brought before the Vienna Court of Appeal and before the

Supreme Court only related to the prolongation of his detention on

remand. Therefore, they did not fall within the scope of Article 5

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

     It follows that this part of the application is incompatible

ratione materiae within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

3.   The applicant complains under Article 6 (Art. 6) of the

Convention and Article 2 of Protocol No. 7 (P7-2) that the criminal

proceedings against him were unfair and violated his right to have the

judgment reviewed by a higher tribunal.

a.   The Commission will first examine the applicant's complaints

under Article 6 para. 1 (Art. 6-1), which so far as relevant, reads as

follows:

     "In the determination of ... any criminal charge against him,

     everyone is entitled to a fair ... hearing ...".

     The applicant submits in particular that neither he nor his

counsel could be present when the presiding judge gave the jury the

explanation of the relevant law. Thus they could not point out the

difference between robbery and unauthorised use of a vehicle, which

according to the applicant was not sufficiently made clear in the

explanation of the relevant law.

     The Commission recalls that the conformity of a trial with the

rules laid down in Article 6 para. 1 (Art. 6-1) have to be assessed on

the basis of the trial as a whole (cf. No. 13926/88, Dec. 4.10.90,

D.R. 66 p. 209).

     The Commission notes that according to S. 321 of the Austrian

Code of Criminal procedure, the presiding judge has to set out the

explanation of the relevant law in writing. It forms part of the

minutes of the trial. He has to give the jury the explanation of the

law in their deliberations room in accordance with S. 323 of the Code

of Criminal Procedure. If he departs from the written version or if he

answers additional questions of the jury, he has to enter any of these

changes or additions in the minutes. This provision does not foresee

that either the accused and his counsel or the public prosecutor be

present. Further, the accused may claim in his plea of nullity under

S. 345 para. 1 (8) that the presiding judge has given the jury an

incorrect explanation of the law.

     The Commission finds that the Austrian Code of Criminal Procedure

provides the accused with a remedy to have a review of the correctness

of the explanation of the law as given to the jury. Moreover, by

requesting that the explanation of the law be prepared in writing and

that any changes which are made in absence of the defence are also

entered in the minutes, it provides the accused with a proper basis for

raising his complaints before the Supreme Court.

     In the present case the applicant submitted in his plea of

nullity that the explanation of the law had not correctly pointed out

the difference between robbery and unauthorised use of a vehicle.

However, the Supreme Court, after detailed examination of his

arguments, dismissed his complaint. In these circumstances the

Commission finds that there is no appearance in the file that the

applicant, represented by counsel, could not duly present his defence.

     Further, the applicant complains that the Assize Court's judgment

does not contain any reasons, but only refers to the jury's verdict

and, thus, restricted his possibility to challenge the judgment in the

appeal proceedings, in particular as regards his conviction for

aggravated robbery.

     The Commission recalls that the absence of reasons in a court

decision may raise an issue concerning the right to a fair trial

guaranteed by Article 6 para. 1 (Art. 6-1) of the Convention,

particularly when an appeal on the merits lies against the decision for

which no reasons are given. However, the extent to which reasons need

be given depends on the circumstances of the case (cf. No. 15957/90,

Dec. 30.3.92, D.R. 72 p. 195).

     The Commission finds that the requirement that reasons be given

must be qualified by the specific features of the procedure before an

Assize Court. The Commission notes in the first place that no appeal

lay against the Assize Court's decision on the question of guilt.

      The Commission considers that, while the jury may only reply by

"yes" or "no" to the questions put by the presiding judge, these

questions form a framework for the jury's verdict. According to S. 310

para. 1 of the Code of Criminal Procedure these questions are read out

at the trial and the parties are entitled to request changes or

additions, a right of which the defence did not make use in the present

case. The Commission finds that the precision of the questions, which

could be amended at the request of the defence, compensates

sufficiently for the brevity of the jury's replies (cf. No. 15957/90,

Dec. 30.3.92, D.R. 72 p. 195, 199). Moreover, the Commission notes that

the applicant could and actually did lodge a plea of nullity with the

Supreme Court on the ground that the explanation of the relevant law

had incorrectly explained the decisive elements of aggravated robbery.

The Commission, therefore, finds that there is no indication that the

applicant was prevented from submitting detailed grounds for his plea

of nullity to the Supreme Court.

     In conclusion, the Commission finds that there is no appearance

that the proceedings against the applicant were contrary to Article 6

(Art. 6) of the Convention.

b.   The Commission will, finally, examine the applicant's complaint

relating to the restricted possibility to challenge the Assize Court's

judgment in the appeal proceedings under Article 2 of Protocol No. 7

(P7-2).

     Article 2 of Protocol No. 7 (P7-2), so far as relevant, reads as

follows:

     "1.   Everyone convicted of a criminal offence by a tribunal

     shall have the right to have his conviction or sentence reviewed

     by a higher tribunal.  The exercise of this right, including the

     grounds on which it may be exercised, shall be governed by law."

     The Commission recalls that the Contracting States may limit the

review by a higher tribunal by virtue of the reference of paragraph 1

of this Article to national law. The rules governing review by a higher

tribunal in the Member States of the Council of Europe limit the review

in certain cases to questions of law or may require the person wishing

to appeal to apply for leave to appeal (cf. No. 19028/91, Dec. 9.9.92,

D.R. 73 p. 239, 241).

     As far as the applicant may be understood to complain that the

lack of reasons in the Assize Court's judgment prevented him for having

his conviction reviewed by a higher court, the Commission refers to its

above findings concerning the special features of jury proceedings,

which only allow for a review on questions of law. Further, the

applicant could and actually did appeal against his sentence.

     In these circumstances the limitation of the review was in line

with the typical rules governing the procedures before Supreme Court's

which sit only to control the legality of the judgment of the trial

court. The Commission, therefore, finds that the applicant's right to

review satisfied the requirements of Article 2 of Protocol No. 7

(P7-2).

     It follows that this part of the application must be rejected as

being manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

     For these reasons, the Commission, unanimously,

     DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber       President of the First Chamber

     (M.F. BUQUICCHIO)                        (C.L. ROZAKIS)