CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 16 décembre 1987

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                     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