CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 2 mars 1994

.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. 18249/91                       by F. K., T. M. and C. H.                       against Austria         The European Commission of Human Rights sitting in private on 2 March 1994, the following members being present:              MM.    A. WEITZEL, President                  C.L. ROZAKIS                  F. ERMACORA                  E. BUSUTTIL                  A.S. GÖZÜBÜYÜK            Mrs.   J. LIDDY            MM.    M.P. PELLONPÄÄ                  B. MARXER                  G.B. REFFI                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  E. KONSTANTINOV              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 14 May 1991 by F. K., T. M. and C. H. against Austria and registered on 23 May 1991 under file No. 18249/91;         Having regard to the observations submitted by the respondent Government, after two extensions of the time-limit, on 10 April 1992, and the observations in reply submitted by the applicants on 10 July 1992, the applicants' further submissions of 11 January 1994;         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 facts of the case, as they have been submitted by the parties, may be summarised as follows:         The first applicant, born in 1945, is a Hungarian national and resident at Zurndorf, Austria. He is a businessman by profession. The second applicant, born in 1964, is a Hungarian national and resident in Vienna. He is unemployed. The third applicant, born in 1966, is also a Hungarian and resident in Vienna. She is also unemployed. The second and third applicants are life companions. When lodging their application the applicants were detained on remand in the Prison at the Vienna Regional Court (landesgerichtliches Gefangenenhaus). In the course of the proceedings before the Commission, they returned to Hungary.         Before the Commission they are represented by Mr. G. Simonfay, a lawyer practising in Vienna.   A.     The particular circumstances of the case         On 12 September 1990 the Duty Judge (Journalrichter) at the Leoben Regional Court (Kreisgericht) issued a search warrant concerning, inter alia, the premises of MM. N., B. and V. as well as of the first applicant and of Mr. Simonfay. In the reasons of the search warrant, the Judge noted that the three men N., B. and V. had been apprehended in a burglary and arrested during the preceding night. An object stolen on the occasion of a burglary in August 1990 could be seized, but the major part of the stolen goods with a value of about AS 600,000 had not yet been found. Further burglaries in the area concerned had not yet been solved. The Judge assumed that the three suspects, together with unknown accomplices, had professionally committed burglaries as a gang. He considered that there was a reasonable suspicion that, in the above-mentioned premises, stolen goods, tools and other evidence could be found. This suspicion was corroborated by the fact that the arrested persons had objects stolen on the occasion of a burglary in August 1990 with them, but the major part of stolen goods had not yet been found. As these three men had the addresses, among others, of the first applicant and Mr. Simonfay with them, their premises had also to be searched for stolen goods.         In the afternoon of 13 September 1990, the search of the first applicant's premises was carried out. The authorities seized various watches and other objects as well as documents and credit cards. The first applicant was brought to the Gattendorf Police Station (Gendarmerieposten), where he was interrogated by two police officers in the presence of an interpreter from 20 hrs until 22.45 hrs when he was arrested.         According to the police records relating to this questioning, he was shown photographs of the three suspects N., B. and V., and then declared that he knew B. from the past, and had sold him a car, that B. had taken over a rented apartment, but that he had never bought anything from B. Thereupon the first applicant was informed that his questioning was interrupted for further investigation because of his obviously wrong statements. He was informed that the Leoben Regional Court had ordered his arrest. His request to inform his counsel Mr. Simonfay, whose private telephone number he indicated, was refused on the ground that there was a court instruction (Gerichtsauftrag) in respect of this person. He could not name another counsel.         According to a police report of 13 September 1990 concerning the various searches, nobody could be found at Mr. Simonfay's address as indicated in the above search warrant, despite several calls. A door-plate indicated that Mr. Simonfay was a translator and that his office was situated at the given address. Apparently there were no further investigations against him.         On 14 September 1990, from 21.30 hrs until 23.15 hrs, and on 15 September 1990, from 19 hrs until 21 hrs, the first applicant was further questioned by police officers in the presence of an interpreter, in particular upon the suspicion of having been involved in a further burglary in September 1990 and of having received stolen goods from B. He stated that he had bought the jewellery for relatives, and denied any involvement in the criminal offences concerned.         On 15 September 1990, at 21.45 hrs, the first applicant was committed to the Prison at the Eisenstadt Regional Court. On 17 September 1990 the Eisenstadt Regional Court, upon the request of the Eisenstadt Public Prosecutor's Office (Staatsanwaltschaft) of the same day, transferred the proceedings to the Leoben Regional Court and ordered the applicant's transfer to the Prison at the Leoben Regional Court. In the morning of 18 September 1990, the applicant was committed to the Prison at the Leoben Regional Court.         On 19 September 1990, at 9.15 hrs, the first applicant was heard by the Investigating Judge at the Leoben Regional Court on the suspicion that he had professionally committed burglaries. The Judge decided that preliminary investigations be instituted against the first applicant and that he be detained on remand in accordance with S. 180 para. 2 of the Code of Criminal Procedure (Strafprozeßordnung), namely for danger of collusion, committing further offences and absconding. The Judge found in particular that, having regard to the investigations, there was a reasonable suspicion that the first applicant, as a member of a gang of thieves, had participated in burglaries in jewellers' shops. Being a Hungarian national,   he would probably evade prosecution in Austria. Furthermore, accomplices were still at liberty. Taking the numerous offences into account, there was also a risk that the first applicant would commit further offences. The first applicant lodged an appeal (Beschwerde).         On 21 September 1990 the premises of the second applicant and the third applicant were searched on the basis of a search warrant issued by the Leoben Regional Court on 18 September 1990. The search warrant was based on the suspicion that the second applicant had received stolen goods in connection with the above burglaries. Both applicants were arrested in the evening of 21 September 1990 and detained in the Prison at the Vienna Regional Court. They were questioned by police authorities on 22 September 1990, and the third applicant again on 23 September 1990. The third applicant made detailed submissions. The second and third applicants were transferred to the Prison at the Vienna Regional Court on 23 September 1990. The Duty Judge at the Vienna Regional Court informed the Investigating Judge at the Leoben Regional Court about the arrests. As by then no warrants of arrest had been issued against the second and the third applicant, they were released on 25 September 1990.         Later, on 25 September 1990, the Investigating Judge at the Leoben Regional Court issued warrants of arrest against the second and the third applicant. He found in particular that there was a reasonable suspicion that both applicants had professionally received stolen goods stemming from burglaries in jewellers' shops. It could not be excluded that they themselves were involved in the burglaries. Having regard to their Hungarian nationality and the lack of integration in Austria, there was a risk that they would abscond. Furthermore, as numerous witnesses still had to be heard, there was a risk of collusion. In view of the great number of offences, there was also a risk of repetition. The Investigating Judge further noted that warrants of arrest were necessary although the applicants had already once be arrested on 21 September 1990, at 18 hrs, on the ground that, contrary to the submissions of the police authorities concerned he had not been requested to issue warrants of arrest, but had only been seized with the case on 25 September 1990 by an oral request of the Leoben Public Prosecutor's Office. At that time, the applicants therefore had to be released.         The second and the third applicant were again arrested in Vienna on 26 September 1990, at 12.30 hrs. On 27 September 1990, at 13 hrs, they were transferred to the Prison at the Vienna Regional Court.         On 27 September 1990, the Judges' Chamber (Ratskammer) at the Leoben Regional Court, after a hearing on the question of the first applicant's release (Haftprüfungsverhandlung) in the presence of the first applicant and an interpreter, ordered the first applicant's continued detention on remand. The Regional Court found in particular that there was a reasonable suspicion that the first applicant had received stolen goods and been a member of a gang of thieves. The investigations against him related in particular to an attempted burglary in Kindstatt and, two further burglaries at Mürzzuschlag and St. Peter. Furthermore, numerous number-plates had been found at the first applicant's premises which obviously were used in the course of smuggling cars. However, the investigations had not yet produced any clear results in this respect. Having regard to the first applicant's Hungarian nationality, there was a danger that he would abscond. Moreover, the investigations had not yet been completed, and, having regard to his denial of any criminal offence, there was danger of collusion in that the first applicant might influence accomplices not yet arrested. Finally, taking the various criminal acts into account, there was a risk that the first applicant, notwithstanding the criminal proceedings pending against him, would commit further offences. The first applicant waived his right to appeal.         On 28 September 1990 the second and the third applicant were independently questioned by the Duty Judge at the Vienna Regional Court upon a request of the Leoben Regional Court. They were informed that they had been arrested on the basis of a warrant of arrest issued by the Leoben Regional Court and that they to remain in provisional custody (Verwahrungshaft) until the Investigating Judge at the Leoben Regional Court had decided upon the matter. On 1 October 1990 the Duty Judge informed them that the competent Judge at the Leoben Regional Court had decided that preliminary investigations be instituted against them and that they be taken into detention on remand on the suspicion of having received stolen goods. The written copies of these decisions dated 1 October 1990 were handed over to both applicants on 2 October 1990. Thereupon, they waived their right to appeal.         In the beginning of October 1990 the first applicant's relatives informed Mr. Simonfay who then visited the first applicant in prison on 5 October 1990. They discussed the proceedings, and the first applicant gave him power of attorney. On 10 October 1990 the second and the third applicant also gave Mr. Simonfay power of attorney.         On 9 October 1990 the first applicant, represented by Mr. Simonfay, requested the Leoben Regional Court to permit him to inspect the files relating to the criminal proceedings against him. The second and third applicant, also represented by Mr. Simonfay, did so on 10 October 1990.         On 23 October 1990 the Investigating Judge at the Leoben Regional Court permitted the applicants' defence counsel to inspect the files except the folder, the table of contents, the sheet relating to requests and orders, the records concerning the questioning of the suspects as well as further pages enumerated in the decision. Any item subsequently filed required a new decision. To the extent that inspection was permitted, the files could be copied. The Investigating Judge observed in particular that until indictment single documents in the files could be excluded from inspection by counsel, if in the particular circumstances an immediate information thereof was likely to hinder the investigations. In the present case, various investigations still had to be completed and full knowledge of the files was capable of endangering essential parts of the preliminary investigations.         On 30 October 1990 the first applicant, represented by Mr. Simonfay, lodged an appeal with the Leoben Regional Court concerning the refusal to consult counsel on 13 September 1990.         On 9 November 1990 the Judges' Chamber at the Leoben Regional Court dismissed the first applicant's appeal. The Judges' Chamber noted in particular that the first applicant, in the course of the questioning on 13 September 1990, had given a wrong telephone number of Mr. Simonfay; furthermore, at the time in question, Mr. Simonfay had not yet been given power of attorney. In the files there was no indication that the Investigating Judge at the Leoben Regional Court had decided and given instructions that the first applicant should not have the right to consult his counsel on the ground of doubts as to this counsel. In accordance with S. 12 para. 1 of the Code of Criminal Procedure the Judges' Chamber was only competent to review court measures taken in the course of the preliminary investigations not, however, to examine incidents in the course of questioning by police authorities, such as legal instructions given to an arrested person by police officers. The decision was served on 14 November 1990.         On 15 November 1990 the first applicant applied for release from detention on remand and requested that his counsel be authorised to inspect all documents in the files concerning the preliminary investigations against him. Furthermore, the second applicant filed a request for full access to the file.         On 26 November 1990 the Investigating Judge decided to permit the applicant's counsel to inspect further items in the files, data concerning police informers and an interim report were excluded from the inspection.         On 29 November 1990 the Judges' Chamber at the Leoben Regional Court, assuming a danger of collusion, conducted separate hearings on the question of the first and the third applicant's and other suspects' release in the presence of the suspects, interpreters and the respective counsels. Subsequent to the hearings, it ordered inter alia the first and the third applicant's continued detention on remand.         As regards the first applicant, the Judges' Chamber found in particular that, considering the results of the extensive and difficult police investigations, there was a reasonable suspicion that the first applicant had received stolen goods and was a member of a foreign gang of thieves, some of its members having absconded. In the course of the investigations jewellery of a considerable quantity had been found at his premises. The gang concerned was reasonably suspected of having repeatedly and professionally broken into various jewellers' shops in Austria, and caused an overall damage of seven million AS. The Judges' Chamber referred in particular to seven burglaries, and noted that there was a suspicion of various other burglaries having been committed in Austria and abroad. Furthermore, there was a reasonable suspicion that the first applicant was the main figure in passing on stolen and partly forged credit cards originating mostly in Hungary. He was also suspected of having transferred stolen cars to Hungary. The completion of the latter investigations was not yet in sight. The Judges' Chamber further considered that, taking a possible sentence of more than five years' imprisonment into account, there was a danger of absconding. It was also likely that, being released, the applicant would commit further serious criminal offences.         As regards the third applicant, the Judges' Chamber found in particular that, considering the results of the extensive and difficult police investigations, there was a reasonable suspicion that the third applicant, as an accomplice of other suspects some of whom had absconded, had repeatedly and professionally committed various burglaries in Austria, and caused an overall damage of seven million AS. Furthermore, there was a reasonable suspicion that she had participated in burglaries relating to perfumeries and in offences concerning credit cards. At her and the second applicant's premises in Vienna, stolen goods had been found. She was also suspected of having sold the stolen goods in Hungary. In respect of two burglaries, witnesses had declared to have recognised the third applicant. The Judges' Chamber further considered that, taking a possible sentence of more than five years' imprisonment into account, there was a danger that the third applicant would abscond. It was also likely that, being released, she would commit further serious criminal offences.         As both applicants lodged appeals upon pronouncement of the decision, the Judges' Chamber finally noted in both decisions that it would await the written reasons for the appeal and then send the files to the Graz Court of Appeal.         On 10 and 11 December 1990 the first and the third applicant, respectively, both assisted by Mr. Simonfay, submitted their reasons with regard to their appeals against the decisions of 29 November 1990 refusing their release from detention on remand.         On 13 December 1990 the Judges' Chamber at the Leoben Regional Court conducted a hearing on the question of the second applicant's release in the presence of the applicant assisted by his counsel. Subsequent to the hearing, it ordered the second applicant's continued detention on remand. The Judges' Chamber found in particular that, considering the results of the extensive and difficult police investigations, there was a reasonable suspicion that the second applicant, as a member of a gang of mostly Hungarian nationals, had repeatedly and professionally committed burglaries at various places in Austria, and caused an overall damage of several millions of Austrian shillings. He had also committed criminal offences in respect of forged credit cards. Having regard to the testimony of witnesses there was a suspicion of various other offences; however, comprehensive charges could not be laid before the end of January 1991 at the earliest. The Judges' Chamber considered that a witness had identified the applicant as the accomplice of one particular burglary. Taking the possible sentence of more than five years' imprisonment into account, there was a danger that the second applicant would abscond. There were various discrepancies in his statements which required clarification. It was also likely that, being released, he would commit further serious criminal offences. As the applicant lodged an appeal upon pronouncement of the decision, the Judges' Chamber finally noted that it would await the written reasons for the appeal and then send the files to the Graz Court of Appeal.         On 19 December 1990 the second applicant, assisted by Mr. Simonfay, submitted his reasons with regard to his appeal against the decision of 13 December 1990 refusing his release from detention on remand. The copy of a post-receipt dated 19 December 1990 was joined to the application.         On 27 December 1990 the Graz Court of Appeal dismissed the first and third applicants' appeals against the decisions of 29 November 1990. The Court of Appeal found in particular that, considering the contents of the files, the statements of the first applicant and the result of the investigations so far, there was a reasonable suspicion that they had committed the offences as stated in the decisions in question. The Court of Appeal noted that the third applicant had not yet been heard by the Investigating Judge at the Leoben Regional Court.         On 10 January 1991 the Graz Court of Appeal dismissed the second applicant's appeal against the decision of 13 December 1990. The Court of Appeal observed that the second applicant had failed to file reasons for his appeal. It confirmed the reasoning of the Judges' Chamber.         On 25 January 1991 the Post Office of Vienna 1014 informed counsel Mr. Simonfay that a letter dated 19 December 1990 and addressed to the Leoben Regional Court, as indicated in the post-receipt of the same date, had been duly delivered.         On 21 March 1991 the Vienna Court of Appeal decided that the three applicants' and other suspects' detention on remand may last up to one year. The Court of Appeal noted that the Vienna Regional Court conducted preliminary investigations against the persons concerned on the suspicion of professional grave burglary and other offences. Having regard to the extensive police investigations, there was a reasonable suspicion that as from summer 1989 they had as members of a gang of mostly Hungarian nationals committed numerous burglaries in Austria and abroad. The Court of Appeal, referring in particular to seven cases, also noted that the damage caused amounted to about fifteen million AS. It considered that the investigations were particularly difficult and extensive due to the complexity of the facts and the number of suspects. The fact that the previous period of the first applicant's and other suspects' detention on remand had already expired at the time of its decision did not hinder the prolongation.         Permission further to inspect the files was granted on 15 and 16 April 1991.         On 19 September 1991 the Vienna Court of Appeal decided that the detention on remand regarding the first and the second applicant could last up to fifteen months.         On 30 October 1991 the Vienna Public Prosecutor's Office preferred the indictment against the applicants, which was served upon them in November 1991.         The trial against the applicants was held before the Vienna Regional Court between 30 March and 10 April 1992. At that stage of the proceedings, Mr. Simonfay did no longer act as their defence counsel. Following the trial, the Vienna Regional Court convicted the the first and second applicant, presumably also the third applicant, of having committed burglary on various counts, and imposed prison sentences. Having served their sentences, the applicants returned to Hungary.   B.     Relevant domestic law         According to S. 12 para. 1 of the Code of Criminal Procedure (Strafprozeßordnung) all measures taken by a district court (Bezirksgericht) or the investigating judge (Untersuchungsrichter) at the first instance court in the course of preliminary investigations are supervised by the Judges' Chamber (Ratskammer) at the first instance court.         S. 39 para. 1 of the Code of Criminal Procedure provides that in all criminal cases the suspect (der Beschuldigte) has the right to have a defence counsel whom he may choose among the persons included in a list kept by the Court of Appeal. According to S. 43 several persons who are suspected or accused at the same time may have a common defence counsel.         S. 45 para. 1 of the Code of Criminal Procedure provides that also in the course of the preliminary investigations (Vorerhebungen und Voruntersuchung) the suspect has the right to choose a defence counsel in order to ensure his rights as regards the court files, which directly concern the establishment of facts and cannot be exercised at a later stage, furthermore in order to file particular appeals lodged by him. According to S. 45 para. 2, first sentence, the investigating judge shall permit the defence counsel on request to inspect the court files, except the records of deliberations, on the premises of the court, and to make copies thereof; alternatively the investigating judge may also deliver photocopies to the counsel.         Under S. 45 para. 2, third sentence, the investigating judge may, until communication of the indictment (Mitteilung der Anklageschrift), exempt single documents from inspection and copying, if, in the particular circumstances, there is a risk that direct cognizance of these documents could hinder the investigations.         SS. 84 to 115 of the Code of Criminal Procedure concern the preliminary investigations (Vorerhebungen und Voruntersuchung).         According to S. 91 para. 1, the committal for trial (Versetzung in den Anklagestand) must be preceded by a preliminary investigation (Voruntersuchung) where the case concerns a crime or a criminal offence coming within the competence of the Assize Court (Geschworenengericht) or if proceedings are instituted in absentia. In all other cases the public prosecutor or the private prosecutor may request a preliminary investigation. S. 91 para. 2 provides that the preliminary investigation pursues the aim of provisionally examining the criminal charges laid against a person and of establishing the facts to the extent necessary to decide whether to discontinue the criminal proceedings or to commit for trial and prepare the taking of evidence at the trial. According to S. 93 para. 1 the preliminary investigations are in general conducted by the investigating judge personally and directly.         S. 113 provides in particular that anybody affected by a decision of the investigating judge or a delay in the course of preliminary investigations or the proceedings after the indictment, may apply for review by the judges' chamber, which decides in private after having heard the investigating judge and the public prosecutor. According to S. 114 there is a further appeal against decisions of the judges' chamber to the court of second instance, if these decisions concern the separation of proceedings, the institution or discontinuation of the preliminary investigation, bail, or detention on remand without a hearing concerning release having taken place. The appeal has to be filed with the presiding judge of the judges' chamber within fourteen days after pronouncement of the decision concerned.         SS. 139 to 149 concern the search of premises and persons and the seizure of objects. S. 139 para. 1 provides in particular that a search may only be carried out if there is a reasonable suspicion that on the premises concerned a person suspected of having committed a crime or other criminal offence is hiding, or that there are objects the possession or examination of which is relevant for a particular criminal investigation.         According to S. 175 para. 1 the investigating judge may order that a suspect be brought before the court (Vorführung) or be provisionally detained (vorläufige Verwahrung), in particular if the suspect was apprehended in or shortly after the commission of a criminal offence, if he has absconded or if there is a risk of his absconding, of collusion or of repetition of the offences. In such cases the investigating judge has to issue a written warrant of arrest which has to be served upon the suspect at his arrest or within the following twenty-four hours (S. 176 para. 1).         S. 177 provides that exceptionally provisional detention of a suspect may be ordered orally by a judge not competent for the case or by the police authorities (Sicherheitsbehörden), where the suspect was apprehended in or shortly after the commission of a criminal offence, or where, in cases of a risk of his absconding, of collusion or of repetition of offences, there is imminent danger (Gefahr im Verzug). The person provisionally detained must be questioned without delay by the judge or the police authorities and, in the absence of a reason justifying his further detention, be released, or be transferred to the competent court within forty-eight hours.         S. 179 para. 1 states that any suspect transferred to the court or brought before the court upon an order of the investigating judge must be questioned by the investigating judge within twenty-four hours. If this is not possible, the suspect may remain in provisional detention; however, his questioning must begin as soon as possible, the latest at the expiry of three days, and the reasons why he was not questioned earlier have to be recorded. According to S. 179 para. 2, first sentence, the investigating judge, having questioned the suspect, must immediately decide upon his release or his detention on remand (Untersuchungshaft). According to Austrian case-law, the above time-limits start to run upon transfer of the suspect to the competent court.         Under S. 180 paras. 1 and 2 a person may be held in detention on remand if he is seriously suspected of having committed a criminal offence and if there is a risk of his absconding, of collusion or of repetition of offences. According to S. 193, detention may not last more than two months where its sole justification is the risk of collusion; it may not last more than six months where one of the other grounds is relied on. The court of appeal may, however, if so requested by the investigating judge or the public prosecutor and if the difficulty or the scope of the investigations makes it necessary, extend the detention. In such cases the maximum duration of detention is three months where the measure is based on a risk of collusion alone, and one year, or even two years, if the term of imprisonment which the suspect risks is ten years or more, in the other circumstances provided for.         By virtue of SS. 194 and 195, it is open to the suspect to apply for release at any time. Such an application and any appeal against a decision ordering detention on remand must be examined by the Judges' Chamber at a private hearing in the presence of the accused or his defence counsel.   COMPLAINTS   1.     The applicants complain under Article 5 para. 3 of the Convention that, after their respective arrests, they were not brought promptly before a judge.   2.     The applicants further complain under Article 5 para. 4 and Article 6 paras. 1 and 3 of the Convention that, at the initial stage of the criminal proceedings against them, they were not afforded the guarantees of a judicial procedure for the purposes of the Convention.         The first applicant submits that upon his arrest on 13 September 1990 he was refused to consult his defence counsel, and that subsequently, for a period of 23 days, he was not assisted by defence counsel. At this important stage of the proceedings, which comprised the initial decisions concerning his arrest, provisional detention and detention on remand as well as the hearing concerning the question of his release, he could not duly exercise his rights of defence.         Moreover, all applicants complain that their counsel was not duly granted access to all documents in the court files concerning the criminal proceedings against them. They consider that the exclusion from inspection of documents concerning evidence against them prevented them properly to prepare and present their arguments at the respective hearings concerning the question of their release.   PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 14 May and registered on 23 May 1991.         On 2 December 1991 the Commission decided to communicate the application to the respondent Government for written observations on its admissibility and merits.         After two extensions of the time-limit, observations were submitted by the Government on 10 April 1992. The applicant submitted observations in reply on 10 July 1992, and made further submissions on 11 January 1994.   THE LAW   1.     The applicants complain under Article 5 para. 3 (Art. 5-3) of the Convention that, after their respective arrests, they were not brought promptly before a judge.         The Government submit that the time-limits under the relevant provisions of the Austrian Code of Criminal Procedure, as interpreted by the Austrian courts, were respected. They also consider that the applicants were brought promptly before a judge within the meaning of Article 5 para. 3 (Art. 5-3). In particular, the first applicant had to be questioned by the police authorities on 14 and 15 September 1990. Following his transfer from the prison at the Eisenstadt Regional Court to the prison at the competent Leoben Regional Court where he arrived on 18 September 1990, he was brought before the competent Investigating Judge within less than twenty-four hours. As regards the second and the third applicant, the Government state that, after their arrest on 26 September 1990, they were brought promptly before the Investigating Judge at the Vienna Regional Court on 28 September 1990.         The applicants submit that the transfer of arrested persons from one prison to another could not justify delays in bringing them before a judge competent to decide upon their continued detention or release. Furthermore, the questioning of the second and the third applicant by the Duty Judge at the Vienna Regional Court were only of a formal nature and did not suffice for the purposes of Article 5 para. 3 (Art. 5-3). The information passed on to the Investigating Judge at the Leoben Regional Court, who was competent to decide upon their detention on remand or release, was inadequate.         The Commission finds that the applicants' complaints under Article 5 para. 3 (Art. 5-3) of the Convention that, after their respective arrests, they were not promptly brought before a judge raise difficult questions of fact and of law which require an examination of the merits. No other ground for declaring it inadmissible has been established.   2.     The applicants further complain that the proceedings available to them for a review of the lawfulness of their arrest and detention on remand did not meet the requirements of Article 5 para. 4 (Art. 5-4) of the Convention. They also invoke Article 6 (Art. 6) of the Convention in respect of the criminal proceedings as a whole.   a.     The first applicant complains that, upon his arrest on 13 September 1990, he was refused to consult his defence counsel, and that subsequently he was not assisted by defence counsel until 5 October 1990. He submits that, at this important stage of the proceedings, which comprised the initial decisions concerning his arrest, provisional detention and detention on remand, he could not duly exercise his rights of defence.         The Government maintain that the first applicant failed to exhaust domestic remedies, as required by Article 26 (Art. 26) of the Convention. They submit that the applicant, after his committal to prison, could have again asked for assistance by counsel. Had assistance again been refused he could have lodged a complaint with the Judges' Chamber under S. 113 of the Code of Criminal Procedure. In any event, the first applicant was granted the benefit of an adversarial procedure, as required by Article 5 para. 4 (Art. 5-4) of the Convention, on the occasion of the review proceedings before the Judges' Chamber at the Leoben Regional Court on 27 September 1990.         Pursuant to Article 26 (Art. 26) of the Convention, the Commission may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law.   The basis of this rule is that, before proceedings are brought in an international court, the respondent State must have had an opportunity to redress the alleged damage by domestic means within the framework of its own legal system (cf. No. 5964/72, Dec. 29.9.75, D.R. 3 p. 57).         The Commission notes that on 13 September 1990 the Police Officers at the Gattendorf Police Station refused the first applicant's request to contact Mr. Simonfay as his defence counsel stating that criminal inquiries were pending against Mr. Simonfay. According to the police records, the first applicant was to name another counsel. The first applicant, having obtained assistance by a defence counsel in the beginning of October 1990, lodged an appeal with the Judges' Chamber on 30 October 1990. The appeal was dismissed on the grounds that the applicant, upon his arrest, had indicated a wrong telephone number, that he had not yet given counsel power of attorney and that, in any way, it was not competent to review instructions given by the police authorities.         The Commission finds that there is no indication that this remedy was clearly ineffective. The other possibilities referred to by the Government cannot, for the purposes of Article 26 (Art. 26) of the Convention, be regarded as effective remedies, as a considerable loss of time could not be excluded and the lack of assistance at the initial stage of the proceedings would not have been redressed.         The first applicant must therefore be considered as having exhausted, as required under Article 26 (Art. 26) of the Convention, the domestic remedies available to him at this stage of the proceedings.   b.     All applicants complain that their counsel was not duly granted access to all documents in the court files concerning the criminal proceedings against them.         The Government contend that the applicants failed to exhaust the domestic remedies, as required under Article 26 (Art. 26) of the Convention. They point out that the second and third applicant did not use any remedy against the decision of the Investigating Judge only to grant limited access. Moreover, the first applicant, whose appeal was inadvertently not forwarded by the Investigating Judge, failed to insist on a decision by the Judges' Chamber at the Leoben Regional Court.         According to the Government, these complaints are also manifestly ill-founded. Access to the file was essentially only restricted as regards the records and notes taken in the course of the interrogations of the other suspects. Such a measure was necessary to prevent the applicants from conceiving their respective defence strategies on those of the other accused. Furthermore, knowledge of the documents concerned was not necessary to challenge the lawfulness of the applicants' detention on remand.         The applicants contest the Government's assertion as to the exhaustion of domestic remedies. Furthermore, they submit that the exclusion from inspection of important documents concerning evidence against them prevented them properly to prepare and present their arguments at the respective hearings concerning the question of their release.         The Commission notes that on 23 October 1990 the Investigating Judge at the Leoben Regional Court permitted the applicants' defence counsel to inspect the criminal files except the folder, the table of contents, the sheet relating to requests and orders, the records concerning the questioning of the suspects as well as further pages enumerated in the decision.         The first applicant, represented by Mr. Simonfay, who was at the same time the defence counsel of the other applicants, lodged an appeal against the decision of 23 October 1990 and, on 15 November 1990, again requested that his defence counsel be authorised to inspect all documents in the files. On 26 November 1990 the Investigating Judge only permitted access to two further items in the files. No decision on the appeal regarding access to the complete files was taken before the applicants' hearings on the question of their release from detention on remand on 29 November and 13 December 1990, respectively.         The Commission, having regard to the failure of the Austrian authorities to decide upon the first applicant's appeal and further the short lapse of time between the challenged decisions on access to the files and the respective hearings to review the applicants' detention on remand, finds that no effective remedy was available to the applicants to complain about the restrictions on their access to the criminal files.         In these circumstances, the Commission considers that the applicants' complaints about the restrictions on their access to the files in the course of the investigation proceedings cannot be rejected for non-exhaustion of domestic remedies within the meaning of Article 26 (Art. 26) of the Convention.   c.     The Commission finds that the applicants' complaints that, at the initial stage of the proceedings, they were not afforded the guarantees of a judicial procedure for the purposes of the Convention, raise difficult questions of fact and of law, which require an examination of the merits. No other ground for declaring it inadmissible has been established.         For these reasons, the Commission, by a majority         DECLARES THE APPLICATION ADMISSIBLE,       without prejudging the merits of the case.   Secretary to the First Chamber        President of the First Chamber         (M.F. BUQUICCHIO)                       (A. WEITZEL)