CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 2 juillet 1996

.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. 21444/93                       by Rudolf-Peter ÖHLINGER                       against Austria        The European Commission of Human Rights sitting in private on 2 July 1996, the following members being present:              MM.    S. TRECHSEL, President                  H. DANELIUS                  C.L. ROZAKIS                  E. BUSUTTIL                  G. JÖRUNDSSON                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  J.-C. SOYER            Mrs.   G.H. THUNE            Mr.    F. MARTINEZ            Mrs.   J. LIDDY            MM.    L. LOUCAIDES                  J.-C. GEUS                  G.B. REFFI                  M.A. NOWICKI                  B. CONFORTI                  I. BÉKÉS                  J. MUCHA                  D. SVÁBY                  G. RESS                  A. PERENIC                  C. BÎRSAN                  P. LORENZEN                  K. HERNDL                  E. BIELIUNAS              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 23 November 1992 by Rudolf-Peter ÖHLINGER against Austria and registered on 26 February 1993 under file No. 21444/93;        Having regard to :   -     the reports provided for in Rule 47 of the Rules of Procedure of      the Commission;   -     the observations submitted by the respondent Government on 27      January 1995 and the observations in reply submitted by the      applicant on 11 February 1995 and 26 April 1995;        Having deliberated;        Decides as follows:   THE FACTS        The applicant is an Austrian citizen born in 1946.   He is retired.   In the proceedings before the Commission he is represented by Mr. H. Hofstätter, a lawyer practising in Graz.   A.    Particular circumstances of the case        The facts, as they have been submitted by the parties, may be summarised as follows.        On 29 August 1990 the Investigating Judge at the Ried Regional Court (Kreisgericht) issued an oral warrant of arrest against the applicant on the ground that he was suspected of having severely injured and threatened a third person.        On the same day, the applicant was arrested, brought to the Mining Police Station and taken in provisional detention (Verwahrungs- haft).   The applicant was questioned by police officers and then brought to the Ried Regional Court's Detention Centre (Kreisgerichtliches Gefangenenhaus).        Later in the day the Investigating Judge issued the written warrant of arrest and dispatched it to the Mining Police Station, where it arrived on 31 August 1990 and was filed.        On 30 August 1990 the Investigating Judge questioned the applicant and informed him about the suspicion which existed against him.   The Judge then decided to institute preliminary investigations (Voruntersuchung) against the applicant.   On the same day, the Investigating Judge further ordered, upon the Public Prosecutor's request, that the applicant be taken into detention on remand.   The Judge found that a danger of collusion and of the applicant committing further offences existed.   He noted in particular that the applicant had already been convicted several times of similar offences, and that, as the investigations were not yet concluded, the danger existed that the applicant would hinder the investigations or influence witnesses.        The applicant, after having been informed about the above decisions and his right to appeal, waived his right to file complaints both against the detention on remand (Haftbeschwerde) and against the institution of preliminary investigations.        On 9 November 1990 the Public Prosecutor's Office lodged the bill of indictment (Anklageschrift).   On the same day, the applicant filed an objection (Einspruch) against the bill of indictment, stating that he would appoint a defence counsel later.        On 28 November 1990 the Linz Court of Appeal (Oberlandesgericht), in private session and after having heard the Senior Public Prosecutor, dismissed the applicant's objection and ordered the prolongation of his detention on remand.        As of 29 November 1990 the applicant was assisted by an officially appointed defence counsel.        On 12 December 1990 the Judges' Chamber (Ratskammer) at the Ried Regional Court dismissed a complaint by the applicant of 30 November 1990, challenging inter alia the belated appointment of a defence counsel and the lack of a review of his detention on remand (Haftprüfungsverhandlung) after the expiry of the two months' time limit under SS. 82 and 194 para. 3 of the Code of Criminal Procedure (Strafprozessordnung).   The Judges' Chamber also dismissed the applicant's complaint that he had not been served with a written copy of the warrant of arrest.        On 9 January 1991 the Ried Regional Court convicted the applicant of, inter alia, having caused bodily harm and threatening and of an offence against the Firearms Act (Waffengesetz).   The applicant was sentenced to eighteen months' imprisonment.   The period of his detention on remand was deducted from the sentence.   The applicant filed a plea of nullity (Nichtigkeitsbeschwerde) and an appeal against sentence (Berufung).        On the same day the Ried Regional Court dismissed the applicant's application for release.        On 1 February 1991 the Linz Court of Appeal dismissed the applicant's appeal against the decision of the Ried Regional Court refusing to release him, as there remained a danger of the applicant committing further offences.        However, the Court of Appeal found that the Ried Regional Court had failed to question the applicant on the grounds for taking him into detention on remand, to appoint an official defence counsel in time, to review the applicant's detention, to serve the written warrant of arrest and to issue a written copy of the decision ordering detention on remand within the time limit prescribed by the Code of Criminal Procedure.   The Court of Appeal thus considered that a detention under such circumstances, and especially the lack of a written decision ordering detention on remand, severely infringed the Code of Criminal Procedure and came close to an arbitrary deprivation of liberty. Therefore, having regard to its supervisory duties (Aufsichtspflicht), expressly invited the Ried Regional Court to comply with the provisions of the Code of Criminal Procedure.        On 8 February 1991 the applicant was served with the written warrant of arrest of 29 August 1990 and with the decision ordering his detention on remand of 30 August 1990.        On 7 May 1991 the Supreme Court (Oberster Gerichtshof) rejected the applicant's plea of nullity against his conviction as partly manifestly ill-founded and partly insufficiently substantiated.   The case was referred to the Linz Court of Appeal for a decision on the appeal against sentence.        On 17 June 1991 the Linz Court of Appeal partly granted the applicant's appeal and reduced the sentence to twelve months' imprisonment.        On 4 July 1991 the applicant's counsel, invoking Article 5 para. 5 of the Convention, requested the Attorney General's Department (Finanzprokuratur) to pay the applicant compensation for unlawful detention on remand.        On 2 October 1991 the Attorney General's Department refused the applicant's claim.   It referred to S. 3 (b) of the Criminal Proceedings Compensation Act (Strafrechtliches Entschädigungsgesetz), pursuant to which no right for compensation for unlawful detention arises if the time a person spent in detention on remand is deducted from the sentence.        On 9 October 1991 the applicant, represented by counsel filed an official liability action (Amtshaftungsklage) with the Linz Regional Court (Landesgericht) regarding the belated serving of the warrant of arrest, the lack of appointment of a defence counsel and the lack of an automatic review of the detention on remand.        On 20 November 1991 the Linz Regional Court, after having held a hearing, dismissed the applicant's claim.        The Court first considered that, contrary to S. 176 of the Code of Criminal Procedure, the applicant had not been served with a written copy of the warrant of arrest within 24 hours.   However, since the applicant was questioned within these 24 hours by the Investigating Judge, who subsequently ordered that he be detained on remand, the requirement relating to the serving of the warrant of arrest was reduced to a mere formality.   Insofar as the applicant complained of the belated service of the decision ordering his detention on remand, the Court observed that this question was not part of the compensation proceedings, and that anyway the applicant had not filed a complaint in this respect with the Judges' Chamber.        The Court further found that the Ried Regional Court's failure to appoint a defence counsel violated the Code of Criminal Procedure. However, the applicant had not shown that there was a causal link between the prolongation of the detention on remand and the failure to designate a lawyer, and thus had not substantiated any resulting damage.   Moreover, the applicant could also have brought applications for his release and had not asserted that he was, for lack of legal knowledge, unable to file such a remedy.        The Court also noted the Regional Court's failure to hold, ex officio, a hearing on the applicant's release.   It considered that the continuation of the applicant's detention on remand without any judicial body reviewing it was unlawful and in breach of the Convention.   However, the Court refused to award compensation, as the applicant had not shown that he had suffered any damage.   It noted that the detention on remand had been confirmed upon appeal, and had subsequently been deducted from the sentence imposed by the Ried Regional Court.   Detention on remand under such circumstances could not have caused any psychological damage exceeding that of the corresponding detention to which the applicant had eventually been sentenced.        On 12 May 1992 the Linz Court of Appeal dismissed the applicant's appeal.   The Court of Appeal considered that the applicant could not claim that the failure to inform him in writing of the reasons of his detention had caused any psychological harm.   The Court also observed that the applicant had always been fully aware of the criminal character of his actions as evidenced by the judgment of the court convicting him.   Anyway, any potential harm would have been compensated by the deduction from the sentence.   Moreover, the above breach of the Code of Criminal Procedure, which occurred after a lawful deprivation of liberty, was a merely procedural error, since his detention was otherwise entirely justified.        On 7 October 1992 the Supreme Court dismissed the applicant's further appeal on points of law (ordentliche Revision).   The Court confirmed the findings of the lower courts as to the violations of the provisions of the Code of Criminal Procedure complained of, as well as their reasoning that these breaches had not caused any damage to the applicant.   The Court further noted that throughout the applicant's detention on remand, a written warrant of arrest existed, which had not been served in due time.   Thus, the applicant's case was different from a case in which a warrant of arrest had not even been issued. In any event, the Supreme Court considered that the applicant had not been able to offer convincing evidence for his assertion that no damage would have occurred, if the Ried Regional Court had observed the existing legal rules.   B.    Relevant domestic law and practice   1.    Detention on remand and procedural safeguards        According to S. 12 para. 1 of the Code of Criminal Procedure (Strafprozessordnung), as applicable at the relevant time, the Judges' Chamber (Ratskammer) at the first instance court supervises all measures taken by the Investigating Judge   during the preliminary investigations.        S. 113 provides in particular that anybody affected by a decision taken by the Investigating Judge or a delay caused by him in the course of preliminary investigations may apply for review by the Judges' Chamber.        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 his committing further offences.   In such cases the Investigating Judge has to issue a written warrant of arrest which has to be served upon the suspect at the time of 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) for the purpose of bringing him before the Investigating Judge, 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 committing further 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. 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).        Under S. 180 paras. 1 and 2 a person may be held in detention on remand - where there are serious grounds for suspecting him of having committed a criminal offence - if there is a risk of his absconding, of collusion or of his committing further offences.        According to S. 182 a detainee who has been remanded in custody for two months has, for the following period of his detention, to be assisted by an officially appointed defence counsel, unless he has already chosen counsel himself.        By virtue of SS. 194 and 195, it is open to the suspect to apply for release (Haftprüfungsverhandlung) at any time.   Such an application and any appeal against a decision ordering detention on remand have to be examined by the Judges' Chamber at a private hearing in the presence of the accused or his defence counsel.   According to S. 194 para. 3 the Judges' Chamber automatically reviews the detention when it has lasted two months or when three months have elapsed since the last hearing and the accused does not have a lawyer.   The detainee cannot waive his right to such an automatic review, unless he is assisted by counsel.        According to S. 210 para. 3 of the Code of Criminal Procedure, the Court of Appeal, in private session, after having heard the Senior Public Prosecutor, decides on the suspect's objection against the bill of indictment (Einspruch gegen die Anklageschrift).   By virtue of S. 214 para. 2, this Court also examines ex officio the necessity of the detention, if the suspect is still remanded in custody.        Detention on remand comes to an end, at the latest, when the sentence has become final and the accused begins to serve it.   The time spent on remand is automatically deducted (S. 38 of the Criminal Code).   2.    Compensation for detention        The unlawfulness of a detention has to be established in proceedings under the Criminal Proceedings Compensation Act (Strafrechtliches Entschädigungsgesetz).   However, according to S. 3 (b) of this Act, no right to compensation arises if the period of detention on remand is taken into account in the sentence.        According to the practice of the Austrian courts, compensation under Article 5 para. 5 of the Convention has to be claimed in civil proceedings under the Official Liability Act (Amtshaftungsgesetz).   In order to be granted compensation, it need to be established that a material or non-material damage occurred due to an unlawful act of one of the State's organs.   COMPLAINTS        The applicant complains that he was arrested on 29 August 1990 without being served a written warrant of arrest, taken in detention on remand on 30 August 1990 without being served the written decision ordering his detention and that he was not informed of the reasons for his detention.   He further complains that he did not have a hearing on his release from detention on remand and that he was not given defence counsel in due time.   He also complains that the Austrian authorities refused his compensation claim regarding his detention on remand.   He does not expressly invoke any provisions of the Convention.   PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 23 November 1992 and registered on 26 February 1993.        On 12 October 1994 the Commission decided to communicate the application to the respondent Government, pursuant to Rule 48 para. 2 (b) of the Rules of Procedure.        On 7 December 1994 the Commission granted the applicant legal aid.        The Government's written observations were submitted on 27 January 1995.        On 11 February 1995 the applicant submitted observations in reply.   On 26 April 1995 these observations were supplemented by counsel after the time-limit set for this purpose had expired.   THE LAW   1.    The applicant complains that he was arrested on 29 August 1990 without being served a written warrant of arrest, taken in detention on remand on 30 August 1990 without being served the written decision ordering his detention and that he was not informed of the reasons for his detention.   He further complains that he did not have a hearing on his release from detention on remand and that he was not given defence counsel in due time.        The Commission considers that these submissions could raise questions under Article 5 (Art. 5) of the Convention, namely whether the applicant's detention on remand was "lawful" and "in accordance with a procedure prescribed by law" (paragraph 1 (c)), whether he was informed promptly of the reasons for his arrest and of any charge against him (paragraph 2), and whether he had at his disposal judicial proceedings for the review of his detention (paragraph 4).        Article 5 (Art. 5) of the Convention, insofar as relevant, reads as follows:        "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;        ...        2.     Everyone who is arrested shall be informed promptly, in a      language which he understands, of the reasons for his arrest and      of any charge against him.        ...        4.     Everyone who is deprived of his liberty by arrest or      detention shall be entitled to take proceedings by which the      lawfulness of his detention shall be decided speedily by a court      and his release ordered if the detention is not lawful."   2.    The Government submit that the applicant cannot claim to be a victim of an alleged violation of the above provisions of the Convention, as the competent Austrian courts had expressly acknowledged that the Ried Regional Court had infringed provisions of the Code of Criminal Procedure.   They had found that the latter court had failed to serve the applicant within twenty-four hours with a copy of the written warrant of arrest, stating the reasons for his arrest, and to fix a date for the ex officio review of his detention on remand after a period of two months.        This is disputed by the applicant.        Under Article 25 para. 1 (Art. 25-1) of the Convention the Commission "may receive petitions ... from any person ... claiming to be a victim of the rights and freedoms set forth in (the) Convention". An applicant can no longer claim to be a victim within the meaning of Article 25 (Art. 25) when the national authorities have acknowledged either expressly or in substance, and then afforded redress for, the breach of the Convention (cf. Eur. Court H.R., Eckle judgment of 15 July 1982, Series A no. 51, p. 30, para. 66; De Jong, Baljet and Van den Brink judgment of 22 May 1984, Series A no. 77, p. 20, para. 41; No. 10668/83, Dec. 13.5.87, D.R. 52, p. 177; No. 13020/87, Dec. 13.4.88, D.R. 56 p. 264).   It falls first to the national authorities to redress any alleged violation of the Convention.   As in many cases the violation itself can no longer be wiped out with retroactive effect, only reparation will be possible.   Such reparation may then constitute a means whereby a State can redress the alleged violation of the Convention (No. 10668/83, Dec. 13.5.87, D.R. 52 p. 177).        The Commission notes that the Linz Court of Appeal, in its decision of 1 February 1991 on the review of the applicant's detention, considered that the failure to appoint an official defence counsel in time, to review his detention on remand in due time and to serve the written warrant of arrest and detention order constituted severe breaches of the Code of Criminal Procedure which came close to an arbitrary deprivation of liberty.   Moreover, also in the official liability proceedings the Austrian courts acknowledged that violations of the Code of Criminal Procedure concerning the applicant's detention on remand had occurred.   However the findings of the Court of Appeal had no further consequences.   In particular, the Court of Appeal did not annul the Investigating Judge's warrant of arrest and the order by which the applicant was taken into detention on remand.        The Commission finds that the Austrian courts have, partly expressly and partly in substance, acknowledged that the applicant's arrest and detention on remand had been ordered in breach of the Convention.   However, the Commission also observes that in the ensuing official liability proceedings the applicant was refused compensation for unlawful detention.        The question therefore arises whether the applicant was granted adequate redress, as required under the Convention organs' case-law under Article 25 (Art. 25) of the Convention.        The Commission notes that the applicant's detention on remand was counted towards his sentence, but in the Commission's view this measure did not constitute a means of redress, since the Austrian courts, irrespective of the lawfulness of the detention on remand, were in any event bound by law to count the applicant's detention on remand towards his sentence.   Furthermore, it appears that the applicant's claim for compensation raised in the official liability proceedings was made dependent on his ability to show that damage had occurred and was eventually refused by the Austrian courts.        In the absence of any reparation, the Commission finds that the above decisions of the Austrian courts cannot be considered as appropriate and sufficient redress.        The Commission therefore considers that the applicant may still claim to be a victim, within the meaning of Article 25 (Art. 25), of the alleged violations of Article 5 (Art. 5) of the Convention.   3.    The applicant complains that he was arrested without being served a written warrant of arrest, taken in detention on remand without being served the written decision ordering his detention, that he did not have a hearing on his release from detention on remand and that he was not given defence counsel in due time.        The Commission finds that this complaint falls to be examined under Article 5 para. 1 (c) (Art. 5-1-c) of the Convention.        The Government submit that the applicant's arrest and subsequent detention on remand did not violate Article 5 para. 1 (c) (Art. 5-1-c) of the Convention.   Although the Austrian courts had found that the Investigating Judge at the Ried Regional Court had disregarded certain procedural requirements under the Code of Criminal Procedure, these failures concerned mere formalities.   In its decision of 1 February 1991 the Linz Court of Appeal had established that the substantive requirements for ordering and maintaining the applicant's detention on remand had been met.   After having heard the applicant on 30 August 1990 the Investigating Judge had issued a written warrant of arrest which simply by mistake had not been served on the applicant.          The applicant submits that his arrest and subsequent detention on remand had been unlawful and refers to the findings of the Linz Court of Appeal in its decision of 1 February 1991.   The written order of detention on remand had been served on him only after his conviction in first instance.        The Commission finds that the applicant's complaint about the lawfulness of his detention on remand involves serious issues of fact and law under the Convention, the determination of which must be reserved to an examination of the merits.   This part of the application cannot therefore be declared manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention, no other grounds for declaring it inadmissible having been established.   4.    The applicant further complains that he was not informed sufficiently of the reasons for his detention on remand.        The Commission finds that this complaint falls to be examined under Article 5 para. 2 (Art. 5-2) of the Convention.        The Government submit that when the applicant was heard by the Investigating Judge on 30 August 1990 he was sufficiently informed of the reasons for his arrest for the purpose of Article 5 para. 2 (Art. 5-2) of the Convention.        The applicant submits that on 30 August 1990 the Investigating Judge informed him of the suspicion against him which led to his arrest.   However, he had not been, according to the findings of the Court of Appeal in its decision of 1 February 1991, questioned on the grounds for ordering his detention on remand.   Therefore, the information given by the Investigating Judge had not been sufficient for the purpose of Article 5 para. 2 (Art. 5-2) of the Convention.        The Commission recalls that Article 5 para. 2 (Art. 5-2) of the Convention contains the elementary safeguard that any person arrested should know why he is being deprived of his liberty (Eur. Court H.R., Fox, Campbell and Hartley judgment of 30 August 1990, Series A no. 182, p. 19, para. 40).   The further purpose behind the guarantee in Article 5 para. 2 (Art. 5-2) is to enable the arrested person to challenge the reasonableness of the suspicion against him because this is a substantive requirement for detaining him under Article 5 para. 1 (c) (Art. 5-1-c).   The arrested person should therefore be informed sufficiently about the facts and the evidence which are proposed to be the foundation of a decision to detain him (No. 8098/77, Dec. 13.12.78, D.R. 16 p. 111).        In the present case the applicant was heard by the Investigating Judge on 30 August 1990 about the suspicion against him.   Thereupon, the Investigating Judge decided to institute preliminary investigations against him on that suspicion and to take him into detention on remand. The applicant, after having been informed about the above decisions and his right to appeal, waived his right to appeal against the decisions taken by the Investigating Judge.   According to the Court of Appeal's decision of 1 February 1991 the Investigating Judge, however, had failed to question the applicant on the grounds for taking him into detention on remand.   These grounds were, according to the Investigating Judge's decision of 30 August 1990, the danger of collusion and of the applicant committing further offences.        Having regard to the fact that the applicant had been informed in detail and questioned on the suspicion against him, had been informed on the decisions ordering the institution of preliminary investigations and his detention on remand and thereupon waived his right to appeal, the Commission finds that the applicant had been informed sufficiently by the Investigating Judge for the purpose of Article 5 para. 2 (Art. 5-2) of the Convention.   There is, therefore, no appearance of a violation of Article 5 para. 2 (Art. 5-2) of the Convention.        It follows that this part of the application is manifestly ill- founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   5.    The applicant further complains that he did not have a hearing on his release from detention on remand and that he was not given defence counsel in due time.        The Commission finds that this complaint falls to be examined under Article 5 para. 4 (Art. 5-4) of the Convention.        The Government submit that the applicant failed in this respect to exhaust domestic remedies as required by Article 26 (Art. 26) of the Convention.   Article 5 para. 4 (Art. 5-4) of the Convention guarantees a right to take proceedings for the review of the lawfulness of detention on remand.   Under S. 194 of the Code of Criminal Procedure the applicant could have applied at any time for a judicial review of the lawfulness of his detention on remand.   However, he did not do so. The Regional Court has failed to review the detention on remand ex officio within the statutory time limit but this did not prevent the applicant from filing himself a request for release.        The applicant submits that S. 194 para. 3 of the Code of Criminal Procedure requires that a hearing on the continuation of detention on remand must be held ex officio within two months unless a hearing had been held on a request for release lodged by the detained person.   The applicant could not waive his right to the ex officio hearing because no defence counsel had been appointed for him before the expiry of the two months period as required by S. 182 of the Code of Criminal Procedure.   He could not have been required to file a request for release from detention on remand himself earlier since he had not been informed sufficiently of the reasons for his detention on remand.        The Commission recalls that in case an applicant had a remedy at his disposal which satisfied the requirements of Article 5 para. 4 (Art. 5-4) but did not make use of it the applicant cannot claim to be a victim of a violation of Article 5 para. 4 (Art. 5-4) of the Convention as he did not make use in accordance with statutory provisions of the remedy which was available (cf. No. 7317/75, Dec. 6.10.76, D.R. 6 p. 141; Bonazzi v. Italy, Comm. Report 19.3.81, D.R. 24, p. 55, para. 71).          In the present case the applicant, under the relevant provisions of the Code of Criminal Procedure, could at any time after his detention on remand had been ordered have filed a request for release from detention on remand.   However, he did not file such a request himself or requested the appointment of a defence counsel for this purpose.   Only when an ex officio defence counsel had been appointed for him on 29 November 1990, the latter filed a request for release on 30 November 1990.   This request was dismissed by the Judges' Chamber on 12 December 1990.   Upon a further appeal the Court of Appeal, on 1 February 1991, upheld the Judges' Chamber's decision but added that the Judges' Chamber should have held ex officio a hearing on the applicant's detention on remand before the 29 October 1990.        The applicant submits that under Austrian law the courts had the obligation to hold ex-officio a hearing on the continuation of his detention on remand.   The Commission recalls however, that the fact that a domestic court is competent to examine proprio motu grounds amounting to a violation of the Convention does not absolve the applicant from the obligation of raising the complaint before the court himself (see No. 11244/84, Dec. 2.3.87, D.R. 55, p. 98).        The applicant also submits that he did not have sufficient information to file a request for release from detention on remand. However, the Commission refers to its finding under Article 5 para. 2 (Art. 5-2) above.   The Commission also finds that the applicant could have requested permission to inspect his case file if he considered himself to be in need of further information.   He does not submit that access to the file had been refused to him.   Insofar the applicant may be understood to argue that he had been unable to file a request for release from detention on remand without the assistance of a lawyer, the Commission observes that the applicant had failed to request the courts to appoint a lawyer for him.        Taking all the above circumstances into account the Commission cannot find that there is any appearance of a violation of the applicant's rights under Article 5 para. 4 (Art. 5-4) of the Convention.        It follows that this part of the application is also manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   6.    The applicant further complains that the Austrian authorities refused his compensation claim regarding his detention on remand.        The Commission finds that this complaint falls to be examined under Article 5 para. 5 (Art. 5-5) of the Convention.        The Government submit that in the official liability proceedings the courts found that violations of provisions of the Code of Criminal Procedure had occurred but that these violations did not cause any concrete damage to the applicant.   Even if the Investigating Judge had observed the provisions of the Code of Criminal Procedure at issue, this would not have prevented the applicant's detention on remand.   The applicant failed to prove that he had suffered any damage of a material or non-material nature as a result of the unlawful omissions by the Investigating Judge.   Therefore he had not been entitled to any compensation under Article 5 para. 5 (Art. 5-5) of the Convention. The Government also refers to the Court's case-law under Article 50 (Art. 50) of the Convention.        This is disputed by the applicant who maintains that the Austrian courts should have granted him compensation in the official liability proceedings and their failure to do so violated Article 5 para. 5 of (Art. 5-5) the Convention.        The Commission finds that the applicant's complaint about the refusal of his compensation claim involves serious issues of fact and law under the Convention, the determination of which must be reserved to an examination of the merits.   This part of the application cannot therefore be declared manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention, no other grounds for declaring it inadmissible having been established.        For these reasons, the Commission, by a majority,        DECLARES ADMISSIBLE, without prejudging the merits of the case,      the applicant's complaints that he was arrested on 29 August 1990      without being served a written warrant of arrest, that he was      taken into detention on remand on 30 August 1990 without being      served the written decision ordering his detention, that he was      held in detention on remand for more than two months without an      official defence counsel being appointed for him and without an      ex officio review of his detention on remand and his complaint      that the Austrian authorities refused his compensation claim      regarding his detention on remand;        DECLARES INADMISSIBLE the remainder of the application.   Secretary to the Commission             President of the Commission        (H.C. KRÜGER)                            (S. TRECHSEL)