Lexploria

Application No. 26394/95

by Christian BUCHHOLZ

against Austria

The European Commission of Human Rights sitting in private on

20 January 1997, the following members being present:

Mr. S. TRECHSEL, President

Mrs. G.H. THUNE

MM. E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H. DANELIUS

F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

M.A. NOWICKI

I. CABRAL BARRETO

I. BÉKÉS

J. MUCHA

D. SVÁBY

G. RESS

A. PERENIC

C. BÎRSAN

P. LORENZEN

K. HERNDL

E. BIELIUNAS

E.A. ALKEMA

M. VILA AMIGÓ

Mrs. M. HION

Mr. R. NICOLINI

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 20 December 1994

by Christian BUCHHOLZ against Austria and registered on 6 February 1995

under file No. 26394/95;

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

20 June 1996 and the observations in reply submitted by the

applicant on 12 August 1996;

- the applicant's letter of 3 December 1996 requesting an

adjournment of the proceedings;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a German citizen, born in 1971. He lives in

Baden and is represented before the Commission by Mr. T. Prader, a

lawyer practising in Vienna. The facts of the application, as they

have been submitted by the parties, may be summarised as follows.

The particular circumstances of the case

On 2 April 1991 an incident took place which resulted in a

policeman pronouncing the applicant's "provisional arrest in order to

establish his nationality, pursuant to Section 35 (a) of the Code of

Administrative Offences, taken together with Section 99 (2) (c) of the

Road Traffic Act".

The applicant attempted to prevent his arrest. After a struggle

of about one minute, the policeman pronounced the applicant's arrest

"under the Code of Criminal Procedure". The policeman called for re-

enforcements which arrived soon after.

The applicant was taken to the prison of the local court, and

released after he had been interviewed.

The applicant was convicted on 23 March 1992 of attempting to

prevent an official from carrying out an official action under Section

269 of the Criminal Code, and of causing serious bodily harm. The

first instance court found that the applicant had caused a series of

injuries to named policemen whilst resisting arrest. He was sentenced

to three months' imprisonment, suspended for three years. His plea of

nullity and appeals against sentence were dismissed on 4 August 1992.

The Vienna Court of Appeal, in its appeal decision, noted that the

first instance court had not accepted that Article 269 para. 4 of the

Criminal Code applied. The Court of Appeal agreed that the first

arrest was unlawful because the policeman did not have the proper

authority pursuant to Section 94 (3) of the Road Traffic Act, but

considered that the unlawfulness was a question of pure form which

could not give rise to the offence of violating the applicant's right

to freedom of the person (Article 303 of the Criminal Code) because the

arrest was an act of a type permitted.

Criminal proceedings against the policeman concerned and against

other policemen were discontinued.

The applicant complained to the Independent Administrative Board

for Lower Austria that his arrest and treatment at the hands of the

police on 2 April 1991 were in violation of his rights to personal

freedom and to freedom from inhuman or degrading treatment.

The Independent Administrative Board held a hearing in the case

on 8 and 15 January 1992 and gave its decision on 20 February 1992.

It found a violation of the applicant's right to personal freedom in

connection with the first arrest, under the Code of Administrative

Offences, but not in connection with the second arrest, under the Code

of Criminal Procedure. On the merits, the Board found a violation of

the applicant's right not to be subjected to inhuman or degrading

treatment.

In connection with the complaint concerning the applicant's right

to personal freedom, the Independent Administrative Board found that

the policeman who arrested the applicant did not have the requisite

authority under Section 94 (c) of the Road Traffic Act or Section 35

of the Code of Administrative Offences, and the first arrest therefore

violated the applicant's right to personal freedom. On the merits, the

Board doubted the policeman's claim that he had not recognised the

applicant when he was driving the car, considering that the policeman

must have recognised the applicant as a person who had been fined on

several occasions for not possessing the proper Austrian driving

licence, and must have decided to pursue him for that reason. The

Board considered that the policeman must have realised that the

applicant lived at the house at the latest when they all arrived there,

such that his identity could easily be established. There was

accordingly no reason to arrest him.

As to the second arrest, the Board recalled that an official's

protection in respect of resistance to official acts extends to

resistance to acts which are not themselves lawful (auch materiell

unrechtmässige Amtshandlungen sind gegen Widerstand geschützt). It

continued by stating that Section 177 (1) (1) of the Code of Criminal

Procedure provides for the provisional detention of a person suspected

of an offence for the purpose of bringing him before a competent

authority, even without a written order. In particular such an arrest

may be effected when the suspected person is caught in the act. The

Board considered that the applicant's behaviour in grasping the

policeman's shoulder and knocking the handcuffs was to be regarded as

hindering the policeman from carrying out an official act, namely, the

arrest of the applicant under Section 35 of the Code of Administrative

Offences. The (second) arrest was therefore covered by Section 177 (1)

(1) of the Code of Criminal Procedure, and the complaint was dismissed

in this connection.

On 31 March 1992 the applicant lodged a constitutional complaint.

The Constitutional Court declined to deal with the applicant's

constitutional complaint on 29 September 1992, and the Administrative

Court rejected the applicant's complaint on 23 March 1994 as all the

complaints were of a constitutional nature, rather than raising

questions of ordinary law. The applicant's representative received the

Administrative Court's decision on 21 June 1994.

On 29 September 1994 the applicant requested the Constitutional

Court to determine whether it or the Administrative Court should have

dealt with his complaint of 31 March 1992, as in the event both had

declined jurisdiction.

On 29 February 1996 the Constitutional Court declared the

Administrative Court competent to deal with the applicant's complaint

of 31 March 1992. The Administrative Court's decision of 23 March 1994

was quashed.

On 25 September 1996, the Administrative Court quashed the

relevant parts of the Independent Administrative Board's decision of

20 February 1992. The applicant's representative received the

Administrative Court's decision on 20 November 1996.

The case is now pending again before the Independent

Administrative Board for Lower Austria.

Relevant domestic law

Section 35 of the Code of Administrative Offences provides, so

far as relevant, as follows:

"The agents of the security forces may ... arrest persons caught

in the act of committing an offence, for the purpose of bringing

them before the authorities, if

(a) the person is not known to the agent of the security

forces, does not produce any means of identity, and his identity

cannot otherwise be determined on the spot ...".

Section 94 (c) of the Road Traffic Act enables the provincial

(Land) authorities to transfer certain competences to the local

authority (Gemeinde). Section 99 (2) (c) makes any breach of the

provisions of that Act an offence if it is particularly dangerous or

reckless with regard to other road users.

Section 177 (1) (1) of the Code of Criminal Procedure provides

for arrest without a warrant where a suspected person is apprehended

in the course of committing an offence. Preventing an official from

carrying out an official action is an offence under Section 269 (1) of

the Criminal Code, although Section 269 (4) provides for a defence

where the official is not authorised at all to take that specific type

of action.

COMPLAINTS

The applicant alleges a violation of Article 5 of the Convention

in connection with the second arrest.

He considers that the facts established by the Independent

Administrative Board cannot possibly amount to the offence of resisting

the forces of law and order, so that there was no basis for the second

detention. He further considers that, even if the facts could

conceivably have amounted to the offence under Section 269 of the

Criminal Code, the detention was nevertheless contrary to Article 5

because he was merely trying to prevent an arrest which was itself

contrary to Article 5. He claims that a degree of self-defence must

be permitted in relation to unlawful detention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 20 December 1994 and registered

on 6 February 1995.

On 7 March 1996 the Commission decided to communicate the

application to the respondent Government.

The Government's written observations were submitted on 20 June

1996, after an extension of the time-limit fixed for that purpose. The

applicant replied on 12 August 1996.

By letter of 3 December 1996 the applicant informed the

Commission that the Constitutional Court had declared the

Administrative Court competent to deal with his complaint of 31 March

1992, that the Administrative Court had quashed the Independent

Administrative Board's decision of 20 February 1992, and that the case

was again pending before the Independent Administrative Board. He

requested the Commission to adjourn the proceedings pending a final

outcome.

REASONS FOR THE DECISION

The applicant initially alleged violation of Article 5 of the

Convention, but in the light of the developments before the Austrian

authorities, now requests the Commission to adjourn the proceedings.

The Government contest the alleged violation of Article 5.

Article 30 para. 1 of the Convention provides, so far as

relevant, as follows:

"The Commission may at any stage of the proceedings decide to

strike a petition out of its list of cases where the

circumstances lead to the conclusion that:

...

(c) for any other reason established by the Commission, it is

no longer justified to continue the examination of the petition.

However, the Commission shall continue the examination of a

petition if respect for Human Rights as defined in this

Convention so requires."

When the application was originally introduced before the

Commission, the "final decision" referred to in Article 26 of the

Convention was the decision of the Administrative Court of 21 June

1994. That decision was quashed by the Constitutional Court on

29 February 1996, and the case is now again pending before the

Independent Administrative Board.

In these circumstances, the Commission considers that it is no

longer justified to continue the examination of this application.

The Commission finds no reasons within the meaning of the final

sentence of Article 30 para. 1 which could require the Commission to

continue the examination of the application.

It follows that the conditions set out in Article 30 para. 1 of

the Convention for striking the case off the Commission's list of cases

are met.

For these reasons, the Commission, unanimously,

DECIDES TO STRIKE THE APPLICATION OUT OF ITS LIST OF CASES.

H.C. KRÜGER S. TRECHSEL

Secretary President

to the Commission of the Commission

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BUCHHOLZ v. AUSTRIA

BUCHHOLZ v. AUSTRIA

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