Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 22338/93

by Gavril DEMIAN

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 30 November 1994, the following members being present:

MM. A. WEITZEL, President

C.L. ROZAKIS

F. ERMACORA

E. BUSUTTIL

Mrs. J. LIDDY

MM. M.P. PELLONPÄÄ

B. MARXER

G.B. REFFI

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

G. RESS

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 11 June 1993 by

Gavril DEMIAN against Austria and registered on 26 July 1993 under file

No. 22338/93;

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

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Romanian citizen, born in 1958 and presently

living in Leonding, Austria. The applicant is represented by

Mr. H. Blum, a lawyer practising in Linz.

It follows from his statements and the documents submitted that

on 8 August 1991 the Independent Administrative Board of Upper Austria

(Unabhängiger Verwaltungssenat des Landes Oberösterreich) found that

the applicant's detention in the police prison from Linz from

29 May 1991 until his release on 19 July 1991 at 11.30 hrs. was

unlawful (rechtswidrig).

According to the findings of the board:

- The applicant had illegally entered Austrian territory in

September 1990. As his request for asylum had been rejected and

as he had admitted a criminal offence he had been expelled to his

country of origin.

- He had returned, however, illegally to Austria and had been re-

arrested on 24 April 1991 with a view to being expelled again.

The police warrant for arrest of 24 April 1991 had been approved

by the Independent Administrative Board on 21 May 1991.

- On 12 April 1991 the applicant had made a request for a

stay of execution of the expulsion order.

- On 27 May 1991 he made a further request for political

asylum stating that in Rumania he had again been subjected

to political persecution. Furthermore he submitted that

his wife and 8 month old child had also come to Austria and

had requested political asylum. He submitted a medical

certificate according to which his wife needed treatment in

a hospital. Therefore his release was necessary as he had

to take care of the child. These submissions were received

on 29 May 1991.

- On 19 June 1991 the competent security authorities had

extended the applicant's detention pending expulsion for

three months.

- On 16 July 1991 the police authorities had lifted the order

according to which the applicant was not allowed to stay in

Austria.

- Subsequently the applicant had been released on 19 July

1991 at 11.30 hrs.

In view of these circumstances the Independent Administrative

Board considered that on the one hand the order of 19 June 1991

according to which the applicant's detention was extended for three

months constituted a new legal ground for his detention. On the other

hand the applicant had in the view of the undetermined period of his

detention a right in accordance with Article 5 para. 4 of the European

Convention of Human Rights that the lawfulness of his detention be

decided speedily and that his release ordered if the detention were not

lawful. The Administrative Board considered that the competent

authorities had not decided speedily on the applicant's request of

12 April 1991 to stay the execution of the expulsion measures although

particular urgency had been unnecessary in view of the humanitarian

reasons invoked by the applicant in his submission of 27 May 1991. It

could be left undecided whether the principle of speediness had been

violated already by the fact that the object of the applicant's

detention was allegedly no longer realisable. In any event, after

receipt on 29 May 1991 of the applicant's submissions of 27 May 1991

the competent authorities were aware of the necessity that the

applicant take care of his child and therefore his continued detention

was unlawful from that date onwards.

The Administrative Board ordered the defendant authorities to pay

the applicant AS 16, 555.20 in respect of costs incurred by him in the

proceedings. The board stated in this respect that the costs did not

exceed the usual tariffs and had to be considered as having been

necessarily incurred.

The applicant then brought an action for damages

(Amtshaftungsverfahren) claiming compensation for his detention between

29 May and 19 July 1991 in the amount of AS 29,000 as well as further

costs incurred in the proceedings before the Independent Administrative

Board in the amount of AS 16,194.20.

On 20 May 1992 the Regional Court (Landesgericht) in Linz awarded

the applicant compensation in the amount requested but dismissed his

claim for further costs related to the proceedings before the

Independent Administrative Board.

It considered that the applicant could claim compensation under

Article 5 para. 5 irrespective of whether or not the defendant

authority was at fault.

In respect of the additional claim for costs the court considered

however, that the tariff regulations on the basis of which the

applicant had calculated his costs before the Independent

Administrative Board were binding. In connection with these

regulations the applicant's counsel had calculated his fees on the

basis of a value of claim in the amount of AS 300,000. Consequently

he could not now claim additional fees even if applicant's counsel was

entitled to agree fees with his clients in accordance with the

autonomous guidelines for fees (autonome Honorarrichtlinien).

The Regional Court's judgment was confirmed by the Court of

Appeal (Oberlandesgerichts) in Linz on 25 November 1992. This court

pointed out that before the Independent Administrative Board the

applicant had only claimed reimbursement of costs in the amount of AS

16,194.20. The court considered that contrary to the applicant's

submissions there was nothing to show that the Independent

Administrative Board would have rejected the additional claim for

reimbursement of costs had they been duly raised and substantiated in

particular if he had shown the additional costs were necessarily

incurred.

COMPLAINTS

The applicant considers that the denial of compensation with

regard to additional lawyers fees incurred in the domestic proceedings

violate his right under Article 5 para. 5 of the Convention.

THE LAW

The applicant has complained under Article 5 para. 5 (Art. 5-5)

that he was refused reimbursement of costs incurred in domestic

proceedings leading to the findings that his rights under Article 5

(Art. 5) had been violated.

However, the Commission is not required to decide whether or not

the facts alleged by the applicant disclose any appearance of a

violation of this provision as, under Article 26 (Art. 26) of the

Convention, it may only deal with a matter after all domestic remedies

have been exhausted according to the generally recognised rules of

international law.

In the present case the applicant, according to the findings of

the Linz Court of Appeal, failed to raise his alleged claim for

reimbursement of fees before the Independent Administrative Board. He

can in these circumstances not be considered to have exhausted domestic

remedies available under Austrian law in accordance with Article 26

(Art. 26) of the Convention. Moreover, an examination of the case as

it has been submitted does not disclose the existence of any special

circumstances which might have absolved the applicant, according to the

generally recognised rules of international law, from exhausting the

domestic remedies at his disposal.

It follows that the applicant has not complied with the condition

as to the exhaustion of domestic remedies and his application must be

rejected under Article 27 para. 3 (Art. 27-3) of the Convention.

For these reasons, the Commission unanimously

DECLARES THE APPLICATION INADMISSIBLE

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (A. WEITZEL)

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DEMIAN v. AUSTRIA

DEMIAN v. AUSTRIA

LEXI