M.G. v. AUSTRIA
Doc ref: 16412/90 • ECHR ID: 001-1797
Document date: April 6, 1994
- Inbound citations: 0
- •
- Cited paragraphs: 0
- •
- Outbound citations: 0
Application No. 16412/90
by M. G.
against Austria
The European Commission of Human Rights (First Chamber)
sitting in private on 6 April 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. 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 18 January
1990 by M. G. against Austria and registered on 6 April 1990
under file No. 16412/90;
Having regard to:
the report provided for in Rule 47 of the Rules of
Procedure of the Commission;
the applicant's statement of 18 January 1994 that she does
not wish to pursue her application;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is an Austrian citizen born in 1967. She is
represented before the Commission by Mr. H. Pochieser, a lawyer
practising in Vienna. The facts of the case, as submitted by the
applicant's representative, may be summarised as follows.
On 12 September 1988 the applicant took part in a
demonstration on St. Stephen's Square (Stefansplatz) in Vienna.
At about 19.00 hours the applicant was arrested on suspicion of
having committed offences under Sections VIII and IX of the
Introductory Provisions to the Administrative Procedure Acts
(Einführungsgesetz zu den Verwaltungsverfahrensgesetzen).
The applicant was taken to Innere Stadt Police Station,
where she was charged with offences under Sections VIII and IX
of the Introductory Provisions to the Administrative Procedure
Acts and, after her identity had been checked, she was released
at 22.40 hours. The administrative criminal proceedings against
the applicant were not pursued and have now become statute-
barred.
The applicant made a constitutional complaint to the
Constitutional Court (Verfassungsgerichtshof) which, on 19 June
1989 (decision received by the applicant's representative on 19
July 1989) dismissed the complaint.
The Constitutional Court found it unnecessary to take any
further evidence, as requested by the applicant, and found that
the policemen who arrested her could reasonably have considered
that she was caught in the act of committing an administrative
offence, such that Article 35 (c) of the Code of Administrative
Offences (Verwaltungsstrafgesetz) justified the detention. The
Constitutional Court further considered that, notwithstanding
Article 36 of the Code of Administrative offences, there were no
particular circumstances which required the applicant to be
released, even though the act of arresting her had, itself,
removed the continuing ground for arrest.
The Constitutional Court did not hold an oral hearing.
On 27 November 1989 the Constitutional Court rejected the
applicant's request for the proceedings to be re-opened and for
the evidence she had previously asked for to be taken.
COMPLAINTS
The applicant considers that her arrest and subsequent
detention do not comply with Article 5 para. 1 of the Convention
because, far from committing offences under Sections VIII and IX
of the Introductory Provisions to the Administrative Procedure
Acts, she merely asked why the leader of the demonstration was
being arrested. She contends that the authorities failed to ask
her for her identity on the spot, failed to establish whether
there was any reason to think that she would try to evade
justice, and failed to caution her before arresting her.
The applicant also alleges a violation of Articles 5 para.
4 and Article 13 of the Convention in that the Constitutional
Court dealt with her constitutional complaint in camera, without
a hearing, and without listening to the witnesses proffered by
her.
Finally, the applicant points out that Article 36 of the
Code of Administrative Offences requires a detained person to be
released if the reason for detention falls away before the person
has been brought to the relevant competent authority, and that
the Constitutional Court flew in the face of this provision by
finding that there were "no special reasons" to release her.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 18 January 1990 and
registered on 6 April 1990.
On 10 February 1993 the Commission decided to communicate
the application to the respondent Government without requesting
observations pending the outcome of the proceedings in the case
of Chorrherr v. Austria. The European Court of Human Rights gave
its judgment in that case on 25 August 1993 (Eur. Court H.R.,
judgment of 25 August 1993, Series A no. 266-B).
On 18 January 1994 the applicant's representative informed
the Commission that the applicant did not wish to pursue her
petition.
REASONS FOR THE DECISION
The Commission recalls that it gave notice of the
application to the respondent Government and adjourned its
consideration of the case pending the outcome of the case of
Chorherr v. Austria. Subsequent to the judgment of 25 August
1993 in that case, the applicant's representative on 18 January
1994 informed the Commission that the applicant did not wish to
pursue her petition.
The Commission concludes that the requirement of Article 30
para. 1 (a) of the Convention has been satisfied, and further
considers that respect for Human Rights as defined in the
Convention does not require the continuation of the examination
of the case.
For these reasons, the Commission unanimously
DECIDES TO STRIKE THE APPLICATION OUT OF ITS LIST OF CASES.
Secretary to the First Chamber President of the First
Chamber
(M.F. BUQUICCHIO) (A. WEITZEL)