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I.H. v. AUSTRIA

Doc ref: 15718/89 • ECHR ID: 001-1461

Document date: January 8, 1993

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I.H. v. AUSTRIA

Doc ref: 15718/89 • ECHR ID: 001-1461

Document date: January 8, 1993

Cited paragraphs only

AS TO THE ADMISSIBILITY OF

Application No. 15718/89

by I.H.

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 8 January 1993, the following members being present:

MM. J.A. FROWEIN, President of the First Chamber

F. ERMACORA

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

Sir Basil HALL

Mr. C.L. ROZAKIS

Mrs. J. LIDDY

MM. M. PELLONPÄÄ

G.B. REFFI

Mrs. M.F. BUQUICCHIO, Secretary to the First 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 26 May 1989 by

I.H. against Austria and registered on 30 October under file No.

15718/89;

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 an Austrian citizen born in 1938 and living in

Reichenau. She is represented by Mr. H. Blum, a lawyer practising in

Linz.

It follows from the applicant's statements and the documents

submitted that on 28 June 1988, upon returning from a cure in Italy,

the applicant was controlled by Austrian Customs and a fine of 3,500

AS was imposed on her in accordance with Section 35 (4) in connection

with Section 17 of the Fiscal Offences Act (Finanzstrafgesetz) for

having attempted to smuggle a gold necklace. The necklace was

confiscated.

The Customs Authorities are authorised under the Fiscal Offences

Act to impose a fine (vereinfachte Strafverfügung) in cases of minor

importance and if the person concerned has admitted the offence.

In connection with the imposition of the fine the applicant

signed the following prepared statement:

[German]

"Ich bin mit der Erlassung dieser Strafverfügung, gegen die

ein Einspruch unzulässig ist, einverstanden"

[Translation]

"Declaration of the Traveller: I consent to the fine order

against which an appeal is inadmissible" .

The applicant later lodged an appeal (Beschwerde) with the

Administrative Court (Verwaltungsgerichtshof) which was rejected on

27 October 1988. It appears that this decision was received by

applicant's counsel on 28 November 1988.

It is stated in the decision that a fine may be imposed by the

Customs Authorities only if the person concerned has confessed the

customs offence, has been informed of the authorities' intention

consequently to impose a fine and has further been informed that if the

fine order is accepted it is final, in other words, there is no

possibility of an appeal.

The Administrative Court considered that these conditions were

satisfied in the applicant's case in view of the prepared statement

which she had signed. The Court pointed out that before signing this

statement, the applicant took note of the fine order mentioning that

she is considered guilty of attempting to smuggle a gold necklace worth

12,200 AS. The Court considered that the applicant's acceptance of the

fine also included the acceptance of the finding that she had attempted

to smuggle a gold necklace. By having signed the statement the

applicant had renounced challenging the fine order. In the opinion of

the Administrative Court the statement which she had signed was clear

and unequivocal and her signature had not been obtained by threats or

deception.

In the Court's opinion there was furthermore no violation of

Article 6 para. 1 in conjunction with Article 5 para. 1 (a) of the

Convention as only a fine was imposed on the applicant and not a

sanction involving deprivation of liberty. Furthermore she would have

had the right to a determination of the charge laid against her by a

tax tribunal had she not accepted the settlement of the matter by way

of a fine.

COMPLAINTS

The applicant alleges that she never admitted the charge of

attempted smuggling. She considers the prepared statement signed by

her to be misleading and submits that she misunderstood it, believing

that her signature was necessary to terminate the matter before the

Customs Authorities leaving her however the right of an appeal once she

had returned to her residence and thought the case over.

She alleges a violation of Article 6 of the Convention.

THE LAW

The applicant complains that she was fined by the Austrian

Customs Authorities for an attempted smuggling offence which she denied

having committed and that she was deprived of access to a court in that

she was led to sign a prepared and misleading statement waiving her

right to an appeal. She invokes Article 6 (Art. 6) of the Convention

which guarantees the right to a fair hearing.

However, the applicant has not alleged that any undue pressure

was imposed on her by the Customs Authorities in order to make her

accept and pay the fine and to sign the statement in question.

Under the circumstances in which she found herself at the time

and in the light of the prepared statement, the applicant was in a

position to realise the legal consequences of her signing the

statement. She states herself that she considered thereby to terminate

the matter before the Customs Authorities. In acting in this manner

the applicant avoided criminal proceedings which might have led to a

severer punishment. She must therefore be considered as having

accepted the fine and as having waived her right to an appeal. The

applicant is thus herself responsible for the loss of the possibility

to have the charge of an attempted smuggling offence determined by a

court.

It follows that there is no appearance of a violation of Article

6 (Art. 6) of the Convention and the application has to be rejected as

being manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

For these reasons, the Commission by a majority

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber President of the First Chamber

(M. F. BUQUICCHIO) (J.A. FROWEIN)

LEXI

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