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AS TO THE ADMISSIBILITY OF

Application No. 13229/87

by Arnold MAIR

against Austria

The European Commission of Human Rights sitting in private on

15 February 1990, the following members being present:

MM. C.A. NØRGAARD, President

J._C. SOYER

H.G. SCHERMERS

H. DANELIUS

J. CAMPINOS

H. VANDENBERGHE

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

Mr. L. LOUCAIDES

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 5 May 1987 by

Arnold MAIR against Austria and registered on 23 September 1987 under

file No. 13229/87;

Having regard to the report provided for in Rule 40 of the

Rules of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is an Austrian citizen born in 1944. He lives

in Leutasch, Tyrol. The facts of the application, as submitted by the

applicant and apparent from the documents submitted by him, may be

summarised as follows:

On 8 August 1986 the applicant's moped was near to his boundary

fence with its engine running. The applicant states that he was

repairing the moped. On a complaint from a neighbour, two policemen

went to the house and asked the applicant to turn the engine off. The

applicant refused and, on being told that he was causing undue

disturbance with the noise, was arrested at 19:30.

The applicant was taken to the police station in Seefeld,

where he was questioned and released at 20:30 on the basis of a

formal complaint from the police to the District Authority

(Bezirkshauptmannschaft Innsbruck-Land). This authority on 10

September 1986 issued a penal notice (Strafverfügung) providing for a

fine with a substitute prison sentence in default against the

applicant for having made "undue noise" within the meaning of the

Tyrol Police Act 1976.

The applicant raised an immediate constitutional appeal

against the "unlawful arrest" under Article 144 of the Federal

Constitution.

The Constitutional Court found that Article 8 of the Basic

Law, as Article 5 of the Convention, protects against unlawful

"arrest", and that the Law on the Protection of Personal Freedom 1862

provides that detention by executive authority is permitted in the

cases authorised by the law. Article 35 of the Code of Administrative

Offences (Verwaltungsstrafgesetz 1950) provides that a proper officer

may effect an arrest provided that the person is caught "in the act" -

in the case in question an act punishable as a "minor administrative

offence" (Verwaltungsübertretung). An arrest is permissible when the

officer can reasonably assume that such an offence has been committed,

but may only be made when the person concerned, notwithstanding a

warning, continues to commit the offence or attempts to repeat it.

The Court noted that arrest under Article 35 para. c of the Code of

Administrative Offences (Verwaltungsstrafgesetz) is only permissible

for bringing a person before a competent authority under certain

conditions ("zum Zwecke der Vorführung vor die Behörde ... wenn...").

The Court also noted that the applicant had been found guilty of the

administrative offence by a penal notice (Strafverfügung) of the

District Authority of 10 September 1986, and that an appeal against

the penal notice (Strafverfügung) was pending.

The Constitutional Court found that the police officers had

good reason to assume that the applicant was breaching Section 1 (1)

of the Tyrol Police Act 1976, which prohibits "the making of noise

which disturbs unduly" (Erregung ungebührlicherweise störenden

Lärms). The offence is a minor administrative offence. The police

officers saw that the moped's engine was running, and could reasonably

assume that the noise "unduly" disturbed. The arrest was therefore

covered by Article 35 para. c of the Code of Administrative Offences.

Moreover, the Constitutional Court found that the subsequent

detention, which lasted only one hour, was also lawful because it was

not unduly long.

COMPLAINTS

The applicant alleges a violation of Articles 5, 6 para. 3

(d), 7 and 8 of the Convention.

THE LAW

1. The applicant alleges a violation of Article 5 (Art. 5) of the

Convention in that it was ridiculous to allege that the moped made too

much noise - a canary was louder - and the police officers could

easily have measured the noise.

Article 5 para. 1 (Art. 5-1) of the Convention provides 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:

(a) the lawful detention of a person after

conviction by a competent court;

(b) the lawful arrest or detention of a person

for non-compliance with the lawful order of a court or in

order to secure the fulfilment of any obligation 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;

(d) the detention of a minor by lawful order for

the purpose of educational supervision or his lawful

detention for the purpose of bringing him before the

competent legal authority;

(e) the lawful detention of persons for the

prevention of the spreading of infectious diseases, of

persons of unsound mind, alcoholics or drug addicts or

vagrants;

(f) the lawful arrest or detention of a person

to prevent his effecting an unauthorised entry into the

country or of a person against whom action is being taken

with a view to deportation or extradition."

The Commission recalls that the Republic of Austria has

entered a reservation as to the application of Article 5 (Art. 5) in

connection with measures for the deprivation of liberty prescribed in

the laws on administrative procedure BGBl No. 172/1950. The

Commission is not, however, required to consider whether the

reservation applies in the present case as, even if it does not, the

complaint is in any event inadmissible for the following reasons.

The Commission finds that the applicant's arrest and detention

were provided for by an Austrian law, which does not appear, of

itself, arbitrary. The Commission also notes that the applicant was

arrested because he refused to turn off the engine of his moped, and

that the police officers concerned informed the applicant that they

regarded his behaviour as the administrative offence of "the making of

noise which disturbs unduly". The police arrested the applicant on

reasonable suspicion of having committed an offence and therefore for

bringing him before the competent legal authority. After the facts

had been ascertained at the police station, a formal complaint was

made to the competent authority, the District Authority

(Bezirkshauptmannschaft Innsbruck-Land), which took a formal decision

(Strafverfügung) finding the applicant guilty on 10 September 1986.

The applicant was released after one hour of detention on the day of

the arrest.

It follows that the police officers reasonably considered the

applicant's arrest and detention necessary to prevent his committing a

further offence and that the purpose of the arrest was to bring him

before the competent authority.

This part of the application is therefore manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

2. The Commission has also examined the remainder of the

applicant's complaints as they have been submitted by him. However,

after considering these complaints as a whole, the Commission finds

no appearance of a violation of the rights and freedoms set out in the

Convention.

It follows that the remainder of the application is also

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

(Art. 27-2) of the Convention.

For these reasons, the Commission

DECLARES THE APPLICATION INADMISSIBLE

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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