Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 11071/84

by Georg RADETZKY

against Austria

The European Commission of Human Rights sitting in private

on 12 May 1988, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

F. ERMACORA

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

H. VANDENBERGHE

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

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 2 May 1984

by Georg Radetzky against Austria and registered on 6 August 1984

under file No. 11071/84;

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

Rules of Procedure of the Commission;

11071/84

Having regard to the Commission's decision of 4 May 1987 to

give notice of the application to the respondent Government and to

invite them in accordance with Rule 42 para. 2 (b) of the Commission's

Rules of Procedure to submit observations in writing on the

admissibility and merits of the application;

Having regard to the Government's observations submitted

on 9 July 1987 and the applicant's observations in reply of

15 September 1987;

Having deliberated;

Decides as follows:

11071/84

&_THE FACTS&S

The applicant is an Austrian citizen born in 1942 who resides

in Vienna. Before the Commission he is represented by Dr. Karl

Bernhauser, a lawyer practising in Vienna.

The facts agreed between the parties may be summarised as

follows:

The applicant complains of his detention which was ordered on

the ground that he had failed to pay certain fines under the Vienna

Parking Fees Act (Parkometergesetz, Provincial Law Gazette No.

47/1974). This legislation enacted in 1974 subjects the parking of

vehicles in certain areas of the City of Vienna to the payment of

fees. The owner of the vehicle is obliged to display a parking ticket

at the windscreen and is liable to a fine if he fails to do so. The

1974 Act itself does not provide for an alternative sanction of

detention in case of default of payment of the fine (Ersatzfreiheits-

strafe). However, the relevant proceedings are governed by the Code

of Administrative Offences (Verwaltungsstrafgesetz, Fed. Law Gazette

No. 172/1950) by virtue of Article II, para. 2A No. 2 of the

Introductory Regulations to the laws on administrative procedure

(Einführungsgesetz zu den Verwaltungsverfahrensgesetzen, ibid.).

Section 16 of the Code of Administrative Offences reads as

follows:

(German)

"(1) Wird auf eine Geldstrafe erkannt, so ist zugleich die

im Fall ihrer Uneinbringlichkeit an ihre Stelle tretende

Freiheitsstrafe festzusetzen.

(2) Die Ersatzstrafe darf das Höchstausmass der auf die

Verwaltungsübertretung gesetzten Freiheitsstrafe und, sofern

keine Freiheitsstrafe angedroht und nicht anderes bestimmt

ist, zwei Wochen nicht übersteigen. Im übrigen richtet sich

das Mass der Ersatzstrafe nach den allgemeinen Regeln der

Strafbemessung.

(3) Der Verurteilte kann die Vollziehung der Ersatzstrafe

dadurch abwenden, dass vor Antritt der Freiheitsstrafe der

Betrag der Geldstrafe erlegt wird."

(English)

"(1) Whenever a fine is imposed, at the same time an

alternative sanction of detention must be imposed to be

served in case of default of payment of the fine.

(2) The alternative penalty must not exceed the maximum

sanction of detention provided for the violation of this

administrative provision; in case no sanction of detention

is provided for in the relevant Act and unless otherwise

stated it may not exceed two weeks. Besides that the

assessment of the extent of the alternative penalty is

governed by the general rules for the assessment of

penalties.

(3) The convicted person can avert the detention by paying

the fine before the commencement of the prison sentence."

11071/84

As regards the enforcement of administrative sanctions of

detention, Section 53 provides the following:

(German)

"(1) Die Behörde hat den zu einer Freiheitsstrafe

Verurteilten nach Ablauf der Berufungs- oder Einspruchsfrist

oder bei Zustellung der endgültigen Berufungsentscheidung

aufzufordern die Freiheitsstrafe sofort anzutreten. ...

...

(4) Ist eine Geldstrafe ganz oder zum Teil uneinbringlich

oder ist dies mit Grund anzunehmen, so ist die für den Fall

der Uneinbringlichkeit verhängte Freiheitsstrafe oder der

dem uneinbringlichen Betrag der Geldstrafe entsprechende

Teil der Freiheitsstrafe in Vollzug zu setzen."

(English)

"(1) After the lapse of the period for filing an appeal or

objection, or when the final decision on an appeal is being

served, the authority shall summon the person on whom a

sanction of detention has been imposed, for the purpose of

immediately serving the prison sentence. ...

...

(4) If a fine is uncollectable as a whole or in part, or

if there are reasons to assume that it is uncollectable, the

detention ordered in case of default of payment of the fine

or the part of it which corresponds to the uncollectable

amount of the fine shall be enforced."

The Code of Administrative Offences is one of the laws on

administrative procedure to which the Austrian reservation concerning

Article 5 of the Convention refers. This reservation, which was made

when Austria ratified the Convention on 3 September 1958, reads as

follows:

"The provision of Article 5 of the Convention shall

be so applied that there shall be no interference

with the measures for the deprivation of liberty

prescribed in the laws on administrative procedure,

BGBl No. 172/1950, subject to review by the

Administrative Court or the Constitutional Court as

provided for in the Austrian Federal Constitution."

It is contested between the parties whether this reservation

applies to sanctions of detention imposed for administrative offences

created by new legislation after the declaration of the reservation

such as the 1974 Parking Fees Act.

Between 1981 and 1983 the applicant was repeatedly fined for

failure to comply with the provisions of this Act. Nine penal orders

(Strafverfügungen) were issued against him by the Municipal Council

(Magistrat) of Vienna in relation to a total of 30 offences, and fines

11071/84

amounting to AS 95.480,- were imposed on him. The penal orders were

each time accompanied by a warning that such an alternative sanction

of detention could be imposed, although the legal basis of this

measure was not indicated. Reference was, however, made to certain

other provisions of the Code of Administrative Offences (invitation to

the applicant under Section 42 to justify this behaviour, imposition

of costs under Section 64).

The applicant did not appeal against the above penal orders.

He does not contest that the penal orders as well as the corresponding

summonses to serve the alternative prison sentences might have been

validly served upon him according to the provisions of the Official

Notifications Act (Zustellgesetz, Fed. Law Gazette No. 200/1982) by

deposition in the post office (Hinterlegung). He claims that in

any event they were not actually served upon him. Apparently he no

longer lived at the address indicated to the police (Meldung) and

therefore he also did not receive the notifications that the various

penal orders and summonses had been deposited with the post office.

For this reason he allegedly learnt of their existence only when the

authority arrested him on 24 January 1984.

The Municipal Council had decided on 10 and 14 November 1983

that the applicant should be detained for a period of four months nine

days and sixteen hours in order to serve the alternative prison

sentences. The applicant claims that these decisions were also

brought to his knowledge only on 24 January 1984 when he was arrested.

His lawyer was allegedly refused access to the file and did not get a

copy of the decisions because they were considered as internal

documents.

The applicant has, however, submitted a summons to

serve the alternative prison penalty (Aufforderung zum Antritt der

Ersatzarreststrafe) resulting from one of the penal orders in

question, which had been issued on 3 August 1982. From this document,

which is dated 10 November 1983, it appears that the authority

considered the fine of AS 2800.- as uncollectable (uneinbringlich) and

therefore summoned the applicant in accordance with Section 53 para. 1

of the Code of Administrative Offences to present himself to the

police for the purpose of serving the alternative prison sentence

which in this case was one hundred hours. He was further informed that

he could avert the detention by paying the fine plus certain costs.

It was finally announced that if he did not comply with the summons

nor pay the fine he would be arrested.

Several penal orders of various dates in 1983 and the

corresponding summonses have subsequently been submitted by the

Government together with the returns of service showing that they had

been deposited with the post office and not been claimed by the

applicant. The Government state that the analogous documents

concerning penal orders issued in 1981 and 1982 have in the meantime

been destroyed.

The applicant was arrested by the police on 24 January 1984

and remained in detention until 1 February 1984. He served a total of

eight days six hours and forty minutes of the alternative prison

sentences. He was released after he had paid a part of the

outstanding fines and had been granted permission to pay the remaining

fines by instalments.

The applicant did not take any remedy against his above

detention, in particular he did not lodge a constitutional complaint

under Article 144 of the Federal Constitution.

11071/84

&_COMPLAINTS&S

The applicant now complains that his arrest and detention

violated Article 5 para. 1 of the Convention. Detention is only allowed

in the cases enumerated in subparas. a) to f) of this provision which

do not include a penal sanction imposed by an administrative

authority.

The applicant submits that the Austrian reservation concerning

Article 5 does not apply in his case as the legal provision on which

his detention was based entered into force only on 3 October 1974,

i.e. after the deposit of the reservation, and regulated a matter not

covered by the reservation as it did not provide for administrative

detention, but only for the imposition of fines.

&_PROCEEDINGS&S

The application was introduced on 2 May 1984 and registered

on 6 August 1984.

On 4 May 1987 the Commission decided to give notice of the

application to the respondent Government and to invite them, in

accordance with Rule 42 para. 2 (b) of the Rules of Procedure, to

submit observations in writing on the admissibility and merits of the

application. Certain specific questions were put to the Government in

this context.

The Government submitted their observations on 9 July 1987.

The applicant replied on 15 September 1987.

&_SUBMISSIONS OF THE PARTIES&S

A. The Government

The Government observe that the facts stated in the original

application are incorrect and incomplete in several respects. The

applicant alleged thirty administrative fines, whereas in a penal

order of 25 June 1982 it was stated that he had already received

fifty-six similar fines. Moreover, it is not true that the penal

orders were never served upon the applicant and that he had absolutely

no knowledge of these orders. All notifications were duly served in

accordance with the Official Notifications Act, but they were never

accepted or collected from the post office. The same applies to all

the summonses to serve the alternative prison sentences. The

applicant's description that he was arrested completely unexpectedly

and without reasons being given for his arrest is unfounded. The

applicant fetched at least one penal order - the one dated 27 August 1982

which was delivered to the same address as all the others - from the

post office on 3 September 1982.

In the Government's submission the application is inadmissible

for failure to exhaust the domestic remedies according to Article 26

of the Convention. Apart from the fact that the applicant did not

appeal against the relevant penal orders and the imposition of the

alternative sanctions of detention he failed to lodge a complaint

with the Constitutional Court.

There is no reason to assume that there were no prospects of

success for this legal remedy as claimed by the applicant. The

applicant's account of the Constitutional Court's case-law is

11071/84

incorrect. It is true that in its decision No. 5021/1965 the

Constitutional Court held that the Austrian reservation concerning

Article 5 of the Convention not only applied to the 1950 Code of

Administrative Offences but also to the measures envisaged there, no

matter which Act actually provides for them in a specific case. This

applies not only to measures of deprivation of liberty authorised by

substantive legislation, but also to measures authorised by procedural

laws, insofar as they are in accordance with the measures authorised

by the laws on administrative procedure. Under this case-law the

Constitutional Court applied the reservation to measures under the

Code of Financial Offences (Finanzstrafgesetz), but this view was

abandoned by a decision of 3 December 1984 (No. 10291).

In its decision No. 5021/1965 the Constitutional Court also

declared that the reservation applies to the alternative sanction of

detention according to Section 16 of the Code of Administrative

Offences. Yet it is not clear from this statement how the

Constitutional Court would view the relationship between the

reservation and Section 16 of the Code of Administrative Offences in

conjunction with a new offence created after the reservation was made.

From the existing case-law on the reservation it cannot be concluded

with certainty that lodging a complaint with the Constitutional Court

would, for this very reason, lack prospects. Apart from that a

constitutional appeal would certainly have had prospects of success if

the applicant's allegations were correct that the penal orders were

not served upon him and that he did not receive a summons to serve an

alternative sanction of detention (cf. Constitutional Court decisions

Nos. 3164/1957, 6352/1970 and 7921/1976).

The Government further submit that the case is in any event

covered by the above reservation concerning Article 5. The

alternative sanction of detention was imposed upon the applicant under

Sections 16 and 53 para. 4 of the Code of Administrative Offences

which was applicable in the Municipal Council's proceedings by virtue

of the Introductory Regulations of the laws on administrative

procedure. It is incorrect to say that the detention was based on the

Vienna Parking Fees Act. Therefore, the fact that the legislation of

1974 has introduced a new administrative offence cannot be regarded as

a relevant consideration. The reservation also applies to those laws

which - although they were enacted after the reservation - do not

result in an extension of the scope of substantive law intended to

be covered by the reservation (cf. Constitutional Court decisions

Nos.8234/1978 and 8428/1978, Eur. Court H.R. Campbell and Cosans

judgment of 25 February 1982, Series A no. 48, p. 17 para. 37b).

Fiscal regulations of the same kind as the Parking Fees Act existed

at the time when the Convention entered into force in Austria.

Especially in the field of fiscal legislation, because of the great

variety of possible levies, an individual Act cannot be made a point

of reference.

Finally, the detention complained of was imposed "in

accordance with the procedure prescribed by law" and "lawful" within the

meaning of Article 5 para. 1 of the Convention. The proceedings were

conducted in acccordance with the legal requirements as confirmed by

the case-law of the Constitutional Court (cf. decisions Nos. 7921/1976,

3164/1957 and 6352/1970).

The Government therefore ask the Commission to reject the

application for failure to exhaust the domestic remedies (Article 27

para. 3 of the Convention) or, alternatively, as being manifestly ill-

founded (Article 27 para. 2 of the Convention).

11071/84

B. The applicant

The applicant does not contest that the various penal orders

and the summonses to serve the alternative prison sentences may have

been served upon him in accordance with the provisions of the Official

Notifications Act. However, they were served by way of deposition at

the post office and therefore it was possible that the applicant was

not actually informed of the authority's measures. The fact that, in

his application to the Commission, the applicant had correctly cited

some of the relevant penal orders is only due to the fact that his

lawyer made enquiries in this respect after the applicant's arrest.

In any event it is irrelevant, in the applicant's view, whether the

penal orders were lawfully served and whether the applicant was

actually informed of these penal orders as his complaint under

Article 5 of the Convention relates to his subsequent arrest on

24 January 1984.

The applicant claims that in the particular circumstances it

had not been possible for him to appeal against the penal orders in

question. As regards the exhaustion of remedies by lodging a

complaint with the Constitutional Court, he submits that such a

complaint would not have had any prospects of success in view of the

constant case-law of the Constitutional Court. Constitutional rights

of the applicant could have been violated only if the reservation

concerning Article 5 of the Convention had not been applicable. The

applicant is convinced that the Constitutional Court would have

applied the reservation as it has consistently held that all

substantive provisions relating to deprivation of liberty are covered

by the reservation irrespective of whether they are contained in the

laws on administrative procedure.

This view is clearly supported by the Constitutional Court's

decision No. 5021/1965 to which the Government have referred. This

decision as well the subsequent decisions Nos. 8234/1978 and 8428/1978

clearly stated that the reservation covers not only the measures of

deprivation of liberty provided for in the laws on administrative

procedure as such, but all measures of the same type irrespective of

which law in particular they are based upon. This view was also

maintained in respect of laws enacted after the entery into force of

the Convention, such as the Road Traffic Act (Strassenverkehrsordnung)

1960 or the Carinthian Act for the Protection of Natural Sites

(Kärntner Landschaftsschutzgesetz) 1969, because they did not bring

about an extension of the substantive law which the reservation aimed

at excluding from the scope of the Convention ("weil sie keine

nachträgliche Erweiterung jenes materiellrechtlichen Bereiches

bewirken, der durch die Abgabe des Vorbehaltes ausgeschlossen werden

sollte"). The applicant claims that the situation in the present case

is exactly the same as that in those cases. Here too, a new

administrative offence was created after the reservation was made

and a constitutional complaint would therefore not have had any

prospects of success.

The fact that, in its decision No. 10291/1984, the

Constitutional Court excluded the Code of Financial Offences from

the scope of the reservation does not support the Government's view as

that decision concerned a different problem. The Code of Financial

Offences is a separate legislation which does not refer to the Code of

Administrative Offences but contains its own penal and procedural

provisions.

11071/84

In the applicant's view the Parking Fees Act of 1974

is not covered by the reservation as it created a new administrative

offence which did not exist at the time when the reservation was

made. It did not replace another similar provision and thus led to

a subsequent extension of the administrative laws to which the

reservation refers. The Government's view, according to which such

subsequent extensions are possible under the reservation, is

untenable. The Commission itself has only accepted such subsequent

legislation as being covered by the Austrian reservation which, in

substance, replaced legislation existing already at the date of the

ratification of the Convention by Austria (cf. No. 1047/81,

Dec. 15.12.61, YB 4 p. 356; No. 1731/62, Dec. 16.12.64, YB 7

p. 192; No. 1138/61, Dec. 18.6.63, Coll. 11 p. 9; No. 2432/65,

Dec. 7.4.67, Coll. 22 p. 124). The extension of the reservation to

entirely new administrative provisions, such as those of the Parking

Fees Act, would amount to a general reservation which is inadmissible

under Article 64 of the Convention.

For these reasons, the applicant maintains that Article 5 of

the Convention has been violated in his case.

&_THE LAW&S

The applicant claims that his detention for failure to pay

certain fines violated Article 5 para. 1 of the Convention as it had

been ordered by an administrative authority and was not covered by the

Austrian reservation concerning Article 5 of the Convention (cf. p. 3

above). In this respect he alleges that the basis of the detention

was new legislation enacted in 1974, i.e. after the deposit of the

reservation, and that furthermore this legislation did not provide for

any measures of detention, but only for the imposition of fines.

Article 5 para. 1 of the Convention secures to everyone the

right to liberty and security of person and it further provides that

no one shall be deprived of his liberty save in the cases specifically

enumerated in subparas. a) to f) and in accordance with a procedure

prescribed by law. This provision is in principle applicable to any

measure of detention imposed by Austrian authorities not covered by

the Austrian reservation concerning Article 5.

However, the Commission is not called upon to determine

whether or not the detention complained of is covered by the Austrian

reservation, and if not, whether it is justified under Article 5

para.1, as, under Article 26 of the Convention, the Commission 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 failed to lodge a complaint

with the Constitutional Court in accordance with Article 144 of the

Federal Constitution. He claims that such a complaint would not have

offered any prospects of success in view of the Constitutional Court's

constant case-law, but the Commission notes that the Court has not

dealt with the question whether the reservation covers the particular

legislation at issue despite the fact that this legislation was

enacted after the deposit of the reservation and did not replace

earlier legislation of similar content. Nor has it been shown

that a complaint to the Constitutional Court (or the Administrative

11071/84

Court) regarding the alleged shortcomings in the procedure, in

particular the alleged failure to inform the applicant of the relevant

decisions prior to his arrest, would have been hopeless.

It follows that the applicant has not shown that a complaint

to the Constitutional Court on the ground of an alleged violation of

his constitutional rights under Article 5 of the Convention would

have been an ineffective remedy (cf. mutatis mutandis No. 712/60,

Dec. 16.12.61, Retimag AG v. Federal Republic of Germany,

Collection 8 pp. 29, 41 = Yearbook 4 pp. 384, 406, and No. 9675/82,

Freie Rundfunk AG i. Gr. v. Federal Republic of Germany, Dec. 4.3.87,

para. 5 of The Law, to be published in D.R.).

Moreover, the case 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. The applicant

accordingly cannot be regarded as having exhausted all domestic

remedies available to him under Austrian law.

It follows that the application must be rejected under

Article 27 para. 3 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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RADETZKY v. AUTRICHE

RADETZKY v. AUTRICHE

LEXI