Application No. 26394/95
by Christian BUCHHOLZ
against Austria
The European Commission of Human Rights sitting in private on
20 January 1997, the following members being present:
Mr. S. TRECHSEL, President
Mrs. G.H. THUNE
MM. E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H. DANELIUS
F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
M.A. NOWICKI
I. CABRAL BARRETO
I. BÉKÉS
J. MUCHA
D. SVÁBY
G. RESS
A. PERENIC
C. BÎRSAN
P. LORENZEN
K. HERNDL
E. BIELIUNAS
E.A. ALKEMA
M. VILA AMIGÓ
Mrs. M. HION
Mr. R. NICOLINI
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 20 December 1994
by Christian BUCHHOLZ against Austria and registered on 6 February 1995
under file No. 26394/95;
Having regard to :
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the observations submitted by the respondent Government on
20 June 1996 and the observations in reply submitted by the
applicant on 12 August 1996;
- the applicant's letter of 3 December 1996 requesting an
adjournment of the proceedings;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a German citizen, born in 1971. He lives in
Baden and is represented before the Commission by Mr. T. Prader, a
lawyer practising in Vienna. The facts of the application, as they
have been submitted by the parties, may be summarised as follows.
The particular circumstances of the case
On 2 April 1991 an incident took place which resulted in a
policeman pronouncing the applicant's "provisional arrest in order to
establish his nationality, pursuant to Section 35 (a) of the Code of
Administrative Offences, taken together with Section 99 (2) (c) of the
Road Traffic Act".
The applicant attempted to prevent his arrest. After a struggle
of about one minute, the policeman pronounced the applicant's arrest
"under the Code of Criminal Procedure". The policeman called for re-
enforcements which arrived soon after.
The applicant was taken to the prison of the local court, and
released after he had been interviewed.
The applicant was convicted on 23 March 1992 of attempting to
prevent an official from carrying out an official action under Section
269 of the Criminal Code, and of causing serious bodily harm. The
first instance court found that the applicant had caused a series of
injuries to named policemen whilst resisting arrest. He was sentenced
to three months' imprisonment, suspended for three years. His plea of
nullity and appeals against sentence were dismissed on 4 August 1992.
The Vienna Court of Appeal, in its appeal decision, noted that the
first instance court had not accepted that Article 269 para. 4 of the
Criminal Code applied. The Court of Appeal agreed that the first
arrest was unlawful because the policeman did not have the proper
authority pursuant to Section 94 (3) of the Road Traffic Act, but
considered that the unlawfulness was a question of pure form which
could not give rise to the offence of violating the applicant's right
to freedom of the person (Article 303 of the Criminal Code) because the
arrest was an act of a type permitted.
Criminal proceedings against the policeman concerned and against
other policemen were discontinued.
The applicant complained to the Independent Administrative Board
for Lower Austria that his arrest and treatment at the hands of the
police on 2 April 1991 were in violation of his rights to personal
freedom and to freedom from inhuman or degrading treatment.
The Independent Administrative Board held a hearing in the case
on 8 and 15 January 1992 and gave its decision on 20 February 1992.
It found a violation of the applicant's right to personal freedom in
connection with the first arrest, under the Code of Administrative
Offences, but not in connection with the second arrest, under the Code
of Criminal Procedure. On the merits, the Board found a violation of
the applicant's right not to be subjected to inhuman or degrading
treatment.
In connection with the complaint concerning the applicant's right
to personal freedom, the Independent Administrative Board found that
the policeman who arrested the applicant did not have the requisite
authority under Section 94 (c) of the Road Traffic Act or Section 35
of the Code of Administrative Offences, and the first arrest therefore
violated the applicant's right to personal freedom. On the merits, the
Board doubted the policeman's claim that he had not recognised the
applicant when he was driving the car, considering that the policeman
must have recognised the applicant as a person who had been fined on
several occasions for not possessing the proper Austrian driving
licence, and must have decided to pursue him for that reason. The
Board considered that the policeman must have realised that the
applicant lived at the house at the latest when they all arrived there,
such that his identity could easily be established. There was
accordingly no reason to arrest him.
As to the second arrest, the Board recalled that an official's
protection in respect of resistance to official acts extends to
resistance to acts which are not themselves lawful (auch materiell
unrechtmässige Amtshandlungen sind gegen Widerstand geschützt). It
continued by stating that Section 177 (1) (1) of the Code of Criminal
Procedure provides for the provisional detention of a person suspected
of an offence for the purpose of bringing him before a competent
authority, even without a written order. In particular such an arrest
may be effected when the suspected person is caught in the act. The
Board considered that the applicant's behaviour in grasping the
policeman's shoulder and knocking the handcuffs was to be regarded as
hindering the policeman from carrying out an official act, namely, the
arrest of the applicant under Section 35 of the Code of Administrative
Offences. The (second) arrest was therefore covered by Section 177 (1)
(1) of the Code of Criminal Procedure, and the complaint was dismissed
in this connection.
On 31 March 1992 the applicant lodged a constitutional complaint.
The Constitutional Court declined to deal with the applicant's
constitutional complaint on 29 September 1992, and the Administrative
Court rejected the applicant's complaint on 23 March 1994 as all the
complaints were of a constitutional nature, rather than raising
questions of ordinary law. The applicant's representative received the
Administrative Court's decision on 21 June 1994.
On 29 September 1994 the applicant requested the Constitutional
Court to determine whether it or the Administrative Court should have
dealt with his complaint of 31 March 1992, as in the event both had
declined jurisdiction.
On 29 February 1996 the Constitutional Court declared the
Administrative Court competent to deal with the applicant's complaint
of 31 March 1992. The Administrative Court's decision of 23 March 1994
was quashed.
On 25 September 1996, the Administrative Court quashed the
relevant parts of the Independent Administrative Board's decision of
20 February 1992. The applicant's representative received the
Administrative Court's decision on 20 November 1996.
The case is now pending again before the Independent
Administrative Board for Lower Austria.
Relevant domestic law
Section 35 of the Code of Administrative Offences provides, so
far as relevant, as follows:
"The agents of the security forces may ... arrest persons caught
in the act of committing an offence, for the purpose of bringing
them before the authorities, if
(a) the person is not known to the agent of the security
forces, does not produce any means of identity, and his identity
cannot otherwise be determined on the spot ...".
Section 94 (c) of the Road Traffic Act enables the provincial
(Land) authorities to transfer certain competences to the local
authority (Gemeinde). Section 99 (2) (c) makes any breach of the
provisions of that Act an offence if it is particularly dangerous or
reckless with regard to other road users.
Section 177 (1) (1) of the Code of Criminal Procedure provides
for arrest without a warrant where a suspected person is apprehended
in the course of committing an offence. Preventing an official from
carrying out an official action is an offence under Section 269 (1) of
the Criminal Code, although Section 269 (4) provides for a defence
where the official is not authorised at all to take that specific type
of action.
COMPLAINTS
The applicant alleges a violation of Article 5 of the Convention
in connection with the second arrest.
He considers that the facts established by the Independent
Administrative Board cannot possibly amount to the offence of resisting
the forces of law and order, so that there was no basis for the second
detention. He further considers that, even if the facts could
conceivably have amounted to the offence under Section 269 of the
Criminal Code, the detention was nevertheless contrary to Article 5
because he was merely trying to prevent an arrest which was itself
contrary to Article 5. He claims that a degree of self-defence must
be permitted in relation to unlawful detention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 20 December 1994 and registered
on 6 February 1995.
On 7 March 1996 the Commission decided to communicate the
application to the respondent Government.
The Government's written observations were submitted on 20 June
1996, after an extension of the time-limit fixed for that purpose. The
applicant replied on 12 August 1996.
By letter of 3 December 1996 the applicant informed the
Commission that the Constitutional Court had declared the
Administrative Court competent to deal with his complaint of 31 March
1992, that the Administrative Court had quashed the Independent
Administrative Board's decision of 20 February 1992, and that the case
was again pending before the Independent Administrative Board. He
requested the Commission to adjourn the proceedings pending a final
outcome.
REASONS FOR THE DECISION
The applicant initially alleged violation of Article 5 of the
Convention, but in the light of the developments before the Austrian
authorities, now requests the Commission to adjourn the proceedings.
The Government contest the alleged violation of Article 5.
Article 30 para. 1 of the Convention provides, so far as
relevant, as follows:
"The Commission may at any stage of the proceedings decide to
strike a petition out of its list of cases where the
circumstances lead to the conclusion that:
...
(c) for any other reason established by the Commission, it is
no longer justified to continue the examination of the petition.
However, the Commission shall continue the examination of a
petition if respect for Human Rights as defined in this
Convention so requires."
When the application was originally introduced before the
Commission, the "final decision" referred to in Article 26 of the
Convention was the decision of the Administrative Court of 21 June
1994. That decision was quashed by the Constitutional Court on
29 February 1996, and the case is now again pending before the
Independent Administrative Board.
In these circumstances, the Commission considers that it is no
longer justified to continue the examination of this application.
The Commission finds no reasons within the meaning of the final
sentence of Article 30 para. 1 which could require the Commission to
continue the examination of the application.
It follows that the conditions set out in Article 30 para. 1 of
the Convention for striking the case off the Commission's list of cases
are met.
For these reasons, the Commission, unanimously,
DECIDES TO STRIKE THE APPLICATION OUT OF ITS LIST OF CASES.
H.C. KRÜGER S. TRECHSEL
Secretary President
to the Commission of the Commission
Full & Egal Universal Law Academy