AS TO THE ADMISSIBILITY OF
Application No. 22338/93
by Gavril DEMIAN
against Austria
The European Commission of Human Rights (First Chamber) sitting
in private on 30 November 1994, the following members being present:
MM. A. WEITZEL, President
C.L. ROZAKIS
F. ERMACORA
E. BUSUTTIL
Mrs. J. LIDDY
MM. M.P. PELLONPÄÄ
B. MARXER
G.B. REFFI
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
G. RESS
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 11 June 1993 by
Gavril DEMIAN against Austria and registered on 26 July 1993 under file
No. 22338/93;
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 a Romanian citizen, born in 1958 and presently
living in Leonding, Austria. The applicant is represented by
Mr. H. Blum, a lawyer practising in Linz.
It follows from his statements and the documents submitted that
on 8 August 1991 the Independent Administrative Board of Upper Austria
(Unabhängiger Verwaltungssenat des Landes Oberösterreich) found that
the applicant's detention in the police prison from Linz from
29 May 1991 until his release on 19 July 1991 at 11.30 hrs. was
unlawful (rechtswidrig).
According to the findings of the board:
- The applicant had illegally entered Austrian territory in
September 1990. As his request for asylum had been rejected and
as he had admitted a criminal offence he had been expelled to his
country of origin.
- He had returned, however, illegally to Austria and had been re-
arrested on 24 April 1991 with a view to being expelled again.
The police warrant for arrest of 24 April 1991 had been approved
by the Independent Administrative Board on 21 May 1991.
- On 12 April 1991 the applicant had made a request for a
stay of execution of the expulsion order.
- On 27 May 1991 he made a further request for political
asylum stating that in Rumania he had again been subjected
to political persecution. Furthermore he submitted that
his wife and 8 month old child had also come to Austria and
had requested political asylum. He submitted a medical
certificate according to which his wife needed treatment in
a hospital. Therefore his release was necessary as he had
to take care of the child. These submissions were received
on 29 May 1991.
- On 19 June 1991 the competent security authorities had
extended the applicant's detention pending expulsion for
three months.
- On 16 July 1991 the police authorities had lifted the order
according to which the applicant was not allowed to stay in
Austria.
- Subsequently the applicant had been released on 19 July
1991 at 11.30 hrs.
In view of these circumstances the Independent Administrative
Board considered that on the one hand the order of 19 June 1991
according to which the applicant's detention was extended for three
months constituted a new legal ground for his detention. On the other
hand the applicant had in the view of the undetermined period of his
detention a right in accordance with Article 5 para. 4 of the European
Convention of Human Rights that the lawfulness of his detention be
decided speedily and that his release ordered if the detention were not
lawful. The Administrative Board considered that the competent
authorities had not decided speedily on the applicant's request of
12 April 1991 to stay the execution of the expulsion measures although
particular urgency had been unnecessary in view of the humanitarian
reasons invoked by the applicant in his submission of 27 May 1991. It
could be left undecided whether the principle of speediness had been
violated already by the fact that the object of the applicant's
detention was allegedly no longer realisable. In any event, after
receipt on 29 May 1991 of the applicant's submissions of 27 May 1991
the competent authorities were aware of the necessity that the
applicant take care of his child and therefore his continued detention
was unlawful from that date onwards.
The Administrative Board ordered the defendant authorities to pay
the applicant AS 16, 555.20 in respect of costs incurred by him in the
proceedings. The board stated in this respect that the costs did not
exceed the usual tariffs and had to be considered as having been
necessarily incurred.
The applicant then brought an action for damages
(Amtshaftungsverfahren) claiming compensation for his detention between
29 May and 19 July 1991 in the amount of AS 29,000 as well as further
costs incurred in the proceedings before the Independent Administrative
Board in the amount of AS 16,194.20.
On 20 May 1992 the Regional Court (Landesgericht) in Linz awarded
the applicant compensation in the amount requested but dismissed his
claim for further costs related to the proceedings before the
Independent Administrative Board.
It considered that the applicant could claim compensation under
Article 5 para. 5 irrespective of whether or not the defendant
authority was at fault.
In respect of the additional claim for costs the court considered
however, that the tariff regulations on the basis of which the
applicant had calculated his costs before the Independent
Administrative Board were binding. In connection with these
regulations the applicant's counsel had calculated his fees on the
basis of a value of claim in the amount of AS 300,000. Consequently
he could not now claim additional fees even if applicant's counsel was
entitled to agree fees with his clients in accordance with the
autonomous guidelines for fees (autonome Honorarrichtlinien).
The Regional Court's judgment was confirmed by the Court of
Appeal (Oberlandesgerichts) in Linz on 25 November 1992. This court
pointed out that before the Independent Administrative Board the
applicant had only claimed reimbursement of costs in the amount of AS
16,194.20. The court considered that contrary to the applicant's
submissions there was nothing to show that the Independent
Administrative Board would have rejected the additional claim for
reimbursement of costs had they been duly raised and substantiated in
particular if he had shown the additional costs were necessarily
incurred.
COMPLAINTS
The applicant considers that the denial of compensation with
regard to additional lawyers fees incurred in the domestic proceedings
violate his right under Article 5 para. 5 of the Convention.
THE LAW
The applicant has complained under Article 5 para. 5 (Art. 5-5)
that he was refused reimbursement of costs incurred in domestic
proceedings leading to the findings that his rights under Article 5
(Art. 5) had been violated.
However, the Commission is not required to decide whether or not
the facts alleged by the applicant disclose any appearance of a
violation of this provision as, under Article 26 (Art. 26) of the
Convention, it 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, according to the findings of
the Linz Court of Appeal, failed to raise his alleged claim for
reimbursement of fees before the Independent Administrative Board. He
can in these circumstances not be considered to have exhausted domestic
remedies available under Austrian law in accordance with Article 26
(Art. 26) of the Convention. Moreover, an examination of the case as
it has been submitted 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.
It follows that the applicant has not complied with the condition
as to the exhaustion of domestic remedies and his application must be
rejected under Article 27 para. 3 (Art. 27-3) of the Convention.
For these reasons, the Commission unanimously
DECLARES THE APPLICATION INADMISSIBLE
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (A. WEITZEL)
Full & Egal Universal Law Academy