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)