CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 15 février 1990

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                         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)