CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 8 janvier 1993

.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. 15718/89                       by I.H.                       against Austria           The European Commission of Human Rights (First Chamber) sitting in private on 8 January 1993, the following members being present:              MM.    J.A. FROWEIN, President of the First Chamber                  F. ERMACORA                  E. BUSUTTIL                  A.S. GÖZÜBÜYÜK            Sir    Basil HALL            Mr.    C.L. ROZAKIS            Mrs.   J. LIDDY            MM.    M. PELLONPÄÄ                  G.B. REFFI              Mrs. M.F. BUQUICCHIO, Secretary to the First 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 26 May 1989 by I.H. against Austria and registered on 30 October under file No. 15718/89;         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 an Austrian citizen born in 1938 and living in Reichenau.   She is represented by Mr. H. Blum, a lawyer practising in Linz.         It follows from the applicant's statements and the documents submitted that on 28 June 1988, upon returning from a cure in Italy, the applicant was controlled by Austrian Customs and a fine of 3,500 AS was imposed on her in accordance with Section 35 (4) in connection with Section 17 of the Fiscal Offences Act (Finanzstrafgesetz) for having attempted to smuggle a gold necklace.   The necklace was confiscated.         The Customs Authorities are authorised under the Fiscal Offences Act to impose a fine (vereinfachte Strafverfügung) in cases of minor importance and if the person concerned has admitted the offence.         In connection with the imposition of the fine the applicant signed the following prepared statement:   [German]       "Ich bin mit der Erlassung dieser Strafverfügung, gegen die       ein Einspruch unzulässig ist, einverstanden"   [Translation]       "Declaration of the Traveller:   I consent to the fine order       against which an appeal is inadmissible" .         The applicant later lodged an appeal (Beschwerde) with the Administrative Court (Verwaltungsgerichtshof) which was rejected on 27 October 1988.   It appears that this decision was received by applicant's counsel on 28 November 1988.         It is stated in the decision that a fine may be imposed by the Customs Authorities only if the person concerned has confessed the customs offence, has been informed of the authorities' intention consequently to impose a fine and has further been informed that if the fine order is accepted it is final, in other words, there is no possibility of an appeal.         The Administrative Court considered that these conditions were satisfied in the applicant's case in view of the prepared statement which she had signed.   The Court pointed out that before signing this statement, the applicant took note of the fine order mentioning that she is considered guilty of attempting to smuggle a gold necklace worth 12,200 AS.   The Court considered that the applicant's acceptance of the fine also included the acceptance of the finding that she had attempted to smuggle a gold necklace.   By having signed the statement the applicant had renounced challenging the fine order.   In the opinion of the Administrative Court the statement which she had signed was clear and unequivocal and her signature had not been obtained by threats or deception.         In the Court's opinion there was furthermore no violation of Article 6 para. 1 in conjunction with Article 5 para. 1 (a) of the Convention as only a fine was imposed on the applicant and not a sanction involving deprivation of liberty.   Furthermore she would have had the right to a determination of the charge laid against her by a tax tribunal had she not accepted the settlement of the matter by way of a fine.   COMPLAINTS         The applicant alleges that she never admitted the charge of attempted smuggling.   She considers the prepared statement signed by her to be misleading and submits that she misunderstood it, believing that her signature was necessary to terminate the matter before the Customs Authorities leaving her however the right of an appeal once she had returned to her residence and thought the case over.         She alleges a violation of Article 6 of the Convention.     THE LAW         The applicant complains that she was fined by the Austrian Customs Authorities for an attempted smuggling offence which she denied having committed and that she was deprived of access to a court in that she was led to sign a prepared and misleading statement waiving her right to an appeal.   She invokes Article 6 (Art. 6) of the Convention which guarantees the right to a fair hearing.         However, the applicant has not alleged that any undue pressure was imposed on her by the Customs Authorities in order to make her accept and pay the fine and to sign the statement in question.         Under the circumstances in which she found herself at the time and in the light of the prepared statement, the applicant was in a position to realise the legal consequences of her signing the statement. She states herself that she considered thereby to terminate the matter before the Customs Authorities.   In acting in this manner the applicant avoided criminal proceedings which might have led to a severer punishment.   She must therefore be considered as having accepted the fine and as having waived her right to an appeal.   The applicant is thus herself responsible for the loss of the possibility to have the charge of an attempted smuggling offence determined by a court.         It follows that there is no appearance of a violation of Article 6 (Art. 6) of the Convention and the application has to be rejected as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.         For these reasons, the Commission by a majority           DECLARES THE APPLICATION INADMISSIBLE.     Secretary to the First Chamber         President of the First Chamber              (M. F. BUQUICCHIO)                         (J.A. FROWEIN)