CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 30 novembre 1994

.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. 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)