CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 20 janvier 1997

.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 }                            Application No. 26394/95                       by Christian BUCHHOLZ                       against Austria        The European Commission of Human Rights sitting in private on 20 January 1997, the following members being present:              Mr.    S. TRECHSEL, President            Mrs.   G.H. THUNE            MM.    E. BUSUTTIL                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  J.-C. SOYER                  H. DANELIUS                  F. MARTINEZ                  L. LOUCAIDES                  J.-C. GEUS                  M.P. PELLONPÄÄ                  M.A. NOWICKI                  I. CABRAL BARRETO                  I. BÉKÉS                  J. MUCHA                  D. SVÁBY                  G. RESS                  A. PERENIC                  C. BÎRSAN                  P. LORENZEN                  K. HERNDL                  E. BIELIUNAS                  E.A. ALKEMA                  M. VILA AMIGÓ            Mrs.   M. HION            Mr.    R. NICOLINI              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 20 December 1994 by Christian BUCHHOLZ against Austria and registered on 6 February 1995 under file No. 26394/95;        Having regard to :   -     the reports provided for in Rule 47 of the Rules of Procedure of      the Commission;   -     the observations submitted by the respondent Government on      20 June 1996 and the observations in reply submitted by the      applicant on 12 August 1996;   -     the applicant's letter of 3 December 1996 requesting an      adjournment of the proceedings;        Having deliberated;        Decides as follows:   THE FACTS        The applicant is a German citizen, born in 1971.   He lives in Baden and is represented before the Commission by Mr. T. Prader, a lawyer practising in Vienna.   The facts of the application, as they have been submitted by the parties, may be summarised as follows.   The particular circumstances of the case        On 2 April 1991 an incident took place which resulted in a policeman pronouncing the applicant's "provisional arrest in order to establish his nationality, pursuant to Section 35 (a) of the Code of Administrative Offences, taken together with Section 99 (2) (c) of the Road Traffic Act".        The applicant attempted to prevent his arrest.   After a struggle of about one minute, the policeman pronounced the applicant's arrest "under the Code of Criminal Procedure".   The policeman called for re- enforcements which arrived soon after.        The applicant was taken to the prison of the local court, and released after he had been interviewed.        The applicant was convicted on 23 March 1992 of attempting to prevent an official from carrying out an official action under Section 269 of the Criminal Code, and of causing serious bodily harm.   The first instance court found that the applicant had caused a series of injuries to named policemen whilst resisting arrest.   He was sentenced to three months' imprisonment, suspended for three years.   His plea of nullity and appeals against sentence were dismissed on 4 August 1992. The Vienna Court of Appeal, in its appeal decision, noted that the first instance court had not accepted that Article 269 para. 4 of the Criminal Code applied.   The Court of Appeal agreed that the first arrest was unlawful because the policeman did not have the proper authority pursuant to Section 94 (3) of the Road Traffic Act, but considered that the unlawfulness was a question of pure form which could not give rise to the offence of violating the applicant's right to freedom of the person (Article 303 of the Criminal Code) because the arrest was an act of a type permitted.        Criminal proceedings against the policeman concerned and against other policemen were discontinued.        The applicant complained to the Independent Administrative Board for Lower Austria that his arrest and treatment at the hands of the police on 2 April 1991 were in violation of his rights to personal freedom and to freedom from inhuman or degrading treatment.        The Independent Administrative Board held a hearing in the case on 8 and 15 January 1992 and gave its decision on 20 February 1992. It found a violation of the applicant's right to personal freedom in connection with the first arrest, under the Code of Administrative Offences, but not in connection with the second arrest, under the Code of Criminal Procedure.   On the merits, the Board found a violation of the applicant's right not to be subjected to inhuman or degrading treatment.        In connection with the complaint concerning the applicant's right to personal freedom, the Independent Administrative Board found that the policeman who arrested the applicant did not have the requisite authority under Section 94 (c) of the Road Traffic Act or Section 35 of the Code of Administrative Offences, and the first arrest therefore violated the applicant's right to personal freedom.   On the merits, the Board doubted the policeman's claim that he had not recognised the applicant when he was driving the car, considering that the policeman must have recognised the applicant as a person who had been fined on several occasions for not possessing the proper Austrian driving licence, and must have decided to pursue him for that reason.   The Board considered that the policeman must have realised that the applicant lived at the house at the latest when they all arrived there, such that his identity could easily be established.   There was accordingly no reason to arrest him.        As to the second arrest, the Board recalled that an official's protection in respect of resistance to official acts extends to resistance to acts which are not themselves lawful (auch materiell unrechtmässige Amtshandlungen sind gegen Widerstand geschützt).   It continued by stating that Section 177 (1) (1) of the Code of Criminal Procedure provides for the provisional detention of a person suspected of an offence for the purpose of bringing him before a competent authority, even without a written order.   In particular such an arrest may be effected when the suspected person is caught in the act.   The Board considered that the applicant's behaviour in grasping the policeman's shoulder and knocking the handcuffs was to be regarded as hindering the policeman from carrying out an official act, namely, the arrest of the applicant under Section 35 of the Code of Administrative Offences.   The (second) arrest was therefore covered by Section 177 (1) (1) of the Code of Criminal Procedure, and the complaint was dismissed in this connection.        On 31 March 1992 the applicant lodged a constitutional complaint. The Constitutional Court declined to deal with the applicant's constitutional complaint on 29 September 1992, and the Administrative Court rejected the applicant's complaint on 23 March 1994 as all the complaints were of a constitutional nature, rather than raising questions of ordinary law.   The applicant's representative received the Administrative Court's decision on 21 June 1994.        On 29 September 1994 the applicant requested the Constitutional Court to determine whether it or the Administrative Court should have dealt with his complaint of 31 March 1992, as in the event both had declined jurisdiction.        On 29 February 1996 the Constitutional Court declared the Administrative Court competent to deal with the applicant's complaint of 31 March 1992.   The Administrative Court's decision of 23 March 1994 was quashed.        On 25 September 1996, the Administrative Court quashed the relevant parts of the Independent Administrative Board's decision of 20 February 1992.   The applicant's representative received the Administrative Court's decision on 20 November 1996.        The case is now pending again before the Independent Administrative Board for Lower Austria. Relevant domestic law        Section 35 of the Code of Administrative Offences provides, so far as relevant, as follows:        "The agents of the security forces may ... arrest persons caught      in the act of committing an offence, for the purpose of bringing      them before the authorities, if        (a)    the person is not known to the agent of the security      forces, does not produce any means of identity, and his identity      cannot otherwise be determined on the spot ...".        Section 94 (c) of the Road Traffic Act enables the provincial (Land) authorities to transfer certain competences to the local authority (Gemeinde).   Section 99 (2) (c) makes any breach of the provisions of that Act an offence if it is particularly dangerous or reckless with regard to other road users.        Section 177 (1) (1) of the Code of Criminal Procedure provides for arrest without a warrant where a suspected person is apprehended in the course of committing an offence.   Preventing an official from carrying out an official action is an offence under Section 269 (1) of the Criminal Code, although Section 269 (4) provides for a defence where the official is not authorised at all to take that specific type of action.   COMPLAINTS        The applicant alleges a violation of Article 5 of the Convention in connection with the second arrest.        He considers that the facts established by the Independent Administrative Board cannot possibly amount to the offence of resisting the forces of law and order, so that there was no basis for the second detention.   He further considers that, even if the facts could conceivably have amounted to the offence under Section 269 of the Criminal Code, the detention was nevertheless contrary to Article 5 because he was merely trying to prevent an arrest which was itself contrary to Article 5.   He claims that a degree of self-defence must be permitted in relation to unlawful detention.   PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 20 December 1994 and registered on 6 February 1995.        On 7 March 1996 the Commission decided to communicate the application to the respondent Government.        The Government's written observations were submitted on 20 June 1996, after an extension of the time-limit fixed for that purpose.   The applicant replied on 12 August 1996.        By letter of 3 December 1996 the applicant informed the Commission that the Constitutional Court had declared the Administrative Court competent to deal with his complaint of 31 March 1992, that the Administrative Court had quashed the Independent Administrative Board's decision of 20 February 1992, and that the case was again pending before the Independent Administrative Board.   He requested the Commission to adjourn the proceedings pending a final outcome.   REASONS FOR THE DECISION        The applicant initially alleged violation of Article 5 of the Convention, but in the light of the developments before the Austrian authorities, now requests the Commission to adjourn the proceedings. The Government contest the alleged violation of Article 5.        Article 30 para. 1 of the Convention provides, so far as relevant, as follows:        "The Commission may at any stage of the proceedings decide to      strike a petition out of its list of cases where the      circumstances lead to the conclusion that:      ...      (c)    for any other reason established by the Commission, it is      no longer justified to continue the examination of the petition.        However, the Commission shall continue the examination of a      petition if respect for Human Rights as defined in this      Convention so requires."        When the application was originally introduced before the Commission, the "final decision" referred to in Article 26 of the Convention was the decision of the Administrative Court of 21 June 1994.   That decision was quashed by the Constitutional Court on 29 February 1996, and the case is now again pending before the Independent Administrative Board.        In these circumstances, the Commission considers that it is no longer justified to continue the examination of this application.        The Commission finds no reasons within the meaning of the final sentence of Article 30 para. 1 which could require the Commission to continue the examination of the application.        It follows that the conditions set out in Article 30 para. 1 of the Convention for striking the case off the Commission's list of cases are met.          For these reasons, the Commission, unanimously,        DECIDES TO STRIKE THE APPLICATION OUT OF ITS LIST OF CASES.           H.C. KRÜGER                          S. TRECHSEL          Secretary                             President      to the Commission                     of the Commission