Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

Application No. 25711/94

C. M. L.-O.

against

Switzerland

REPORT OF THE COMMISSION

(adopted on 1 July 1997)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-15). . . . . . . . . . . . . . . . . . . . . .1

A. The application

(paras. 2-4). . . . . . . . . . . . . . . . . . . .1

B. The proceedings

(paras. 5-10) . . . . . . . . . . . . . . . . . . .1

C. The present Report

(paras. 11-15). . . . . . . . . . . . . . . . . . .2

II. ESTABLISHMENT OF THE FACTS

(paras. 16-30) . . . . . . . . . . . . . . . . . . . . .3

A. The particular circumstances of the case

(paras. 16-28). . . . . . . . . . . . . . . . . . .3

B. Relevant domestic law

(paras. 29-30). . . . . . . . . . . . . . . . . . .6

III. OPINION OF THE COMMISSION

(paras. 31-51) . . . . . . . . . . . . . . . . . . . . .7

A. Complaint declared admissible

(para. 31). . . . . . . . . . . . . . . . . . . . .7

B. Point at issue

(para. 32). . . . . . . . . . . . . . . . . . . . .7

C. Article 4 of Protocol No. 7 to the Convention

(paras. 33-50). . . . . . . . . . . . . . . . . . .7

CONCLUSION

(para. 51). . . . . . . . . . . . . . . . . . . . 10

DISSENTING OPINION OF MRS. J. LIDDY, MM. J.-C. SOYER,

C.L. ROZAKIS, I. CABRAL BARRETO, N. BRATZA, K. HERNDL

AND E. BIELIUNAS. . . . . . . . . . . . . . . . . . . . . . 11

DISSENTING OPINION OF MR. L. LOUCAIDES. . . . . . . . . . . 13

APPENDIX: DECISION OF THE COMMISSION AS TO THE

ADMISSIBILITY OF THE APPLICATION. . . . . . . . . 15

I. INTRODUCTION

1. The following is an outline of the case as submitted to the

European Commission of Human Rights, and of the procedure before the

Commission.

A. The application

2. The applicant is a Portuguese citizen, born in 1967 and resident

at Urdorf in Switzerland. She is represented before the Commission by

Mr A. von Albertini, a lawyer practising in Zurich.

3. The application is directed against Switzerland. The respondent

Government are represented by Mr Ph. Boillat, Head of the European Law

and International Affairs Section of the Federal Office of Justice,

Agent.

4. The case relates to the applicant's complaint that, following a

car accident, she was first fined for not mastering her vehicle, and

later for having negligently caused bodily injury to the driver of

another car. The applicant complains of a breach of the principle ne

bis in idem enshrined in Article 4 of Protocol No. 7 in that she was

twice fined for the same offence.

B. The proceedings

5. The application was introduced on 22 October 1994 and registered

on 18 November 1994.

6. On 9 April 1996 the Commission decided, pursuant to Rule 48

para. 2 (b) of its Rules of Procedure, to give notice of the

application to the respondent Government and to invite the parties to

submit written observations on its admissibility and merits.

7. The Government's observations were submitted on 21 June 1996.

The applicant replied on 19 August 1996.

8. On 13 January 1997 the Commission declared the application

admissible.

9. The text of the Commission's decision on admissibility was sent

to the parties on 29 January 1997 and they were invited to submit such

further information or observations on the merits as they wished.

However, no such observations were submitted.

10. After declaring the case admissible, the Commission, acting in

accordance with Article 28 para. 1 (b) of the Convention, also placed

itself at the disposal of the parties with a view to securing a

friendly settlement. In the light of the parties' reaction, the

Commission now finds that there is no basis on which such a settlement

can be effected.

C. The present Report

11. The present Report has been drawn up by the Commission in

pursuance of Article 31 of the Convention and after deliberations and

votes, the following members being present:

Mrs. G.H. THUNE, Acting President

Mr. S. TRECHSEL

Mrs. J. LIDDY

MM. E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H. DANELIUS

F. MARTINEZ

C.L. ROZAKIS

L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

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

MM. R. NICOLINI

A. ARABADJIEV

12. The text of this Report was adopted on 1 July 1997 by the

Commission and is now transmitted to the Committee of Ministers of the

Council of Europe, in accordance with Article 31 para. 2 of the

Convention.

13. The purpose of the Report, pursuant to Article 31 of the

Convention, is:

(i) to establish the facts, and

(ii) to state an opinion as to whether the facts found disclose

a breach by the State concerned of its obligations under

the Convention.

14. The Commission's decision on the admissibility of the application

is annexed hereto.

15. The full text of the parties' submissions, together with the

documents lodged as exhibits, are held in the archives of the

Commission.

II. ESTABLISHMENT OF THE FACTS

A. The particular circumstances of the case

16. On 15 December 1990 the applicant was driving her car in Zurich.

The road was covered with ice and snow; her car got onto the other side

of the road where she touched one car and then collided with a second

car driven by M. The latter was seriously injured.

17. On 19 March 1991 the Zurich Police Judge's Office

(Polizeirichteramt) transmitted the file to the District Attorney's

Office (Bezirksanwaltschaft) for further investigation as to whether

the applicant had committed the offence of negligently inflicting

serious bodily injury (fahrlässige schwere Körperverletzung) according

to S. 125 para. 2 of the Penal Code (Strafgesetzbuch; see below,

Relevant domestic law).

18. On 5 April 1991 the Zurich District Office (Statthalteramt)

transmitted the file to the District Attorney's Office for further

investigations as to any offences against the Federal Road Act

(Strassenverkehrsgesetz).

19. On 3 June 1991 the District Attorney's Office transferred the

file back to the Police Judge's Office.

20. On 13 August 1991 the Zurich Police Judge convicted the applicant

of a breach of SS. 31 and 32 of the Federal Road Act, namely of not

mastering her vehicle as she had not adapted her speed to the road

conditions (Nichtbeherrschen des Fahrzeuges infolge Nichtanpassens der

Geschwindigkeit an die Strassenverhältnisse; see below, Relevant

domestic law). She was sentenced to a fine of 200 Swiss Francs (CHF).

The decision noted in particular that on 15 December 1990 the road had

been covered with ice and snow; and that the applicant's car had got

onto the other side of the road and first touched one car and then

collided with another.

21. On 25 January 1993 the District Attorney's Office issued a penal

order (Strafbefehl). In view of the collision with the car driven by

M., resulting in his injury, the applicant was convicted of the offence

of negligently inflicting bodily injury (fahrlässige Körperverletzung)

and sentenced to a fine of 2,000 CHF. The Office relied on S. 125 of

the Swiss Penal Code (see below, Relevant domestic law).

22. The applicant objected thereto whereupon criminal proceedings

were instituted before the Zurich District Court (Bezirksgericht). On

11 March 1993 the Court convicted the applicant of having negligently

inflicted bodily injury and sentenced her to a fine of 1,500 CHF. The

judgment stated, inter alia:

"The Police Judge who issued the fine contested by the applicant

had to examine the situation within the context of proceedings

concerning a regulatory offence. Certainly, no second regulatory

offence proceedings may be instituted on the basis of the same

incident and in view of the principle 'ne bis in idem'. The

summary and limited examination of that type of procedure

nevertheless permits the act, which was prosecuted with a mere

fine, once again to be prosecuted and punished as a crime or as

an offence, to the extent that this more severe examination is

factually or legally required. In this case the original fine

order and the concomitant punishment shall be annulled."

"Der Polizeirichter, welcher die von der Angeklagten vorgebrachte

Bussenverfügung erliess, hatte den fraglichen Sachverhalt im

Rahmen eines Übertretungsstrafverfahrens zu würdigen, sodass mit

Sicherheit aufgrund des nämlichen Vorfalles und im Sinne des 'ne

bis in idem'-Grundsatzes kein zweites Übertretungsverfahren

eingeleitet werden darf. Die summarische und beschränkte Prüfung

dieser Verfahrensart lässt es hingegen zu, dass die mit einer

blossen Busse geahndete Tat noch einmal als Verbrechen oder

Vergehen verfolgt und bestraft wird, sofern ein rechtlicher oder

tatsächlicher Gesichtspunkt diese erschwerte Beurteilung

verlangt; in diesem Fall wird die ursprüngliche Bussenverfügung

und die mit ihr ausgesprochene Strafe aufgehoben."

23. The decision further stated, inter alia:

"The fine of 200 CHF pronounced in the order of the Police

Judge's Office of the Zurich Municipality of 13 August 1991 shall

be annulled and - to the extent that it has already been paid -

shall be deducted from the present fine, the latter therefore

being reduced to 1,300 CHF."

"Die mit Verfügung des Polizeirichteramtes der Stadt Zürich vom

13.8.91 ausgefällte Busse von Fr. 200.- wird aufgehoben und -

sofern bereits bezahlt - auf den vorliegenden Bussenbetrag

angerechnet, sodass sich dieser auf Fr. 1,300.- reduziert."

24. The applicant's appeal was dismissed on 7 October 1993 by the

Zurich Court of Appeal (Obergericht). The Court held, inter alia:

"The question arises which conclusions must be drawn from the

erroneous conduct of the Police Judge in respect of the question

at issue. It is clear that the Police Judge in his decision of

13 August 1991 only assessed from a criminal law point of view

the fact that the applicant did not master the vehicle, not the

resulting bodily injury of the victim ... However, in order to

determine the breach of traffic rules the Police Judge was

entitled and obliged entirely to examine and completely to assess

from a criminal law point of view the facts introduced as the

object of the proceedings; if he nevertheless failed to transmit

the file despite a negligent serious bodily injury which was

apparent, this does not lead to the quashing of the decision of

the Police Judge - the decision still stands. It has not been

claimed, and does not transpire from the file, that the decision

at issue has serious faults which would possibly bring about the

complete nullity."

"Es stellt sich die Frage, welche Schlüsse aus dem fehlerhaften

Vorgehen des Polizeirichters für die hier interessierende Frage

zu ziehen sind. Fest steht, dass der Polizeirichter in seiner

Verfügung vom 13. August 1991 nur das Nichtbeherrschen des

Fahrzeuges, nicht aber die dadurch verursachte Körperverletzung

beim Geschädigten strafrechtlich gewürdigt hat ... Zwecks

Beurteilung der Verkehrsregelnverletzung war der Polizeirichter

jedoch berechtigt und verpflichtet, die als Prozessgegenstand

eingeführten Tatsachen in strafrechtlicher Hinsicht gänzlich

auszuloten und vollständig zu beurteilen; dass er trotz einer im

Raume stehenden fahrlässigen schweren Körperverletzung die

Überweisung der Akten versäumte, führt daher noch nicht zur

Aufhebung der polizeirichterlichen Verfügung - diese hat nach wie

vor Bestand. Irgendwelche schwerwiegende Mängel der fraglichen

Verfügung, die allenfalls die vollständige Nichtigkeit zur Folge

haben könnten, sind weder geltend gemacht noch aus den Akten

ersichtlich."

25. The Court of Appeal then confirmed the deduction of 200 CHF from

the fine of 1,500 CHF, considering that the applicant should not be

punished more severely than if both offences had been dealt with

together in one set of proceedings.

26. Against this decision the applicant filed pleas of nullity

(Nichtigkeitsbeschwerden) with the Court of Cassation

(Kassationsgericht) of the Canton of Zurich and with the Federal Court

(Bundesgericht). The Court of Cassation dismissed the plea of nullity

on 27 April 1994. Against this last decision the applicant also filed

a public law appeal (staatsrechtliche Beschwerde) with the Federal

Court.

27. On 17 August 1994, the Federal Court dismissed the applicant's

public law appeal and her plea of nullity, both decisions being served

on 25 August 1994.

28. According to the Federal Court's decision concerning the

applicant's plea of nullity, it had to be assumed that the Police

Judge, when issuing his fine on 13 August 1991, had not been aware of

M.'s serious injury; otherwise, he would not have been competent to

issue the fine and he would have been obliged to return the file to the

District Attorney's Office. The Federal Court concluded that "the

previous court had avoided the effects of a double punishment by

considering the fine issued by the Police Judge of 200 CHF when

determining the new fine" ("die Wirkungen einer Doppelbestrafung hat

die Vorinstanz dadurch vermieden, dass sie die vom Polizeirichter

ausgesprochene Busse von Fr. 200.- bei der Bemessung der neuen Busse

berücksichtigt hat").

B. Relevant domestic law

29. According to S. 125 of the Penal Code (Strafgesetzbuch) negligent

bodily injury shall be punished, upon the complaint of the injured

party, with imprisonment or a fine. If the damage is severe, the

perpetrator shall be prosecuted ex officio.

30. S. 31 of the Federal Road Traffic Act (Strassenverkehrsgesetz)

provides, inter alia, that a driver shall constantly master his vehicle

in order to be able to drive carefully (so beherrschen, dass er seinen

Vorsichtspflichten nachkommen kann). According to S. 32 the driver

shall adapt the vehicle's speed to the particular circumstances.

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

31. The Commission declared admissible the applicant's complaint

that, contrary to the principle of ne bis in idem, she was twice fined

for the same incident.

B. Point at issue

32. The only point at issue is whether there has been a violation of

Article 4 of Protocol No. 7 (P7-4).

C. Article 4 of Protocol No. 7 (P7-4) to the Convention

33. The applicant submits that on 13 August 1991 she was convicted

for not mastering her vehicle. Subsequently, further criminal

proceedings were instituted against her for the same incident. The

resulting penal order issued on 25 January 1993 therefore breached the

principle of ne bis in idem. The applicant relies on Article 4 para. 1

of Protocol No. 7 (P7-4-1).

34. Article 4 paras. 1 and 2 of Protocol No. 7 (P7-4-1, P7-4-2) to

the Convention state:

"1. No one shall be liable to be tried or punished again in

criminal proceedings under the jurisdiction of the same State for

an offence for which he has already been finally acquitted or

convicted in accordance with the law and penal procedure of that

State.

2. The provisions of the preceding paragraph shall not prevent

the reopening of the case in accordance with the law and penal

procedure of the State concerned, if there is evidence of new or

newly discovered facts, or if there has been a fundamental defect

in the previous proceedings, which could affect the outcome of

the case."

35. The applicant contends that the text of Article 4 para. 1 of

Protocol No. 7 (P7-4-1) leaves no room for interpretation: it prohibits

trial or punishment for a criminal offence for which the applicant has

already been finally convicted. Thus, the principle ne bis in idem is

violated if the same facts are examined in the course of two separate

proceedings. In the applicant's opinion, her rights are also protected

if the judge in question issues a court order by mistake. The District

Court judge was competent to issue the decision, and it cannot be said

that there was a fundamental defect in the proceedings, as stated for

instance in para. 2 of Article 4 of Protocol No. 7 (P7-4-2).

36. The applicant considers in the light of ne bis in idem that the

fact that a fine has been imposed on a motorist for contravening

traffic regulations will render it impossible for a criminal court to

convict a motorist of committing bodily injury. M.'s injury was the

direct result of the applicant disregarding the traffic regulations.

The fact that a party benefits from a procedural error, as submitted

by the Government, does not preclude invocation of ne bis in idem. The

applicant further notes that the Government correctly state that the

Zurich Court of Appeal did not formally set aside the fine imposed by

the Police Judge's Office. The conviction of 13 August 1991

constitutes a "final conviction" within the meaning of Article 4

para. 1 of Protocol No. 7 (P7-4-1), and therefore stands in the way of

a further conviction. In its decision of 17 August 1994 the Federal

Court itself confirmed this breach of ne bis in idem by referring to

"the new fine".

37. Finally, the applicant considers that her interest in her legal

rights cannot be called in question. After conviction by the Police

Judge's Office she was again involved in a further trial resulting in

an additional fine. It cannot therefore be said that the rights

invoked were theoretical and illusory.

38. The Government contest that there has been a violation of

Article 4 para. 1 of Protocol No. 7 (P7-4-1). The question arises

whether this provision is already breached if the same set of facts is

examined in two different procedures, or whether it is only breached

if a person is punished twice for the same offence. The latter

situation would raise no issue in the present case as the applicant was

convicted on 13 August 1991 for a breach of traffic rules and on

25 January 1993 for negligently having committed bodily injury.

39. In the Government's opinion, even if Article 4 of Protocol No. 7

(P7-4) required that the same set of facts should not be examined in

different proceedings, this provision would not be breached in the

circumstances of the present case which were the result of a

misunderstanding. Thus, on 19 March 1991 the Zurich Police Judge's

Office transmitted the file to the District Attorney's Office as the

former was not competent to examine a possible offence of bodily

injury. On 3 June 1991, the file was referred back to the Police

Judge's Office as the District Attorney considered that no proceedings

would be instituted against M. It was probably by mistake, therefore,

that the Police Judge's Office not only terminated the proceedings

against M., but also against the applicant.

40. The Government recall that on 25 January 1993 a penal order was

issued against the applicant since, as the District Court later

confirmed, the offence was sufficiently severe to require prosecution

despite the previous administrative proceedings. In its judgment of

11 March 1993 the District Court nevertheless annulled the fine of

200 CHF previously imposed by the Police Judge's Office. While it is

true that the Zurich Court of Appeal found on 7 October 1993 that the

fine of the Police Judge "still stands", this caused the applicant no

prejudice whatsoever. Indeed, the Court of Appeal also confirmed the

deduction of the fine of 200 CHF. The Court of Appeal found that in

fact the offences committed by the applicant should have been dealt

with in one set of proceedings.

41. In the Government's submission, the fact that the Court of Appeal

did not formally annul the fine of the Police Judge cannot in itself

breach Article 4 of Protocol No. 7 (P7-4). Thus, the rights enshrined

in the Convention are not intended to be theoretical or illusory but

rights that are practical and effective (see Eur. Court HR, Artico

v. Italy judgment of 13 May 1980, Series A no. 37, p. 16, para. 33).

The principle ne bis in idem should not be interpreted as permitting

a person to benefit from a procedural error.

42. The Commission recalls the Convention organs' case-law according

to which the aim of Article 4 of Protocol No. 7 (P7-4) is to prohibit

the repetition of criminal proceedings which have been concluded by a

final decision (see Eur. Court HR, Gradinger v. Austria judgment of

23 October 1995, Series A no. 328-C, p. 65, para. 53).

43. In the present case, on 13 August 1991 the Zurich Police judge

convicted the applicant of a breach of traffic rules, namely for not

mastering her vehicle as she had not adapted her speed to the road

conditions, and sentenced her to a fine of 200 CHF. The decision

noted, inter alia, that the applicant's car had got onto the other side

of the road and first touched one car and then collided with another

(see above, para. 20).

44. On 25 January 1993, the District Attorney's Office issued a penal

order against the applicant. Thus, in view of the collision with

another car driven by M., resulting in his injury, the applicant was

convicted of having negligently caused the offence of bodily injury and

sentenced to a fine of 2,000 CHF (see above, para. 21). Upon the

applicant's objection, the Zurich District Court on 11 March 1993

reduced the fine to 1,500 CHF (see above, para. 22).

45. It is true that the Zurich District Court also "annulled" the

original fine and deducted the amount of 200 CHF from the fine of

1,500 CHF (see above, para. 23) which now amounted to 1,300 CHF.

However, the Commission notes that the original conviction of the

Police Judge's Office had meanwhile entered into legal force. Indeed,

the respondent Government have confirmed a statement of the Court of

Appeal of the Canton of Zurich in its decision of 7 October 1993

according to which "(that) decision still stands" (see above,

para. 24).

46. The issue arises whether in the second proceedings the applicant

was "tried or punished again ... for an offence for which (she had)

already been finally acquitted or convicted" within the meaning of

Article 4 para. 1 of Protocol No. 7 (P7-4-1). This provision does not

refer to "the same offence", but refers rather to trial and punishment

"again ... for an offence" (see Gradinger v. Austria, Comm. Report

19.5.94, para. 75, Eur. Court HR, Series A no. 328-C, p. 77). Thus,

the Court found in the Gradinger case that "the (Austrian) provisions

in question differ ... as regards their nature and purpose ...

Nevertheless, both impugned decisions were based on the same conduct."

As a result, it found in that case a breach of Article 4 of

Protocol No. 7 (P7-4) (see Eur. Court HR, ibid. p. 66, para. 55).

47. In the present case the offences did indeed differ in nature and

pursued different aims. Thus, SS. 31 and 32 of the Federal Road

Traffic Act aim at regulating traffic, whereas S. 125 of the Penal Code

aims at protecting life and limb of other persons. Nevertheless, in

the Commission's opinion the applicant's two convictions were both

based on the same conduct, namely that her car got onto the other side

of the road where she touched one car and then collided with a second

car whose driver was seriously injured. The injury is not a completely

separate element, but part of the whole conduct by which the injury was

finally caused.

48. In the Government's submissions, the second conviction of the

applicant resulted from a misunderstanding in that the Police Judge's

Office originally failed to pursue the proceedings on account of a

possible offence of bodily injury. In fact, the offences committed by

the applicant should have been dealt with in one set of proceedings.

In the Government's opinion, Article 4 of Protocol No. 7 (P7-4) is not

breached if the Court of Appeal did not formally annul the first fine

of the Police Judge, since the applicant at least did not have to pay

the fine. The principle ne bis in idem should not, the Government

submit, be interpreted as permitting a person to benefit from a

procedural error.

49. In the Commission's opinion, the mere fact that a conviction was

based on a procedural error cannot remove the protection against a new

trial. According to Article 4, para. 2 of Protocol No. 7 (P7-4-2) a

reopening of the case is only possible if the procedural error amounts

to "a fundamental defect in the previous proceedings". The Commission

notes in this respect that the Court of Appeal of the Canton of Zurich

did not find that the decision of 13 August 1991 had "serious faults

which would possibly bring about the complete nullity" (see above,

para. 24).

50. In these circumstances, the Commission finds that the applicant

was "tried or punished again ... for an offence" of which she had

previously been convicted within the meaning of Article 4 of

Protocol No. 7 (P7-4) to the Convention.

CONCLUSION

51. The Commission concludes, by 24 votes to 8, that in the present

case there has been a violation of Article 4 of Protocol No. 7 (P7-4)

to the Convention.

H.C. KRÜGER G.H. THUNE

Secretary Acting President

to the Commission of the Commission

(Or. English)

DISSENTING OPINION OF MRS. J. LIDDY, J.-C. SOYER,

C.L. ROZAKIS, I. CABRAL BARRETO, N. BRATZA,

K. HERNDL AND E. BIELIUNAS

The issue in this case is whether there is a violation of

Article 4 of Protocol No. 7 when a conviction of a road traffic offence

such as speeding is followed by a conviction for the substantive

criminal offence of causing bodily injury by negligence. It is not

clear whether the extent of the injury to the driver of the other car

was appreciated from the outset. The conviction for the road traffic

offence merely makes reference to a collision, and the Federal Court's

judgment of 17 August 1994 assumed that the Police Judge, when issuing

his fine for the road traffic offence, had not been aware of the other

driver's serious injury.

The Government have questioned whether Article 4 of

Protocol No. 7 is violated whenever the same set of facts is examined

in two different procedures, or whether it is only violated if a person

is punished twice for the same offence. In the present case, the facts

were examined twice from a different perspective, but the extra

ingredient (bodily injury) was applicable only to the second charge

under S. 125 of the Penal Code. If both offences had been dealt with

together in one set of proceedings, a failure to prove the extra

ingredient under the Penal Code would not have disbarred conviction

under the Road Traffic Act. If both offences had been dealt with

together, proof of the extra ingredient in the more serious Penal Code

offence would not necessarily have led to an extra fine for the lesser

offence. In fact, what happened in the present case is that the two

offences were dealt with separately, but the extra fine for the lesser

offence was deducted from the fine for causing bodily injury. We

cannot see how the mere fact of two separate proceedings relating to

the same conduct but for different offences, the essential ingredient

of one of which (bodily injury) might not always be immediately

apparent, conflicts with Article 4 of Protocol No. 7. We do not share

the majority's view at para. 47 of the Report: in our view the injury

was a separate element that had to be proved.

This conclusion seems to us consistent with the Court's finding

in the Gradinger case to the effect that there had been a violation of

Article 4 of Protocol No. 7 where "both impugned decisions were based

on the same conduct" (judgment of 23 October 1995, Series A no. 328).

The Court's reasoning in paragraph 55 leading to that conclusion makes

it clear that the "conduct" the Court had in mind was the same

essential ingredient shared by the two offences under the Austrian Road

Traffic Act and the Austrian Criminal Code: having a blood alcohol

level of 0.8 grams per litre or higher. The applicant in the Gradinger

case had been found in proceedings under the Criminal Code (after the

hearing of evidence) in effect not to have a blood alcohol level of

0.8 grams per litre or higher on the occasion in question, but

subsequently in proceedings under the Road Traffic Act he was found on

the basis of a different medical report to have exceeded that blood

alcohol level on the same occasion. In these circumstances that

applicant was tried twice in respect of the same essential ingredient.

The present case is clearly distinguishable, as the essential

ingredient of causing bodily harm had not been in issue in the earlier

proceedings, and there was no conflict between the police judge's

findings and the District Court's finding.

The present case can also be distinguished from the Commission's

opinion in Marte and Achberger v. Austria (Comm. Report, 9 April 1997)

to the effect that there had been a violation of Article 4 of Protocol

No. 7. In that case the applicants had been convicted of offences

under the Criminal Code of resisting the forces of the State (who had

come to remove them from a bar at a summer festival). Subsequently

they were convicted under the Morals (Policing) Act of

insulting/attacking a named policeman in the presence of other persons

in relation to precisely the same incident. It did not appear from the

domestic courts' judgments that any vital extra ingredient had to be

proven in the second proceedings as distinct from what was called "a

different judgment of human behaviour". The Commission was in a

position to conclude that "the factual bases for the applicants'

criminal and administrative convictions overlapped to such an extent"

that there had been a violation of Article 4 of Protocol No. 7. The

applicants had been convicted twice of the same essential ingredient

(the conduct against a policeman involving insult/use of force) and the

case was comparable to the Gradinger case.

Accordingly, in the present case we have voted against a finding

of violation.

(Or. English)

DISSENTING OPINION OF MR. L. LOUCAIDES

I do not agree with the finding of the majority that the

applicant was "tried or punished again... for an offence" of which she

had previously been convicted within the meaning of Article 4 of

Protocol No. 7 to the Convention.

The principle of non bis in idem safeguarded in the provision in

question aims at preventing criminal proceedings against a person in

respect of an "offence" for which he has already been acquitted or

convicted. Therefore, in order to establish a violation of this

principle in respect of any proceedings for an "offence" it must be

shown that such "offence" was previously the object of an acquittal or

conviction.

The use of the term "offence" ("infraction") in the provision

under consideration is decisive for the meaning and effect of the

relevant prohibition: the drafters of the Convention were not aiming

at prohibiting prosecutions in respect of incidents or factual

situations which were dealt with before in other criminal proceedings;

they intended to prevent repetitive prosecutions for one and the same

crime.

Whether an offence has become in the past the object of an

acquittal or a conviction cannot depend entirely on whether its factual

basis is the same as that in respect of which the autrefois acquit or

autrefois convict is claimed. An offence is identified not only by the

facts or the evidence which establish its commission but also by its

legal ingredients or characteristics. Therefore, in order to find a

violation of the prohibition of non bis in idem it must be established

that the complainant was tried or punished for more than once in

respect of an offence which is the same both as a matter of fact and

as a matter of law.

Two or more offences are not necessarily the same merely because

they refer to the same facts. To accept otherwise would lead to absurd

results and to an unjustified hindrance to the application of the

criminal law. Take for example the case of somebody who with a machine-

gun kills simultaneously many persons standing in a row. He is tried

and convicted for the murder of the first of those persons. If he is

later prosecuted for the murder of any of the other victims it would

be absurd to disallow such prosecution through the application of the

doctrine of non bis in idem on the ground that the offence charged

refers to the same facts or incidents in respect of which the accused

was previously acquitted or convicted.

It is true that successive prosecutions for offences based on the

same facts in all those cases where the offences could be the subject

of only one indictment may be an unjust and oppressive process

especially when the second and/or subsequent prosecution takes place

at a much later time than the first one. However, this undesirable

situation which could also arise even in respect of cases where the

offences are not based on the same facts is not meant to be the object

of the rule of non bis in idem. One could argue that such unjust or

oppressive judicial process would be incompatible with the principle

of fair hearing safeguarded under Article 6 of the Convention. But it

is not relevant to the doctrine of non bis in idem.

The doctrine prescribes that a person cannot be tried or punished

twice for the same "offence" and the term "offence" does not mean

"act", "cause" or even "conduct". The last term is especially

objectionable for the purposes of the question under consideration for

a conduct may be composed of a wide spectrum of separate acts or

activities that may be both, factually and legally, distinct from each

other. Therefore, I believe that identifying the term "offence" with

the term "conduct" is an approach that must be reconsidered.

In the present case the second offence, in respect of which the

applicant invokes Article 4 of Protocol No. 7, i.e. negligently

inflicting bodily injury, is, indeed, based on the same facts upon

which the applicant was already convicted for the offence of not

mastering a vehicle. However, taking into account their legal

ingredients and characteristics, the two offences are different and

therefore the provisions invoked by the applicant are not applicable.

For the above reasons I find that there has been no violation of

Article 4 of Protocol No. 7 in this case.

The applicant did not invoke Article 6 of the Convention and the

Commission did not examine the case under that Article.

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OLIVEIRA v. SWITZERLAND

OLIVEIRA v. SWITZERLAND

LEXI