Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

Application No. 15963/90

Josef Gradinger

against

Austria

REPORT OF THE COMMISSION

(adopted on 19 May 1994)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-16) . . . . . . . . . . . . . . . . . . . . . . . . 1

A. The application

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

B. The proceedings

(paras. 5-11). . . . . . . . . . . . . . . . . . . . . . 1

C. The present Report

(paras. 12-16) . . . . . . . . . . . . . . . . . . . . . 2

II. ESTABLISHMENT OF THE FACTS

(paras. 17-37). . . . . . . . . . . . . . . . . . . . . . . . 3

A. The particular circumstances of the case

(paras. 17-22) . . . . . . . . . . . . . . . . . . . . . 3

B. Relevant domestic law

(paras. 23-37) . . . . . . . . . . . . . . . . . . . . . 4

III. OPINION OF THE COMMISSION

(paras. 38-80). . . . . . . . . . . . . . . . . . . . . . . . 9

A. Complaints declared admissible

(para. 38) . . . . . . . . . . . . . . . . . . . . . . . 9

B. Points at issue

(para. 39) . . . . . . . . . . . . . . . . . . . . . . . 9

C. As to the applicability of Article 6 of the Convention

(paras. 40-49 ). . . . . . . . . . . . . . . . . . . . . 9

a. The existence of a "criminal charge"

(paras. 40-44) . . . . . . . . . . . . . . . . . . 9

b. The reservation to Article 5 of the Convention

(paras. 45-49) . . . . . . . . . . . . . . . . . .10

D. As to compliance with Article 6 para. 1

of the Convention

(paras. 50-59) . . . . . . . . . . . . . . . . . . . . .11

a. The administrative authorities

(paras. 50-52) . . . . . . . . . . . . . . . . . .11

b. The scope of review of the decisions of the

administrative authorities

(paras. 53-56) . . . . . . . . . . . . . . . . . .11

CONCLUSION (para. 57). . . . . . . . . . . . . . . . . .12

c. The absence of a hearing before the

Administrative Court

(para. 58) . . . . . . . . . . . . . . . . . . . .12

CONCLUSION

(para. 59) . . . . . . . . . . . . . . . . . . . . . . .12

E. As to Article 4 of Protocol No. 7 to the Convention

(paras. 60-78) . . . . . . . . . . . . . . . . . . . . .12

a. The declaration to Article 4 of Protocol No. 7

(paras. 64-66) . . . . . . . . . . . . . . . . . .13

b. The Commission's competence ratione temporis

(paras. 67-69) . . . . . . . . . . . . . . . . . .14

c. The merits of the Article 4 of Protocol No. 7

complaint

(paras. 70-77) . . . . . . . . . . . . . . . . . .15

CONCLUSION

(para. 78) . . . . . . . . . . . . . . . . . . . . . . .16

F. Recapitulation

(paras. 79-81) . . . . . . . . . . . . . . . . . . . . .16

CONCURRING OPINION OF Mr F. ERMACORA. . . . . . . . . . . . . . . .17

APPENDIX I : HISTORY OF THE PROCEEDINGS . . . . . . . . . . . . .18

APPENDIX II : DECISION OF THE COMMISSION AS TO THE

ADMISSIBILITY OF THE APPLICATION . . . . . . . . . .19

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 an Austrian citizen, born in 1967 and resident

in St. Pölten. He was represented before the Commission by

Mr. R.K. Fiebinger, a lawyer practising in Vienna.

3. The application is directed against Austria. The respondent

Government were represented by their Agent, Ambassador F. Cede, head

of the International Law Department at the Federal Ministry for Foreign

Affairs.

4. The case concerns administrative criminal proceedings against the

applicant before administrative authorities with subsequent review by

the Constitutional and Administrative Courts, and the relationship

between these proceedings and criminal proceedings before the ordinary

courts. The applicant invokes Article 6 of the Convention and

Article 4 of Protocol No. 7 to the Convention.

B. The proceedings

5. The application was introduced on 22 May 1989 and registered on

10 January 1990.

6. On 16 October 1991 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 10 March 1992

after an extension of the time-limit fixed for this purpose. The

applicant replied on 13 July 1992.

8. On 15 February 1993 the Commission decided to hold hearings of

the parties in this case and in Applications Nos. 15523/89, 15527/89,

16713/90, 16718/90 and 16841/90. The hearings were held on

10 May 1993. The Government were represented by Ambassador Cede and

Ms. S. Bernegger, of the Federal Chancellery. The applicant was

represented by Mr. Fiebinger.

9. On 10 May 1993 the Commission declared the application admissible

the applicant's complaints under Article 6 para. 1 of the Convention

and under Article 4 of Protocol No. 7 to the Convention. It declared

inadmissible the remainder of the application.

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

to the parties on 17 May 1991 and they were invited to submit such

further information or observations on the merits as they wished. The

Government submitted observations on 27 May 1993, and the applicant

submitted observations on 26 July 1993.

11. 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

12. 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 :

MM. C.A. NØRGAARD, President

A. WEITZEL

F. ERMACORA

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

H.G. SCHERMERS

H. DANELIUS

Mrs. G.H. THUNE

Mr. C.L. ROZAKIS

Mrs. J. LIDDY

MM. M.P. PELLONPÄÄ

B. MARXER

G.B. REFFI

M.A. NOWICKI

13. The text of this Report was adopted on 19 May 1994 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.

14. 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.

15. A schedule setting out the history of the proceedings before the

Commission is attached hereto as Appendix I and the Commission's

decision on the admissibility of the application as Appendix II.

16. 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

17. On 1 January 1987 the applicant was involved in a road traffic

accident in which a cyclist was killed. A university medical

examination of a blood sample revealed 0.8 per mille alcohol in the

applicant's blood at the time the sample was taken.

18. In criminal proceedings before the St. Pölten Regional Court

(Landesgericht) the applicant was convicted on 15 May 1987 of causing

death by negligence within the meaning of Article 80 of the Criminal

Code (Strafgesetzbuch). The applicant refers to the evidence by an

independent expert, a Dr. Psick, that given the short space of time

between the applicant's last drink and the time of the accident, the

applicant could not have absorbed sufficient alcohol to have violated

the law. The "note of the minutes and sentence" (Protokolls- und

Urteilsvermerk) states that, in calculating the sentence, the court

considered that the applicant had been drinking alcohol before the

offence, but that the condition of Article 81 para. 2 of the Criminal

Code (the aggravating circumstance of alcohol consumption) was not

present. The "Facts" part of the "note" referred to the indictment,

and added the words "but without the element of alcohol" ("wobei die

Alkoholisierung entfällt").

19. On 16 July 1987 the St. Pölten District Authority (Bezirks-

hauptmannschaft) issued a penal order (Straferkenntnis) against the

applicant, which provided for a fine of AS 12,000 with two weeks'

imprisonment in default, plus costs, in respect of the offence of

driving a car under the influence of alcohol, contrary to

Section 99 (1) a of the Road Traffic Act 1960 (Straßenverkehrsordnung).

The authority relied on a report from its own doctor that, as the level

in the applicant's blood had been 0.8 per mille one and a half hours

after the accident, he must have had at least O.95 per mille alcohol

in his blood at the time of the accident.

20. The applicant appealed to the Lower Austrian Provincial

Government (Niederösterreichische Landesregierung) which, on

27 July 1988, rejected his appeal. It referred to a further expert's

report which it had had prepared by one of its own doctors, which

largely confirmed the previous expert report.

21. The applicant made a constitutional complaint to the

Constitutional Court (Verfassungsgerichtshof) which, on

11 October 1988, rejected the complaint summarily.

22. On 29 March 1989 the Administrative Court

(Verwaltungsgerichtshof) rejected the applicant's complaint to it. It

found that Austrian administrative law had required the authorities to

use their own doctors, and there could therefore be no question of a

violation of procedural rules by virtue of the authority having failed

to appoint other experts. As to the principle of "ne bis in idem", the

Administrative Court noted that Article 14 para. 7 of the International

Covenant on Civil and Political Rights was not directly applicable in

Austria, and the applicant could not rely on it. There was accordingly

nothing unlawful in convicting and sentencing the applicant for the

administrative offence.

B. Relevant domestic law

The substantive law

23. Article 80 of the Criminal Code (Strafgesetzbuch) provides as

follows:

(German)

"Wer fahrlässig den Tod eines anderen herbeiführt, ist mit

Freiheitsstrafe bis zu einem Jahr zu bestrafen."

(Translation)

"Any person who negligently causes the death of another is to be

punished with up to one year's imprisonment."

24. Article 81 of the Criminal Code provides, so far as relevant, as

follows:

(German)

"Wer fahrlässig den Tod eines anderen herbeiführt

...

2) nachdem er sich vor der Tat, wenn auch nur fahrläßig, durch

Genuß von Alkohol ... in einen die Zurechnungsfähigkeit nicht

ausschließenden Rauschzustand versetzt hat, obwohl er

vorhergesehen hat oder hätte vorhersehen können, daß ihm eine

Tätigkeit bevorstehe, deren Vornahme in diesem Zustand eine

Gefahr für das Leben ... eines anderen herbeizuführen ... sei,

ist mit Freiheitsstrafe bis zu drei Jahren zu bestrafen."

(Translation)

"Any person who negligently causes the death of another

...

(2) after prior, albeit merely negligent, consumption of alcohol

... which put him in a state of intoxication which does not

exclude liability, notwithstanding that he foresaw or should have

foreseen that he was to undertake an activity which, in such a

state, constituted a danger to the life ... of others,

is to be punished with up to three years' imprisonment."

25. The criminal courts apply an irrebuttable presumption that a

driver with 0.8 g/l alcohol in his blood or more is "in such a state"

(Foregger-Sereni, Criminal Code with Commentary, 4th Edition, 1988,

p. 217).

26. Section 99 (1) of the Road Traffic Act 1960

(Straßenverkehrsordnung) provides, so far as relevant, as follows:

(German)

"Eine Verwaltungsübertretung begeht und ist mit einer Geldstrafe

von 8 000 S bis 50 000 S, im Fall ihrer Uneinbringlichkeit mit

Arrest von einer bis sechs Wochen, zu bestrafen,

...

a) wer in einem durch Alkohol ... beeinträchtigten Zustand ein

Fahrzeug lenkt ..."

(Translation)

"An administrative offence, punishable by a fine of AS 8,000 to

AS 50,000 with one to six weeks' detention in default, is

committed by any person who:

...

(a) drives a vehicle whilst ... under the influence of alcohol

..."

27. Section 5 of the Road Traffic Act prohibits the driving of

vehicles whilst the driver has 0.8 g/l alcohol or more in his blood or

0.4 mg/l alcohol in his breath; and lays down the conditions for

breathalysers and blood tests.

28. In 1958, Section 7 of the Traffic Police Act 1947

(Straßenpolizeigesetz) provided that "every person is under an

obligation to drive with reasonable consideration for other road users

and with such due care and attention as is required for the maintenance

of order, safety and traffic efficiency".

Jurisdiction of the Constitutional and Administrative Courts

29. According to Article 144 of the Austrian Federal Constitution

(Bundes-Verfassungsgesetz) an appeal can be filed with the

Constitutional Court in which an applicant can allege a violation of

his constitutional rights. He can also complain that his rights have

been violated on account of an unlawful ordinance, an unconstitutional

Act, or an unlawful international treaty.

30. Article 144 para. 2 of the Federal Constitution provides as

follows:

(German)

"Der Verfassungsgerichtshof kann die Behandlung einer Beschwerde

bis zur Verhandlung durch Beschluß ablehnen, wenn sie keine

hinreichende Aussicht auf Erfolg hat oder von der Entscheidung

die Klärung einer verfassungsrechtlichen Frage nicht zu erwarten

ist. Die Ablehnung der Behandlung ist unzulässig, wenn es sich

um einen Fall handelt, der nach Art. 133 von der Zuständigkeit

des Verwaltungsgerichtshofes ausgeschlossen ist."

(Translation)

"The Constitutional Court may refuse to consider a case up to a

hearing by way of decision if it has no reasonable prospect of

success or it cannot be expected that the decision will shed

light on a problem of constitutional law. A refusal to consider

is inadmissible if it concerns a case excluded from the

jurisdiction of the Administrative Court by Article 133."

31. According to Article 130 para. 1 of the Federal Constitution the

Administrative Court will review allegations of unlawfulness of an

administrative decision. According to Article 130 para. 2, "no

unlawfulness exists where legislation does not establish a binding rule

on an administrative authority's conduct, leaving the determination of

such conduct to the authority itself, and the authority has made use

of this discretion in the spirit of the law" ("Rechtswidrigkeit liegt

nicht vor, soweit die Gesetzgebung von einer bindenden Regelung des

Verhaltens der Verwaltungsbehörde absieht und die Bestimmung dieses

Verhaltens der Behörde selbst überläßt, die Behörde aber von diesem

freien Ermessen im Sinne des Gesetzes Gebrauch gemacht hat"). The

Administrative Court is also competent to deal with complaints that the

administrative authority has violated its duty to take a decision

(Article 132).

32. Section 41 of the Administrative Court Act (Verwaltungs-

gerichtshofgesetz) provides, so far as relevant:

(German)

"(1) Der Verwaltungsgerichtshof hat, soweit er nicht

Rechtswidrigkeit wegen Unzuständigkeit der belangten Behörde oder

wegen Verletzung von Verfahrensvorschriften gegeben findet (§ 42

Abs. 2 Z. 2 und 3) ..., den angefochtenen Bescheid auf Grund des

von der belangten Behörde angenommenen Sachverhaltes im Rahmen

der geltend gemachten Beschwerdepunkte ... zu überprüfen. Ist

er der Ansicht, dass für die Entscheidung über die

Rechtswidrigkeit des Bescheides in einem der Beschwerdepunkte

... Gründe massgebend sein könnten, die einer Partei bisher nicht

bekanntgegeben wurden, so hat er die Parteien darüber zu hören

und, wenn nötig, eine Vertagung zu verfügen."

(Translation)

"(1) In so far as the Administrative Court does not find

unlawfulness on account of a lack of jurisdiction of the

authority against which the appeal is directed or on account of

a violation of procedural provisions (Section 42 (2) (2) and (3),

..., the Court must examine the contested decision on the basis

of the facts as accepted by the authority against which the

appeal is directed within the framework of the alleged complaint

... If it is of the opinion that reasons would be relevant for

the decision on the unlawfulness of the contested decision ...

which were so far not known to a party, it must hear the parties

thereupon and, if necessary, adjourn the proceedings."

33. Section 42 (1) of the Administrative Court Act states that, save

as otherwise provided, decisions of the Administrative Court shall

either dismiss a complaint as ill-founded or quash the contested

decision. Apart from amendments to that part of Section 42 (1) which

enumerates those proceedings to which it does not apply (not relevant

in the present case) Section 42 (1) has been in force since at least

1946.

34. As regards the decisions of the Administrative Court,

Section 42 (2) of the Administrative Court Act provides, so far as

relevant:

(German)

"(2) Der angefochtene Bescheid ist aufzuheben

1. wegen Rechtswidrigkeit seines Inhaltes,

2. wegen Rechtswidrigkeit infolge Unzuständigkeit der

belangten Behörde,

3. wegen Rechtswidrigkeit infolge Verletzung von

Verfahrensvorschriften, und zwar weil

a) der Sachverhalt von der belangten Behörde in einem

wesentlichen Punkt aktenwidrig angenommen wurde oder

b) der Sachverhalt in einem wesentlichen Punkt einer

Ergänzung bedarf oder

c) Verfahrensvorschriften ausser acht gelassen wurden,

bei deren Einhaltung die belangte Behörde zu einem

anderen Bescheid hätte kommen können."

(Translation)

"(2) The contested decision must be quashed

1. on account of the unlawfulness of its content,

2. on account of unlawfulness due to the lack of jurisdiction

of the authority against which the appeal is directed,

3. on account of unlawfulness due to a violation of procedural

provisions in particular because

a) the authority against which the appeal is directed has

determined the facts on an important point contrary to

the case-file, or

b) the facts require to be supplemented on an important

point, or

c) procedural provisions have been disregarded which, if

taken into consideration by the authority against

which the appeal is directed, could have led to a

different decision of the authority."

Hearings before the Administrative Court

35. Section 39 (1) of the Administrative Court Act provides that the

Administrative Court is to hold a hearing after its preliminary

investigation of the case where a complainant has requested a hearing

within the time-limit. Section 39 (2) provides as follows:

(German)

"Der Verwaltungsgerichtshof kann ungeachtet eines Parteiantrages

nach Abs. 1 Z. 1 von einer Verhandlung absehen, wenn

1. das Verfahren einzustellen (§ 33) oder die Beschwerde

zurückzuweisen ist (§ 34);

2. der angefochtene Bescheid wegen Rechtswidrigkeit infolge

Unzuständigkeit der belangten Behörde aufzuheben ist

(§ 42 Abs. 2 Z. 2);

3. der angefochtene Bescheid wegen Rechtswidrigkeit infolge

Verletzung von Verfahrensvorschriften aufzuheben ist (§ 42 Abs. 2

Z. 3);

4. der angefochtene Bescheid nach der ständigen Rechtsprechung

des Verwaltungsgerichtshofes wegen Rechtswidrigkeit seines

Inhaltes aufzuheben ist;

5. weder die belangte Behörde noch etwaige Mitbeteiligte eine

Gegenschrift eingebracht haben und der angefochtene Bescheid

aufzuheben ist;

6. die Schriftsätze der Parteien des verwaltungsgerichtlichen

Verfahrens und die dem Verwaltungsgerichtshof vorgelegten Akten

des Verwaltungsverfahrens erkennen lassen, daß die mündliche

Erörterung eine weitere Klärung der Rechtssache nicht erwarten

läßt."

(Translation)

"Notwithstanding a party's application, the Administrative Court

may decide not to hold a hearing when

1. The proceedings are to be discontinued (Section 33) or the

complaint is to be rejected (Section 34);

2. The contested decision is to be quashed for unlawfulness due

to lack of jurisdiction on the part of the authority challenged

(Section 42 para. 2 (2));

3. The contested decision is to be quashed for failure to comply

with procedural provisions (Section 42 (2) (3));

4. The contested decision is to be quashed in accordance with

the constant case-law of the Administrative Court for

unlawfulness as to its contents;

5. Neither the authority challenged nor any third party has

submitted a reply and the contested decision is to be quashed;

6. It is apparent from the written pleadings of the parties to

the proceedings before the Administrative Court and from the

files relating to the prior proceedings that an oral hearing is

not likely to contribute to clarifying the case."

36. Section 39 (2) (1) to (2) (3) were in force in 1958.

Section 39 (2) (4) and (2) (5) were added in 1964 and Section 39 (2)

(6) was added in 1982.

37. Article 90 para. 2 of the Federal Constitution provides as

follows:

(German)

"Die Verhandlungen in Zivil- und Strafrechtssachen vor dem

erkennenden Gericht sind mündlich und öffentlich. Ausnahmen

bestimmt das Gesetz."

(Translation)

"Hearings in civil and criminal cases by the trial court shall

be oral and public. Exceptions may be prescribed by law."

III. OPINION OF THE COMMISSION

A. Complaints declared admissible

38. The Commission has declared admissible the applicant's complaints

- that the proceedings in which he was convicted of driving a

vehicle whilst under the influence of alcohol did not comply with

Article 6 para. 1 (Art. 6-1) of the Convention, and

- that that conviction was obtained in breach of Article 4 of

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

B. Points at issue

39. The issues to be determined are:

- whether there has been a violation of the applicant's right to

a tribunal within the meaning of Article 6 para. 1 (Art. 6-1) of the

Convention,

- whether the absence of a hearing before the Administrative Court

violated Article 6 para. 1 (Art. 6-1) of the Convention, and

- whether there has been a violation of Article 4 of Protocol No. 7

(P7-4) to the Convention.

C. As to the applicability of Article 6 (Art. 6) of the Convention

a. The existence of a "criminal charge"

40. Article 6 para. 1 (Art. 6-1) of the Convention provides, so far

as relevant, as follows:

"In the determination of ... any criminal charge against him,

everyone is entitled to a fair and public hearing ... by an

independent and impartial tribunal established by law."

41. In the proceedings in the present case, the applicant was

convicted of driving whilst under the influence of alcohol. He was

fined AS 12,000, to be replaced by two weeks' detention in default.

42. The applicant considers that the proceedings determined a

criminal charge. With reference to the case-law of the Convention

organs, the Government do not contest the claim, but point to various

features of this type of offence which, in their view, call for a

differentiated approach to administrative criminal offences

(Verwaltungsstrafsachen) when compared with ordinary, judicial criminal

offences. They note, for instance, that criminal records do not make

reference to administrative convictions, that administrative criminal

law is not directed against the commission of social wrong but serves

the purpose of maintaining public order, and that the offences are of

a minor and frequently purely formal character (non-registration for

example).

43. The Commission recalls that the European Court of Human Rights

has applied the same test for the applicability of Article 6 (Art. 6)

to regulatory offences (Ordnungswidrigkeiten) in Germany as to other

types of proceedings (Eur. Court H.R., Öztürk judgment of

21 February 1984, Series A no. 73, p. 18, para. 50). The Commission

notes that administrative criminal proceedings in Austria are regulated

by special legislative provisions which are separate from the ordinary

criminal law. The proceedings are, however, expressly referred to as

administrative "criminal" proceedings, and the Commission finds that

this gives an indication of their nature. The penalty, of AS 12,000

with two weeks' detention in default, cannot be described as

negligible.

44. Taking into account the classification as "administrative

criminal" of the offence in domestic law, the nature of the offence as

failure to comply with a specific regulation, and the nature of the

penalty, which included the possibility of imprisonment, the Commission

finds that the proceedings at issue in the present case determined a

"criminal charge" within the meaning of Article 6 para. 1 (Art. 6-1)

of the Convention.

b. The reservation to Article 5 (Art. 5) of the Convention

45. The Government submit that the Austrian reservation to Article 5

(Art. 5) of the Convention prevents the Commission from entertaining

this complaint. This reservation provides as follows:

"The provisions of Article 5 (Art. 5) of the Convention shall be

so applied that there shall be no interference with measures for

the deprivation of liberty prescribed in the laws on

administrative procedure, BGBl. No. 172/1950, subject to review

by the Administrative Court or the Constitutional Court as

provided for in the Austrian Federal Constitution."

46. The applicant points out that the laws on administrative

procedure BGBl. No. 172/1950 contain very few criminal offences, and

not that at issue in the present case, such that the reservation cannot

be relevant. He also points out that the offence in the present case

came into being after the reservation was entered in 1958. The

Government consider that the reservation must be taken to apply not

merely to actual measures of detention under Article 5 (Art. 5) of the

Convention, but also to the proceedings which may lead to such

detention, and they refer to Commission case-law to this effect (eg.

No. 8998/80, Dec. 3.3.83, D.R. 32, p. 150).

47. The Commission recalls that the European Court of Human Rights

has recently had occasion to affirm the validity of the Austrian

reservation to Article 5 (Art. 5) (Eur. Court H.R., Chorherr judgment

of 25 August 1993, Series A no. 266, p. 35, para. 21). In particular,

the Court emphasised that the laws referred to in the reservation "lay

down rules for the punishment of offences, setting out the punishable

acts, the penalties incurred and the procedure to be followed" (p. 34,

para. 18). The Court continued that "the provisions to which the

reservation applied in [that] case were all in force on

3 September 1958 ..." (ibid).

48. The Commission notes that the administrative offence at issue in

the present case, of driving a car whilst under the influence of

alcohol, is comprised in the Road Traffic Act 1960. That Act's

predecessor, the Traffic Police Act 1947, was in force in 1958, but it

is not one of the laws referred to in the Austrian reservation to

Article 5 (Art. 5) of the Convention. Moreover, the specific amendment

by which the applicant was penalised is contained in the 1960 Act.

Accordingly, neither the punishable act nor the penalty imposed were

included in the laws referred to in the reservation. Finally in this

respect, the Commission notes that the Austrian reservation to

Article 5 (Art. 5) of the Convention in terms refers to Article 5

(Art. 5) and not to Article 6 (Art. 6) of the Convention.

49. The Commission finds that that reservation cannot be said to

apply in the present case. Accordingly, the reservation does not

prevent the Commission from examining the complaint under Article 6

(Art. 6) of the Convention.

D. As to compliance with Article 6 para. 1 (Art. 6-1)

of the Convention

a. The administrative authorities

50. The applicant considers that the administrative authorities which

considered the case, namely the St. Pölten District Authority

(Bezirkshauptmannschaft) and the Lower Austrian Provincial Government

(Landesregierung) are officials following instructions, and in no way

independent judges. The Government do not contest this, but point to

procedural rules which apply before the administrative authorities.

51. The Commission finds that the administrative authorities which

decided the applicant's case at first and second instance were not

"independent and impartial tribunals" within the meaning of Article 6

para. 1 (Art. 6-1) of the Convention (cf. Eur. Court H.R., Obermeier

judgment of 28 June 1990, Series A no. 179, p. 22, para. 70; Zumtobel

judgment of 21 September 1993, Series A no. 268-A, para. 29).

52. The decisions of the administrative authorities may give rise to

appeals to the Constitutional Court (Verfassungsgerichtshof) and the

Administrative Court (Verwaltungsgerichtshof), but the proceedings for

the consideration of such appeals will be consistent with Article 6

para. 1 (Art. 6-1) only if conducted before "judicial bodies that have

full jurisdiction" (above-mentioned Zumtobel judgment, para. 29 with

further reference).

b. The scope of review of the decisions of the administrative

authorities

53. The Commission must therefore examine the scope of review offered

by the Austrian judicial authorities in this determination of a

criminal charge in order to establish whether the applicant was able

to take his case before a tribunal that did offer the guarantees of

Article 6 (Art. 6) (above-mentioned Öztürk judgment, p. 22, para. 56).

54. The applicant considers that where Article 6 (Art. 6) is

applicable, the Convention requires a court which can determine all

aspects of the case. He points out that new evidence cannot be

submitted to the Administrative Court by virtue of Section 41 of the

Administrative Court Act (Verwaltungsgerichtshofgesetz), that the

Administrative Court does not permit the assessment of the evidence by

the administrative authorities to be challenged, and that the

Administrative Court can only quash decisions, and cannot substitute

its assessment of the facts. The Government accept that, if Article 6

(Art. 6) applies to the proceedings, the Administrative Court does not

fulfil the requirements of the provision.

55. It has not been suggested in the present case that the

Constitutional Court satisfied the requirements of Article 6 (Art. 6)

of the Convention.

56. The Commission finds that whilst in civil matters a somewhat

limited review of the decisions of administrative authorities may, in

certain circumstances, satisfy the requirements of Article 6 (Art. 6)

of the Convention (see, for example, the above-mentioned Zumtobel

judgment, and Eur. Court H.R., Schuler-Zgraggen judgment of

24 June 1993, Series A no. 263, p. 19, para. 58), criminal cases may

require a different approach. In particular, they involve rules

directed towards all citizens in their capacity - in the present case

as in the Öztürk case - as road users, which prescribe conduct of a

certain kind and create sanctions for non-compliance. Where a

defendant desires a court to determine a criminal charge against him,

there is no room for limitation on the scope of review required of the

decisions of administrative authorities. Accordingly, the Commission

finds that the applicant in the present case was entitled to, but did

not have the benefit of, a court which could consider all the facts of

the case.

CONCLUSION

57. The Commission concludes, unanimously, that there has been a

violation of the applicant's right to a tribunal within the meaning of

Article 6 para. 1 (Art. 6-1) of the Convention.

c. The absence of a hearing before the Administrative Court

58. In the light of its above finding that the applicant was denied

his right to a tribunal within the meaning of Article 6 para. 1

(Art. 6-1) of the Convention, the Commission finds that no separate

issue arises in connection with the absence of a hearing before the

Administrative Court.

CONCLUSION

59. The Commission concludes, unanimously, that the absence of a

hearing before the Administrative Court raises no separate issue under

Article 6 para. 1 (Art. 6-1) of the Convention.

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

60. Article 4 para. 1 of Protocol No. 7 (P7-4-1) to the Convention

provides as follows:

"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."

61. The Commission notes that, when ratifying Protocol No. 7 to the

Convention on 14 May 1986, Austria made a declaration in the following

terms:

"The Republic of Austria declares:

...

2. Articles 3 and 4 (P7-3) (P7-4) exclusively relate to

criminal proceedings in the sense of the Austrian Code of

Criminal Procedure."

62. The applicant underlines that the principle "ne bis in idem"

must apply to every punishable act, and not merely to the provision of

law. He points out that both criminal and administrative authorities

apply a level of 0.8 per mille as constituting a state of inebriation.

He considers that the Commission is not prevented ratione temporis from

applying Protocol No. 7, and also considers that the declaration made

to Articles 3 and 4 of Protocol No. 7 (P7-3,P7-4) does not comply with

Article 64 (Art. 64) of the Convention as it is not clear whether it

covers double or multiple convictions only by the Austrian criminal

courts, or double or multiple convictions by Austrian criminal courts

on the one hand and Austrian administrative criminal authorities on the

other.

63. The Government submit first, that the Commission is prevented

ratione temporis from considering this complaint under Article 4 of

Protocol No. 7 (P7-4). They point out that the facts relating to the

offence were committed on 1 January 1987, that the first instance

authority decided the case on 16 July 1987 and the second instance

authority on 27 July 1988, whilst Protocol No. 7 entered into force on

1 November 1988. They further submit that, because the Administrative

Court is required to review a decision under administrative criminal

law on the basis of the substantive law at the date of commission of

the offence (or at the date of the first instance decision if more

advantageous to a defendant), the fact that the Administrative Court

took its decision five months after the Protocol had entered into force

does not affect the position. With regard to the declaration made by

Austria when ratifying Protocol No. 7, the Government submit that the

declaration is not required to comply with Article 64 (Art. 64) of the

Convention as it is not intended to have legally binding effects on the

interpretation. In the alternative they submit that the declaration

does comply with Article 64 (Art. 64) and that it prevents the

Commission from considering the question, as it precisely covers the

present case. As to the merits of the issue under Article 4 of

Protocol No. 7 (P7-4), the Government consider that the provision has

in any event been complied with as it applies only where the facts and

legal provisions are to be regarded as a unit. Thus, they conclude

that Article 4 of Protocol No. 7 (P7-4) proscribes proceedings being

brought against a person twice under the same provision, but that if

by a single act an offender contravenes several provisions, he may

nevertheless be convicted under these. The Government underline that

the offence of causing death under the influence of drink contained in

Article 81 para. 2 of the Criminal Code is different in character from

the provisions of the Road Traffic Act which make it an offence to

drive a motor vehicle whilst under the influence of alcohol.

a. The declaration to Article 4 of Protocol No.7 (P7-4)

64. The European Court of Human Rights has considered the nature of

the difference between declarations and reservations in the case of

Belilos, considering that

"[i]n order to establish the legal character of such a

declaration, one must look behind the title given to it and seek

to determine the substantive content. In the present case, it

appears that Switzerland meant to remove certain categories of

proceedings from the ambit of Article 6 para. 1 (Art. 6-1) and

to secure itself against an interpretation of that Article which

it considered to be too broad. However, the Court must see to

it that the obligations arising under the Convention are not

subject to restrictions which would not satisfy the requirements

of Article 64 (Art. 64) as regards reservations. ..."

(Eur. Court H.R., Belilos judgment of 29 April 1988, Series A

no. 132, p. 24, para. 49)

65. The declaration to Article 4 of Protocol No. 7 (P7-4) can only

affect the Commission's approach to the case if it complies with the

conditions for a reservation set out in Article 64 (Art. 64) of the

Convention (see generally in this connection, the above-mentioned

Belilos judgment, pp. 21-24, paras. 40-49). Article 64 (Art. 64) of

the Convention provides as follows:

"1. Any State may, when signing this Convention or when

depositing its instrument of ratification, make a reservation in

respect of any particular provision of the Convention to the

extent that any law then in force in its territory is not in

conformity with the provision. Reservations of a general

character shall not be permitted under this Article.

2. Any reservation made under this Article shall contain a

brief statement of the law concerned."

66. The Commission notes that the Austrian declaration does not state

to what extent the law in Austria failed to comply with Article 4 of

Protocol No. 7 (P7-4) at the time of ratification, in that it merely

states that Article 4 (P7-4) applies to criminal proceedings within the

meaning of the Code of Criminal Procedure. The Commission has had

recourse to the explanatory memorandum prepared at the time of

preparation of Protocol No. 7, and finds no indication that

administrative criminal offences were intended to be excluded from its

ambit. Moreover, the declaration, by stating to what the provision

does apply, rather to what it does not apply, fails to supply the

"brief statement of the law concerned", as required by Article 64

para. 2 (Art. 64-2) of the Convention (see the above-mentioned Belilos

judgment, pp. 25-28, paras. 52-60). Accordingly, the Austrian

declaration to Protocol No. 7 does not prevent the Commission from

examining this aspect of the case.

b. The Commission's competence ratione temporis

67. The Commission recalls that, in accordance with the generally

recognised rules of international law, the Convention and its Protocols

are binding on the Contracting Parties only in respect of facts

occurring after the entry into force of the Convention or the Protocol

in respect of that party.

68. It is the nature of the right enunciated in Article 4 of

Protocol No. 7 (P7-4) that two sets of proceedings must have taken

place: a first set, in which the person concerned was "finally

acquitted or convicted", and thereafter a further set, in which a

person was "liable to he tried or convicted again" within the same

jurisdiction.

69. The Commission further recalls that, in determining the fairness

of proceedings, it is entitled to look at events prior to the entry

into force of the Convention in respect of a State where the findings

of those earlier events are incorporated in a judgment which is given

after such entry into force (cf. No. 9453/81, Dec. 13.12.82, D.R. 31

p. 204, 209). The essential element in Article 4 of Protocol No. 7

(P7-4) is the liability to be tried or punished "again". The first set

of proceedings merely provides the background against which the second

set is to determined. In the present case, the Commission finds that,

provided the final decision in the second set of proceedings falls

after the entry into force of Protocol No. 7, it may deal with the

complaint ratione temporis. As Protocol No. 7 entered into force on

1 November 1988 and on 30 June 1989 Austria made a declaration under

Article 7 para. 2 (P7-7-2) of that Protocol which did not exclude

retroactive effect (cf. No. 9587/81, Dec. 13.12.82, D.R. 29 p. 228,

238), and the final decision of the Administrative Court is dated

29 March 1989, the Commission finds that it is not prevented ratione

temporis from examining this aspect of the case.

c. The merits of the Article 4 of Protocol No. 7 (P7-4)

complaint

70. The Commission first notes that the criminal proceedings

initially brought against the applicant were finally determined by the

St. Pölten Regional Court (Landesgericht) on 15 May 1987. The

applicant was convicted of causing death by negligent behaviour, the

Court expressly finding that the facts were as stated by the

prosecution, save that the element of alcohol was not present ("wobei

die Alkoholisierung entfällt"), and stating in its calculation of the

sentence, it had borne in mind that the applicant had been drinking,

but not so as to bring him within the scope of Article 81 para. 2 of

the Criminal Code. The criminal courts apply a level of 0.8 g/l

alcohol in the blood or more as irrebuttable proof that the aggravating

circumstances of Article 81 para. 2 are present.

71. The Commission next notes that, in the administrative criminal

proceedings against the applicant, he was convicted of driving 0.8 g/l

alcohol in the blood or more, contrary to Sections 5 and 99 of the Road

Traffic Act.

72. The Commission must decide whether the administrative criminal

proceedings against the applicant resulted in his being punished "again

in criminal proceedings ... for an offence for which he has already

been finally acquitted...".

73. The Commission has already found (para. 44) above that the

administrative criminal proceedings against the applicant determined

a criminal charge within the meaning of Article 6 para. 1 (Art. 6-1)

of the Convention. It also, and for the same reasons, finds that they

were "criminal proceedings" within the meaning of Article 4 of

Protocol No. 7 (P7-4).

74. The Commission further notes that the Government do not allege

that the statements by the St. Pölten Regional Court do not amount to

an acquittal, and the Commission finds that they do.

75. The crucial issue is whether, in the second proceedings, the

applicant was "tried or punished again" for an offence. The Commission

finds it important to emphasise that Article 4 of Protocol No. 7 (P7-4)

does not refer to "the same offence", but refers rather to trial and

punishment "again" for an offence. It would be incompatible with the

"practical and effective" guarantees the Convention is intended to

provide (see Eur. Court H.R., Artico judgment of 13 May 1980, Series A

no. 37) if a State could evade its obligations under Article 4 (P7-4)

simply by prosecuting an individual who had been acquitted of an

offence which, although nominally different, related to the same facts.

76. In the context of the present case, the Commission finds that the

material aspects of the administrative criminal proceedings against the

applicant covered precisely the same ground as that part of the

criminal proceedings in which he was effectively acquitted, namely, it

was a vital constituent element of the judicial criminal proceedings

that the applicant, whilst driving, had not exceeded the level of

0.8 g/l alcohol in his blood, whilst it was a vital constituent element

- indeed the totality - of the administrative criminal proceedings that

the applicant, whilst driving, had exceeded the prescribed level of

0.8 g/l in his blood.

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

was tried or punished "again" in administrative criminal proceedings

for an offence of which he had been acquitted in prior judicial

proceedings.

CONCLUSION

78. The Commission concludes, unanimously, that there has been a

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

F. Recapitulation

79. The Commission concludes, unanimously, that there has been a

violation of the applicant's right to a tribunal within the meaning of

Article 6 para. 1 (Art. 6-1) of the Convention (para. 57).

80. The Commission concludes, unanimously, that the absence of a

hearing before the Administrative Court raises no separate issue under

Article 6 para. 1 (Art. 6-1) of the Convention (para. 59).

81. The Commission concludes, unanimously, that there has been a

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

(para. 78).

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

(Or. English)

CONCURRING OPINION OF Mr. F. ERMACORA

I agree with the Commission that the scope of review afforded by

the Administrative Court does not comply with Article 6 para. 1 of the

Convention. However, the Commission finds that no separate issue

arises in connection with the absence of a hearing before the

Administrative Court.

I consider that a separate issue does arise in this case because

the Austrian reservation to Article 6 has just such a separate wording

and function from the other reservation which Austria has declared to

Article 6 in general.

The difference lies in the fact that the Austrian reservation

does not concern the administrative procedural law directly but

Article 90 para. 2 of the Constitution which states that "Hearings in

civil and criminal cases by the trial court shall be oral and public.

Exceptions may be prescribed by law".

This reservation is not at all applicable to procedures before

the Administrative and Constitutional Courts because these courts do

not deal with cases in civil and criminal cases but in cases of a

public law character. The reservation cannot be understood in any

other way because the meaning of the reservation at the time it was

made must be respected.

In 1958, when the reservation was made, Article 90 of the

Constitution could not have the meaning which the Commission now gives

to the reservation. In 1958 - long before the Ringeisen case -

Article 90 could in no way be applicable to procedures before the

Constitutional Court because Article 90 (2) from a systematic point of

view falls within the chapter of the Constitution dealing with civil

and criminal law before the ordinary courts and not the part dealing

with public law, which is regulated by Article 137 et seq. of the

Constitution.

The Commission should have entered into this question which shows

that the reservation is not at all applicable in the case. The

interpretation of this reservation is contrary to the scope of the

reservation and therefore the Commission should have applied Article 6

with reference to the misinterpretation of the said reservation. The

Commission should have considered this fact as a separate issue as to

the interpretation of the Austrian reservation. This brings me to the

same result as the other members, but based rather on a different

interpretation of the reservation.

APPENDIX I

HISTORY OF THE PROCEEDINGS

Date Item

_________________________________________________________________

22.05.1989 Introduction of application

10.01.1990 Registration of application

Examination of admissibility

16.10.1991 Commission's decision to communicate the

case to the respondent Government and to

invite the parties to submit observations

on admissibility and merits

10.03.1992 Government's observations

13.07.1992 Applicant's observations in reply

15.02.1993 Commission's decision to hold a hearing

10.05.1993 Hearing on admissibility and merits, the

parties being represented as follows :

Government : Ambassador Cede

Ms. S. Bernegger,

Federal Chancellery

Applicant : Mr. R. K. Fiebinger

Commission's decision to declare

application admissible

Examination of the merits

16.10.1993 Commission's consideration of state of

proceedings

05.03.1994 Commission's consideration of state of

proceedings

16.05.94 Commission's deliberations on the merits,

final vote and consideration of text of

the Report

19.05.94 Adoption of Report

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GRADINGER v. AUSTRIA

GRADINGER v. AUSTRIA

LEXI