THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 37950/97 by Franz FISCHER against Austria

The European Court of Human Rights ( Third Section ), sitting on 21 March 2000 as a Chamber composed of

Sir Nicolas Bratza, President , Mr J.-P. Costa, Mrs F. Tulkens, Mr W. Fuhrmann, Mr K. Jungwiert, Mr K. Traja, Mr M. Ugrekhelidze, judges , and Mrs S. Dollé , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 8 September 1997 and registered on 30 September 1997,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant is an Austrian citizen, born in 1974.  He lives in Wilhelmsburg and is represented before the Court by Dr S. Gloss, lawyer, of St. Pölten .

A. Particular circumstances of the case

The facts of the case, as submitted by the parties , may be summarised as follows.

On 6 June 1996, the applicant, whilst driving under the influence of alcohol, knocked down a cyclist who was fatally injured. After hitting the cyclist, the applicant drove off without stopping to give assistance and only gave himself up to the police later that night.

On 13 December 1996, the applicant was convicted by the St. Pölten District Authority ( Bezirkshauptmannschaft ) under section 5 of the Road Traffic Act 1960 ( Straßenver ­ kehrsordnung ) of driving under the influence of alcohol, not stopping when the accident occurred and not helping the injured person or immediately notifying the police of the accident. The fine imposed amounted to ATS 22,010, with 20 days' imprisonment in default of payment.

Criminal proceedings were also brought against the applicant. Thereby he was convicted by the St. Pölten Regional Court ( Landesgericht ) on 18 March 1997 of negligently causing the death of a cyclist whilst driving under the influence of alcohol, contrary to Article 81 § 2 of the Criminal Code ( Strafgesetzbuch ), and sentenced to six months' imprisonment.

The applicant's appeal against conviction and sentence was dismissed by the Vienna Court of Appeal ( Oberlandesgericht ) on 24 June 1997. The applicant argued before the Court that, in the light of the case of Gradinger v. Austria (judgment of 23 October 1995, Series A no. 328-C), the Court of Appeal should quash the decision of the Regional Court. The Court recognised that the double conviction violated Article 4 of Protocol No. 7 to the Convention. However, the Court of Appeal found that, in spite of the Gradinger case, Austrian law remained unchanged and the court was therefore obliged to follow its decision in another recent case based on very similar facts (currently the subject of an application to the Court, No. 34186/96). The Court therefore distinguished the Gradinger judgment on the ground that in that case the administrative proceedings had been after the criminal proceedings, whereas in the present case, the order was reversed. The Court of Appeal explained that the double punishment was possible because there was no provision of Austrian law which provided for a principle of “ subsidiarity ” between the administrative and the criminal proceedings in the present circumstances. It concluded that one element of the administrative offence could not hinder the criminal proceedings which had a much wider scope. The applicant's conviction therefore stood.

On 19 May 1999 the sentence of six months’ imprisonment imposed on the applicant was reduced to five months by virtue of the Federal President’s prerogative of mercy.

B. Relevant domestic law and practice

1. The Road Traffic Act

Section 5 of the Road Traffic Act 1960 provides that it is an offence for a person to drive a vehicle if the proportion of alcohol in his blood or breath is equal to or higher than 0.8 grams per litre or 0.4 milligrams per litre respectively.

Section 99 of the 1960 Act provides, so far as relevant, that:

“(1) It shall be an administrative offence ( Verwaltungsűbertretung ), punishable with a fine of not less than ATS 8,000 and not more than ATS 50,000 or, in default of payment with one to six weeks’ imprisonment, for any person:

(a) to drive a vehicle when under the influence of drink ...

(6) An administrative offence is not committed where: ...

(c) facts constituting an offence under sub-sections (2), (3) or (4) also constitute an offence falling within the jurisdiction of the [ordinary] courts ... .”

2. The Criminal Code

Under Article 80 of the Criminal Code, it is an offence, punishable by up to one year’s imprisonment, to cause death by negligence. Where the special circumstances of Article 81 § 2 apply, the maximum possible sentence is increased to up to three years’ imprisonment.

Article 81 § 2 applies where a person commits the offence

“after allowing himself, even if only negligently, to become intoxicated ... through the consumption of alcohol, but not to an extent which excludes ... responsibility ...”.

By virtue of an irrebuttable presumption applied by the criminal courts, a driver with a blood alcohol level of 0.8 grams per litre or higher is deemed to be “intoxicated” for the purposes of Article 81 § 2.

COMPLAINTS

The applicant alleges a violation of Article 4 of Protocol No. 7 to the Convention.

THE LAW

The applicant alleges a violation of Article 4 of Protocol No. 7 to the Convention by virtue of the criminal proceedings which followed the administrative criminal proceedings in the case. Article 4 of Protocol No. 7 provides, so far as relevant, as follows:

“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 acco r dance with the law and penal procedure of that State.”

The Government submit that the Court, in its Oliveira v. Switzerland judgment (30 July 1998, Reports of Judgments and Decisions 1998-V), had – contrary to its Gradinger v. Austria judgment (23 October 1995, Series A no. 328-C) – considered the legal qualification as the criterion for determining the “offence” within the meaning of Article 4 of Protocol No. 7. In their view, the present application like the Oliveira case concerns “a typical example of a single act constituting various offences ( co n cours idéal d’infractions )”, i.e. a case where one criminal act constitutes two separate o f fences which does not infringe Article 4 of Protocol No. 7. Besides, unlike the Gradinger case, there was no inconsistency in the two relevant authorities’ assessment of the present applicant’s blood alcohol level. Further, the sentence imposed by the criminal court was reduced by virtue of the Federal President’s prerogative of mercy. The reduction of one month corresponds to the fine paid due to the administrative authority’s penal order. Therefore, in the Government’s view, no violation of Article 4 of Protocol No. 7 can be found in the present case.

The applicant contests the Government’s view. He submits that the Oliveira case is not comparable to his, as in the former case the criminal court had quashed the fine i m posed by the police magistrate and stated that, if the fine had already been paid, it was to be deducted from the second fine. However, in his case two sentences were imposed for driving under the influence of alcohol. In the applicant’s view the entire criminal conviction, or at least the fact that the conviction was not limited to Article 80, but also extended to Article 81 § 2 of the Criminal Code, infringed Article 4 of Protocol No.7.

The Court considers, in the light of the parties’ submissions, that the case raises co m plex issues of law and fact under the Convention, the determination of which should depend on an examination of the merits of the application. The Court concludes, therefore, that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Conve n tion. No other grounds for declaring it inadmissible have been established.

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION ADMISSIBLE , without prejudging the merits of the case.

S. Dollé N. Bratza

Registrar President