FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 6072/02 by Veronika FALKNER against Austria

The European Court of Human Rights (First Section), sitting on 30 September 2004 as a Chamber composed of:

Mr C.L. Rozakis , President , Mr P. Lorenzen , Mr G. Bonello , Mrs F. Tulkens , Mrs N. Vajić , Mrs E. Steiner , Mr K. Hajiyev, judges

  and Mr S. Q uesada , Deputy Section Registrar ,

Having regard to the above application lodged on 17 January 2002 ,

Having deliberated, decides as follows:

THE FACTS

The applicant, Veronika Falkner, is an Austrian national, who was born in Sölden and lives in Wattens. She is represented before the Court by Mr Heiss, a lawyer practising in Innsbruck .

A. The circumstances of the case

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

On 27 February 2001 the applicant had a road traffic accident.

a) First set of proceedings

On 2 March 2001 the Innsbruck District Administrative Authority ( Bezirkshauptmannschaft ) withdrew the applicant ' s driving licence for 8 months as it found that the applicant had caused an accident under the influence of alcohol and was therefore not reliable as a driver in traffic.

On 14 March 2001, the Innsbruck District Administrative Authority found that she had been driving under the influence of alcohol, contrary to sections 5 § 1 and 99 § 1 (b) of the Road Traffic Act 1960 ( Straßenverkehrsordnung ) and sentenced her to a fine of ATS 12,000 (approximately 872 €).

The applicant did not appeal against this decision.

On 28 June 2001 the Hall District Court found the applicant guilty of causing bodily harm by negligence “after allowing herself ... to become intoxicated ... through the consumption of alcohol, but n ot to an extent which excluded her responsibility ...”.

It therefore convicted her under Article 88 §§ 1 and 3 of the Penal Code of ne gligently causing bodily harm under particularly dangerous conditions ( fahrlässige Körperverletzung unter besonders gefährlichen Verhältnissen ), and sentenced her to a fine of ATS 12 , 000 .

The applicant appealed against the District Court ' s judgment and submitted that she had already been convicted for drunken driving by the District Administrative Authority. The District ' s Court ' s judgment was therefore contrary to Article 4 of Protocol No . 7 to the Convention .

On 6 November 2001 the Innsbruck Regional Court partly granted the applicant ' s appeal. It found the applicant guilty of negligently causing bodil y harm and convicted her under Article 88 § 1 of the Penal Code. However, it deleted the reference to the aggravating circumstances of Article 88 § 3 and reduced the fine to ATS 10,000 suspended on probation. The Regional Court held that whereas the District Administrative Authority, on 2 March 2001, had withdrawn the applicant ' s driving licence and, on 14 March 2001, had sentenced her for driving under the influence of alcohol, the District Court ' s conviction of driving under the influence of alcohol in particularly dangerous circumstances was in breach of the principle of ne bis in idem under Article 4 of Protocol No. 7.

On 8 February 2002 the Procurator General ' s Office ( Generalprokuratur ) filed a plea of nullity for the preservation of law ( Nichtigkeitsbeschwerde zur Wahrung des Gesetzes ).

On 22 August 2002 the Supreme Court ( Oberster Gerichtshof ) quash ed the District Court ' s judgment of 28 June 2001 and the Regional Court ' s judgment of 6 November 2001 .

It found that the District Administrative Authority had based its decision on the same facts which were considered by the ordinary courts. Thus, the applicant ' s conviction by the Administrative Authority constituted in principle a technical bar to prosecution ( Verfolgungshindernis ) of the applicant by the ordinary courts from the point of view of Article 4 of Protocol No. 7. The criminal proceedings before the ordinary courts should therefore be suspended pursuant to Article 412 of the Code of Criminal Procedure ( Strafprozeßordnung ).

Furthermore , the Supreme Court held that the applicant ' s conduct clearly fell within the jurisdiction of the ordinary courts, as it constituted a criminal offen ce and not an administrative offence . It referred in this regard to S. 99 subsection (6) (c) of the Road Traffic Act which provides that an adminis trative offence is not pursued when it is based on facts that constitute an offence falling within the jurisdiction of the ordinary courts. Thus, the Administrative Authority had convi cted the applicant although it had not been competent to do so.

b) Second set of proceedings

On 23 September 2002 the Innsbruck District Administrative Authority informed the Hall District Court that the proceedings against the applicant were discontinued and the fine paid by the applicant re imbursed .

In a further statement it confirmed that the decision of 14 March 2001 had been annulled.

On 15 November 2002 the Hall District Court again convicted the applicant under Article 88 §§ 1 and 3 of the Penal Code of ne gligently causing bodily harm under particularly dangerous conditions, and sentenced her to a fine of 726 € suspended on probation. As regards the sentence the court referred to the Innsbruck Regional Court ' s judgment of 6 November 2001 and the principle prohibiting a “reformatio in peius” of the sentence.

The applicant appealed and submitted that the proceedings were contrary to Article 4 of Protocol No . 7 as she had been convicted for drunken driving by the District Administrative Authority. The conditions for reop ening the case under § 2 of Article 4 of Protocol No. 7 were not met.

On 22 August 2003 the Innsbruck Regional Court dismissed the applicant ' s appeal. It noted that the Administrative Authority had annulled its conviction. Thus, the temporary technical bar to prosecution ( Verfolgungshindernis ) of the applicant before the ordinary courts did no longer exist. The courts could therefore resume the proceedings in the applicant ' s case which might be qualified as the re-opening of a case within the meaning of § 2 of Article 4 of Protocol No. 7.

B. Relevant domestic law

A. The Road Traffic Act

S . 5 of the Road Traffic Act 1960 ( Straßenverkehrsordnung ) provides that it is an offence for a person to drive a vehicle under the influence of alcohol.

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

“(1b) It shall be an administrative offence (Verwaltungsűbertretung), punishable with a fine of not less than € 581 and not more than € 3 633 or, in default of payment, with one to six weeks ' imprisonment, for any person to drive a vehicle when under the influence of drink ...”

S . 99 subsection (6) (c) of the Road Traffic Act provides that an administrative offence is not pursued when it is based on facts that constitute an offence falling within the jurisdiction of the ordinary courts

B. The Criminal Code

Under Article 88 § 1 of the Criminal Code ( Strafgesetzbuch ), it is an offence, punishable by up to three months ' imprisonment or a fine up to 180 day-rates, to cause physical injury by negligence.

Article 88 § 3 increases the sentence in respect of causing injury by up to six months ' imprisonment and up to 360 day-rates, if the special circumstances of Section 81 § 2 apply.

Article 81 § 2 applies whe re a person commits the offence “after allowing himself, even if only negligently, to become intoxicated ... thr ough the consumption of alcohol ...”.

C. The Code of Criminal Procedure

Article 412 of the Code of Criminal Procedure ( Strafprozeßordnung ) provides that criminal proceedings have to be suspended inter alia when the offender temporarily cannot be prosecuted by the courts.

According to Article 451 § 2 proceedings have to be discontinued inter alia when prosecution is not possible.

C OMPLAINT

The applicant complained under Article 4 of Protocol No.7 that she was tried twice for driving under the influence of alcohol, firstly by the Innsbruck Administrative Authority under S . 5 § 1 and 99 § 9 (a) of the Road Traffic Act and, secondly, by the ordinary courts, which found that the special circumstances of Article 81 § 2 of the Criminal Code applied.

THE LAW

The applicant complained under Article 4 of Protocol No. 7 that she was prosecuted twice for the same conduct, first in proceedings before the Administrative Authority for drunken driving and, secondly, in proceedings before the ordinary courts because of causing bodily harm under the aggravating circumstances of having driven under the influence of alcohol. Article 4 of Protocol No. 7, as far as material, reads 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 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.

The Court recalls that in the Gradinger case ( Gradinger v. Austria , judgment of 23 October 1995 , Series A no. 328 ‑ C, § 55) the applicant was convicted by a criminal court of causing death by negligence but acquitted as regards the application of the aggravating circumstances under Section 81 § 2 of the Criminal Code i.e.” allowing himself.. to become intoxicated”, but later convicted of drunken driving by the administrative authorities. In this case the Court found a violation of Article 4 of Protocol No. 7 as this provision is not limited to the right not to be punished twice but extends to the right not to be tried twice and because both decisions were based on the same conduct ( Gradinger v. Austria , cited above, § 55).

As regards the present case, the Court notes at the outset that , subsequent to the Gradinger judgment , and in order to avoid double prosecution of drunken driving, the relevant provisions of the Road Traffic Act were amended to the effect that the administrative offence of drunken driving is now subsidiary to the offen ce under Article 88 §§ 1 and 3 of the Penal Code (see Gradinger v. Austria , Resolution of the Committee of Ministers, Res DH (97) 501, 29 October 1997 ) .

Thus, t he applicant ' s case, concerning bodily harm caused under the influence of alcohol, fell exclusively within the competence of the ordinary courts.

The Innsbruck District Administrative Authority, although lacking jurisdiction, nevertheless brought proceedings against the applicant. It later acknowledged its error , discontinued the proceedings and reimbursed the fine .

The proceedings at issue, therefore, differ from the proceedings in the above mentioned Gradinger case as the proceedings before the District Administrative Authority were clearly unlawful .

The Court notes that the aim of Article 4 of Protocol No.7 is to prohibit repetition of criminal proceedings concluded by final decision. The Court refers in this regard also to its previous finding that Article 4 Protocol No. 7 does not necessarily extend to all proceedings instituted in respect of the same offence. In particular, it must be possible for national authorities to remedy situations like the one in the present case, where authorities act erroneously beyond their competence given by domestic law ( cf . Zigarella v. Italy (dec.) no 48154/99, 3 October 2002 )

In the present case, i t was only in the subsequent proceedings before the ordinary courts that the applicant was tried by the competent authority according to domestic law , whereas the previous proceedings were annulled and the fine was reimbursed.

Thus, in the circumstances of the present case the Court finds that the applicant ' s conviction does not disclose any appearance of a violation of the ne bis in idem principle.

It follows that the applicant ' s complaint must be rejected as manifestly ill-founded in accordance with 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Santiago Q UESADA Christos R ozakis Deputy Registrar President