FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 77413/01 by Stefan BACHMAIER against Austria

The European Court of Human Rights ( First Section) , sitting on 2 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 S. Botoucharova , Mrs E. Steiner, judges , Mr S. Nielsen , Section Registrar , Having regard to the above application lodged on 20 November 2001,

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, Mr Stefan Bachmaier, is an Austrian [Note1] national, who was born in 1978 and lives in Geretsberg (Austria). He is represented before the Court by Mr J. Postlmayr, a lawyer practising in Mattighofen (Austria).

A. The circumstances of the case

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

On 14 July 1996 the applicant was involved in a road accident in which a passenger in his car was killed. Subsequently, criminal proceedings against the applicant were opened. On 13 August 1996 the Ried Public Prosecutor’s Office ( Staatsanwaltschaft ) preferred a bill of indictment against the applicant charging him with having caused death by negligence in particularly dangerous conditions under Sections 80 and 81 § 2 of the Criminal Code ( fahrlässige Tötung unter besonders gefährlichen Verhältnissen ), namely in a state of drunkenness.

On 6 September 1996 the Braunau District Administrative Authority ( Bezirkshauptmannschaft ) summoned the applicant as he was suspected of having committed the administrative offence of driving a car in a state of drunkenness under Section 99 (1) (a) of the Road Traffic Act ( Straßenverkehrsordnung ).

On 19 September 1996 the applicant admitted in his submissions to the District Administrative Authority that he had driven the car in a state of drunkenness, but stressed that the District Administrative Authority was not entitled to prosecute him for the administrative offence under Section 99 (1) (a) of the Road Traffic Act, as criminal proceedings concerning the same issue were already pending. He relied on Article 4 of Protocol No. 7.

On 16 September and 14 October 1996 the Ried Regional Court ( Landesgericht ) held hearings and, on the latter date, acquitted the applicant of the charges under Sections 80 and 81 § 2 of the Criminal Code as it had not been established that the applicant had caused the accident.

On 15 October 1996 the District Administrative Authority issued a penal order ( Straferkenntnis ) against the applicant and fined him in the amount of ATS 10,000 (EUR 726.73) for having driven a car in a state of drunkenness on 14 July 1996.

On 23 October 1996 the applicant appealed relying on Article 4 of Protocol No 7. He did not request a hearing.

On 22 November 1996 the Upper Austria Independent Administrative Panel ( Unabhängiger Verwaltungssenat – hereafter referred to as IAP), sitting with a single member, dismissed the applicant’s appeal. It found that the present case had to be distinguished from the case of Gradinger v. Austria (judgment of 23 October 1995, Series A no. 328-C, pp. 64-65, §§ 49-51) as the records of the Regional Court’s hearings disclosed that the court, acquitting the applicant, had accepted his defence that the passenger killed in the accident had caused the accident by grabbing the steering wheel. As it could not be established that the applicant had caused the accident, the Regional Court had not anymore been called upon to consider the further question whether the applicant had actually been drunk. Accordingly, the District Authority’s decision did not infringe the applicant’s rights under Article 4 of Protocol No. 7.

On 4 December 1996 the applicant filed a complaint with the Constitutional Court ( Verfassungsgerichtshof ). He submitted that the IAP’s decision had been based on an unconstitutional provision and had violated his rights under Article 4 of Protocol No 7.

On 29 January 1997 the IAP submitted observations in reply and repeated in essence the arguments of its decision of 22 November 1996.

On 10 October 1997 the Constitutional Court quashed the IAP’s decision. Referring to its findings of 9 October 1997, it held that the decision in the applicant’s case was based on an unconstitutional provision which excluded that Section 20 of the Code of Administrative Offences ( Verwaltungsstrafgesetz ) be applied in road-accident proceedings. Section 20 of the Code of Administrative Offences provides that, if the extenuating circumstances outweigh the aggravating circumstances, the fine imposed may be reduced to the half of the statutory minimum fine.

On 2 December 1997 the IAP requested the applicant to submit information on his financial situation by the end of December 1997. It further noted that the issue would be assessed on the basis of the file if he failed to comply with this request. The applicant did not respond.

On 27 January 1998 the IAP, sitting with the same single member as in the first round of the proceedings, partly allowed the applicant’s appeal and, applying Section 20 of the Code of Administrative Offences, reduced the fine to ATS 8,000 (EUR 581.38). It confirmed its previous finding of 22 November 1996 concerning the issue under Article 4 of Protocol No. 7.

On 16 February 1998 the applicant filed a complaint with the Constitutional Court. He pointed out that the IAP had failed to hold a hearing and that the decisions had not been pronounced in public. Further, he complained that the composition of the IAP had been unlawful and challenged the member of the IAP for bias, who had already decided on his appeal in the first round of the proceedings.

On 21 April 1998 the IAP submitted observations in reply.

On 26 August 1998 the applicant supplemented his complaint.

On 19 June 2000 the Constitutional Court dismissed the complaint. It found that the Regional Court had first to consider whether the applicant had caused death by negligence and only then whether or not he had done so in particularly dangerous circumstances, i.e. in a state of drunkenness. Neither the records of the hearings nor the reasons of the shortened version of the acquitting judgment of the Regional Court disclosed any indication that the court had actually considered the applicant’s drunkenness. Therefore, the administrative authorities were free to prosecute the applicant for the administrative offence of driving a car in a state of drunkenness, which did not infringe Article 4 of Protocol No. 7.

As regards the lack of a public hearing before the IAP, the Constitutional Court found that the applicant had failed to file a request to this effect in both the first and second set of the proceedings and that his appeal only related to issues of law.

As regards the lack of a public pronouncement of the IAP’s decision, the Constitutional Court, referring to Section 67 g of the General Administrative Procedure Act ( Allgemeines Verwaltungsverfahrensgesetz ), found that this complaint did not raise an issue under the angle of the Constitution.

As regards the alleged bias of the member of the IAP, it found that the mere fact that the same IAP member had decided on the applicant’s appeal in the first and second set of the proceedings did not disclose any appearance of partiality. In conclusion, there was no indication of unfairness of the proceedings.

On 27 July 2000 the applicant requested that the case be transferred to the Administrative Court ( Verwaltungsgerichtshof ).

On 16 November 2000 the Constitutional Court allowed this request.

On 28 November 2000 the Administrative Court ordered the applicant to supplement his complaint. The applicant did so on 16 January 2001 .

On 22 February 2001 the IAP submitted observations in reply, on which the applicant commented on 5 March 2001.

On 18 May 2001 the Administrative Court declined to deal with the applicant’s complaint pursuant to Section 33a of the Administrative Court Act ( Verwaltungsgerichtshofsgesetz ) since the amount of the penalty did not exceed ATS 10,000 and no important legal problem was at stake as the Constitutional Court had already dealt with the issue under Article 4 of Protocol No. 7. This decision was served on the applicant’s lawyer on 19 June 2001.

B. Relevant domestic law

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 at the material time, that:

“(1) It shall be an administrative offence ( Verwaltungsübertretung ), 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 (...)

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

Section 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 (...)”.

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

COMPLAINTS

1. The applicant complained under Article 4 of Protocol No. 7 that he was tried twice for driving under the influence of alcohol, first by the Ried Regional Court under Sections 80 and 81 § 2 of the Criminal Code and, secondly, by the Braunau District Administrative Authority under Sections 5 (1) and 99 (1) (a) of the Road Traffic Act.

2. The applicant complained under Article 6 of the Convention that the administrative proceedings had been unfair. He submitted that the member of the IAP deciding his case had been biased as he decided on his appeal both in the first and in the second round of the proceedings; that the IAP failed to pronounce its decisions in public; and that the IAP failed to hold hearings in both rounds of the proceedings. He also complained that the administrative criminal proceedings had lasted unreasonably long.

3. Lastly, he complained under Article 13 that the Administrative Court declined to deal with his complaint.

THE LAW

1. The applicant complained under Article 4 of Protocol No. 7 that he was tried twice for driving under the influence of alcohol, first by the Ried Regional Court under Sections 80 and 81 § 2 of the Criminal Code and, secondly, by the Braunau District Administrative Authority under Sections 5 (1) and 99 (1) (a) of the Road Traffic Act. Article 4 of Protocol No. 7 provides 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.

3. No derogation from this Article shall be made under Article 15 of the Convention.”

The Government, referring to this Court’s findings in the case of Franz Fischer v. Austria (no. 37950/97, 29 May 2001), maintained that there was no interference with the applicant’s right not to be tried twice under Article 4 of Protocol No. 7 in the present application. In the criminal proceedings the Regional Court acquitted the applicant on the ground that it had not been established that he had caused the accident. Neither the records of the hearing nor the judgment of 14 October 1996 disclosed any indication that the court had actually considered the applicant’s state of intoxication. The administrative authorities on the other hand, and in particular the IAP, had to examine whether the applicant had driven the car under influence of alcohol. The decisions of the Regional Court and the IAP did not overlap in the essential element of driving a car in a state impaired through the influence of alcohol since this subject-matter had not been examined in the judicial proceedings.

The applicant contested the Government’s view. He maintained that he had been tried twice for the same offence, which could be inferred from the bill of indictment of the charges of causing the death of a person under particularly dangerous circumstances, under Section 81 § 2 of the Criminal Code, which fell within the competence of the Regional Court. Had it only been for causing negligently the death of a person under Section 80 of the Criminal Code, a District Court would have been competent to determine the charge. The applicant contested the Government’s view that the Regional Court had not considered the applicant’s state of intoxication, because neither in the criminal nor in the administrative proceedings was any special investigation undertaken due to the fact that his drunkenness had been undisputed given the result of a blood analysis already contained in the file.

The Court reiterates that the aim of this provision is to prohibit that a person is tried or punished twice for the same aspect of one criminal act (see, mutatis mutandis , Gradinger v. Austria , judgment of 23 October 1995, Series A no. 328-C, p. 65, § 53).

It further recalls that it has dealt on various occasions with cases where two convictions arose out of the same set of facts (see Gradinger, cited above; Oliveira v. Switzerland, judgment of 30 July 1998, Reports of Judgments and Decisions 1998-V; Ponsetti and Chesnel v. France (dec.), nos. 36855/97 and 41731/98, ECHR 1999-VI; Franz Fischer , cited above; and Sailer v. Austria , no. 38237/97, 6 June 2002).

In the most recent cases, namely Franz Fischer (cited above, § 25) and Sailer (cited above, § 25), the Court held as follows:

“The Court observes that the wording of Article 4 of Protocol No. 7 does not refer to “the same offence” but rather to trial and punishment “again” for an offence for which the applicant has already been finally acquitted or convicted. Thus, while it is true that the mere fact that a single act constitutes more than one offence is not contrary to this Article, the Court must not limit itself to finding that an applicant was, on the basis of one act, tried or punished for nominally different offences. The Court, like the Austrian Constitutional Court, notes that there are cases where one act, at first sight, appears to constitute more than one offence, whereas a closer examination shows that only one offence should be prosecuted because it encompasses all the wrongs contained in the others (...). An obvious example would be an act which constitutes two offences, one of which contains precisely the same elements as the other plus an additional one. There may be other cases where the offences only slightly overlap. Thus, where different offences based on one act are prosecuted consecutively, one after the final decision of the other, the Court has to examine whether or not such offences have the same essential elements.”

The Court observes that the applicant in the Gradinger case (cited above) was acquitted of the special aggravating element under Section 81 § 2 of the Criminal Code of “allowing himself ... to become intoxicated” but convicted of drunken driving by the administrative authorities. In the Gradinger 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 (§ 55). In the case of Franz Fischer (cited above, § 29) the Court found that the administrative offence of drunken driving under Sections 5 (1) and 99 (1) (a) of the Road Traffic Act, and the special circumstances under Section 81 § 2 of the Criminal Code, as interpreted by the courts, do not differ in their essential elements.

The Court observes that, in the present case, the applicant was prosecuted for causing death by negligence in particularly dangerous conditions, i.e. under influence of alcohol (Section 81 § 2 of the Criminal Code). However, he was acquitted of these charges without any further consideration of the applicant’s state of drunkenness as it had not been possible to establish whether it was him or the deceased passenger who had caused the accident. Only the essential element of the offence of “causing death by negligence” was considered by the court and found to be lacking. The additional element of driving in a state of drunkenness was only considered in the subsequent administrative criminal proceedings. In this respect the Court notes the findings of the Constitutional Court in its decision of 19 June 2000 according to which the Regional Court had not considered the applicant’s state of drunkenness as it had failed beforehand to establish that the applicant had caused the accident. Thus, the applicant’s prosecution for an offence under the Road Traffic Act had not infringed his rights under Article 4 of Protocol No. 7.

The Court considers that the present application must be distinguished from the above-mentioned cases of Gradinger and Franz Fischer. It agrees with the Constitutional Court that the applicant has not been “tried again” within the meaning of Article 4 of Protocol No. 7 because in the particular circumstances of the case the Regional Court had only examined one element of the offence, namely whether the applicant had been the perpetrator of the accident. Failing to establish this element of the criminal offence, the administrative authorities could subsequently prosecute and fine the applicant for the offence of drunken driving, which was undisputedly established. Therefore, in the circumstances of the case, the prosecution for the administrative offence of drunken driving did not interfere with the applicant’s right not to be tried twice under Article 4 of Protocol No. 7.

It follows that this complaint is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4.

2. The applicant complained under Article 6 of the Convention that the administrative criminal proceedings had been unfair and had lasted unreasonably long. Article 6 § 1 provides as follows:

“1. In the determination (...) of any criminal charge (...), everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.

a) As regards the complaint about the length of the proceedings, the Government argued that the overall duration was reasonable. In particular, the applicant could have expedited the proceedings by filing in parallel a complaint with the Constitutional Court and the Administrative Court immediately after the service of the IAP’s decision of 27 January 1998. Further, the applicant had caused a delay of approximately one month as he failed to comply with the IAP’s request of 2 December 1997 to submit information on his financial situation. As regards the conduct of the Austrian authorities, the Government submitted that the first round of proceedings was carried out speedily. The District Administrative Authority gave its decision on 15 October 1996, and the IAP decided on the applicant’s appeal on 22 November 1996. The applicant’s first complaint with the Constitutional Court had to be seen in conjunction with pending requests for reviewing the constitutionality of the law. Within less than eleven months and already one day after its finding of the unconstitutionality of the provision also at stake in the applicant’s case, the Constitutional Court gave its decision on 10 October 1997. Subsequently, in the second set of proceedings, the IAP decided on 27 January 1998, that is three months after the Constitutional Court had set aside the decision. Upon the applicant’s second complaint, the Constitutional Court carried out comprehensive preliminary investigations and examined in detail the ECHR’s case-law relating to the principle of ne bis in idem . Therefore the period of time of approximately one year and ten months, during which time the complaint was pending before the latter court, was not excessive either. Finally, the proceedings before the Administrative Court merely lasted six months. Thus the authorities did not cause any unreasonable delay either in the first or second round of the proceedings.

The applicant maintained that the proceedings had not been complex, since the authorities did not have to obtain evidence, but only had to determine the question of law whether or not the prosecution for the administrative offence after his final acquittal infringed Article 4 of Protocol No. 7. Further, there was no obligation under Austrian law to file complaints in parallel with the Constitutional Court and the Administrative Court. It could well have been that the Constitutional Court quashed the IAP’s decision, which would have made it irrelevant and even inadmissible to lodge a complaint with the Administrative Court. In sum, the proceedings lasted unreasonably long.

As regards the period to be taken into account, the Court notes that the proceedings started on 16 September 1996, when the applicant was summoned by the District Authority and ended on 19 June 2001, when the final decision by the Administrative Court was served on the applicant’s counsel. Thus, the proceedings lasted for four years and nine months, during which time the applicant’s case was examined twice at three levels of jurisdiction.

The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the particular circumstances of the case and having regard to the criteria laid down in the Court’s case-law, in particular the complexity of the case, the conduct of the applicant and of the relevant authorities, and the importance of what was at stake for the applicant in the litigation (see for instance Humen v. Poland [GC], no. 26614/95, 15 October 1999, § 60).

The Court observes that the first set of the proceedings was of a certain complexity as the Constitutional Court had to decide on the constitutionality of the applicable law. As regards the conduct of the parties, no substantial delays can be attributed to the applicant. As regards the conduct of the authorities, the proceedings at issue were dealt with twice at three levels of jurisdiction. There is one lengthy period of time when the case was pending before the Constitutional Court. The Court notes that the applicant filed his complaint on 16 February 1998, and the IAP commented on 21 April 1998. The applicant supplemented his complaint on 26 August 1998 and it took the Constitutional Court about one year and ten months until it dismissed the applicant’s complaint on 19 June 2000. However, noting that the applicant’s case was examined twice at three levels of jurisdiction, the Court considers that the overall duration of the present proceedings can still be regarded as “reasonable” within the meaning of Article 6 § 1 of the Convention.

It follows that this complaint is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4.

b) As regards the applicant’s complaint about the alleged bias of the member of the IAP who decided on his appeal both in the first and second round of the proceedings, the Court reiterates that, u nder the subjective test, the personal impartiality of a judge must be presumed until there is proof to the contrary (see Bulut v. Austria, judgment of 22 February 1996, Reports of Judgments and Decisions 1996-II, p. 356, § 32; and Padovani v. Italy, judgment of 26 February 1993, Series A no. 257-B, p. 20, § 26). The applicant has not submitted any argument calling the personal impartiality of the IAP’s member in question.

It is further noted that the mere fact that the same judge decided on the applicant’s appeal in two sets of proceedings, does not objectively justify any fears as to a lack of impartiality on his part (see mutatis mutandis, Diennet v. France, judgment of 26 September 1995, Series A no. 325-A, p. 16, § 38; Ringeisen v. Austria, judgment of 16 July 1971, Series A no. 13, p. 40, § 97, Thomann v. Switzerland, judgment of 10 June 1996, Reports 1996-III, p. 819, § 63, Faugel v. Austria (dec.), nos. 58647/00 and 58649/00, 24 October 2002).

It follows that this complaint is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4.

c) As regards the complaint about the lack of a public hearing, the Court reiterates that “under Section 51e of the Austrian Code of Administrative Offences, Independent Administrative Panels shall hold a hearing. They may refrain from doing so when the parties concerned expressly waive their right to a hearing or when the parties’ appeal only concerns points of law, or the sentence imposed, and there is no express request for a hearing to be held” (see Baischer v. Austria , no. 32381/96, § 26, 20 December 2001). Since the applicant did not request a hearing held, there is no indication that the IAP should have held one ex officio . The Court finds that the applicant waived his right to a public hearing under Article 6 § 1 of the Convention.

It follows that this complaint is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4.

d) As regards the complaint about the IAP’s failure to pronounce its decision in public, the Court observes that it has several times had occasion to rule on the Article 6 § 1 requirement that judgments must be pronounced publicly, holding that “in each case the form of publicity to be given to the ‘judgment’ under the domestic law of the respondent State must be assessed in the light of the special features of the proceedings in question and by reference to the object and purpose of Article 6 § 1” (see Pretto and Others v. Italy , judgment of 8 December 1983, Series A no. 71, p. 12, § 26 in fine ). In the case of Sutter v. Switzerland (judgment of 22 February 1984, Series A no. 74, pp. 14–15, § 34) it held that public delivery of a decision of the Military Court of Cassation was unnecessary, as public access to that decision was ensured by other means, namely the possibility of seeking a copy of the judgment from the court registry and its subsequent publication in an official collection of case-law.

In the present case the Court observes that all the decisions of the Upper Austria IAP are published on the Internet. Having regard to the above-mentioned case-law, the Court considers that public access to the decisions at issue was thereby properly ensured (see Faugel v. Austria (dec.), nos. 58647/00 and 58649/00, 24 October 2002).

It follows that this complaint is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4.

3. As regards the complaint under Article 13 that the Administrative Court declined to deal with his complaint, the Court reiterates that the right to appeal is not as such guaranteed by Article 13 of the Convention (see Delcourt v. Belgium, judgment of 17 January 1970, Series A no. 11, p. 14, § 25). There is also no issue under Article 2 of Protocol No. 7, as the Court has previously held that a decision by the Administrative Court under Section 33 a of the Administrative Court Act may be equated to a decision given on an application for leave to appeal (see Hauser v. Austria , Commission decision of 16 January 1996, D.R. 84, p. 164; and Weh and Weh v. Austria (dec.), no. 38544/97, 4 July 2002).

It follows that this complaint is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4.

For these reasons, the Court unanimously

Declares the application inadmissible.

Søren Nielsen Christos Rozakis Registrar President

[Note1] To be checked.