THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 38237/97 by G.S. against Austria

The European Court of Human Rights (Third Section) , sitting on 10 May 2001 as a Chamber composed of

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

Having regard to the above application introduced with the European Commission of Human Rights on 7 October 1997 and registered on 17 October 1997,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

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 a German national, born in 1970 and living in St Peter am Hart. He is represented before the Court by Mr J. Postlmayr , a lawyer practising in Mattighofen .

A. Particular circumstances of the case

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

On 9 July 1995 the applicant was involved in a road traffic accident in which his passenger was slightly injured.

On 25 September 1995 the Braunau District Administrative Authority ( Bezirkshauptmannschaft ) ordered the applicant to pay a fine of 10,000 Austrian schillings (ATS), with nine days’ imprisonment in default, for driving under the influence of drink, contrary to sections 5 (1) and 99 (1) (a) of the Road Traffic Act 1960 ( Straßenverkehrsordnung ). The applicant did not appeal.

Meanwhile, on 8 August 1995, a criminal information was laid against him.

On 7 January 1997 the Grieskirchen District Court ( Bezirksgericht ) convicted the applicant under Article 88 §§ 1 and 3 of the Criminal Code ( Strafgesetzbuch ) of cau sing injury by negligence, with the additional element of Article 81 § 2, and sentenced him to pay a fine of ATS 8,000 with twenty days’ imprisonment in default.

On 18 June 1997 the Wels Regional Court ( Landesgericht ) dismissed the applicant’s appeal. The Regional Court noted that the European Court of Human Rights had meanwhile found that the Austrian reservation in respect of Article 4 of Protocol No. 7 was invalid (see the Gradinger v. Austria judgment of 23 October 1995, Series A no. 328-C, pp. 64-65, §§ 49-51). However, the judgment was not directly applicable and, therefore, it had to be assumed that double punishment was still lawful under domestic law, if the courts decided after the administrative authorities. In addition it noted that, following a judgment of the Constitutional Court changing the subsidiarity provisions in section 99 (6) (c) of the Road Traffic Act, the administrative offence of drunken driving was subsidiary to an offence under the Criminal Code committed with the additional element of Article 81 § 2. This change of law was however not applicable to the case in issue.

B. Relevant domestic law and practice

1. The Road Traffic Act

Section 5 (1) 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, so far as relevant, provided at the material time, 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), (2a), (2b), (3) or (4) also constitute an offence falling within the jurisdiction of the [ordinary] courts ... .”

In its judgment of 5 December 1996 the Constitutional Court had to examine the constitutionality of section 99 subsection (6)(c) of the Road Traffic Act, by virtue of which the administrative offence of driving under the influence of drink was not subsidiary to an offence falling within the jurisdiction of the courts.

The Constitutional Court noted that that it was not contrary to Article 4 of Protocol No. 7 if a single act constituted more than one offence. This was a feature common to the criminal law of many European countries. However, it was also accepted in criminal law doctrine that sometimes a single act only appeared to constitute more than one offence, whereas interpretation showed that one offence entirely covered the wrong contained in the other so that there was no need for further punishment. Thus, Article 4 of Protocol No. 7 prohibited the trial and punishment of someone for different offences if interpretation showed that one excluded the application of the other. Where, as in the present case, the law explicitly provided that one offence was not subsidiary to another, it had to be guided by Article 4 of Protocol No. 7. The Court’s Gradinger judgment of 23 October 1995 had shown that there was a breach of this Article if an essential aspect of an offence, which had already been tried by the courts, was tried again by the administrative authorities.

Section 99 subsections (1)(a) and (6)(c) of the Road Traffic Act, taken together, meant that the criminal administrative offence of drunken driving could be prosecuted even when an offence falling within the competence of the normal criminal courts was also apparent. According to the criminal courts’ constant case-law under section 81 § 2 of the Criminal Code (cited below), drunken driving was also an essential aspect of certain offences tried by these courts. Insofar as section 99 (6)(c) of the Road Traffic Act limited the subsidiarity of administrative offences to those enumerated in subsections (2) to (4) of section 99, thus excluding subsidiarity for the offence of drunken driving contained in section 99 (1)(a), it violated Article 4 of Protocol No. 7.

2. The Criminal Code

By Article 88 § 1 of the Criminal Code, it is an offence, punishable by up to three months’ imprisonment or a fine of up to one-hundred and eighty day-rates, to cause injury by negligence. By virtue of Article 88 § 3, where the special circumstances of Article 81 § 2 apply, the maximum possible sentence is increased from three months’ to six months’ imprisonment or a fine of  up to three-hundred and sixty day-rates.

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 his responsibility, notwithstanding that he has foreseen or could have foreseen that he would shortly have to engage in an activity likely to pose ... a danger to the lives ... of others if performed in that state”.

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.

COMPLAINT

The applicant complains under 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 his 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 accordance with the law and penal procedure of that State.”

1. The Government submit that the applicant has not exhausted domestic remedies as required by Article 35 § 1 of the Convention. They point out that the criminal proceedings against the applicant were already pending when he received the Braunau District Administrative Authority’s conviction for breach of section 5 of the Road Traffic Act 1960.  At that time he must have been aware of the fact that section 99 (6)(c) of the Road Traffic Act was unconstitutional as the Commission had already adopted its report under former Article 31 of the Convention in the Gradinger case. He should therefore have lodged an appeal with the Independent Administrative Panel and, if need be, a complaint with the Constitutional Court. Indeed, in its judgment of 5 December 1996, the Constitutional Court found that the exclusion of cases such as the present from the principle of “ subsidiarity ” in Section 99 (6)(c) was unconstitutional.

The applicant submits that he was not aware that criminal proceedings were pending against him when he received the decision of the District Administrative Authority. Moreover, as the Court’s Gradinger judgment had not been issued at the relevant time, a complaint to the Constitutional Court offered little prospects of success. Finally, the applicant points out that the Court has rejected the Government’s non-exhaustion plea in a number of similar cases.

The Court recalls that, in cases raising the same issue, it has not accepted that an appeal and subsequent constitutional complaint would have constituted an effective remedy in the present case, concerned as it is with the right not to be “tried or punished again in criminal proceedings ... for an offence for which [a person] has already been finally acquitted or convicted ...”. In particular, if the applicant had been successful before the Constitutional Court, the most advantageous outcome would have been the quashing of the administrative proceedings. Whilst from a domestic perspective it may be the case that nothing would then have stood in the path of criminal proceedings, the Court considers that the applicant would nevertheless have been in the position of a person “finally acquitted” of the administrative offence. Further criminal proceedings would have given rise to the same problems under the provision as if the applicant had not pursued a constitutional complaint (see for instance no. 32502/96, Ruschak v. Austria, [Section 3] decision of 21.3.00)

It follows that the application cannot be rejected for non-exhaustion of domestic remedies.

2. As to the merits, 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 (cited above), considered the legal qualification as the criterion for determining the “offence” within the meaning of Article 4 of Protocol No. 7. The Government, while conceding that there are certain differences, argue that the present case is comparable to the Oliveira case. In their view, the present application, like the Oliveira case, concerns a typical example of a single act constituting various offences, i.e. a case where one criminal act constitutes two separate offences, which does not infringe Article 4 of Protocol No. 7. They contend that this view is supported by the Court’s decisions in two further cases ( Ponsetti and Chesnel v. France, nos. 36855/97 and 41731/98, ECHR 1999 ‑ VI, decision 14.9.99, and Meigen v. France , no. 41544/98, decision 11.1.00). Finally, they argue that, unlike the Gradinger case, the authorities in the present application did not make a different assessment of the facts.

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 whilst under the influence of alcohol and he had to pay both fines. Thus, the present application is comparable to the Gradinger case. It is not, however, comparable to the French cases relied on by the Government as, in the applicant’s view, the imposition of a surtax was not criminal in nature, and could not therefore lead to a double punishment when combined with the criminal conviction for tax fraud. The applicant, thus, maintains that the principle of non bis in idem was indeed violated in his case.

The Court considers, in the light of the parties’ submissions, that the case raises complex 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 Convention. 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 J.-P. Costa Registrar President

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