THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 38716/97 by Albin HANGL against Austria

The European Court of Human Rights (Third Section) , sitting on 20 March 2001 as a Chamber composed of

Mr J.-P. Costa , President , Mr W. Fuhrmann , Mr L. Loucaides , Sir Nicolas Bratza , Mrs H.S. Greve , 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 7 July 1997 and registered on 21 November 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 deliberated, decides as follows:

THE FACTS

The applicant is an Austrian national, born in 1956 and living in Innsbruck. He is represented before the Court by Mr H. Mildner, 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 15 November 1995 the Innsbruck Federal Police Authority ( Bundespolizeidirektion ) convicted the applicant of exceeding the speed limit and sentenced him to a fine of 3000 Austrian Schillings. The Authority found that the applicant had driven at 99 km/h in a 50 km/h area. The applicant did not file an objection ( Einspruch ) against this penal order ( Strafverfügung ) and paid the fine. This decision became final.

On 13 December 1995 the Innsbruck Federal Police Authority, in summary administrative proceedings ( Mandatsverfahren ), issued a decision ( Bescheid ) ordering the withdrawal of the applicant’s driving licence for a period of two weeks, in accordance with section 73 § 3 in conjunction with section 66 § 2 of the Motor Vehicles Act ( Kraftfahrgesetz ) 1967. The Authority found that the applicant had exceeded a speed limit of 50 km/h by more than 40 km/h.

On 3 January 1996 the applicant, represented by counsel, filed an objection ( Vorstellung ) to this decision, arguing that he had not appealed against the penal order because he had not known that exceeding the speed limit by more than 40 km/h automatically entailed the withdrawal of his licence.

On 17 January 1996 the Innsbruck Federal Police Authority, in ordinary administrative proceedings, ordered the withdrawal of the applicant’s driving licence for two weeks, referring to the reasons given in the summary order of 13 December 1995.

On 14 May 1996 the Tyrol Government Office ( Amt der Landeseregierung ), upon the applicant’s appeal, confirmed this decision. The Office found that, under the Motor Vehicles Act, a conviction for exceeding the speed limit by more than 40 km/h necessarily entailed the withdrawal of the driving licence for at least two weeks.

On 5 July 1996 the applicant filed a complaint against this decision with the Constitutional Court. He argued, inter alia , that the withdrawal of his driving licence amounted to a breach of Article 4 of Protocol No. 7 since the

conviction in the administrative criminal proceedings and the decision to withdraw the driving licence both had the same factual basis ( das gleiche Verhalten ).

On 24 September 1996 the Constitutional Court refused to deal with the complaint and transferred it to the Administrative Court. On 28 November 1996 the Administrative Court dismissed the applicant’s complaint as being unfounded.

B. Relevant domestic law

According to Section 66 § 2 (i) of the Motor Vehicles Act ( Kraftfahrgesetz ), a person is not to be regarded as reliable in traffic ( verkehrszuverlässig ) if he or she has exceeded a speed limit within an urban area ( Ortsgebiet ) by more than 40 km/h. Section 73 § 3 of the Motor Vehicles Act, inter alia , provides for the withdrawal of the driving licence for a period of two weeks if its owner has been finally convicted for having exceeded the speed limit in an urban area by more than 40 km/h, or longer if the traffic offence has been committed in particularly dangerous circumstances or the offender has shown a particular degree of recklessness vis-à-vis other road users.

COMPLAINTS

The applicant complains that the criminal proceedings for speeding and the proceedings for withdrawing his driving licence were based on the same facts and, therefore, he was convicted twice in breach of Article 4 of Protocol No. 7 to the Convention. He further complains under Article 6 of the Convention that in the withdrawal proceedings his case was not decided by a tribunal within the meaning of that provision. Under Article 2 of Protocol No. 7 to the Convention, he complains that he did not have the possibility to have the withdrawal decision reviewed by a higher tribunal.

THE LAW

1. The applicant complains that the criminal proceedings for speeding and the proceedings for withdrawing his driving licence were based on the same facts and, therefore, he was convicted twice in breach of Article 4 of Protocol No. 7 to the Convention.

Article 4 § 1 of Protocol No. 7 to the Convention reads 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.”

The Court recalls that the aim of Article 4 of Protocol No. 7 is to prohibit the repetition of criminal proceedings that have been concluded by a final decision (Gradinger v. Austria judgment of 23 October 1995, Series A no. 328-C, p. 65, § 53).

Therefore, the Court has to examine whether the proceedings for the temporary withdrawal of the applicant’s driving licence constituted criminal proceedings within the meaning of Article 4 of Protocol No. 7 or Article 6 of the Convention, respectively. In this respect the Court recalls that in the case of Escoubet v. Belgium it found that the withdrawal of a driving licence for a limited time, not exceeding 15 days, was a preventive measure for the safety of road-users and not a criminal penalty within the meaning of Article 6 of the Convention ([GC], no. 26780/95, 28.10.99, § 37).

In the present case, the applicant’s driving licence was withdrawn for a period of two weeks. Moreover, in these proceedings the competent authority also had to consider whether the traffic offence had been committed in particularly dangerous circumstances or whether the offender had shown a particular degree of recklessness vis-à-vis other road users. In these circumstances the Court finds that the withdrawal of the applicant’s driving licence constituted a preventive measure for the safety of road-users (see Escoubet v. Belgium , loc. cit.; Mulot v. France (dec.), no. 37211/97, 14.12.99). Therefore it cannot be said that in the proceedings for the withdrawal of the driving licence the applicant had been tried or punished again for an offence for which he had already been finally convicted, within the meaning of Article 4 of Protocol No. 7. Consequently, this provision does not apply to the proceedings at issue.

It follows that this part of the application is incompatible ratione materiae with the provisions of the Convention or Protocols thereto, within the meaning of Article 35 § 3 of the Convention.

2. The applicant further complains under Article 6 of the Convention that in the withdrawal proceedings his case was not decided by a tribunal within the meaning of that provision. Under Article 2 of Protocol No. 7 to the Convention he complains that he did not have the possibility to have the withdrawal decision reviewed by a higher tribunal.

However, the Court is not required to decide whether or not the facts alleged by the applicant disclose any appearance of a violation of these provisions as, under Article 35 § 1 of the Convention, it may only deal with a matter after all domestic remedies have been exhausted.

The Court observes that the applicant, represented by counsel, failed in his claims to the Austrian authorities and the Constitutional and Administrative Courts to raise either in form or in substance the above complaints. The applicant has therefore not exhausted domestic remedies as required by Article 35 § 1 of the Convention.

It follows that the application must be rejected in accordance with Article 35 § 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

S. Dollé J.-P. Costa Registrar President