THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 34186/96 by Christoph FREUNBERGER against Austria

The European Court of Human Rights ( Third Section ) sitting on 8 February 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 Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 15 November 1996 by Christoph Freunberger against Austria and registered on 16 December 1996 under file no. 34186/96;

Having regard to the reports provided for in Rule 49 of the Rules of Court;

Having regard to the observations submitted by the respondent Government on 16 January 1998 and the observations in reply submitted by the applicant on 16 February 1998;

Having regard to the further observations submitted by the respondent Government on 7 December 1999 and by the applicant on 16 November 1999;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a n Austrian national, born in 1976. He lives in Wilhelmsburg . He is represented before the Court by Mr. S. Gloss, a lawyer practising in St. P ö lten .

A. Particular circumstances of the case

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

On 15 July 1995 the applicant caused a road traffic accident in which two passengers were injured. On 31 October 1995 he was ordered to pay a fine for driving his car whilst under the influence of drink, and failing to wear his glasses whilst driving. The fine was ordered by the St. Pölten District Authority ( Bezirkshauptmannschaft ) pursuant to Sections 5 (1) and 99 (1)(a) of the Road Traffic Act 1960 ( Straβen ­ ver ­ kehrs ­ ordnung ) as to the former charge, and pursuant to Sections 134 (1) and 102 (3) of the Motor Vehicles Act 1967 ( Kraftfahrgesetz ) as to the latter. The fine amounted to ATS 8,000.00 for the first charge, and ATS 1,000.00 for the second charge, with eight days’ and one day’s imprisonment in default, respectively.

Criminal proceedings were also brought against the applicant. In these proceedings, a criminal report was filed with the prosecutor on 24 August 1995, and on 25 August 1995 the prosecutor issued a request for the applicant to be prosecuted. The papers concerning the prosecution were served on the applicant on 17 November 1995. On 2 May 1996 the applicant was convicted by the St. Pölten Regional Court ( Landesgericht ) of causing serious injury by negligence, contrary to Article 88 §§ 1 and 4 of the Criminal Code ( Strafgesetzbuch ). Referring to a breathalyser test which had been made shortly after the accident, the Court found it established that the applicant’s blood alcohol level had been higher than 0.8 grams per litre. Because of the aggravating circumstances of the severity of the injuries caused and Article 81 § 2 of the Criminal Code (intoxication through consumption of alcohol), the applicable maximum sentence was automatically increased to up to two years’ imprisonment. The applicant was sentenced to four months’ imprisonment.

The applicant’s appeal against conviction and sentence was dismissed by the Vienna Court of Appeal ( Oberlandesgericht ) on 19 September 1996. The Court of Appeal declined to make a preliminary reference under Article 177 of the EU Treaty, and distinguished the present case from that of Gradinger v. Austria (judgment of 23 October 1995, Series A no. 328-C) on the ground that in Gradinger the administrative proceedings were after the criminal proceedings, whereas in the present case the order of proceedings 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 the fact that the applicant had already been convicted in respect of one element of the criminal offence, could not hinder the criminal proceedings, which had a much wider scope. The Gradinger case could therefore only have an impact on the question whether administrative proceedings should be brought, and the legislator should consider how the problem of "twin tracking" could be overcome. The applicant’s conviction stood, however.

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

By Article 88 § 1 of the Criminal Code, it is an offence, punishable by up to three months’ imprisonment or a fine, to cause physical injury by negligence.

Article 88 § 4 Part 1 increases the sentence in respect of causing injury, where the injury is particularly serious, by up to six months’ imprisonment or a fine. By virtue of Article 88 § 4 Part 2, where the special circumstances of Article 81 § 2 apply, the maximum possible sentence is increased by up to two 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 ...”.

Under an irrebutable 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.

PROCEDURE

The application was introduced on 15 November 1996 and registered on 16 December 1996.

On 23 October 1997 the European Commission of Human Rights decided to communicate the application to the respondent Government. The Government’s written observations were submitted on 16 January 1998. The applicant replied on 16 February 1998.

On 1 November 1998, by operation of Article 5 § 2 of Protocol No. 11 to the Convention, the case fell to be examined by the Court in accordance with the provisions of that Protocol.

On 9 November 1999 the Court decided to ask the parties for further comments.

The Government’s and the applicant’s written comments were submitted on 7 December 1999 and 16 November 1999 respectively.

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 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 of the Convention, in that he failed to appeal against the conviction for a breach of Section 5 of the Road Traffic Act 1960. In particular, they point out that, in a decision of 5 December 1996 (G9/96), 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 “ subsidiarity ” principle thereafter applied also to Section 99 (1). Until that date, Section 99 (6)(c) had provided that certain administrative offences were not committed if the facts also fell within the jurisdiction of the ordinary courts, but the exception did not extend to cases such as the present. The Government also note that the applicant benefited from a pardon in the course of a general amnesty.

The applicant accepts that the request for prosecution was drawn up in August 1995, but underlines that he only became aware of the intention to bring criminal proceedings on 17 November 1995, when the prosecution papers were served on him. He considers that the Government’s argument concerning the need to exhaust domestic remedies in the administrative proceedings is ill-conceived as the important legal issue in the case is the conviction in the criminal proceedings, which was the second time that the applicant was punished for the same offence. It was thus impossible for him to complain in the administrative proceedings under Article 4 of Protocol No. 7 as, at the time, he had not been convicted twice. The applicant also disagrees with the Government’s comments on “ subsidiarity ”. He states that there is no “ subsidiarity ” between criminal and administrative offences in Austria . In particular, traffic offences are assigned to both the criminal courts and the administrative authorities. In connection with the Constitutional Court ’s decision (G9/96) repealing Section 99 (6)(c), he underlines that the Constitutional Court was dealing with the position where the administrative proceedings followed the criminal proceedings, whilst in his case the administrative proceedings came first. In connection with the pardon to which the Government refer, the applicant notes that his conviction is still extant, and that he still has a criminal record. Moreover, the pardon was a suspension of the sentence for three years, rather than a total remission of the sentence.

The Court recalls that Article 35 of the Convention requires the exhaustion of remedies which relate to the breaches of the Convention alleged and at the same time can provide effective and sufficient redress. The burden of proving the existence of available and sufficient domestic remedies lies upon the State invoking the rule (see generally in connection with the exhaustion of domestic remedies, the Akdivar and others v. Turkey judgment of 16 September 1996, Reports of Judgments and Decisions 1996-IV, p. 1210, §§ 65-69).

In the present case, the Court notes, as the applicant points out, that the administrative criminal proceedings preceded the criminal proceedings. Although, as the Government point out, the criminal proceedings had already been set in motion when the applicant was fined on 31 October 1995, there was no reason for him to be formally aware that criminal proceedings would follow, as he was only served with notice of the proceedings on 17 November 1995. Thus, even if a constitutional complaint were an effective remedy as regards Article 4 of Protocol No. 7, the applicant could not have been aware of the need to pursue it.

In any event, the Court does not accept that an appeal and subsequent constitutional complaint could 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 Article 4 of Protocol No. 7 as if the applicant had not pursued a constitutional complaint.

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 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. 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 case, like Oliveira, concerns “a typical example of a single act constituting various offences ( concour idéal d’infractions )”, i.e. a case where one criminal act constitutes two separate offences 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 applicant’s blood alcohol level.

The applicant contests the Government’s view. He submits that the Oliveira case is not comparable to his, as in the former the criminal court had quashed the fine imposed by the police magistrate and stated that, if the fine had already been paid, it was to be deducted from the second fine. Whereas in his case two sentences were imposed for driving under the influence of alcohol and, according to the domestic courts’ case-law, the fact that he had committed an offence under the influence of alcohol meant that he did not benefit from a conditional remittance of sentence. Thus, the present application case is comparable to the Gradinger case and the principle of ne bis in idem has indeed been violated.

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 N. Bratza Registrar President