THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 29990/96 by Alexander KANTNER against Austria

The European Court of Human Rights ( Third Section ) sitting on 14 December 1999 as a Chamber composed of

Sir Nicolas Bratza, President ,

Mr P. KÅ«ris,

Mrs F. Tulkens,

Mr W. Fuhrmann, Mr. K. Jungwiert, Mrs H.S. Greve, Mr K. Traja, 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 3 January 1996 by Alexander Kantner against Austria and registered on 26 January 1996 under file no. 29990/96;

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

Having regard to the observations submitted by the respondent Government on 8 November 1996 and the observations in reply submitted by the applicant on 3 February 1997;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a n Austrian national, born in 1955 and living in Bregenz . He is a tax consultant by profession. He is represented before the Court by Mr. W.L. Weh , a lawyer practising in Br e genz .

A. Particular circumstances of the case

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

On 30 January 1994 the applicant drove on the Inntal motorway in Tyrol from Innsbruck in the direction of the Arlberg.

On 30 March 1994 the Landeck District Administrative Authority ( Bezirkshauptmann ­ schaft ) issued a penal order ( Straferkenntnis ) against the applicant. It found the applicant guilty of having committed the following two speeding offences contrary to the Road Traffic Act ( Straßenver ­ kehrsordnung ) on 30 January 1994 on the Inntal motorway:

1) The applicant had driven in excess of the maximum speed permitted on the Inntal motorway, namely at 165 km/h, during the night at 22.55 hours at road kilometre 141,5 in the district of Schönwies . This constituted an offence under Section 99 § 3 (a) of the Road Traffic Act, in conjunction with Section 1 of the Ordinance of the Federal Minister for Public Economy and Traffic ( Verordnung des Bundes ­ ministers für öffentliche Wirtschaft und Verkehr , Federal Gazette 527/1989).

2) The applicant had also exceeded the speed limit of 80 km/h imposed by a road sign (Section 52 sub-section A (10 a) of the Road Traffic Act) by 60 km/h at 22.57 hours at road kilometre 145,4 in the district of Zams . This constituted an offence under Section 52 sub-section A (10 a) of the Road Traffic Act.

The applicant was fined ATS 3000 and ATS 4000 respectively, with imprisonment of 3 days and 4 days in default. He did not appeal against the penal order and paid the fine imposed on him.

On 11 August 1994 the Imst District Administrative Authority issued a penal order against the applicant which related to the following six offences of speeding committed on 30 January 1994 on the Inntal motorway:

1) The applicant had driven in excess of the maximum speed permitted on the Inntal motorway, namely at 160 km/h, during the night at 22.42 hours at road kilometre 112,0 in the district of Stams . This constituted an offence under Section 99 § 3 (a) of the Road Traffic Act, in conjunction with Section 1 of the Ordinance of the Federal Minister for Public Economy and Traffic.

2) The applicant had also exceeded the speed limit of 100 km/h imposed by a road sign (Section 52 sub-section A (10 a) of the Road Traffic Act) by 40 km/h at 22.44 hours at road kilometre 117,5 in the district of Silz . This constituted an offence under Section 52 sub-section A (10 a) of the Road Traffic Act.

3) The applicant had driven in excess of the maximum speed permitted on the Inntal motorway, namely at 150 km/h, during the night at 22.46 hours at road kilometre 123,5 in the district of Haiming . This act constituted an offence under Section 99 § 3 (a) of the Road Traffic Act, in conjunction with Section 1 of the Ordinance of the Federal Minister for Public Economy and Traffic.

4) The applicant had exceeded the speed limit of 80 km/h imposed by a road sign (Section 52 sub-section A (10 a) of the Road Traffic Act) by 40 km/h at 22.47 hours at road kilometre 125,8 in the district of Rappen . This constituted an offence under Section 52 sub-section A (10 a) of the Road Traffic Act.

5) The applicant had driven in excess of the maximum speed permitted on the Inntal motorway, namely at 160 km/h, during the night at 22.53 hours at road kilometre 136,0 in the district of Mils. This constituted an offence under Section 99 § 3 (a) of the Road Traffic Act, in conjunction with Section 1 of the Ordinance of the Federal Minister for Public Economy and Traffic.

6) The applicant had exceeded the speed limit of 100 km/h imposed by a road sign (Section 52 sub-section A (10 a) of the Road Traffic Act) by 20 km/h at 22.54 hours at road kilometre 137,0 in the district of Mils. This act constituted an offence under Section 52 sub-section A (10 a) of the Road Traffic Act.

The applicant was fined ATS 3000, 2000, 2000, 2000, 3000 and 500 respectively, with imprisonment of 3 days, 2 days, 2 days, 2 days, 3 days and 12 hours in default. Thus, the fine imposed amounted to ATS 12.500 or 12 and 1/2 days’ imprisonment in default.

On 14 September 1994 the applicant appealed. He submitted that he had already been fined for speeding on that day on the Inntal motorway by the Landeck District Administrative Authority and that it was unfair to impose further fines on him.

On 19 December 1994 the Independent Administrative Panel for the Tyrol ( Unab ­ hängiger Verwaltungssenat ) dismissed the applicant’s appeal.

On 9 March 1995 the applicant filed a complaint with the Constitutional Court ( Ver ­ fassungsgerichtshof ), in which he submitted that his conviction for eight offences of speeding in the course of one journey was an exaggerated formalism and inherently unfair. He submitted, in particular, that Section 22 of the Code of Administrative Offences ( Verwaltungsstrafgesetz ), which provided that in one penal order a penalty for each single offence be imposed, should be annulled (see “Relevant Domestic Law” below).

On 13 June 1995 the Constitutional Court refused to deal with the applicant’s complaint for lack of prospects of success. This decision was served on the applicant’s lawyer on 3 July 1995. The applicant did not lodge a complaint with the Administrative Court ( Verwaltungs ­ gerichthof ).

B. Relevant domestic law

Section 52 sub-section A (10 a) of the Road Traffic Act ( Straßenverkehrsordnung ) pr o hibits dri v ing in excess of the speed limit indicated on a road sign.

Section 1 of the Ordinance of the Federal Minister for Public Economy and Traffic ( Verordnung des Bundes ­ ministers für öffentliche Wirtschaft und Verkehr , Federal Gazette 527/1989) prohibits driving in excess of the maximum speed limit permitted on the Inntal motorway at night. This ordinance is based on the Road Traffic Act.

Under section 99 (3) (a) of the Road Traffic Act, breaches of its provisions and its su b sidiary ordinances are punishable with a fine of up to ATS 10.000, with imprisonment of up to two weeks in default of payment.

Section 22 of the Code of Administrative Offences ( Verwaltungsstrafgesetz ), insofar as relevant, reads as fo l lows:

“(1) If somebody has committed several administrative offences by performing diffe r ent acts or if one single act constitutes at the same time different offences which do not exclude each other, a penalty has to be imposed for every single o f fence.”

COMPLAINTS

The applicant complains under Article 6 of the Convention about his convictions by the Imst and Landeck District Administrative Authorities and about the fine imposed on him which he considers excessive. He further complains that the imposition of eight fines on him for speeding in the course of one journey violated the principle of ne bis in idem .

PROCEDURE

The application was introduced on 3 January 1996 and registered on 26 January 1996.

On 2 July 1996 the European Commission of Human Rights decided to communicate the application to the respondent Government.

The Government’s written observations were submitted on 8 November 1996, after an extension of the time-limit fixed for that purpose. The applicant replied on 3 February 1997, also a f ter an extension of the time-limit.

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

THE LAW

1. The applicant complains about his convictions by the Imst and Landeck District Administrative Authorities and about the fine imposed on him which he considers excessive. He also complains of a violation of the principle of ne bis in idem .

The Government argue that the applicant has failed to exhaust domestic remedies as required by Article 35 of the Convention because he did not file a complaint with the Administrative Court against the Independent Administrative Panel’s decision of 19 December 1994. Furthermore, before the Constitutional Court he did not complain about a violation of Article 4 of Protocol No 7.

This is disputed by the applicant. In his view, a complaint to the Administrative Court would have been without any prospect of success since the Panel’s decision was formally correct under domestic law. He submits further that he has raised in substance his complaint under Article 4 of Protocol No 7 before the Constitutional Court.

However, the Court need not determine whether or not the applicant has complied with Article 35 of the Convention as the application, even assuming that the applicant has complied with the rule of exhaustion of domestic remedies, is in any event inadmissible for the following reasons.

2. Insofar the applicant complains about his conviction and the fines imposed, the Court recalls that, in accordance with Article 19 of the Convention, its only task is to ensure the observance of the obligations undertaken by the Parties to the Convention. In particular, it is not competent to deal with an application alleging that errors of law or fact have been committed by domestic courts, except where it considers that such errors might have involved a possible violation of any of the rights and freedoms set out in the Convention (cf. Van de Hurk judgment of 19 April 1994, Series A no. 288, p. 20, § 61; Klaas judgment of 22 September 1993, Series A no. 269, p. 17, § 29).

The Court observes that the applicant merely complains of the number and amount of the fines imposed on him, but does not submit that any of the procedural guarantees contained in Article 6 of the Convention have been disregarded by the Austrian authorities.

It follows that this part of the application 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. The applicant further complains that the imposition of eight fines on him for speeding in the course of one journey violated the principle of ne bis in idem .

The Court finds that this complaint falls to be considered under Article 4 of Protocol No. 7 which, insofar as relevant, 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. ..."

The Government submit that the applicant was punished for having committed consecutive, but nevertheless different breaches of the Road Traffic Act. In this respect it was irrelevant whether one and the same authority was competent to deal with a multiplicity of punishable acts or whether different administrative authorities had jurisdiction to punish those acts. Referring to the Palaoro v. Austria case (No. 16718/90, Dec. 10.5.93, unpublished), the Government argue that the applicant’s offences were eight different acts prosecuted by the Landeck and the Imst Administrative Authorities. It was immaterial that these offences were committed within a short period of time.

The applicant does not contest having committed the administrative offences. Nevertheless, he submits that he would have been punished only once for the whole journey if there had been only one single speed limit. His case was different from the Palaoro case in so far as the two penalties imposed in the latter case remained within the statutory range of punishment for one offence even when cumulated. In his case, however, the cumulated penalties exceeded by far the upper limit of the range of punishment set out in section 99 (3) (a) of the Road Traffic Act for the breach of its provisions. The applicant submits that a system of fixing penalties which allows for such an accumulation is not in conformity with Article 4 of Protocol No 7.

The Court recalls that its task under the Convention is not to rule in abstracto whether legislation is compatible with the Convention (see, among other authorities, the Silver and Others v. the United Kingdom judgment of 25 March 1983, Series A no 61, p. 31, § 79, and the Observer and Guardian v. the United Kingdom judgment of 26 November 1991, Series A no 216, p. 32, § 63). The Court has therefore to determine whether, in the particular circumstances of the case, the applicant’s right not to be tried or punished twice has been infringed.

The Court notes that the applicant was convicted for speeding eight times in the course of one journey. However, he failed to respect different speed limits over separate stretches of the road within 15 minutes. The Court finds that the applicant’s case must therefore be distinguished from the Gradinger v. Austria case (judgment of 23 October 1995, Series A no 328-C), as well as the Oliveira v. Switzerland case (judgment of 30 July 1998, Rep. 1998-V), where the applicants had committed only one single act constituting different offences. In the present case, however, the Court cannot find that the various breaches of the Road Traffic Act simply constituted one criminal act which was split up into several offences. The applicant was convicted not of one, but of eight separate offences, and was not tried or punished again "for an offence for which he has already been finally acquitted or convicted".

It follows that this part of the application is also 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 .

S. Dollé N. Bratza Registrar President