DISSENTING OPINION OF MRS. J. LIDDY, J.-C. SOYER,

          C.L. ROZAKIS, I. CABRAL BARRETO, N. BRATZA,

                  K. HERNDL AND E. BIELIUNAS

     The issue in this case is whether there is a violation of

Article 4 of Protocol No. 7 when a conviction of a road traffic offence

such as speeding is followed by a conviction for the substantive

criminal offence of causing bodily injury by negligence.  It is not

clear whether the extent of the injury to the driver of the other car

was appreciated from the outset.  The conviction for the road traffic

offence merely makes reference to a collision, and the Federal Court's

judgment of 17 August 1994 assumed that the Police Judge, when issuing

his fine for the road traffic offence, had not been aware of the other

driver's serious injury.

     The Government have questioned whether Article 4 of

Protocol No. 7 is violated whenever the same set of facts is examined

in two different procedures, or whether it is only violated if a person

is punished twice for the same offence.  In the present case, the facts

were examined twice from a different perspective, but the extra

ingredient (bodily injury) was applicable only to the second charge

under S. 125 of the Penal Code.  If both offences had been dealt with

together in one set of proceedings, a failure to prove the extra

ingredient under the Penal Code would not have disbarred conviction

under the Road Traffic Act.  If both offences had been dealt with

together, proof of the extra ingredient in the more serious Penal Code

offence would not necessarily have led to an extra fine for the lesser

offence.  In fact, what happened in the present case is that the two

offences were dealt with separately, but the extra fine for the lesser

offence was deducted from the fine for causing bodily injury.  We

cannot see how the mere fact of two separate proceedings relating to

the same conduct but for different offences, the essential ingredient

of one of which (bodily injury) might not always be immediately

apparent, conflicts with Article 4 of Protocol No. 7.  We do not share

the majority's view at para. 47 of the Report: in our view the injury

was a separate element that had to be proved.

     This conclusion seems to us consistent with the Court's finding

in the Gradinger case to the effect that there had been a violation of

Article 4 of Protocol No. 7 where "both impugned decisions were based

on the same conduct" (judgment of 23 October 1995, Series A no. 328).

The Court's reasoning in paragraph 55 leading to that conclusion makes

it clear that the "conduct" the Court had in mind was the same

essential ingredient shared by the two offences under the Austrian Road

Traffic Act and the Austrian Criminal Code: having a blood alcohol

level of 0.8 grams per litre or higher.  The applicant in the Gradinger

case had been found in proceedings under the Criminal Code (after the

hearing of evidence) in effect not to have a blood alcohol level of

0.8 grams per litre or higher on the occasion in question, but

subsequently in proceedings under the Road Traffic Act he was found on

the basis of a different medical report to have exceeded that blood

alcohol level on the same occasion.  In these circumstances that

applicant was tried twice in respect of the same essential ingredient.

The present case is clearly distinguishable, as the essential

ingredient of causing bodily harm had not been in issue in the earlier

proceedings, and there was no conflict between the police judge's

findings and the District Court's finding.

     The present case can also be distinguished from the Commission's

opinion in Marte and Achberger v. Austria (Comm. Report, 9 April 1997)

to the effect that there had been a violation of Article 4 of Protocol

No. 7.  In that case the applicants had been convicted of offences

under the Criminal Code of resisting the forces of the State (who had

come to remove them from a bar at a summer festival).  Subsequently

they were convicted under the Morals (Policing) Act of

insulting/attacking a named policeman in the presence of other persons

in relation to precisely the same incident.  It did not appear from the

domestic courts' judgments that any vital extra ingredient had to be

proven in the second proceedings as distinct from what was called "a

different judgment of human behaviour".  The Commission was in a

position to conclude that "the factual bases for the applicants'

criminal and administrative convictions overlapped to such an extent"

that there had been a violation of Article 4 of Protocol No. 7.  The

applicants had been convicted twice of the same essential ingredient

(the conduct against a policeman involving insult/use of force) and the

case was comparable to the Gradinger case.

     Accordingly, in the present case we have voted against a finding

of violation.

                                                 (Or. English)