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You are here: BAILII >> Databases >> European Court of Human Rights >> W.F. v. AUSTRIA - 38275/97 [2002] ECHR 476 (30 May 2002) URL: https://www.bailii.org/eu/cases/ECHR/2002/476.html Cite as: (2004) 38 EHRR 39, [2002] ECHR 476 |
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THIRD SECTION
(Application no. 38275/97)
JUDGMENT
STRASBOURG
30 May 2002
FINAL
30/08/2002
This judgment will
become
final
in the
circumstances
set out in Article 44
§ 2 of the
Convention.
It may be subject to
editorial revision.
In the case
of
W.F.
v. Austria,
The European Court
of Human Rights (Third Section), sitting as a
Chamber
composed
of:
Mr G. RESS, President,
Mr I. CABRAL
BARRETO,
Mr L. CAFLISCH,
Mr R. TüRMEN,
Mrs H.S. GREVE,
Mr K. TRAJA,
Mrs E. STEINER, judges,
and Mr V. BERGER, Section Registrar,
Having deliberated
in private on 7 May 2002,
Delivers
the
following
judgment,
which
was
adopted on that
date:
PROCEDURE
1. The case
originated in an application (no. 38275/97) against
the Republic of Austria lodged
with
the European
Commission
of Human Rights
(“the
Commission”)
under
former
Article 25 of the
Convention
for
the
Protection of Human Rights and
Fundamental
Freedoms
(“the
Convention”)
by an Austrian national,
W.F.
(“the applicant”),
on 19 August
1997.
2. The applicant was
represented by Mr. J. Postlmayr, a lawyer
practising in Mattighofen (Austria). The Austrian Government
(“the
Government”)
were
represented by their Agent, Ambassador H.
Winkler,
Head
of the International Law
Department
of the
Federal
Ministry of
Foreign
Affairs.
3. The applicant alleged a violation of his right not to be tried
or punished twice for
the same offence.
4. The application was
transmitted to the
Court
on 1 November
1998,
when
Protocol No. 11 to the
Convention
came
into
force
(Article 5 § 2
of Protocol No. 11).
5. The application was
allocated to the Third Section of the
Court
(Rule 52 § 1 of the Rules of
Court).
Within
that Section, the
Chamber
that
would
consider
the
case
(Article 27 § 1 of the
Convention)
was
constituted
as provided in Rule
26 § 1 of the Rules of
Court.
6. By a decision
of 11 September 2001 the
Court
declared
the
application admissible.
7. On 1 November 2001 the Court
changed
the
composition
of its
Sections (Rule 25 § 1). This
case
was
assigned to
the newly
composed
Third
Section.
8. Neither the applicant nor the Government filed
observations on
the merits (Rule 59 § 1).
THE FACTS
I. THE CIRCUMSTANCES
OF THE
CASE
9. On 21 May 1995 the applicant was
involved in a road traffic
accident and, on 19 October 1995, he
was
found
by the Braunau
District
Administrative Authority (Bezirkshauptmannschaft) to have been
driving
under the influence of alcohol,
contrary
to sections 5 § 1 and 99 § 1
(a) of the Road Traffic Act
1960 (Straßenverkehrsordnung). He
was
sentenced to pay a
fine
of ATS 14,000.00. It
does
not appear that the applicant
appealed against this
decision.
10. On 1 August 1996 the Mattighofen District
Court
convicted
him
under Article 88 §§ 1 and 3 of the Penal
Code
of negligently
causing
bodily harm in particularly
dangerous
conditions
(
fahrlässige
Körperverletzung unter
besonders gefährlichen Verhältnissen), and sentenced him to a
fine
of ATS 8,000.00.
11. On 2 June 1997 the Ried Regional Court
dismissed
the
applicant’s appeal. The Regional
Court
distinguished
the
present
case
from
the Gradinger
case
of the European
Court
of Human Rights (Gradinger v. Austria
judgment of 23 October 1995, Series
A no. 328-
C)
on the ground that in the
Gradinger
case
the administrative proceedings
were
after the
criminal
proceedings,
whereas
in the present
case
the order of the
criminal
and
administrative
criminal
proceedings
was
reversed.
II. RELEVANT DOMESTIC
LAW AND PRACTICE
A. The Road Traffic Act
12. 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.
13. 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
...”
14. Section 99 § 6 of the Road Traffic Act regulates the
relation between the offences under section 99 §§
1-5 of that Act and
offences of ordinary criminal
law
coming
within
the jurisdiction of the ordinary
courts.
While
in respect of
some offences under the Road Traffic Act Section 99
of that Act stipulates a relation of subsidiarity – if the same set of
facts
might
constitute
an offence of ordinary
criminal
law and the Roads Traffic
Act only an offence
falling
within
the jurisdiction
of the ordinary
courts
is
committed
– this is not the
case
with
the offence under the Road Traffic
Act of
driving
a vehicle
under the influence of
drink.
15. 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 Article 81 § 2 of the
Criminal
Code
(
cited
below),
drunken
driving
was
also an essential aspect of
certain
offences
tried by these
courts.
In so
far
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.
16. Under 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.
17. Section 88 § 3 increases the sentence in respect of
causing
injury by up to six months’ imprisonment ,
if the special
circumstances
of Section 81 § 2 apply. Section 88 § 4 increases the
sentence in respect of
causing
injury
by up to two years’ imprisonment, if
the special
circumstances
of Section 81 § 2 apply and the injury is
particularly
serious.
18. Section 81 § 2 applies where
a person
commits
the
offence
“after allowing himself, even if only negligently, to become
intoxicated ... through the consumption
of alcohol, ...”.
19. Under 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 section 81 §
2.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 4 OF PROTOCOL No. 7 TO THE
CONVENTION
20. The applicant alleged a violation of Article 4 of Protocol
No. 7 which,
so
far
as relevant, provides 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.”
21. The applicant contended
that he
was
punished twice
for
driving
under the influence of
drink,
first
by the
District
Administrative Authority
under sections 5 § 1 and 99 § 1 (a) of the Road Traffic Act and,
secondly, by the
District
Court
,
which
found
that the special
circumstances
of
Article 81 § 2 of the
Criminal
Code
applied. Thus, two sentences
were
imposed
for
essentially the same offence
which
was
in breach of the principle of
ne bis in idem.
22. The Government submit that the present case
is
comparable
to
the Oliveira v. Switzerland
case
(judgment of 30 July
1998, Reports of
Judgments and
Decisions
1998-V),
where
the
Court
had
found
no violation of
Article 4 of Protocol No. 7. The present
case,
like Oliveira,
concerns
“a
typical example of a single act
constituting
various offences (
concours
idéal
d’infractions)”,
i.e. a
case
where
one
criminal
act
constitutes
two separate offences,
which
does
not mean that a person has been
tried
or punished twice
for
the same offence and therefore
did
not infringe
Article 4 of Protocol No. 7.
23. The Court
observes at the outset that the aim of Article 4 of
Protocol No. 7 is to prohibit that a person is
tried or punished twice
for
the same aspect of one
criminal
act (see, mutatis mutandis, Gradinger v.
Austria judgment of 23 October 1995, Series A no. 328-
C,
p. 65, § 53).
24. The Court
recalls that it has
dealt
on various occasions
with
cases
where
two
convictions
arose out of the same
factual
event (Gradinger, op.
cit.;
Oliveira judgment, op.
cit.;
Ponsetti and
Chesnel
v.
France
(
dec.),
nos. 36855/97, 41731/98, ECHR 1999-VI, and
Franz
Fischer
v. Austria,
no. 37950/97, 29.8.2001).
25. In the most recent of these cases,
that of
Franz
Fischer
v.
Austria (op.
cit.,
§ 25), the
Court
held as
follows:
“The Court
observes that the
wording
of Article 4 of Protocol No. 7
does
not refer to ‘the same offence’ but rather
to trial and
punishment ‘again’
for
an offence
for
which
the applicant has
already been
finally
acquitted or
convicted.
Thus,
while
it is true that the
mere
fact
that a single act
constitutes
more than one offence is not
contrary
to
this Article,
the
Court
must not limit itself to
finding
that an applicant
was,
on the basis of one act, tried or punished
for
nominally
different
offences. The
Court,
like the Austrian
Constitutional
Court,
notes that there are
cases
where
one act, at
first
sight, appears
to
constitute
more than one offence,
whereas
a
closer
examination shows that only one offence should be prosecuted because it
encompasses
all the
wrongs
contained
in the others (see paragraph 14 above [also
§ 14 of the present judgment]). An obvious example
would
be an act
which
constitutes
two offences, one of
which
contains
precisely the same elements as
the other plus an additional one.
There may be other
cases
where
the offences
only slightly overlap. Thus,
where
different
offences based on one act are
prosecuted
consecutively,
one after the
final
decision
of the other, the
Court
has to examine
whether
or not such offences have the same essential
elements.”
26. Like the applicant in the present case,
the applicant in the
case
of
Franz
Fischer
was
first
convicted
by a
District
Administrative Authority
under sections 5 § 1 and 99 § 1 (a) of the Road Traffic Act of
drunk
driving
and, subsequently,
by a
criminal
court
of having
caused
death
by
negligence under the special
circumstances
of Article 81 § 2 of the
Criminal
Code.
27. In its judgment in that case
the
Court,
on the basis of the
above quoted
considerations
found
that the
Franz
Fischer
case
had to be
distinguished
from
the Oliveira
case
but
was
similar to the Gradinger
case
and
concluded
that Article 4 of Protocol
No. 7 has been violated.
28. Having regard to these circumstances,
the
Court
finds
that
there is nothing to
distinguish
the present
case
from
the
Franz
Fischer
v.
Austria judgment. It, therefore,
concludes
that in the proceedings
complained
of
there has been a violation of
Article 4 of Protocol No. 7.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
29. Article 41 of the Convention
provides:
“If the Court
finds
that there has been a violation of the
Convention
or the Protocols thereto, and if the internal law of
the High
Contracting
Party
concerned
allows only partial reparation to be made, the
Court
shall, if
necessary, afford just satisfaction
to the injured party.”
A. Damage
30. The applicant claimed
30,000 Austrian schillings (ATS)
(2,180.19 euros [EUR])
for
non-pecuniary
damage
and submitted
that he
suffered
considerable
anxiety and
distress
by reason of the
criminal
court
proceedings against him. As to pecuniary
damage
he
claimed
8,000 ATS (581.38
EUR) as
compensation
for
the
fine
imposed on him by the Mattighofen
District
Court.
31. The Government did
not
comment
on the applicant’s
claims.
32. As regards the applicant’s claim
for
pecuniary
damage
the
Court
finds
that there is no
causal
link between the
breach of
which
the
complaint
is made and the alleged
damage;
it is impossible to speculate as to
what
the outcome of the proceedings
would
have been if they had satisfied the
requirements of Article 4 Protocol No. 7, that it to say
what
sanction
would
have been
imposed on the applicant if the Austrian
criminal
courts
had not
applied the special
circumstances
of Article 81 § 2 of the
Criminal
Code
(see
Franz
Fischer
v. Austria, op.
cit.,
§ 36;
Werner
v. Austria
judgment of 24 November 1997, Reports 1997-VII, p. 2514, § 72).
Therefore, the
Court
makes no award under this head.
33. As regards the applicant’s claim
for
non-pecuniary
damage,
the
Court
finds
that in the
circumstances
of the
case
the
finding
of a
violation in itself
constitutes
sufficient just satisfaction (see
Franz
Fischer
v. Austria, op.
cit.,
§ 37; Lughofer v. Austria, no.
22811/93, § 22, 30 November 1999).
B. Costs
and expenses
34. The applicant claimed
73,988.80 ATS (5,376.98 EUR)
for
costs
and expenses incurred in the
domestic
court
proceedings.
35. The Government did
not
comment
on the applicant’s
claim.
36. The Court
recalls that, according to its
case-law,
it has to
consider
whether
the
costs
and expenses
were
actually
and necessarily incurred
in order to prevent or obtain redress
for
the matter
found
to
constitute
a
violation of the
Convention
and
were
reasonable as to quantum (see,
for
instance, Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93,
ECHR 1999-III, § 80). The
Court
considers
that these
conditions
are only
met as regards the
costs
incurred
in the appeal proceedings before the Ried
Regional
Court,
which
the applicant puts at 15,018.40 ATS (1,091.48 EUR).
Consequently
the
Court
awards this sum.
37. The applicant further
claims
3,060 EUR
for
costs
incurred in
the
Convention
proceedings.
38. The Government did
not
comment
on the applicant’s
claim.
39. The Court
finds
this
claim
reasonable, and
consequently
allows
it in
full.
C. Default
interest
40. According to the information available to the Court,
the
statutory rate of interest applicable in Austria at the
date
of adoption of the
present judgment is 4% per annum.
FOR
THESE REASONS, THE
COURT
UNANIMOUSLY
1. Holds that there has been a violation of Article 4 of
Protocol No. 7 to the Convention;
2. Holds that the finding
of a violation
constitutes
in
itself sufficient just satisfaction
for
the non-pecuniary
damage
sustained by
the
applicant;
3. Holds
(a) that the respondent State is to pay the applicant, within
three months
from
the
date
on
which
the judgment becomes
final
according to
Article 44 § 2 of the
Convention,
4,151.48 EUR (
four
thousand one hundred
fifty
one euros
and
forty
eight
cents)
in respect of
costs
and expenses;
(b) that simple interest at an annual rate of 4% shall be payable
from
the expiry of the above-mentioned three months
until settlement;
4. Dismisses
the remainder of the applicant’s
claim
for
just satisfaction.
Done
in English, and notified in
writing
on 30 May 2002, pursuant to Rule 77
§§ 2 and 3 of the Rules of
Court.
Vincent BERGER Georg RESS
Registrar President