Resolution CM/ResDH(2008)36[1]
Execution of the judgments of the European Court of Human Rights
Fischer and two other cases against Austria concerning
the right not to be tried or punished twice for the same acts
Franz Fischer, Application No. 37950/97, judgment of 29 May 2001, final on 29 August 2001
Sailer, Application No. 38237/97, judgment of 6 June 2002, final on 6 September 2002
W.F., Application No. 38275/97, judgment of 30 May 2002, final on 30 August 2002
The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);
Having regard to the judgments transmitted by the Court to the Committee once they had become final;
Recalling that the violation of the Convention found by the Court in these cases concerns an infringement of the applicants' right not to be tried or punished twice for the same acts (violations of Article 4 of Protocol No. 7 to the Convention) (see details in Appendix);
Having invited the government of the respondent state to inform the Committee of the measures taken to comply with Austria's obligation under Article 46, paragraph 1, of the Convention to abide by the judgments;
Having examined the information provided by the government in accordance with the Committee's Rules for the application of Article 46, paragraph 2, of the Convention;
Having satisfied itself that, within the time-limit set, the respondent state paid the applicants the just satisfaction provided in the judgments (see details in Appendix),
Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded in the judgments, the adoption by the respondent state, where appropriate, of
- individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum; and
- general measures preventing, similar violations;
DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exercised its functions under Article 46, paragraph 2, of the Convention in these cases and
DECIDES to close the examination of these cases.
Appendix to Resolution CM/ResDH(2008)36
Information about the measures taken to comply with the judgments
in the case of Fischer and two other cases against Austria
concerning the right not to be tried or punished twice for the same acts
Introductory case summary
These cases concern infringements of the applicants' right not to be tried or punished twice for the same acts.
All these cases concern proceedings following road accidents in which the applicants were convicted by the administrative authorities of driving under the influence of drink and subsequently convicted by the criminal courts, for causing death (case of Fischer) or injuries (cases Sailer et F.W.) by negligence.
I.Payments of just satisfaction and individual measures
a) Details of just satisfaction
Name and application number
Pecuniary damage
Non-pecuniary damage
Costs and expenses
Total
Franz Fischer
No. 37950/97
68.642 Austrian schillings
68.642 A.S.
Paid on 20 September 2001
Sailer
No. 38237/97
4 050,48 EUR
4 050,48 EUR
Paid on 23 October 2002
W. F.
No. 38275/97
4 151,48 EUR
4 151,48 EUR
Paid on 27 September 2002
b) Individual measures
In all these cases, the applicants may request the reopening of the proceedings on the basis of Article 363a, paragraph 2, of the Code of Criminal Procedure.
II.General measures
Measures have already been adopted to avoid new violations of the same kind as that found in these cases (see Resolution ResDH(97)501 in the Gradinger case against Austria), in particular through the abrogation, in 1997, of the provisions of Article 99.6.c of the Road Traffic Act. As a result of this abrogation, district administrations have lost their competence in cases coming within the jurisdiction of criminal courts.
Moreover, the European Court's judgment in the case of Franz Fischer was published in the Österreichische Juristenzeitschrift 2001, number 22, and in the Zeitschrift für Verkehrsrecht 2001/69 and sent out to the authorities directly concerned.
III.Conclusions of the respondent state
The government considers that the measures taken have fully remedied the consequences for the applicants of the violations of the Convention found by the European Court in these cases, that these measures will prevent new, similar violations and that Austria has thus complied with its obligations under Article 46, paragraph 1, of the Convention.
[1] Adopted by the Committee of Ministers on 25 June 2008 at the 1028th meeting of the Ministers’ Deputies
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