AS TO THE ADMISSIBILITY OF
Application No. 15963/90
by Josef GRADINGER
against Austria
The European Commission of Human Rights sitting in private on
10 May 1993, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
F. ERMACORA
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
H.G. SCHERMERS
H. DANELIUS
Mrs. G.H. THUNE
Sir Basil HALL
Mr. C.L. ROZAKIS
Mrs. J. LIDDY
MM. M.P. PELLONPÄÄ
B. MARXER
G.B. REFFI
M.A. NOWICKI
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 22 May 1989 by
Josef Gradinger against Austria and registered on 10 January 1990 under
file No. 15963/90;
Having regard to:
- the report provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the observations submitted by the respondent Government on
10 March 1992 and the observations in reply submitted by the applicant
on 13 July 1992 ;
- the submissions of the parties at the oral hearings held on
10 May 1993;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is an Austrian citizen born in 1967. He lives in
St. Pölten. He is represented before the Commission by Mr. R. K.
Fiebinger, a lawyer practising in Vienna.
The facts of the case, as submitted by the parties, may be
summarised as follows:
On 1 January 1987 the applicant was involved in a road traffic
accident in which a cyclist was killed. A university medical
examination of a blood sample revealed 0.8 per mille alcohol in the
applicant's blood at the time the sample was taken.
In criminal proceedings the applicant was convicted on 15 May
1987 of causing death by carelessness within the meaning of Article 80
of the Criminal Code (Strafgesetzbuch). The applicant refers to the
evidence by an independent expert, a Dr. Psick, that given the short
space of time between the applicant's last drink and the time of the
accident, the applicant could not have absorbed sufficient alcohol to
have violated the law. The "note of the minutes and sentence"
(Protokolls- und Urteilsvermerk) states that, in calculating the
sentence, the court considered that the applicant had been drinking
alcohol before the offence, but that the condition of Article 81 para.
2 of the Criminal Code (the aggravating circumstance of alcohol
consumption) was not present. The "Facts" part of the "note" referred
to the indictment, and added the words "but without the element of
alcohol" ("wobei die Alkoholisierung entfällt").
On 16 July 1987 the St. Pölten District Authority (Bezirks-
hauptmannschaft) issued a penal order (Straferkenntnis) against the
applicant, which provided for a fine of AS 12,000 with two weeks'
imprisonment in default, plus costs, in respect of the offence of
driving a car under the influence of alcohol. The authority relied on
a report from its own doctor that, as the level in the applicant's
blood had been 0.8 per mille one and a half hours after the accident,
he must have had at least O.95 per mille alcohol in his blood at the
time of the accident.
The applicant appealed to the Lower Austrian Provincial
Government (Niederösterreichische Landesregierung) which, on 27 July
1988, rejected his appeal. It referred to a further expert's report
which it had had prepared by one of its own doctors, which largely
confirmed the previous expert report.
The applicant made a constitutional complaint to the
Constitutional Court which, on 11 October 1988, rejected the complaint
summarily.
On 29 March 1989 the Administrative Court rejected the
applicant's complaint to it. It found that the authorities had been
required to use their own doctors by Austrian administrative law, and
there could therefore be no question of a violation of procedural rules
by virtue of the authority having failed to appoint other experts. As
to the principle of "ne bis in idem", the Administrative Court noted
that Article 14 para. 7 of the International Covenant on Civil and
Political Rights was not directly applicable in Austria, and the
applicant could not rely on it. There was accordingly nothing unlawful
in convicting and sentencing the applicant for the administrative
offence.
COMPLAINTS
The applicant alleges violations of Article 6 of the Convention
in the following respects:
(1) He complains that, although an independent court-appointed
expert had found that the applicant was not unlawfully under the
influence of alcohol in the context of the criminal proceedings against
him, both administrative authorities relied on reports by their own
civil servants.
(2) The applicant considers that, as he was acquitted in the
criminal proceedings of having had an unlawful amount of blood alcohol,
the principle of "ne bis in idem" accordingly prohibits a subsequent
conviction under Article 5 para. 1 of the Road Traffic Act.
(3) He considers that the administrative proceedings brought
against him were "criminal" within the meaning of the Convention, and
that no "independent and impartial tribunal" determined this criminal
charge.
At the hearing on 10 May 1993 the applicant for the first time
raised issues under Article 6 para. 2 in that, given that he had been
acquitted before the criminal court of driving with an excess amount
of alcohol in his blood, his susequent conviction in administrative
criminal proceedings for susbstantially the same offence offended
against the presumption of innocence.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 22 May 1989 and registered on
10 January 1990.
On 16 October 1991 the Commission decided to request the parties
to submit their written observations on the admissibility and merits
of the application.
The respondent Government submitted their observations, after an
extension of the time-limit, on 10 March 1992 and the applicant
submitted his observations, also after an extension of the time-limit,
on 13 July 1992.
On 15 February 1993 the Commission decided to hear the parties
as to the admissibility and merits of this case and Applications Nos.
15523/89, 15527/89, 16713/90, 16718/90 and 16841/90.
At the hearings on 10 May 1993, the parties in the present case
were represented as follows:
For the Government:
Ambassador F. Cede Legal Adviser, Federal Ministry for Foreign
Affairs, Agent
Ms. S. Bernegger Federal Chancellery, Adviser
For the applicant:
Mr. R.K. Fiebinger Representative
THE LAW
1. The applicant alleges violation of Article 6 para. 1 (Art. 6-1)
of the Convention in various respects. The Commission has also put
questions to the parties concerning Article 4 of Protocol No. 7
(P7-4) to the Convention.
In connection with Article 6 (Art. 6) of the Convention, the
Government submit that the Austrian reservation to Article 5 (Art. 5)
of the Convention prevents the Commission from examining the complaint.
They accept, however, that if the reservation does not prevent an
examination, then the review of administrative decisions by the
Administrative Court and the Constitutional Court was not sufficiently
wide to comply with Article 6 para. 1 (Art. 6-1) of the Convention.
They add, in this respect, that although the offence under Section 5
of the Road Traffic Act was not, as such, in force at the date of the
reservation, the law then in force did impose an obligation on road
users to drive with reasonable consideration for other road users.
To the extent that the absence of an oral hearing is raised, the
respondent Government also rely on the Austrian reservation to Article
6 (Art. 6) of the Convention. They also point out that the applicant
did not make a complaint about the absence of a hearing before the
Administrative Court.
The applicant considers that the Austrian reservation to Article
5 (Art. 5) of the Convention is in any event not applicable in the
present case because it cannot cover offences which were not in force
at the date of the reservation. He considers that the reservation to
Article 6 (Art. 6), if valid, does not apply to administrative cases.
The applicant agrees that the scope of review by the
Constitutional Court and the Administrative Court does not comply with
Article 6 (Art. 6).
In connection with Article 144 para. 2 of the Federal
Constitution, the Government consider that, although the provision
provides for non-acceptance of a constitutional complaint on grounds
which were not in force in 1958 when the reservation was made, the
ability of the Constitutional Court to refuse to deal with appeals
against decisions without giving detailed reasons is only a procedural,
not a substantive limitation. The Government point out that any appeal
lodged with the Constitutional Court against a decision is subject to
comprehensive review. The applicant in this respect considers that the
Constitutional Court's jurisdiction has been limited subsequ
entry into force of Article 144 para. 2 of the Federal Constitution,
and that therefore, even if the reservation applies, it has not been
complied with in this respect.
In connection with the issue of the applicant's having been
convicted by the administrative authorities of the offence of driving
a motor vehicle while unfit to drive through drink, even though the
question of causing death under the influence of drink had been
previously determined by the criminal courts, the respondent Government
submit first, that the Commission is prevented ratione temporis from
considering this complaint under Article 4 of Protocol No. 7 (P7-4).
They point out that the facts relating to the offence were committed
on 1 January 1987, that the first instance authority decided the case
on 16 July 1987 and the second instance authority on 27 July 1988,
whereas Protocol No. 7 entered into force on 1 November 1988. The
Government submit that because the Administrative Court is required to
review a decision under administrative criminal law on the basis of the
substantive law at the date of commission of the offence (or at the
date of the first instance decision if more advantageous to a
defendant), the fact that the Administrative Court took its decision
five months after the Protocol had entered into force does not affect
the position. With regard to the declaration made by Austria when
ratifying Protocol No. 7, the Government submit first that the
declaration is not required to comply with Article 64 (Art. 64) of the
Convention as it is not intended to have legally binding effects on the
interpretation. In the alternative they submit that the declaration
does comply with Article 64 (Art. 64) and that it prevents the
Commission from considering the question, as it precisely covers the
present case. The declaration provides as follows:
"The Republic of Austria declares:
1. Higher Tribunals in the sense of Article 2 (Art. 2),
paragraph 1, include the Administrative Court and the
Constitutional Court.
2. Articles 3 and 4 (Art. 3, 4) exclusively relate to
criminal proceedings in the sense of the Austrian code of
criminal procedure."
Finally, they consider that Article 4 of Protocol No. 7
(P7-4) has in any event been complied with as it applies only where the
facts and legal provisions are to be regarded as a unit. Thus, they
conclude that Article 4 of Protocol No. 7 (P7-4) proscribes proceedings
being brought against a person twice under the same provision, but that
if by a single act an offender contravenes several provisions, he may
nevertheless be convicted under these. The Government underline that
the offence of causing death under the influence of drink contained in
Article 81 para. 2 of the Criminal Code is different in character from
the provision of Section 5 para. 1 of the Road Traffic Act which makes
it an offence to drive a motor vehicle whilst unfit to drive through
drink.
The applicant considers that the Commission is not prevented
ratione temporis from applying Protocol No. 7 (P7). He also considers
that the declaration made to Articles 3 and 4 of Protocol No. 7 (P7-3,
P7-4) does not comply with Article 64 (Art. 64) of the Convention as
it is not clear whether it covers double or multiple convictions only
by the Austrian criminal courts, or double or multiple convictions by
Austrian criminal courts on the one hand and Austrian administrative
criminal authorities on the other. The applicant underlines that for
the individual concerned the principle "ne bis in idem" must apply to
every punishable act, and not merely to the provision of law. He
points out that both criminal and administrative authorities apply a
level of 0.8 per mille as constituting a state of inebriation.
The Commission finds that these complaints raise complex issues
of law under the Convention, including questions concerning the
Austrian reservations to Articles 5 and 6 (Art. 5, 6) of the
Convention, the Austrian declaration to Protocol No. 7 (P7) to the
Convention and questions concerning the competence of the Commission
ratione temporis to deal with the complaints under Protocol No. 7 (P7),
the determination of which must be reserved to an examination of the
merits.
This part of the application cannot therefore be declared
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention. No other ground for declaring it
inadmissible has been established.
2. Before the Commission on 10 May 1993, the applicant raised a
complaint under Article 6 para. 2 (Art. 6-2) of the Convention. The
Government objected that the complaint had not been brought within the
six months time limit contained in Article 26 (Art. 26) of the
Convention. The applicant contended that the complaint was covered by
the wording of his application form, in which he had alleged violation
of Article 6 (Art. 6) "in particular" in relation to the matters set
out above.
The Commission finds that the complaint relating to the
presumption of innocence was not made in the applicant's application
form or in correspondence with the Commission's Secretariat. The mere
fact that, by virtue of general words a complaint is not excluded from
an application, is not sufficient to regard that complaint as having
been made. This part of the application must accordingly be rejected
under Article 26 in conjunction with Article 27 para. 3 (Art. 26+27-3)
of the Convention as having been introduced out of time.
For these reasons, the Commission
unanimously DECLARES INADMISSIBLE the applicant's complaint
relating to the presumption of innocence and
by a majority DECLARES ADMISSIBLE the remainder of the
application, without prejudging the merits of the case.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
Full & Egal Universal Law Academy