GRADINGER proti Rakousku



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)