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European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> GRADINGER v. AUSTRIA - 15963/90 [1995] ECHR 36 (23 October 1995)
URL: http://www.bailii.org/eu/cases/ECHR/1995/36.html
Cite as: [1995] ECHR 36
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In the case of Gradinger v. Austria (1),
The European Court of Human Rights, sitting, in accordance with
Article 43 (art. 43) of the Convention for the Protection of Human
Rights and Fundamental Freedoms ("the Convention") and the relevant
provisions of Rules of Court A (2), as a Chamber composed of the
following judges:
Mr R. Ryssdal, President,
Mr F. Matscher,
Mr L.-E. Pettiti,
Mr R. Macdonald,
Mr S.K. Martens,
Mr I. Foighel,
Mr J.M. Morenilla,
Sir John Freeland,
Mr J. Makarczyk,
and also of Mr H. Petzold, Registrar,
Having deliberated in private on 28 April and 28 September 1995,
Delivers the following judgment, which was adopted on the
last-mentioned date:
_______________
Notes by the Registrar
1. The case is numbered 33/1994/480/562. The first number is the
case's position on the list of cases referred to the Court in the
relevant year (second number). The last two numbers indicate the
case's position on the list of cases referred to the Court since its
creation and on the list of the corresponding originating applications
to the Commission.
2. Rules A apply to all cases referred to the Court before the entry
into force of Protocol No. 9 (P9) and thereafter only to cases
concerning States not bound by that Protocol (P9). They correspond to
the Rules that came into force on 1 January 1983, as amended several
times subsequently.
_______________
PROCEDURE
1. The case was referred to the Court by the European Commission of
Human Rights ("the Commission") on 9 September 1994, within the
three-month period laid down by Article 32 para. 1 and Article 47
(art. 32-1, art. 47) of the Convention. It originated in an
application (no. 15963/90) against the Republic of Austria lodged with
the Commission under Article 25 (art. 25) by an Austrian national,
Mr Josef Gradinger, on 22 May 1989.
The Commission's request referred to Articles 44 and 48 (art. 44,
art. 48) and to the declaration whereby Austria recognised the
compulsory jurisdiction of the Court (Article 46) (art. 46). The
object of the request was to obtain a decision as to whether the facts
of the case disclosed a breach by the respondent State of its
obligations under Article 6 para. 1 of the Convention and Article 4 of
Protocol No. 7 (art. 6-1, P7-4).
2. In response to the enquiry made in accordance with Rule 33
para. 3 (d) of Rules of Court A, the applicant stated that he wished
to take part in the proceedings and designated the lawyer who would
represent him (Rule 30). The President of the Court gave the lawyer
leave to use the German language during the written proceedings
(Rule 27 para. 3).
3. On 24 September 1994 the President of the Court decided, under
Rule 21 para. 6 and in the interests of the proper administration of
justice, that a single Chamber should be constituted to consider the
instant case and the cases of Schmautzer, Umlauft, Pramstaller, Palaoro
and Pfarrmeier v. Austria (1).
_______________
1. Cases nos. 31/1994/478/560, 32/1994/479/561, 35/1994/482/564,
36/1994/483/565 and 37/1994/484/566.
_______________
The Chamber to be constituted for this purpose included ex
officio Mr F. Matscher, the elected judge of Austrian nationality
(Article 43 of the Convention) (art. 43), and Mr R. Ryssdal, the
President of the Court (Rule 21 para. 3 (b)). On the same day, in the
presence of the Registrar, the President drew by lot the names of the
other seven members, namely Mr L.-E. Pettiti, Mr R. Macdonald,
Mr S.K. Martens, Mr I. Foighel, Mr J.M. Morenilla, Sir John Freeland
and Mr J. Makarczyk (Article 43 in fine of the Convention and Rule 21
para. 4) (art. 43).
4. As President of the Chamber (Rule 21 para. 5), Mr Ryssdal, acting
through the Registrar, consulted the Agent of the Austrian Government
("the Government"), the applicant's lawyer and the Delegate of the
Commission on the organisation of the proceedings (Rules 37 para. 1 and
38). Pursuant to the order made in consequence, the Registrar received
the Government's memorial on 24 January 1995 and the applicant's
memorial on 30 January 1995. Mr Gradinger's claims under Article 50
(art. 50) were filed on 14 March. On 21 March the Commission supplied
the Registrar with various documents that he had requested on the
President's instructions.
5. In accordance with the President's decision, the hearing took
place in public in the Human Rights Building, Strasbourg, on
26 April 1995. The Court had held a preparatory meeting beforehand.
There appeared before the Court:
(a) for the Government
Mr F. Cede, Head of the International Law
Department, Federal Ministry of
Foreign Affairs, Agent,
Ms I. Sieß, Constitutional Department,
Federal Chancellery,
Ms E. Bertagnoli, International Law Department,
Federal Ministry of Foreign Affairs, Advisers;
(b) for the Commission
Mr A. Weitzel, Delegate;
(c) for the applicant
Mr R. Fiebinger, Rechtsanwalt, Counsel.
The Court heard addresses by Mr Weitzel, Mr Fiebinger and
Mr Cede.
AS TO THE FACTS
I. Circumstances of the case
6. Mr Gradinger is an Austrian citizen who lives at St Pölten (Lower
Austria).
7. On 1 January 1987 at about 4 a.m., while driving his car, he
caused an accident which led to the death of a cyclist.
At the hospital where he was taken for treatment a specimen of
his blood was taken. This showed that he then had a blood alcohol
level of 0.8 grams per litre.
8. On 15 May 1987 the St Pölten Regional Court (Landesgericht)
convicted him of causing death by negligence (fahrlässige Tötung) and
sentenced him to 200 day-fines of 160 Austrian schillings (ATS) with
100 days' imprisonment in default of payment (Article 80 of the
Criminal Code (Strafgesetzbuch) - see paragraph 13 below).
According to the applicant, an expert, Dr Psick, had stated at
his trial that in view of the shortness of the interval between the
last drink the applicant had had and the collision, he could not have
absorbed an amount of alcohol exceeding the prescribed limit.
In the judgment, as set out in the court record (Protokolls- und
Urteilsvermerk), it was held that the applicant had indeed been
drinking before the accident but not to such an extent as to be caught
by Article 81 para. 2 of the Criminal Code, which prescribed a heavier
penalty for causing death by negligence while under the influence of
drink (see paragraph 14 below).
9. On 16 July 1987 the St Pölten district authority
(Bezirkshauptmannschaft) issued a "sentence order" (Straferkenntnis)
imposing on Mr Gradinger a fine of ATS 12,000, with two weeks'
imprisonment in default, for driving under the influence of drink. It
made this order pursuant to sections 5(1) and 99(1)(a) of the Road
Traffic Act 1960 (Straßenverkehrsordnung - see paragraphs 15 and 16
below) and on the basis of a different medical report, of
5 February 1987, according to which, in view of the time that had
elapsed between the collision and the taking of the blood specimen,
Mr Gradinger's blood alcohol level when the accident had occurred must
have been at least 0.95 grams per litre.
10. The applicant appealed to the Lower Austria regional government
(Amt der Landesregierung), which dismissed his appeal on 27 July 1988
on the basis of a further expert opinion, of 16 June 1988, to the
effect that the blood alcohol level had been 0.9 grams per litre.
11. On 11 October 1988 the Constitutional Court
(Verfassungsgerichtshof) declined to accept for adjudication an appeal
by the applicant, on the ground that it did not have sufficient
prospects of success.
12. A further appeal, to the Administrative Court, was dismissed as
ill-founded on 29 March 1989. It was held that the regional
authorities had not in any way misconstrued the law in finding that at
the material time Mr Gradinger had been under the influence of drink
for the purposes of section 5(1) of the Road Traffic Act. That finding
had been based on an expert opinion of 16 June 1988 in which it had
been assumed that all the alcohol consumed by the applicant had passed
into his bloodstream by the time of the accident, a point which
Mr Gradinger had not contested. He was therefore wrong in asserting
that the expert report had not analysed the effects of the last drink
he had had before the accident.
Furthermore, the authorities had acted in accordance with the law
in appointing an official expert (Amtssachverständiger) rather than a
sworn court expert (gerichtlich beeideter Sachverständiger) to report
on Mr Gradinger's blood alcohol level. In the case under consideration
there had been no special factor to justify their doing otherwise.
Nor, contrary to the applicant's assertions, had they appointed as
expert the person already called upon at first instance by the district
authority (see paragraph 9 above).
As for Article 14 para. 7 of the International Covenant on Civil
and Political Rights, embodying the "non bis in idem" principle, this
was not directly applicable in the Austrian legal system. Accordingly,
the authorities had not misconstrued the law by punishing the applicant
after a criminal court had acquitted him (see paragraph 8 above).
II. Relevant domestic law
A. Substantive law
1. The Criminal Code
13. By Article 80 of the Criminal Code (Strafgesetzbuch):
"It shall be an offence, punishable with up to one year's
imprisonment, for any person to cause the death of another by
negligence."
14. Article 81 para. 2 of the Criminal Code provides:
"It shall be an offence, punishable with up to three years'
imprisonment, for any person to cause the death of another by
negligence
1. ...
2. after allowing himself, even if only negligently, to become
intoxicated ... through the consumption of alcohol, but not to an
extent which excludes his responsibility, notwithstanding that he has
foreseen or could have foreseen that he would shortly have to engage
in an activity likely to pose ... a danger to the lives ... of others
if performed in that state."
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 Article 81 para. 2
of the Criminal Code (Foregger/Serini, Kurzkommentar zum
Strafgesetzbuch, 4th edition, 1988, p. 217).
2. The Road Traffic Act
15. Under section 5 of the Road Traffic Act 1960 it is an offence for
any 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. The same section also lays down
the conditions for the use of breathalysers and blood tests.
16. Since 1 May 1986 section 99(1)(a) of the Act has provided:
"It shall be an administrative offence (Verwaltungsübertretung),
punishable with a fine of not less than 8,000 and not more than
50,000 schillings 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 ..."
17. In 1958, at the time when the Austrian Government ratified the
Convention (see paragraph 28 below), section 7 of the Traffic Police
Act 1947 (Straßenpolizeigesetz) provided: "Every driver shall be under
a duty to pay reasonable heed to other road users and to display the
care and diligence necessary to ensure the maintenance of order, safety
and a proper flow of traffic."
B. Procedure
18. Article 90 para. 1 of the Federal Constitution
(Bundes-Verfassungsgesetz) provides:
"Hearings by trial courts in civil and criminal cases shall be
oral and public. Exceptions may be prescribed by law."
1. Proceedings in the Constitutional Court
19. By Article 144 para. 1 of the Federal Constitution the
Constitutional Court, when an application (Beschwerde) is made to it,
has to determine whether an administrative decision (Bescheid) has
infringed a right guaranteed by the Constitution or has applied
regulations (Verordnung) contrary to the law, a law contrary to the
Constitution or an international treaty incompatible with Austrian law.
Article 144 para. 2 provides:
"Up to the time of the hearing the Constitutional Court may by
means of a decision (Beschluß) decline to accept a case for
adjudication if it does not have sufficient prospects of success
or if it cannot be expected that the judgment will clarify an
issue of constitutional law. The court may not decline to accept
for adjudication a case excluded from the jurisdiction of the
Administrative Court by Article 133."
2. Proceedings in the Administrative Court
20. By Article 130 para. 1 of the Federal Constitution, the
Administrative Court has jurisdiction to hear, inter alia, applications
alleging that an administrative decision is unlawful.
21. Section 35(1) of the Administrative Court Act
(Verwaltungsgerichtshofsgesetz) provides:
"Applications from whose content it is apparent that the
contravention of the law alleged by the applicant has not
occurred shall be dismissed, at a private sitting, without
further formality."
22. Section 39(1) provides, in particular, that at the end of the
preliminary proceedings (Vorverfahren) the Administrative Court must
hold a hearing where the applicant makes a request to that effect.
Section 39(2) reads as follows:
"Notwithstanding a party's application under subsection (1), the
Administrative Court may decide not to hold a hearing where
1. the proceedings must be stayed (section 33) or the
application dismissed (section 34);
2. the impugned decision must be quashed as unlawful because the
respondent authority lacked jurisdiction (section 42(2)(2));
3. the impugned decision must be quashed as unlawful on account
of a breach of procedural rules (section 42(2)(3));
4. the impugned decision must be quashed because its content is
unlawful according to the established case-law of the
Administrative Court;
5. neither the respondent authority nor any other party before
the court has filed pleadings in reply and the impugned decision
is to be quashed;
6. it is apparent to the court from the pleadings of the parties
to the proceedings before it and from the files relating to the
earlier administrative proceedings that a hearing is not likely
to clarify the case further."
Sub-paragraphs 1 to 3 of section 39(2) were in force in 1958;
sub-paragraphs 4 and 5 were inserted in 1964 and sub-paragraph 6 in
1982.
23. Section 41(1) of the Administrative Court Act provides:
"In so far as the Administrative Court does not find any
unlawfulness deriving from the respondent authority's lack of
jurisdiction or from breaches of procedural rules (section 42
(2)(2) and (3)) ..., it must examine the impugned decision on the
basis of the facts found by the respondent authority and with
reference to the complaints put forward ... If it considers that
reasons which have not yet been notified to one of the parties
might be decisive for ruling on [one of these complaints] ...,
it must hear the parties on this point and adjourn the
proceedings if necessary."
24. Section 42(1) of the same Act states that, save as otherwise
provided, the Administrative Court must either dismiss an application
as ill-founded or quash the impugned decision.
By section 42(2),
"The Administrative Court shall quash the impugned decision if
it is unlawful
1. by reason of its content, [or]
2. because the respondent authority lacked jurisdiction, [or]
3. on account of a breach of procedural rules, in that
(a) the respondent authority has made findings of fact which are,
in an important respect, contradicted by the case file, or
(b) the facts require further investigation on an important
point, or
(c) procedural rules have been disregarded, compliance with which
could have led to a different decision by the respondent
authority."
25. If the Administrative Court quashes the impugned decision, "the
administrative authorities [are] under a duty ... to take immediate
steps, using the legal means available to them, to bring about in the
specific case the legal situation which corresponds to the
Administrative Court's view of the law (Rechtsanschauung)"
(section 63(1)).
26. In a judgment of 14 October 1987 (G 181/86) the Constitutional
Court held:
"From the fact that it has been necessary to extend the
reservation in respect of Article 5 (art. 5) of the Convention
to cover the procedural safeguards of Article 6 (art. 6) of the
Convention, because of the connection between those two
provisions (art. 5, art. 6), it follows that, conversely, the
limited review (die (bloß) nachprüfende Kontrolle) carried out
by the Administrative Court or the Constitutional Court is
insufficient in respect of criminal penalties within the meaning
of the Convention that are not covered by the reservation."
3. The "independent administrative tribunals"
27. Pursuant to Article 129 of the Federal Constitution,
administrative courts called "independent administrative tribunals"
(Unabhängige Verwaltungssenate) were set up in the Länder with effect
from 1 January 1991. The functions of these tribunals include
determining both the factual and the legal issues arising in cases
concerning administrative offences (Verwaltungsübertretungen).
III. Austria's reservations
28. The instrument of ratification of the Convention deposited by the
Austrian Government on 3 September 1958 contains, inter alia, a
reservation worded as follows:
"The provisions of Article 5 (art. 5) of the Convention shall be
so applied that there shall be no interference with the measures
for the deprivation of liberty prescribed in the laws on
administrative procedure, BGBl [Federal Official Gazette]
No. 172/1950, subject to review by the Administrative Court or
the Constitutional Court as provided for in the Austrian Federal
Constitution."
29. The instrument of ratification of Protocol No. 7 (P7) deposited
by the Austrian Government on 14 May 1986 contains, inter alia, the
following declaration:
"Articles 3 and 4 (P7-3, P7-4) exclusively relate to criminal
proceedings in the sense of the Austrian Code of Criminal
Procedure."
PROCEEDINGS BEFORE THE COMMISSION
30. Mr Gradinger applied to the Commission on 22 May 1989. Relying
on Article 6 (art. 6) of the Convention, he complained that he had been
convicted, contrary to the "non bis in idem" principle, by an
administrative authority which, furthermore, could not be considered
an "independent and impartial tribunal" and had called on the services
of its own experts. At the hearing he also alleged a violation of
Article 6 para. 2 (art. 6-2), which enshrined the presumption of
innocence.
31. On 10 May 1993 the Commission rejected the complaint relating to
Article 6 para. 2 (art. 6-2) for failure to comply with the six-month
rule (Article 26 read in conjunction with Article 27 para. 3 of the
Convention) (art. 26+27-3) and declared the remainder of the
application (no. 15963/90) admissible.
In its report of 19 May 1994 (Article 31) (art. 31), it expressed
the unanimous opinion that there had been a violation of Article 6
para. 1 (art. 6-1) of the Convention (right to an independent and
impartial tribunal) and Article 4 of Protocol No. 7 (P7-4); it also
expressed the view that no separate issue arose under Article 6
para. 1 (art. 6-1) regarding the lack of a hearing in the
Administrative Court (unanimously). The full text of the Commission's
opinion and of the concurring opinion contained in the report is
reproduced as an annex to this judgment (1).
_______________
1. Note by the Registrar: for practical reasons this annex will appear
only with the printed version of the judgment (volume 328-C of
Series A of the Publications of the Court), but a copy of the
Commission's report is obtainable from the registry.
_______________
FINAL SUBMISSIONS TO THE COURT BY THE GOVERNMENT
32. In their memorial the Government asked the Court
"1. to find that Article 6 (art. 6) is not applicable in the
case at issue;
alternatively,
2. to find that there was no violation of Article 6 (art. 6) in
connection with the administrative criminal proceedings
underlying the present application;
3. to declare the application in respect of the concerns raised
under Article 4 of Protocol No. 7 (P7-4) incompatible ratione
temporis with the Convention pursuant to Article 27 para. 2
(art. 27-2); or alternatively,
4. to find that Article 4 of Protocol No. 7 (P7-4) to the
Convention was not infringed in the administrative criminal
proceedings underlying the application".
AS TO THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 (art. 6-1) OF THE
CONVENTION
33. The applicant complained of a violation of Article 6 para. 1
(art. 6-1) of the Convention, which provides:
"In the determination of ... any criminal charge against him,
everyone is entitled to a fair and public hearing ... by an
independent and impartial tribunal ..."
He had, he maintained, been denied the right to a "tribunal" and
to a hearing before such a body.
A. Applicability of Article 6 para. 1 (art. 6-1)
1. Whether there was a "criminal charge"
34. In Mr Gradinger's submission, the administrative criminal offence
of which he was accused gave rise to a "criminal charge". This was not
disputed by the Government.
35. In order to determine whether an offence qualifies as "criminal"
for the purposes of the Convention, it is first necessary to ascertain
whether or not the provision (art. 6-1) defining the offence belongs,
in the legal system of the respondent State, to criminal law; next the
"very nature of the offence" and the degree of severity of the penalty
risked must be considered (see, among other authorities, the Öztürk v.
Germany judgment of 21 February 1984, Series A no. 73, p. 18, para. 50,
and the Demicoli v. Malta judgment of 27 August 1991, Series A no. 210,
pp. 15-17, paras. 31-34).
36. Like the Commission, the Court notes that, although the offences
in issue and the procedures followed in the case fall within the
administrative sphere, they are nevertheless criminal in nature. This
is moreover reflected in the terminology employed. Thus Austrian law
refers to administrative offences (Verwaltungsstraftaten) and
administrative criminal procedure (Verwaltungsstrafverfahren). In
addition, the fine imposed on the applicant was accompanied by an order
for his committal to prison in the event of his defaulting on payment
(see paragraph 16 above).
These considerations are sufficient to establish that the offence
of which the applicant was accused may be classified as "criminal" for
the purposes of the Convention. It follows that Article 6 (art. 6)
applies.
2. Austria's reservation in respect of Article 5 (art. 5) of
the Convention
37. According to the Government, the procedure in question was
covered by Austria's reservation in respect of Article 5 (art. 5) of
the Convention. There could be no doubt that by the reference in that
reservation to "measures for the deprivation of liberty" the Austrian
Government had meant to include proceedings resulting in such measures.
Any other construction would not only lack coherence; it would also run
counter to the authorities' intention, which had been to remove from
the scope of the Convention the whole administrative system, including
the substantive and procedural provisions of administrative criminal
law. That would be so even in a case where, as in this instance, the
accused was merely fined, in so far as default on payment of that fine
would entail committal to prison.
Admittedly, the Road Traffic Act 1960 was not one of the four
laws designated in the reservation. However, one of those laws, the
Administrative Criminal Justice Act, stated in section 10 that, except
as otherwise provided, the general administrative laws were to
determine the nature and severity of sanctions. It mattered little in
this respect that section 5 of the Road Traffic Act, which was applied
in the present case, had been enacted after the reservation had been
deposited, because that provision merely clarified the substance of an
existing obligation laid down in section 7 of the Traffic Police
Act 1947 (see paragraph 17 above).
38. The applicant argued that the reservation could not apply in the
present case. In the first place, it failed to satisfy the
requirements of Article 64 (art. 64) of the Convention, which provides:
"1. Any State may, when signing [the] Convention or when
depositing its instrument of ratification, make a reservation in
respect of any particular provision of the Convention to the
extent that any law then in force in its territory is not in
conformity with the provision (art. 64). Reservations of a
general character shall not be permitted under this Article
(art. 64).
2. Any reservation made under this Article (art. 64) shall
contain a brief statement of the law concerned."
Secondly, on a strict construction, its wording precluded
extending its scope to the procedural sphere, which was in issue here.
39. The Court points out that in the Chorherr v. Austria judgment of
25 August 1993 it held that Austria's reservation in respect of
Article 5 (art. 5) of the Convention was compatible with Article 64
(art. 64) (Series A no. 266-B, p. 35, para. 21). It therefore remains
only to ascertain whether the provisions (art. 5, art. 64) applied in
the present case are covered by that reservation. They differ in
certain essential respects from those in issue in the Chorherr case.
The Court notes that Mr Gradinger based his complaints on
Article 6 (art. 6) of the Convention, whereas the wording of the
reservation invoked by the Government mentions only Article 5 (art. 5)
and makes express reference solely to measures for the deprivation of
liberty. Moreover, the reservation only comes into play where both
substantive and procedural provisions of one or more of the four
specific laws indicated in it have been applied. Here, however, the
substantive provisions of a different Act, the Road Traffic Act 1960,
were applied.
These considerations are a sufficient basis for concluding that
the reservation in question does not apply in the instant case.
B. Compliance with Article 6 para. 1 (art. 6-1)
1. Access to a tribunal
40. Mr Gradinger contended that none of the bodies that had dealt
with his case in the proceedings in issue could be regarded as a
"tribunal" within the meaning of Article 6 para. 1 (art. 6-1). This
was true not only of the administrative authorities, but also of the
Constitutional Court, whose review was confined to constitutional
issues, and above all of the Administrative Court. The latter was
bound by the administrative authorities' findings of fact, except where
there was a procedural defect within the meaning of section 42(2),
sub-paragraph 3, of the Administrative Court Act (see paragraph 24
above). It was therefore not empowered to take evidence itself, or to
establish the facts, or to take cognisance of new matters. Moreover,
in the event of its quashing an administrative measure, it was not
entitled to substitute its own decision for that of the authority
concerned, but had always to remit the case to that authority. In
short, its review was confined exclusively to questions of law and
therefore could not be regarded as equivalent to that of a body with
full jurisdiction.
41. The Government contested this view, whereas the Commission
accepted it.
42. The Court reiterates that decisions taken by administrative
authorities which do not themselves satisfy the requirements of
Article 6 para. 1 (art. 6-1) of the Convention - as is the case in this
instance with the district authority and the regional government (see
paragraphs 9 and 10 above) - must be subject to subsequent control by
a "judicial body that has full jurisdiction" (see, inter alia and
mutatis mutandis, the following judgments: Albert and Le Compte v.
Belgium of 10 February 1983, Series A no. 58, p. 16, para. 29; Öztürk,
previously cited, pp. 21-22, para. 56; and Fischer v. Austria of
26 April 1995, Series A no. 312, p. 17, para. 28).
43. The Constitutional Court is not such a body. In the present case
it could look at the impugned proceedings only from the point of view
of their conformity with the Constitution, and this did not enable it
to examine all the relevant facts. It accordingly lacked the powers
required under Article 6 para. 1 (art. 6-1).
44. The powers of the Administrative Court must be assessed in the
light of the fact that the court in this case was sitting in
proceedings that were of a criminal nature for the purposes of the
Convention. It follows that when the compatibility of those powers
with Article 6 para. 1 (art. 6-1) is being gauged, regard must be had
to the complaints raised in that court by the applicant as well as to
the defining characteristics of a "judicial body that has full
jurisdiction". These include the power to quash in all respects, on
questions of fact and law, the decision of the body below. As the
Administrative Court lacks that power, it cannot be regarded as a
"tribunal" within the meaning of the Convention. Moreover, in a
judgment of 14 October 1987 the Constitutional Court held that in
respect of criminal penalties not covered by the reservation in respect
of Article 5 (art. 5), the limited review carried out by the
Administrative Court or the Constitutional Court was insufficient (see
paragraph 26 above).
45. It follows that the applicant did not have access to a
"tribunal". There has accordingly been a violation of Article 6
para. 1 (art. 6-1) on this point.
2. Lack of a hearing and failure to take evidence from
witnesses
46. Mr Gradinger further criticised the Administrative Court for
failing to hold a hearing or take evidence from witnesses.
47. Having regard to the conclusion set out in paragraph 45 above,
the Court does not consider it necessary to examine these complaints.
II. ALLEGED VIOLATION OF ARTICLE 4 OF PROTOCOL No. 7 (P7-4)
48. The applicant maintained in addition that, by fining him pursuant
to section 5 of the Road Traffic Act, the district authority and the
regional government had punished him in respect of facts that were
identical with those on the basis of which the Regional Court had
decided that he did not have a case to answer under Article 81
para. 2 of the Criminal Code. As both these provisions in substance
prohibited driving a vehicle with a blood alcohol level of 0.8 grams
per litre or higher, there had been a breach of Article 4 of
Protocol No. 7 (P7-4), which provides:
"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.
2. The provisions (P7-4) of the preceding paragraph shall not
prevent the reopening of the case in accordance with the law and
penal procedure of the State concerned, if there is evidence of
new or newly discovered facts, or if there has been a fundamental
defect in the previous proceedings, which could affect the
outcome of the case.
3. No derogation from this Article (P7-4) shall be made under
Article 15 (art. 15) of the Convention."
A. The reservation in respect of Article 4 (P7-4)
49. The Government argued that the provision (P7-4) relied on by the
applicant could not be invoked in the instant case because Austria's
declaration limited its scope exclusively to "criminal proceedings in
the sense of the Austrian Code of Criminal Procedure" (see
paragraph 29 above), thereby excluding administrative or disciplinary
proceedings.
50. Like the Commission, the Court considers that the "declaration"
is to be regarded as a reservation within the meaning of Article 64
(art. 64) of the Convention (see, mutatis mutandis, the Belilos v.
Switzerland judgment of 29 April 1988, Series A no. 132, p. 24,
para. 49). Indeed, the Government did not dispute this.
It is therefore necessary to determine whether the declaration
satisfies the requirements of that provision (art. 64).
51. The Court notes at the outset that there is no "brief statement"
of the law which is said not to conform to Articles 3 and 4 of
Protocol No. 7 (P7-3, P7-4). Admittedly, it can be inferred from the
wording of the "declaration" that Austria intended all proceedings that
were not "criminal proceedings in the sense of the Austrian Code of
Criminal Procedure" to be excluded from the scope of Articles 3 and 4
(P7-3, P7-4); the Government rightly drew attention to this.
Nevertheless, with a description of this nature, which is not
exhaustive, the "declaration" does not afford to a sufficient degree
"a guarantee ... that [it] does not go beyond the provisions expressly
excluded" by Austria (see, as the most recent authority, the Chorherr
judgment previously cited, p. 34, para. 20). Accordingly, the
declaration does not satisfy the requirements of Article 64 para. 2
(art. 64-2).
This conclusion is a sufficient basis for finding the
"declaration" invalid, without its being necessary also to examine
whether the other requirements of Article 64 (art. 64) were complied
with.
B. Applicability ratione temporis of Article 4 (P7-4)
52. The Government contended further that Article 4 of
Protocol No. 7 (P7-4) was inapplicable ratione temporis. Under
section 1(2) of the Administrative Criminal Justice Act
(Verwaltungsstrafgesetz), the sanction imposed depended on the law in
force when the offence was committed or when the first-instance
decision was delivered, if that was more favourable to the accused.
In the present case the relevant dates were respectively 1 January and
16 July 1987, whereas Protocol No. 7 (P7) had not entered into force
until 1 November 1988. The fact that the Administrative Court had
given judgment after that date, on 29 March 1989, made no difference,
because it too was required to rule on the basis of the law applicable
when the offence was committed or when the first-instance decision was
delivered.
53. Like the Commission, the Court observes that the aim of
Article 4 of Protocol No. 7 (P7-4) is to prohibit the repetition of
criminal proceedings that have been concluded by a final decision.
That provision (P7-4) does not therefore apply before new proceedings
have been opened. In the present case, inasmuch as the new proceedings
reached their conclusion in a decision later in date than the entry
into force of Protocol No. 7 (P7), namely the Administrative Court's
judgment of 29 March 1989, the conditions for applicability ratione
temporis are satisfied.
C. Compliance with Article 4 (P7-4)
54. In reply to Mr Gradinger's arguments (see paragraph 48 above),
which the Commission endorsed in substance, the Government affirmed
that Article 4 of Protocol No. 7 (P7-4) did not preclude applying the
two provisions in issue consecutively. The latter were different in
nature and pursued different aims: whereas Article 81 para. 2 of the
Criminal Code punished homicide committed while under the influence of
drink, section 5 of the Road Traffic Act punished the mere fact of
driving a vehicle while intoxicated. The former was designed to
penalise acts that cause death and threaten public safety, the latter
to ensure a smooth flow of traffic.
55. The Court notes that, according to the St Pölten Regional Court,
the aggravating circumstance referred to in Article 81 para. 2 of the
Criminal Code, namely a blood alcohol level of 0.8 grams per litre or
higher, was not made out with regard to the applicant. On the other
hand, the administrative authorities found, in order to bring the
applicant's case within the ambit of section 5 of the Road Traffic Act,
that that alcohol level had been attained. The Court is fully aware
that the provisions in question differ not only as regards the
designation of the offences but also, more importantly, as regards
their nature and purpose. It further observes that the offence
provided for in section 5 of the Road Traffic Act represents only one
aspect of the offence punished under Article 81 para. 2 of the Criminal
Code. Nevertheless, both impugned decisions were based on the same
conduct. Accordingly, there has been a breach of Article 4 of
Protocol No. 7 (P7-4).
III. APPLICATION OF ARTICLE 50 (art. 50) OF THE CONVENTION
56. Under Article 50 (art. 50) of the Convention,
"If the Court finds that a decision or a measure taken by a legal
authority or any other authority of a High Contracting Party is
completely or partially in conflict with the obligations arising
from the ... Convention, and if the internal law of the said
Party allows only partial reparation to be made for the
consequences of this decision or measure, the decision of the
Court shall, if necessary, afford just satisfaction to the
injured party."
57. Mr Gradinger claimed the sum of ATS 293,130 for the costs and
expenses incurred in the proceedings in the national courts and then
before the Convention institutions.
58. The Government expressed the view that only the proceedings in
the Administrative Court - which had given rise to the alleged
violations - and those in Strasbourg could be taken into account. They
also contested the quantum of the costs, but they were prepared to
reimburse a total of ATS 100,000.
59. The Delegate of the Commission left the matter of just
satisfaction to the discretion of the Court.
60. Making an assessment on an equitable basis, having regard to the
information in its possession and its case-law, the Court awards
Mr Gradinger ATS 150,000.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Holds that Article 6 para. 1 (art. 6-1) of the Convention applies
in this case;
2. Holds that there has been a violation of that Article (art. 6-1)
as regards access to a court;
3. Holds that it is not necessary to examine the complaints based
on the lack of a hearing in the Administrative Court and that
court's failure to take evidence from witnesses;
4. Holds that Article 4 of Protocol No. 7 (P7-4) applies in this
case;
5. Holds that there has been a violation of that Article (P7-4);
6. Holds that the respondent State is to pay the applicant, within
three months, the sum of 150,000 (one hundred and fifty thousand)
Austrian schillings in respect of costs and expenses;
7. Dismisses the remainder of the claim for just satisfaction.
Done in English and in French, and delivered at a public hearing
in the Human Rights Building, Strasbourg, on 23 October 1995.
Signed: Rolv RYSSDAL
President
Signed: Herbert PETZOLD
Registrar
In accordance with Article 51 para. 2 (art. 51-2) of the
Convention and Rule 53 para. 2 of Rules of Court A, the separate
opinion of Mr Martens is annexed to this judgment.
Initialled: R. R.
Initialled: H. P.
SEPARATE OPINION OF JUDGE MARTENS
1. I concur in the Court's finding that Article 6 (art. 6) has been
violated, but cannot agree with its reasoning.
2. My objections concern paragraph 44 of the judgment, which starts
with the statement:
"The powers of the Administrative Court must be assessed in the
light of the fact that the court in this case was sitting in
proceedings that were of a criminal nature for the purposes of
the Convention."
3. I will refrain from a structural criticism of this paragraph.
I cannot help noting, however, that here again the Court finds it
necessary to remark that when it is being assessed whether or not the
Administrative Court is to be considered a court that affords the
safeguards of Article 6 para. 1 (art. 6-1), "regard must be had to the
complaints raised in that court". One looks in vain, however, for
evidence of this methodological principle being put into practice:
there does not follow any analysis of what the applicant argued before
the Administrative Court, nor is there any trace of "regard" to these
arguments in the assessment of the adequacy of the Administrative
Court's jurisdiction. For the rest, I refer to the methodological
objections to this "test" that I raised in paragraph 18 of my separate
opinion in the case of Fischer v. Austria (judgment of 26 April 1995,
Series A no. 312).
4. My main objection to this paragraph is the following. In the
three civil cases discussed in my aforementioned separate opinion, the
Court found that the Austrian Administrative Court met the requirements
of a tribunal within the meaning of Article 6 para. 1 (art. 6-1). In
the paragraph under discussion, however, it reaches the opposite
conclusion, stressing that in this case the Administrative Court was
sitting in proceedings of a criminal nature. One cannot but infer that
the Court is of the opinion that in a case which under national law is
an "administrative" one but under the Convention is a "criminal" one,
the safeguards afforded by the tribunal that is to review the final
decision of the administrative bodies differ from those required in a
case that under national law is an "administrative" one but under the
Convention is a "civil" one. I cannot see any justification for such
differentiation, which does not find support in the wording or the
purpose of Article 6 (art. 6) (1). Nor does the Court offer one, its
decision on this crucial point being unsupported by any argument. This
is the more to be regretted as this differentiation is contrary to the
Court's case-law (2).
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1. I refer in this context to footnote 62 of my aforementioned
separate opinion in the case of Fischer v. Austria.
2. See, inter alia, the Le Compte, Van Leuven and De Meyere v. Belgium
judgment of 23 June 1981, Series A no. 43, pp. 23-24, para. 53; the
Albert and Le Compte v. Belgium judgment of 10 February 1983,
Series A no. 58, p. 17, para. 30; see also the Diennet v. France
judgment of 26 September 1995, Series A no. 325-A, pp. 13-14, para. 28.
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