CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 10 mai 1993

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                            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)