CEDH · CASELAW;REPORTS;ENG — 1 juillet 1997

.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 }                    EUROPEAN COMMISSION OF HUMAN RIGHTS                      Application No. 25711/94                             C. M. L.-O.                               against                             Switzerland                      REPORT OF THE COMMISSION                      (adopted on 1 July 1997)                          TABLE OF CONTENTS                                                             Page   I.    INTRODUCTION      (paras. 1-15). . . . . . . . . . . . . . . . . . . . . .1        A.    The application           (paras. 2-4). . . . . . . . . . . . . . . . . . . .1        B.    The proceedings           (paras. 5-10) . . . . . . . . . . . . . . . . . . .1        C.    The present Report           (paras. 11-15). . . . . . . . . . . . . . . . . . .2   II.   ESTABLISHMENT OF THE FACTS      (paras. 16-30) . . . . . . . . . . . . . . . . . . . . .3        A.    The particular circumstances of the case           (paras. 16-28). . . . . . . . . . . . . . . . . . .3        B.    Relevant domestic law           (paras. 29-30). . . . . . . . . . . . . . . . . . .6   III. OPINION OF THE COMMISSION      (paras. 31-51) . . . . . . . . . . . . . . . . . . . . .7        A.    Complaint declared admissible           (para. 31). . . . . . . . . . . . . . . . . . . . .7        B.    Point at issue           (para. 32). . . . . . . . . . . . . . . . . . . . .7        C.    Article 4 of Protocol No. 7 to the Convention           (paras. 33-50). . . . . . . . . . . . . . . . . . .7             CONCLUSION           (para. 51). . . . . . . . . . . . . . . . . . . . 10   DISSENTING OPINION OF MRS. J. LIDDY, MM. J.-C. SOYER, C.L. ROZAKIS, I. CABRAL BARRETO, N. BRATZA, K. HERNDL AND E. BIELIUNAS. . . . . . . . . . . . . . . . . . . . . . 11   DISSENTING OPINION OF MR. L. LOUCAIDES. . . . . . . . . . . 13   APPENDIX: DECISION OF THE COMMISSION AS TO THE           ADMISSIBILITY OF THE APPLICATION. . . . . . . . . 15   I.    INTRODUCTION   1.    The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.   A.    The application   2.    The applicant is a Portuguese citizen, born in 1967 and resident at Urdorf in Switzerland.   She is represented before the Commission by Mr A. von Albertini, a lawyer practising in Zurich.   3.    The application is directed against Switzerland.   The respondent Government are represented by Mr Ph. Boillat, Head of the European Law and International Affairs Section of the Federal Office of Justice, Agent.   4.    The case relates to the applicant's complaint that, following a car accident, she was first fined for not mastering her vehicle, and later for having negligently caused bodily injury to the driver of another car.   The applicant complains of a breach of the principle ne bis in idem enshrined in Article 4 of Protocol No. 7 in that she was twice fined for the same offence.   B.    The proceedings   5.    The application was introduced on 22 October 1994 and registered on 18 November 1994.   6.    On 9 April 1996 the Commission decided, pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the application to the respondent Government and to invite the parties to submit written observations on its admissibility and merits.   7.    The Government's observations were submitted on 21 June 1996. The applicant replied on 19 August 1996.   8.    On 13 January 1997 the Commission declared the application admissible.   9.    The text of the Commission's decision on admissibility was sent to the parties on 29 January 1997 and they were invited to submit such further information or observations on the merits as they wished. However, no such observations were submitted.   10.   After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement.   In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.   C.    The present Report   11.   The present Report has been drawn up by the Commission in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:             Mrs. G.H. THUNE, Acting President           Mr.   S. TRECHSEL           Mrs. J. LIDDY           MM.   E. BUSUTTIL                G. JÖRUNDSSON                A.S. GÖZÜBÜYÜK                A. WEITZEL                J.-C. SOYER                H. DANELIUS                F. MARTINEZ                C.L. ROZAKIS                L. LOUCAIDES                J.-C. GEUS                M.P. PELLONPÄÄ                M.A. NOWICKI                I. CABRAL BARRETO                B. CONFORTI                N. BRATZA                I. BÉKÉS                J. MUCHA                D. SVÁBY                G. RESS                A. PERENIC                C. BÎRSAN                P. LORENZEN                K. HERNDL                E. BIELIUNAS                E.A. ALKEMA                M. VILA AMIGÓ           Mrs. M. HION           MM.   R. NICOLINI                A. ARABADJIEV   12.   The text of this Report was adopted on 1 July 1997 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.   13.   The purpose of the Report, pursuant to Article 31 of the Convention, is:        (i)   to establish the facts, and        (ii) to state an opinion as to whether the facts found disclose           a breach by the State concerned of its obligations under           the Convention.   14.   The Commission's decision on the admissibility of the application is annexed hereto.   15.   The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.   II.   ESTABLISHMENT OF THE FACTS   A.    The particular circumstances of the case   16.   On 15 December 1990 the applicant was driving her car in Zurich. The road was covered with ice and snow; her car got onto the other side of the road where she touched one car and then collided with a second car driven by M.   The latter was seriously injured.   17.   On 19 March 1991 the Zurich Police Judge's Office (Polizeirichteramt) transmitted the file to the District Attorney's Office (Bezirksanwaltschaft) for further investigation as to whether the applicant had committed the offence of negligently inflicting serious bodily injury (fahrlässige schwere Körperverletzung) according to S. 125 para. 2 of the Penal Code (Strafgesetzbuch; see below, Relevant domestic law).   18.   On 5 April 1991 the Zurich District Office (Statthalteramt) transmitted the file to the District Attorney's Office for further investigations as to any offences against the Federal Road Act (Strassenverkehrsgesetz).   19.   On 3 June 1991 the District Attorney's Office transferred the file back to the Police Judge's Office.   20.   On 13 August 1991 the Zurich Police Judge convicted the applicant of a breach of SS. 31 and 32 of the Federal Road Act, namely of not mastering her vehicle as she had not adapted her speed to the road conditions (Nichtbeherrschen des Fahrzeuges infolge Nichtanpassens der Geschwindigkeit an die Strassenverhältnisse; see below, Relevant domestic law).   She was sentenced to a fine of 200 Swiss Francs (CHF). The decision noted in particular that on 15 December 1990 the road had been covered with ice and snow; and that the applicant's car had got onto the other side of the road and first touched one car and then collided with another.   21.   On 25 January 1993 the District Attorney's Office issued a penal order (Strafbefehl).   In view of the collision with the car driven by M., resulting in his injury, the applicant was convicted of the offence of negligently inflicting bodily injury (fahrlässige Körperverletzung) and sentenced to a fine of 2,000 CHF.   The Office relied on S. 125 of the Swiss Penal Code (see below, Relevant domestic law).   22.   The applicant objected thereto whereupon criminal proceedings were instituted before the Zurich District Court (Bezirksgericht).   On 11 March 1993 the Court convicted the applicant of having negligently inflicted bodily injury and sentenced her to a fine of 1,500 CHF.   The judgment stated, inter alia:   <Translation>        "The Police Judge who issued the fine contested by the applicant      had to examine the situation within the context of proceedings      concerning a regulatory offence.   Certainly, no second regulatory      offence proceedings may be instituted on the basis of the same      incident and in view of the principle 'ne bis in idem'.   The      summary and limited examination of that type of procedure      nevertheless permits the act, which was prosecuted with a mere      fine, once again to be prosecuted and punished as a crime or as      an offence, to the extent that this more severe examination is      factually or legally required.   In this case the original fine      order and the concomitant punishment shall be annulled."   <German>        "Der Polizeirichter, welcher die von der Angeklagten vorgebrachte      Bussenverfügung erliess, hatte den fraglichen Sachverhalt im      Rahmen eines Übertretungsstrafverfahrens zu würdigen, sodass mit      Sicherheit aufgrund des nämlichen Vorfalles und im Sinne des 'ne      bis in idem'-Grundsatzes kein zweites Übertretungsverfahren      eingeleitet werden darf.   Die summarische und beschränkte Prüfung      dieser Verfahrensart lässt es hingegen zu, dass die mit einer      blossen Busse geahndete Tat noch einmal als Verbrechen oder      Vergehen verfolgt und bestraft wird, sofern ein rechtlicher oder      tatsächlicher Gesichtspunkt diese erschwerte Beurteilung      verlangt; in diesem Fall wird die ursprüngliche Bussenverfügung      und die mit ihr ausgesprochene Strafe aufgehoben."   23.   The decision further stated, inter alia:   <Translation>        "The fine of 200 CHF pronounced in the order of the Police      Judge's Office of the Zurich Municipality of 13 August 1991 shall      be annulled and - to the extent that it has already been paid -      shall be deducted from the present fine, the latter therefore      being reduced to 1,300 CHF."   <German>        "Die mit Verfügung des Polizeirichteramtes der Stadt Zürich vom      13.8.91 ausgefällte Busse von Fr. 200.- wird aufgehoben und -      sofern bereits bezahlt - auf den vorliegenden Bussenbetrag      angerechnet, sodass sich dieser auf Fr. 1,300.- reduziert."   24.   The applicant's appeal was dismissed on 7 October 1993 by the Zurich Court of Appeal (Obergericht).   The Court held, inter alia:   <Translation>        "The question arises which conclusions must be drawn from the      erroneous conduct of the Police Judge in respect of the question      at issue.   It is clear that the Police Judge in his decision of      13 August 1991 only assessed from a criminal law point of view      the fact that the applicant did not master the vehicle, not the      resulting bodily injury of the victim ...   However, in order to      determine the breach of traffic rules the Police Judge was      entitled and obliged entirely to examine and completely to assess      from a criminal law point of view the facts introduced as the      object of the proceedings; if he nevertheless failed to transmit      the file despite a negligent serious bodily injury which was      apparent, this does not lead to the quashing of the decision of      the Police Judge - the decision still stands.   It has not been      claimed, and does not transpire from the file, that the decision      at issue has serious faults which would possibly bring about the      complete nullity."   <German>        "Es stellt sich die Frage, welche Schlüsse aus dem fehlerhaften      Vorgehen des Polizeirichters für die hier interessierende Frage      zu ziehen sind.   Fest steht, dass der Polizeirichter in seiner      Verfügung vom 13. August 1991 nur das Nichtbeherrschen des      Fahrzeuges, nicht aber die dadurch verursachte Körperverletzung      beim Geschädigten strafrechtlich gewürdigt hat ...   Zwecks      Beurteilung der Verkehrsregelnverletzung war der Polizeirichter      jedoch berechtigt und verpflichtet, die als Prozessgegenstand      eingeführten Tatsachen in strafrechtlicher Hinsicht gänzlich      auszuloten und vollständig zu beurteilen; dass er trotz einer im      Raume stehenden fahrlässigen schweren Körperverletzung die      Überweisung der Akten versäumte, führt daher noch nicht zur      Aufhebung der polizeirichterlichen Verfügung - diese hat nach wie      vor Bestand.   Irgendwelche schwerwiegende Mängel der fraglichen      Verfügung, die allenfalls die vollständige Nichtigkeit zur Folge      haben könnten, sind weder geltend gemacht noch aus den Akten      ersichtlich."   25.   The Court of Appeal then confirmed the deduction of 200 CHF from the fine of 1,500 CHF, considering that the applicant should not be punished more severely than if both offences had been dealt with together in one set of proceedings.   26.   Against this decision the applicant filed pleas of nullity (Nichtigkeitsbeschwerden) with the Court of Cassation (Kassationsgericht) of the Canton of Zurich and with the Federal Court (Bundesgericht).   The Court of Cassation dismissed the plea of nullity on 27 April 1994.   Against this last decision the applicant also filed a public law appeal (staatsrechtliche Beschwerde) with the Federal Court.   27.   On 17 August 1994, the Federal Court dismissed the applicant's public law appeal and her plea of nullity, both decisions being served on 25 August 1994.   28.   According to the Federal Court's decision concerning the applicant's plea of nullity, it had to be assumed that the Police Judge, when issuing his fine on 13 August 1991, had not been aware of M.'s serious injury; otherwise, he would not have been competent to issue the fine and he would have been obliged to return the file to the District Attorney's Office.   The Federal Court concluded that "the previous court had avoided the effects of a double punishment by considering the fine issued by the Police Judge of 200 CHF when determining the new fine" ("die Wirkungen einer Doppelbestrafung hat die Vorinstanz dadurch vermieden, dass sie die vom Polizeirichter ausgesprochene Busse von Fr. 200.- bei der Bemessung der neuen Busse berücksichtigt hat").   B.    Relevant domestic law   29.   According to S. 125 of the Penal Code (Strafgesetzbuch) negligent bodily injury shall be punished, upon the complaint of the injured party, with imprisonment or a fine.   If the damage is severe, the perpetrator shall be prosecuted ex officio.   30.   S. 31 of the Federal Road Traffic Act (Strassenverkehrsgesetz) provides, inter alia, that a driver shall constantly master his vehicle in order to be able to drive carefully (so beherrschen, dass er seinen Vorsichtspflichten nachkommen kann). According to S. 32 the driver shall adapt the vehicle's speed to the particular circumstances.   III. OPINION OF THE COMMISSION   A.    Complaint declared admissible   31.   The Commission declared admissible the applicant's complaint that, contrary to the principle of ne bis in idem, she was twice fined for the same incident.   B.    Point at issue   32.   The only point at issue is whether there has been a violation of Article 4 of Protocol No. 7 (P7-4).   C.    Article 4 of Protocol No. 7 (P7-4) to the Convention   33.   The applicant   submits that on 13 August 1991 she was convicted for not mastering her vehicle.   Subsequently, further criminal proceedings were instituted against her for the same incident.   The resulting penal order issued on 25 January 1993 therefore breached the principle of ne bis in idem. The applicant relies on Article 4 para. 1 of Protocol No. 7 (P7-4-1).   34.   Article 4 paras. 1 and 2 of Protocol No. 7 (P7-4-1, P7-4-2) to the Convention state:        "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 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."   35.   The applicant contends that the text of Article 4 para. 1 of Protocol No. 7 (P7-4-1) leaves no room for interpretation: it prohibits trial or punishment for a criminal offence for which the applicant has already been finally convicted.   Thus, the principle ne bis in idem is violated if the same facts are examined in the course of two separate proceedings.   In the applicant's opinion, her rights are also protected if the judge in question issues a court order by mistake.   The District Court judge was competent to issue the decision, and it cannot be said that there was a fundamental defect in the proceedings, as stated for instance in para. 2 of Article 4 of Protocol No. 7 (P7-4-2).   36.   The applicant considers in the light of ne bis in idem that the fact that a fine has been imposed on a motorist for contravening traffic regulations will render it impossible for a criminal court to convict a motorist of committing bodily injury.   M.'s injury was the direct result of the applicant disregarding the traffic regulations. The fact that a party benefits from a procedural error, as submitted by the Government, does not preclude invocation of ne bis in idem.   The applicant further notes that the Government correctly state that the Zurich Court of Appeal did not formally set aside the fine imposed by the Police Judge's Office.   The conviction of 13 August 1991 constitutes a "final conviction" within the meaning of Article 4 para. 1 of Protocol No. 7 (P7-4-1), and therefore stands in the way of a further conviction.   In its decision of 17 August 1994 the Federal Court itself confirmed this breach of ne bis in idem by referring to "the new fine".   37.   Finally, the applicant considers that her interest in her legal rights cannot be called in question.   After conviction by the Police Judge's Office she was again involved in a further trial resulting in an additional fine.   It cannot therefore be said that the rights invoked were theoretical and illusory.   38.   The Government contest that there has been a violation of Article 4 para. 1 of Protocol No. 7 (P7-4-1).   The question arises whether this provision is already breached if the same set of facts is examined in two different procedures, or whether it is only breached if a person is punished twice for the same offence.   The latter situation would raise no issue in the present case as the applicant was convicted on 13 August 1991 for a breach of traffic rules and on 25 January 1993 for negligently having committed bodily injury.   39.   In the Government's opinion, even if Article 4 of Protocol No. 7 (P7-4) required that the same set of facts should not be examined in different proceedings, this provision would not be breached in the circumstances of the present case which were the result of a misunderstanding.   Thus, on 19 March 1991 the Zurich Police Judge's Office transmitted the file to the District Attorney's Office as the former was not competent to examine a possible offence of bodily injury.   On 3 June 1991, the file was referred back to the Police Judge's Office as the District Attorney considered that no proceedings would be instituted against M.   It was probably by mistake, therefore, that the Police Judge's Office not only terminated the proceedings against M., but also against the applicant.   40.   The Government recall that on 25 January 1993 a penal order was issued against the applicant since, as the District Court later confirmed, the offence was sufficiently severe to require prosecution despite the previous administrative proceedings.   In its judgment of 11 March 1993 the District Court nevertheless annulled the fine of 200 CHF previously imposed by the Police Judge's Office.   While it is true that the Zurich Court of Appeal found on 7 October 1993 that the fine of the Police Judge "still stands", this caused the applicant no prejudice whatsoever.   Indeed, the Court of Appeal also confirmed the deduction of the fine of 200 CHF.   The Court of Appeal found that in fact the offences committed by the applicant should have been dealt with in one set of proceedings.   41.   In the Government's submission, the fact that the Court of Appeal did not formally annul the fine of the Police Judge cannot in itself breach Article 4 of Protocol No. 7 (P7-4).   Thus, the rights enshrined in the Convention are not intended to be theoretical or illusory but rights that are practical and effective (see Eur. Court HR, Artico v. Italy judgment of 13 May 1980, Series A no. 37, p. 16, para. 33). The principle ne bis in idem should not be interpreted as permitting a person to benefit from a procedural error.   42.   The Commission recalls the Convention organs' case-law according to which the aim of Article 4 of Protocol No. 7 (P7-4) is to prohibit the repetition of criminal proceedings which have been concluded by a final decision (see Eur. Court HR, Gradinger v. Austria judgment of 23 October 1995, Series A no. 328-C, p. 65, para. 53).   43.   In the present case, on 13 August 1991 the Zurich Police judge convicted the applicant of a breach of traffic rules, namely for not mastering her vehicle as she had not adapted her speed to the road conditions, and sentenced her to a fine of 200 CHF.   The decision noted, inter alia, that the applicant's car had got onto the other side of the road and first touched one car and then collided with another (see above, para. 20).   44.   On 25 January 1993, the District Attorney's Office issued a penal order against the applicant.   Thus, in view of the collision with another car driven by M., resulting in his injury, the applicant was convicted of having negligently caused the offence of bodily injury and sentenced to a fine of 2,000 CHF (see above, para. 21).   Upon the applicant's objection, the Zurich District Court on 11 March 1993 reduced the fine to 1,500 CHF (see above, para. 22).   45.   It is true that the Zurich District Court also "annulled" the original fine and deducted the amount of 200 CHF from the fine of 1,500 CHF (see above, para. 23) which now amounted to 1,300 CHF. However, the Commission notes that the original conviction of the Police Judge's Office had meanwhile entered into legal force.   Indeed, the respondent Government have confirmed a statement of the Court of Appeal of the Canton of Zurich in its decision of 7 October 1993 according to which "(that) decision still stands" (see above, para. 24).   46.   The issue arises whether in the second proceedings the applicant was "tried or punished again ... for an offence for which (she had) already been finally acquitted or convicted" within the meaning of Article 4 para. 1 of Protocol No. 7 (P7-4-1).   This provision does not refer to "the same offence", but refers rather to trial and punishment "again ... for an offence" (see Gradinger v. Austria, Comm. Report 19.5.94, para. 75, Eur. Court HR, Series A no. 328-C, p. 77).   Thus, the Court found in the Gradinger case that "the (Austrian) provisions in question differ ... as regards their nature and purpose ... Nevertheless, both impugned decisions were based on the same conduct." As a result, it found in that case a breach of Article 4 of Protocol No. 7 (P7-4) (see Eur. Court HR, ibid. p. 66, para. 55).   47.   In the present case the offences did indeed differ in nature and pursued different aims.   Thus, SS. 31 and 32 of the Federal Road Traffic Act aim at regulating traffic, whereas S. 125 of the Penal Code aims at protecting life and limb of other persons.   Nevertheless, in the Commission's opinion the applicant's two convictions were both based on the same conduct, namely that her car got onto the other side of the road where she touched one car and then collided with a second car whose driver was seriously injured.   The injury is not a completely separate element, but part of the whole conduct by which the injury was finally caused.   48.   In the Government's submissions, the second conviction of the applicant resulted from a misunderstanding in that the Police Judge's Office originally failed to pursue the proceedings on account of a possible offence of bodily injury.   In fact, the offences committed by the applicant should have been dealt with in one set of proceedings. In the Government's opinion, Article 4 of Protocol No. 7 (P7-4) is not breached if the Court of Appeal did not formally annul the first fine of the Police Judge, since the applicant at least did not have to pay the fine.   The principle ne bis in idem should not, the Government submit, be interpreted as permitting a person to benefit from a procedural error.   49.   In the Commission's opinion, the mere fact that a conviction was based on a procedural error cannot remove the protection against a new trial.   According to Article 4, para. 2 of Protocol No. 7 (P7-4-2) a reopening of the case is only possible if the procedural error amounts to "a fundamental defect in the previous proceedings".   The Commission notes in this respect that the Court of Appeal of the Canton of Zurich did not find that the decision of 13 August 1991 had "serious faults which would possibly bring about the complete nullity" (see above, para. 24).   50.   In these circumstances, the Commission finds that the applicant was "tried or punished again ... for an offence" of which she had previously been convicted within the meaning of Article 4 of Protocol No. 7 (P7-4) to the Convention.        CONCLUSION   51.   The Commission concludes, by 24 votes to 8, that in the present case there has been a violation of Article 4 of Protocol No. 7 (P7-4) to the Convention.           H.C. KRÜGER                           G.H. THUNE          Secretary                         Acting President      to the Commission                     of the Commission                                                    (Or. English)          DISSENTING OPINION OF MRS. J. LIDDY, J.-C. SOYER,           C.L. ROZAKIS, I. CABRAL BARRETO, N. BRATZA,                   K. HERNDL AND E. BIELIUNAS        The issue in this case is whether there is a violation of Article 4 of Protocol No. 7 when a conviction of a road traffic offence such as speeding is followed by a conviction for the substantive criminal offence of causing bodily injury by negligence.   It is not clear whether the extent of the injury to the driver of the other car was appreciated from the outset.   The conviction for the road traffic offence merely makes reference to a collision, and the Federal Court's judgment of 17 August 1994 assumed that the Police Judge, when issuing his fine for the road traffic offence, had not been aware of the other driver's serious injury.        The Government have questioned whether Article 4 of Protocol No. 7 is violated whenever the same set of facts is examined in two different procedures, or whether it is only violated if a person is punished twice for the same offence.   In the present case, the facts were examined twice from a different perspective, but the extra ingredient (bodily injury) was applicable only to the second charge under S. 125 of the Penal Code.   If both offences had been dealt with together in one set of proceedings, a failure to prove the extra ingredient under the Penal Code would not have disbarred conviction under the Road Traffic Act.   If both offences had been dealt with together, proof of the extra ingredient in the more serious Penal Code offence would not necessarily have led to an extra fine for the lesser offence.   In fact, what happened in the present case is that the two offences were dealt with separately, but the extra fine for the lesser offence was deducted from the fine for causing bodily injury.   We cannot see how the mere fact of two separate proceedings relating to the same conduct but for different offences, the essential ingredient of one of which (bodily injury) might not always be immediately apparent, conflicts with Article 4 of Protocol No. 7.   We do not share the majority's view at para. 47 of the Report: in our view the injury was a separate element that had to be proved.        This conclusion seems to us consistent with the Court's finding in the Gradinger case to the effect that there had been a violation of Article 4 of Protocol No. 7 where "both impugned decisions were based on the same conduct" (judgment of 23 October 1995, Series A no. 328). The Court's reasoning in paragraph 55 leading to that conclusion makes it clear that the "conduct" the Court had in mind was the same essential ingredient shared by the two offences under the Austrian Road Traffic Act and the Austrian Criminal Code: having a blood alcohol level of 0.8 grams per litre or higher.   The applicant in the Gradinger case had been found in proceedings under the Criminal Code (after the hearing of evidence) in effect not to have a blood alcohol level of 0.8 grams per litre or higher on the occasion in question, but subsequently in proceedings under the Road Traffic Act he was found on the basis of a different medical report to have exceeded that blood alcohol level on the same occasion.   In these circumstances that applicant was tried twice in respect of the same essential ingredient. The present case is clearly distinguishable, as the essential ingredient of causing bodily harm had not been in issue in the earlier proceedings, and there was no conflict between the police judge's findings and the District Court's finding.        The present case can also be distinguished from the Commission's opinion in Marte and Achberger v. Austria (Comm. Report, 9 April 1997) to the effect that there had been a violation of Article 4 of Protocol No. 7.   In that case the applicants had been convicted of offences under the Criminal Code of resisting the forces of the State (who had come to remove them from a bar at a summer festival).   Subsequently they were convicted under the Morals (Policing) Act of insulting/attacking a named policeman in the presence of other persons in relation to precisely the same incident.   It did not appear from the domestic courts' judgments that any vital extra ingredient had to be proven in the second proceedings as distinct from what was called "a different judgment of human behaviour".   The Commission was in a position to conclude that "the factual bases for the applicants' criminal and administrative convictions overlapped to such an extent" that there had been a violation of Article 4 of Protocol No. 7.   The applicants had been convicted twice of the same essential ingredient (the conduct against a policeman involving insult/use of force) and the case was comparable to the Gradinger case.        Accordingly, in the present case we have voted against a finding of violation.                                                    (Or. English)               DISSENTING OPINION OF MR. L. LOUCAIDES        I do not agree with the finding of the majority that the applicant was "tried or punished again... for an offence" of which she had previously been convicted within the meaning of Article 4 of Protocol No. 7 to the Convention.        The principle of non bis in idem safeguarded in the provision in question aims at preventing criminal proceedings against a person in respect of an "offence" for which he has already been acquitted or convicted. Therefore, in order to establish a violation of this principle in respect of any proceedings for an "offence" it must be shown that such "offence" was previously the object of an acquittal or conviction.        The use of the term "offence" ("infraction") in the provision under consideration is decisive for the meaning and effect of the relevant prohibition: the drafters of the Convention were not aiming at prohibiting prosecutions in respect of incidents or factual situations which were dealt with before in other criminal proceedings; they intended to prevent repetitive prosecutions for one and the same crime.        Whether an offence has become in the past the object of an acquittal or a conviction cannot depend entirely on whether its factual basis is the same as that in respect of which the autrefois acquit or autrefois convict is claimed. An offence is identified not only by the facts or the evidence which establish its commission but also by its legal ingredients or characteristics. Therefore, in order to find a violation of the prohibition of non bis in idem it must be established that the complainant was tried or punished for more than once in respect of an offence which is the same both as a matter of fact and as a matter of law.        Two or more offences are not necessarily the same merely because they refer to the same facts. To accept otherwise would lead to absurd results and to an unjustified hindrance to the application of the criminal law. Take for example the case of somebody who with a machine- gun kills simultaneously many persons standing in a row. He is tried and convicted for the murder of the first of those persons. If he is later prosecuted for the murder of any of the other victims it would be absurd to disallow such prosecution through the application of the doctrine of non bis in idem on the ground that the offence charged refers to the same facts or incidents in respect of which the accused was previously acquitted or convicted.        It is true that successive prosecutions for offences based on the same facts in all those cases where the offences could be the subject of only one indictment may be an unjust and oppressive process especially when the second and/or subsequent prosecution takes place at a much later time than the first one. However, this undesirable situation which could also arise even in respect of cases where the offences are not based on the same facts is not meant to be the object of the rule of non bis in idem. One could argue that such unjust or oppressive judicial process would be incompatible with the principle of fair hearing safeguarded under Article 6 of the Convention. But it is not relevant to the doctrine of non bis in idem.        The doctrine prescribes that a person cannot be tried or punished twice for the same "offence" and the term "offence" does not mean "act", "cause" or even "conduct". The last term is especially objectionable for the purposes of the question under consideration for a conduct may be composed of a wide spectrum of separate acts or activities that may be both, factually and legally, distinct from each other. Therefore, I believe that identifying the term "offence" with the term "conduct" is an approach that must be reconsidered.        In the present case the second offence, in respect of which the applicant invokes Article 4 of Protocol No. 7, i.e. negligently inflicting bodily injury, is, indeed, based on the same facts upon which the applicant was already convicted for the offence of not mastering a vehicle. However, taking into account their legal ingredients and characteristics, the two offences are different and therefore the provisions invoked by the applicant are not applicable.        For the above reasons I find that there has been no violation of Article 4 of Protocol No. 7 in this case.        The applicant did not invoke Article 6 of the Convention and the Commission did not examine the case under that Article.