CEDH · CASELAW;CLIN;ENG — 30 mai 2000

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Switzerland (dec.) - 31982/96 Decision 30.5.2000 [Section II] Article 4 of Protocol No. 7 Right not to be tried or punished twice Concurrent criminal sanction and withdrawal of driving licence by administrative authority for drunken driving: inadmissible The applicant was stopped by the police while he was driving under the influence of alcohol. The District Office imposed a suspended prison sentence and a fine for drunken driving and his driving licence was temporarily withdrawn by the Road Traffic Office. He unsuccessfully filed an appeal with the Administrative Appeals Commission (hereafter “the commission”) against the decision ordering the withdrawal of his driving licence. He subsequently lodged an administrative law appeal with the Federal Court, complaining, inter alia , that there had been no public hearing. The court quashed the commission’s decision. The proceedings were resumed before the commission, which scheduled a hearing during which it would be open to the applicant's lawyer to comment on the evidence produced. The applicant's lawyer replied that he intended to plead the case in its entirety and not merely comment on the evidence. The commission however emphasised that the public hearing remained written, and that it would not be possible to repeat or add appeal grounds in open court. The applicant’s lawyer insisted upon having an oral hearing in the manner of criminal proceedings and stated that he would present a complaint relating to ne bis in idem at the hearing. The commission informed him that it was left open whether that statement would be declared admissible in court. The applicant's appeal was finally dismissed after a hearing;   his lawyer managed to present the complaint based on the ne bis in idem principle. The commission found that the withdrawal of the applicant’s driving licence was an administrative measure, which called for written proceedings. As to the ne bis in idem issue, the principle was not considered as breached, the withdrawal of the driving licence being distinct from the penal sanction. The commission concluded that the applicant could not be acquitted on this ground without discussing whether it was admissible to raise the matter in open court. The applicant lodged an administrative law appeal, relying on the ne bis in idem complaint and the fact that during the hearing his lawyer had been interrupted and admonished not to make any pleadings. The Federal Court rejected his appeal on the ground that his lawyer had been able to comment on the ne bis in idem issue and, as regards the interruptions, that he had not claimed that he had been unable to comment on the points relevant to the judgment. Inadmissible under Article 6 § 1: At the hearing before the Administrative Appeals Commission, the applicant’s lawyer was able to raise in open court the complaint concerning ne bis in idem . In its judgment the commission discussed and then dismissed the complaint on the merits, while leaving open whether such a complaint in open court was admissible. The commission did effectively deal with the complaint on ne bis in idem . In so far as the applicant stated that he had been interrupted by the judges of the commission, he did not demonstrate any particular issue or complaint which he had not been able to raise but which had not been considered by the commission: manifestly ill-founded. Inadmissible under Article 4 of Protocol N° 7: The Swiss authority merely determined the three different sanctions envisaged by law for the offence of drunken driving, namely a prison sentence, a fine and the withdrawal of the driving licence. The sanctions were issued at the same time by two different authorities, i.e. an administrative and a criminal authority. Therefore, it could not be said that criminal proceedings were being repeated contrary to this provision: manifestly ill-founded.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes