ASCI v. AUSTRIA
Inadmissible
The applicant, Mr Emin Aşcı, is a Turkish national who was born in 1963 and lives in Vienna. He was represented before the Court by Mr R. Soyer, a lawyer practising in Vienna. The respondent Government were represented by their Agent, Ambassador F. Trauttmansdorff, Head of the International Law Department at the Federal Ministry for Foreign Affairs. The facts of the case may be summarised as follows. On 26 August 2000 the police stopped the applicant, who was driving his car, on account of a minor traffic offence. There followed a violent dispute between the applicant and the police officers, Mr P. and Mrs M. The applicant snatched his car documents from the former and bruised the latter with his car keys. On 31 August 2000 the Vienna Federal Police Directorate (Bundespolizeidirektion) issued a penal order (Straferkenntnis) in which it sentenced the applicant to a fine of 1,000 Austrian schillings ((ATS) – approximately 73 euros (EUR)) under section 82 of the Police Security Act (Sicherheitspolizeigesetz) for aggressive behaviour towards a public officer (Organ öffentlicher Aufsicht). It noted that the applicant had shouted and tried to snatch his driving licence from a police officer. It ordered the applicant to pay two further fines of ATS 500 (approximately EUR 36) for an offence under the Road Traffic Act (Straßenverkehrsordnung) and for having caused undue noise disturbance. The applicant did not appeal against that decision. On 2 October 2000 the Vienna Regional Court (Landesgericht), sitting with a single judge, convicted the applicant of having attempted to resist the exercise of official authority (Widerstand gegen die Staatsgewalt), under Article 269 of the Criminal Code (Strafgesetzbuch), and of having caused bodily harm to police officer M. while she was on duty, which was to be qualified as grievous bodily harm (schwere Körperverletzung) in accordance with Article 84 § 2 of the Criminal Code. Pursuant to Article 28 § 1 of the Criminal Code, which provides that a person who has committed more than one offence should receive only a single penalty, it sentenced him to four months’ imprisonment, suspended on probation, under Article 269 of the Criminal Code. In the operative part (Spruch) of its judgment, the court referred to the fact that on 26 August 2000 the applicant had started fighting with police officer M., in the process bruising her with his car keys, causing skin abrasions on her forearm and kicking her legs. In the part of the judgment headed “Reasons for the decision” (Entscheidungsgründe), the court observed that the applicant had started to shout and, on being ordered to hand over the keys to the car, had snatched the car documents from police officer P. He had then started the fight with police officer M. The court based its findings as far as the course of the events was concerned on the statements of the police officers concerned. In respect of the injury inflicted by the applicant, it relied on the statement by the officer concerned and an official medical expert opinion. The applicant appealed against his conviction and sentence. He argued, inter alia, that the Federal Police Directorate had based its penal order against him on the same set of facts. The subsequent court proceedings and his conviction were therefore in breach of the non bis in idem principle. He also requested the preparation of a further expert opinion in order to prove that the police officer concerned had not suffered any injuries which were relevant for the purposes of the Criminal Code. On 11 May 2001 the Vienna Court of Appeal (Oberlandesgericht), having held a hearing, dismissed the applicant’s appeal. Giving extensive reasons and referring to the Court’s case-law in Gradinger v. Austria (23 October 1995, Series A no. 328C) and Oliveira v. Switzerland (30 July 1998, Reports of Judgments and Decisions 1998V), it found that there had been no breach of the applicant’s rights under Article 4 of Protocol No. 7 to the Convention. It noted in this regard that the Federal Police Directorate had sentenced the applicant for his aggressive conduct in seeking to impede the performance of an official act by snatching the driving licence from police officer P. and shouting, whereas the subject of the criminal proceedings had been the violent behaviour by which the applicant had subsequently tried to resist police officer M. and had injured her. The Court of Appeal noted that these were different acts motivated by different intentions. In any event, the applicant’s criminal conviction by the Federal Police Directorate did not do justice to all of the unlawful aspects (Unrechtsgehalt) of his conduct. The Court of Appeal lastly noted that in the light of the evidence before it, namely the official medical opinion, there was no need for a further medical opinion. There was no reason to doubt the police officers’ version of the events, and the assessment of the facts did not require special knowledge. The judgment was served on the applicant’s counsel on 11 June 2001. By section 82(1) of the Police Security Act (Sicherheitspolizeigesetz), a person who, notwithstanding a previous warning, behaves aggressively towards a public officer on duty and thereby obstructs the performance of an official act commits an administrative offence and is punishable by a fine of up to ATS 3,000 (approximately EUR 218) (aggressives Verhalten gegenüber Organen der öffentlichen Aufsicht). Section 85 of the Police Security Act provides that an administrative offence under sections 81 to 84 is not to be prosecuted when it is based on facts that constitute an offence falling within the jurisdiction of the ordinary courts. Under Article 269 of the Criminal Code (Strafgesetzbuch), it is an offence, punishable by imprisonment of up to three years, to resist forcibly or using dangerous threats a public officer in the performance of an official act (Widerstand gegen die Staatsgewalt). Article 83 of the Criminal Code applies where a person causes bodily harm and provides for up to one year’s imprisonment or up to 360 day-fines. By Article 84 § 2 of the Criminal Code, bodily harm caused to a public officer while on duty qualifies as grievous bodily harm (schwere Körperverletzung) punishable by up to three years’ imprisonment. Article 28 § 1 of the Criminal Code provides that where a person has committed more than one offence, he or she should be punished by a single penalty, on the basis of whichever offence provides for the more severe punishment.