CASE OF MULLER v. AUSTRIA (No. 2)
Violation of Article 6 - Right to a fair trial
Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev
5. The applicant was born in 1968 and lives in Vienna. He is the owner and managing director of M, a building company. 6. On 10 October 1997 a worker employed by the M company mounted a scaffold (which was owned, however, by another building firm) at one of the company’s building sites at M. Street in Vienna. He fell and died a few days later. 7. Subsequently the Vienna District Public Prosecutor (Bezirksanwalt) started preliminary inquiries (Vorerhebungen) against the applicant on suspicion of having caused death by negligence (fahrlässige Tötung), an offence under Article 80 of the Criminal Code. On 27 March 1998 he discontinued the inquiries. 8. On 31 March 1998 the Vienna Municipality issued a penal order (Straferkenntnis) against the applicant as manager of the M company, imposing a fine for an administrative offence under section 130(1), no. 16, of the Industrial Safety Act (Arbeitnehmerschutzgesetz) read in conjunction with several provisions of the Construction Worker Safety Regulations (Bauarbeiterschutzverordnung). It found that the applicant had disregarded the duties of an employer concerning the properties, conditions, use, inspection or maintenance of equipment (Verpflichtungen betreffend die Beschaffenheit, die Aufstellung, die Benutzung, die Prüfung oder die Wartung von Arbeitsmitteln) as, on 10 October 1997, a scaffold used at the building site at M. Street, Vienna, had lacked protective barriers on three sides at head, chest and foot level and the protective barriers on the fourth side had not been properly secured. 9. On 31 March 1998 the applicant, assisted by counsel, appealed to the Vienna Independent Administrative Panel (“the IAP” – Unabhängiger Verwaltungssenat). He submitted that at the building site at M. Street in Vienna 25 scaffolds owned by different construction companies had been in use. While the one belonging to the M company had all the necessary protective elements, the defective scaffold used by the employees of the M company, which had led to the industrial accident, was owned by another company. On 29 May 2000 the applicant submitted further that the IAP should quash the penal order as the administrative criminal proceedings had been conducted in breach of the principle of ne bis in idem. 10. On 20 June 2000 the IAP quashed the penal order of 31 March 1998. Referring to the Constitutional Court’s case-law on Article 4 of Protocol No. 7, the IAP found that criminal proceedings for causing death by negligence under Article 80 of the Criminal Code and proceedings under section 130(1), no. 16, of the Industrial Safety Act, read in conjunction with the Construction Worker Safety Regulations, concerned essentially the same conduct as in both cases the authorities and courts had to examine whether the provisions for the protection of construction workers had been complied with. In such circumstances, the person responsible for compliance with these rules was also criminally liable under Article 80 of the Criminal Code in the event of an accident at work leading to the death of the victim. Therefore the IAP was prevented from conducting administrative criminal proceedings against the applicant even though finally the District Public Prosecutor had discontinued his inquiries into the charge of causing death by negligence against the applicant. 11. On 25 August 2000 the Federal Minister for Economy and Labour (Bundesminister für Wirtschaft und Arbeit) filed a complaint with the Administrative Court against the IAP’s decision. The Federal Minister pointed to the Constitutional Court’s case-law, according to which a conviction under Article 80 of the Criminal Code concerned essentially the same punishable conduct as the offence under section 130(1), no. 16, of the Industrial Safety Act. Thus, to conduct two sets of criminal proceedings concerning these offences would be in breach of Article 4 of Protocol No. 7. The IAP had, however, overlooked the fact that in the present case no proceedings had been conducted against the applicant before a criminal court. The inquiries by the District Public Prosecutor, an employee of the Public Prosecutor’s Office, had the purpose of verifying whether or not a charge should be brought against a person and whether proper criminal proceedings should be opened. As a result the District Public Prosecutor had discontinued the preliminary inquiries since he had not found sufficient reasons to prosecute the applicant. That being so, it could not be said that an act had been committed which fell within the scope of Article 80 of the Criminal Code. The ne bis in idem principle did not therefore apply. 12. On 26 April 2002 the Administrative Court quashed the IAP’s decision of 20 June 2000. The Administrative Court found that the ne bis in idem principle was not at stake if a public prosecutor discontinued preliminary inquiries on a criminal information pursuant to Article 90 of the Code of Criminal Procedure, as in such a case the public prosecutor – either immediately or after conducting inquiries – arrived at the conclusion that the criminal information was unfounded, and that the act to which it referred was not punishable or did not justify prosecution. Such a case must be distinguished from the material facts in the Constitutional Court’s decision to which the IAP had referred, as that case had not concerned the termination of investigations under Article 90 of the Code of Criminal Procedure. 13. On 11 February 2003 the IAP gave a fresh decision on the applicant’s appeal and this time upheld the Municipality’s penal order after having held oral hearings on 16 October and 13 December 2002. The IAP noted that the workers present at the building site had used a scaffold belonging to another building company. The applicant, as the person responsible, had not installed a properly functioning control system, verifying that the scaffolds and other materials used by the workers complied with safety regulations and that the workers had been trained in complying with these regulations. The applicant had therefore been responsible for the non-compliance with the safety regulations. 14. On 11 June 2003 the applicant lodged a complaint with the Constitutional Court, alleging, inter alia, that the impugned decision disregarded the principle of ne bis in idem. 15. On 23 September 2003 the Constitutional Court declined to deal with the applicant’s complaint for lack of prospect of success, and on 19 December 2003 the Administrative Court also declined to deal with the applicant’s complaint for lack of prospect of success in accordance with section 33a of the Administrative Court Act. 16. Sections 84 to 115 of the Code of Criminal Procedure (Strafprozeβordnung) concern the conduct of preliminary inquiries (Vorerhebungen) and preliminary investigations (Voruntersuchungen). 17. In order to procure the necessary evidence for the institution of criminal proceedings or for the closing of the file (Zurücklegung) on a criminal information, the public prosecutor may first have preliminary inquiries carried out by the investigating judge, the District Court or the police authorities (Section 88 § 1). 18. Where the public prosecutor is satisfied that there are sufficient grounds for bringing a criminal prosecution, he or she must either request the institution of preliminary investigations or file a formal indictment (Anklageschrift, Strafantrag; Section 90 § 1). Section 91 § 2 provides that preliminary investigations pursue the aim of provisionally examining the criminal charges laid against a person and of establishing the facts to the extent necessary to decide whether to discontinue the criminal proceedings or to commit the person for trial and prepare the taking of evidence at the trial. 19. Section 93 § 1 provides that preliminary investigations are in principle conducted by the investigating judge personally and directly. 20. Section 5 § 1 of the Code of Administrative Offences provides: “Unless a provision of administrative law states otherwise, negligent behaviour is sufficient to establish guilt. Negligence is to be assumed in the case of failure to observe a prohibition or a prescription where damage or danger is not an element of the administrative offence, and the defendant does not convincingly show that no fault lies with him for the contravention of the provision of administrative law.”