CASE OF GRADINGER v. AUSTRIA
Violation of Art. 6-1 (access);Not necessary to examine Art. 6-1 (publicly);Preliminary objection rejected (reservation);Preliminary objection rejected (ratione temporis);Violation of P7-4;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
John Freeland
6. Mr Gradinger is an Austrian citizen who lives at St Pölten (Lower Austria). 7. On 1 January 1987 at about 4 a.m., while driving his car, he caused an accident which led to the death of a cyclist. At the hospital where he was taken for treatment a specimen of his blood was taken. This showed that he then had a blood alcohol level of 0.8 grams per litre. 8. On 15 May 1987 the St Pölten Regional Court (Landesgericht) convicted him of causing death by negligence (fahrlässige Tötung) and sentenced him to 200 day-fines of 160 Austrian schillings (ATS) with 100 days' imprisonment in default of payment (Article 80 of the Criminal Code (Strafgesetzbuch) - see paragraph 13 below). According to the applicant, an expert, Dr Psick, had stated at his trial that in view of the shortness of the interval between the last drink the applicant had had and the collision, he could not have absorbed an amount of alcohol exceeding the prescribed limit. In the judgment, as set out in the court record (Protokolls- und Urteilsvermerk), it was held that the applicant had indeed been drinking before the accident but not to such an extent as to be caught by Article 81 para. 2 of the Criminal Code, which prescribed a heavier penalty for causing death by negligence while under the influence of drink (see paragraph 14 below). 9. On 16 July 1987 the St Pölten district authority (Bezirkshauptmannschaft) issued a "sentence order" (Straferkenntnis) imposing on Mr Gradinger a fine of ATS 12,000, with two weeks' imprisonment in default, for driving under the influence of drink. It made this order pursuant to sections 5(1) and 99(1)(a) of the Road Traffic Act 1960 (Straßenverkehrsordnung - see paragraphs 15 and 16 below) and on the basis of a different medical report, of 5 February 1987, according to which, in view of the time that had elapsed between the collision and the taking of the blood specimen, Mr Gradinger's blood alcohol level when the accident had occurred must have been at least 0.95 grams per litre. 10. The applicant appealed to the Lower Austria regional government (Amt der Landesregierung), which dismissed his appeal on 27 July 1988 on the basis of a further expert opinion, of 16 June 1988, to the effect that the blood alcohol level had been 0.9 grams per litre. 11. On 11 October 1988 the Constitutional Court (Verfassungsgerichtshof) declined to accept for adjudication an appeal by the applicant, on the ground that it did not have sufficient prospects of success. 12. A further appeal, to the Administrative Court, was dismissed as ill-founded on 29 March 1989. It was held that the regional authorities had not in any way misconstrued the law in finding that at the material time Mr Gradinger had been under the influence of drink for the purposes of section 5(1) of the Road Traffic Act. That finding had been based on an expert opinion of 16 June 1988 in which it had been assumed that all the alcohol consumed by the applicant had passed into his bloodstream by the time of the accident, a point which Mr Gradinger had not contested. He was therefore wrong in asserting that the expert report had not analysed the effects of the last drink he had had before the accident. Furthermore, the authorities had acted in accordance with the law in appointing an official expert (Amtssachverständiger) rather than a sworn court expert (gerichtlich beeideter Sachverständiger) to report on Mr Gradinger's blood alcohol level. In the case under consideration there had been no special factor to justify their doing otherwise. Nor, contrary to the applicant's assertions, had they appointed as expert the person already called upon at first instance by the district authority (see paragraph 9 above). As for Article 14 para. 7 of the International Covenant on Civil and Political Rights, embodying the "non bis in idem" principle, this was not directly applicable in the Austrian legal system. Accordingly, the authorities had not misconstrued the law by punishing the applicant after a criminal court had acquitted him (see paragraph 8 above). 13. By Article 80 of the Criminal Code (Strafgesetzbuch): "It shall be an offence, punishable with up to one year's imprisonment, for any person to cause the death of another by negligence." 14. Article 81 para. 2 of the Criminal Code provides: "It shall be an offence, punishable with up to three years' imprisonment, for any person to cause the death of another by negligence 1. ... 2. after allowing himself, even if only negligently, to become intoxicated ... through the consumption of alcohol, but not to an extent which excludes his responsibility, notwithstanding that he has foreseen or could have foreseen that he would shortly have to engage in an activity likely to pose ... a danger to the lives ... of others if performed in that state." Under an irrebuttable presumption applied by the criminal courts, a driver with a blood alcohol level of 0.8 grams per litre or higher is deemed to be "intoxicated" for the purposes of Article 81 para. 2 of the Criminal Code (Foregger/Serini, Kurzkommentar zum Strafgesetzbuch, 4th edition, 1988, p. 217). 15. Under section 5 of the Road Traffic Act 1960 it is an offence for any person to drive a vehicle if the proportion of alcohol in his blood or breath is equal to or higher than 0.8 grams per litre or 0.4 milligrams per litre respectively. The same section also lays down the conditions for the use of breathalysers and blood tests. 16. Since 1 May 1986 section 99(1)(a) of the Act has provided: "It shall be an administrative offence (Verwaltungsübertretung), punishable with a fine of not less than 8,000 and not more than 50,000 schillings or, in default of payment, with one to six weeks' imprisonment, for any person: (a) to drive ... a vehicle when under the influence of drink ..." 17. In 1958, at the time when the Austrian Government ratified the Convention (see paragraph 28 below), section 7 of the Traffic Police Act 1947 (Straßenpolizeigesetz) provided: "Every driver shall be under a duty to pay reasonable heed to other road users and to display the care and diligence necessary to ensure the maintenance of order, safety and a proper flow of traffic." 18. Article 90 para. 1 of the Federal Constitution (Bundes-Verfassungsgesetz) provides: "Hearings by trial courts in civil and criminal cases shall be oral and public. Exceptions may be prescribed by law." 19. By Article 144 para. 1 of the Federal Constitution the Constitutional Court, when an application (Beschwerde) is made to it, has to determine whether an administrative decision (Bescheid) has infringed a right guaranteed by the Constitution or has applied regulations (Verordnung) contrary to the law, a law contrary to the Constitution or an international treaty incompatible with Austrian law. Article 144 para. 2 provides: "Up to the time of the hearing the Constitutional Court may by means of a decision (Beschluß) decline to accept a case for adjudication if it does not have sufficient prospects of success or if it cannot be expected that the judgment will clarify an issue of constitutional law. The court may not decline to accept for adjudication a case excluded from the jurisdiction of the Administrative Court by Article 133." 20. By Article 130 para. 1 of the Federal Constitution, the Administrative Court has jurisdiction to hear, inter alia, applications alleging that an administrative decision is unlawful. 21. Section 35(1) of the Administrative Court Act (Verwaltungsgerichtshofsgesetz) provides: "Applications from whose content it is apparent that the contravention of the law alleged by the applicant has not occurred shall be dismissed, at a private sitting, without further formality." 22. Section 39(1) provides, in particular, that at the end of the preliminary proceedings (Vorverfahren) the Administrative Court must hold a hearing where the applicant makes a request to that effect. Section 39(2) reads as follows: "Notwithstanding a party's application under subsection (1), the Administrative Court may decide not to hold a hearing where 1. the proceedings must be stayed (section 33) or the application dismissed (section 34); 2. the impugned decision must be quashed as unlawful because the respondent authority lacked jurisdiction (section 42(2)(2)); 3. the impugned decision must be quashed as unlawful on account of a breach of procedural rules (section 42(2)(3)); 4. the impugned decision must be quashed because its content is unlawful according to the established case-law of the Administrative Court; 5. neither the respondent authority nor any other party before the court has filed pleadings in reply and the impugned decision is to be quashed; 6. it is apparent to the court from the pleadings of the parties to the proceedings before it and from the files relating to the earlier administrative proceedings that a hearing is not likely to clarify the case further." Sub-paragraphs 1 to 3 of section 39(2) were in force in 1958; sub-paragraphs 4 and 5 were inserted in 1964 and sub-paragraph 6 in 1982. 23. Section 41(1) of the Administrative Court Act provides: "In so far as the Administrative Court does not find any unlawfulness deriving from the respondent authority's lack of jurisdiction or from breaches of procedural rules (section 42 (2)(2) and (3)) ..., it must examine the impugned decision on the basis of the facts found by the respondent authority and with reference to the complaints put forward ... If it considers that reasons which have not yet been notified to one of the parties might be decisive for ruling on [one of these complaints] ..., it must hear the parties on this point and adjourn the proceedings if necessary." 24. Section 42(1) of the same Act states that, save as otherwise provided, the Administrative Court must either dismiss an application as ill-founded or quash the impugned decision. By section 42(2), "The Administrative Court shall quash the impugned decision if it is unlawful 1. by reason of its content, [or] 2. because the respondent authority lacked jurisdiction, [or] 3. on account of a breach of procedural rules, in that (a) the respondent authority has made findings of fact which are, in an important respect, contradicted by the case file, or (b) the facts require further investigation on an important point, or (c) procedural rules have been disregarded, compliance with which could have led to a different decision by the respondent authority." 25. If the Administrative Court quashes the impugned decision, "the administrative authorities [are] under a duty ... to take immediate steps, using the legal means available to them, to bring about in the specific case the legal situation which corresponds to the Administrative Court's view of the law (Rechtsanschauung)" (section 63(1)). 26. In a judgment of 14 October 1987 (G 181/86) the Constitutional Court held: "From the fact that it has been necessary to extend the reservation in respect of Article 5 (art. 5) of the Convention to cover the procedural safeguards of Article 6 (art. 6) of the Convention, because of the connection between those two provisions (art. 5, art. 6), it follows that, conversely, the limited review (die (bloß) nachprüfende Kontrolle) carried out by the Administrative Court or the Constitutional Court is insufficient in respect of criminal penalties within the meaning of the Convention that are not covered by the reservation." 27. Pursuant to Article 129 of the Federal Constitution, administrative courts called "independent administrative tribunals" (Unabhängige Verwaltungssenate) were set up in the Länder with effect from 1 January 1991. The functions of these tribunals include determining both the factual and the legal issues arising in cases concerning administrative offences (Verwaltungsübertretungen). 28. The instrument of ratification of the Convention deposited by the Austrian Government on 3 September 1958 contains, inter alia, a reservation worded as follows: "The provisions of Article 5 (art. 5) of the Convention shall be so applied that there shall be no interference with the measures for the deprivation of liberty prescribed in the laws on administrative procedure, BGBl [Federal Official Gazette] No. 172/1950, subject to review by the Administrative Court or the Constitutional Court as provided for in the Austrian Federal Constitution." 29. The instrument of ratification of Protocol No. 7 (P7) deposited by the Austrian Government on 14 May 1986 contains, inter alia, the following declaration: "Articles 3 and 4 (P7-3, P7-4) exclusively relate to criminal proceedings in the sense of the Austrian Code of Criminal Procedure."