FISCHER v. AUSTRIA
Inadmissible
Christos Rozakis
The applicant, Mr Franz Fischer, is an Austrian national, who was born in 1974 and lives in Wilhelmsburg. He was represented before the Court by Mr S. Gloss, a lawyer practising in St. Pölten. The facts of the case, as submitted by the applicant, may be summarised as follows. On 29 May 2001 the European Court of Human Rights delivered a judgment in a case which had been introduced by the applicant (Franz Fischer v. Austria, no. 37950/97, unreported). It found a violation of Article 4 of Protocol No. 7 in that the applicant had consecutively been tried and punished for two offences containing the same essential elements, first by the administrative authority for the offence of drunken driving under section 5 (1) and 99 (1) (a) of the Road Traffic Act and, after that decision had become final, by the Criminal Court for causing death by negligence with the special element under Article 81 § 2 of the Criminal Code of “allowing himself to become intoxicated”, whereby intoxication is irrebuttably presumed where a person’s blood alcohol level is above 0.8 grams per litre. On 30 May 2001 the applicant filed an application with the Supreme Court under Article 363a of the Code of Criminal Procedure (see below), requesting a retrial. On 30 October 2001 the applicant requested the Supreme Court to hold a hearing. On 22 November 2001 the Supreme Court dismissed the application without holding a hearing. The Supreme Court found that the requirements of Article 363a of the Code of Criminal Procedure were not met, as the Franz Fischer v. Austria judgment had not established that there had been a violation of Article 4 of Protocol No. 7 “on account of a decision of a criminal court”. In reaching this conclusion the Supreme Court had regard to the Court’s reasoning whereby the question whether or not the non bis in idem principle was violated concerned the relationship between the two offences at issue but not the order in which the two sets of proceedings were conducted, and that the Contracting State remained free to determine which of the two offences was to be prosecuted. The Supreme Court’s decision was served on 17 January 2002. Under the heading “retrial” (Erneuerung des Strafverfahrens) the Code of Criminal Procedure (Strafprozeßordnung) provides as follows: “1. If it is established in a judgment of the European Court of Human Rights that there has been a violation of the Convention for the Protection of Human Rights and Fundamental Freedoms (Bundesgesetzblatt [Official Gazette] no. 210/1958) or of one of its Protocols on account of a decision or order of a criminal court, a retrial shall be held on application in so far as it cannot be ruled out that the violation might have affected the content of a criminal court’s decision in a manner detrimental to the person concerned. 2. All applications for a retrial shall be decided by the Supreme Court. ...” “1. On an application for a retrial, the Supreme Court shall deliberate in private only where the Procurator General or the judge rapporteur proposes that a decision be taken on one of the grounds set out in paragraphs 2 and 3. 2. Where the Supreme Court deliberates in private, it may refuse an application ... if it unanimously considers the application to be manifestly ill-founded. ...”