CASE OF STEMPFER v. AUSTRIA
Violation of Art. 6-1;Violation of Art. 13;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses partial award - Convention proceedings
Christos Rozakis
4. The applicant was born in 1934 and lives in St Johann am Walde. 5. On 21 December 1995 the applicant, by failing to grant the right of way, caused a traffic accident in which the driver of another car was injured. 6. On 16 April 1996 the Mattighofen District Court (Bezirksgericht), having held the trial at which it heard the applicant, the victim and a motor vehicles expert, found the applicant guilty of negligently causing bodily harm (Article 88 §§ 1 and 4 of the Criminal Code – Strafgesetzbuch) and acquitted him of the charge of having abandoned the victim (Article 94 § 1 of the Criminal Code). No appeals were made and the judgment became final. 7. On 8 February 1996 the Braunau District Administrative Authority (Bezirkshauptmannschaft) issued a provisional penal order (Strafverfügung) finding the applicant guilty of having failed to stop after the traffic accident of 21 December 1995 and of having failed to inform the next police station (Section 4 §§ 1 (a) and 2 in conjunction with Section 99 § 2 (a) of the Road Traffic Act – Straßenverkehrsordnung). It imposed a fine of 1,600 Austrian schillings (ATS – approximately 116 euros) on him with 72 hours' imprisonment in default. 8. The applicant raised an objection (Einspruch) on 29 February 1996. He referred to the proceedings before the Mattighofen District Court which were at that time still pending. Once these proceedings were terminated the applicant informed the District Administrative Authority accordingly, arguing that further administrative criminal proceedings against him relating to the same set of facts violated the ne bis in idem principle. He requested that these proceedings be discontinued. 9. On 12 September 1996 the District Administrative Authority issued a penal order (Straferkenntnis) confirming its previous decision. It noted that, in contrast to the criminal proceedings before the courts, the conduct at stake was the failure to inform the police and not the failure to assist the victim. 10. The applicant appealed. Referring to the Court's judgment in Gradinger v. Austria (23 October 1995, Series A no. 328C) he asserted that the two sets of proceedings were based on the same conduct. He further argued that his defence, which had been accepted in the court proceedings, was that he had not even noticed the accident. He explicitly waived his right to a hearing. 11. On 21 October 1996 the Upper Austria Independent Administrative Panel (Unabhängiger Verwaltungssenat), without a hearing, dismissed the applicant's appeal. It noted that the offence of abandoning the victim under Article 94 of the Criminal Code required intent, and therefore presupposed that the suspect was aware of having caused an accident in which a person had been injured. In contrast, negligence was sufficient for the commission of the offences under Section 4 §§ 1 (a) and 2 of the Road Traffic Act. Had the applicant paid the required attention he would have noticed the accident. In coming to this conclusion, the Independent Administrative Panel had regard to the findings of the criminal court, namely that the applicant had noticed the approaching vehicle before turning to the left into the street. A diligent driver would therefore have been required to check in the rear mirror whether his manoeuvre had been safe. 12. The applicant lodged a complaint with the Constitutional Court (Verfassungsgerichtshof) on 19 November 1996. He submitted in particular that the conviction violated the ne bis in idem principle. Moreover, he alleged that the Independent Administrative Panel had applied an unconstitutional provision when fixing the sentence. On 10 January 1997 the Independent Administrative Panel submitted its observations. 13. On 10 October 1997 the Constitutional Court quashed the Independent Administrative Panel's decision. It found that it could not be excluded that, when fixing the sentence, the Independent Administrative Panel had applied a provision which had been declared unconstitutional by the Constitutional Court's judgment of 9 October 1997. That provision had excluded the application of Section 20 of the Code of Administrative Offences (Verwaltungsstrafgesetz) in road traffic proceedings. That provision states that the statutory minimum fine may be reduced by half, if the extenuating circumstances clearly outweigh the aggravating circumstances. This decision was served on the applicant's counsel on 4 November 1997. 14. On 21 November 1997 the Independent Administrative Panel, without a hearing, confirmed its previous decision. Fixing the sentence anew, it noted that even when applying Section 20 of the Code of Administrative Offences, the fine was commensurate to the applicants' guilt. 15. The applicant lodged a complaint with the Constitutional Court on 9 January 1997. He alleged a violation of the ne bis in idem principle. The Independent Administrative Panel submitted its observations on 6 March 1998. 16. On 17 June 2000 the Constitutional Court refused to deal with the complaint for lack of prospects of success. As to the applicant's complaint under Article 4 of Protocol No. 7 it noted that the present case did not concern an example of a single act constituting more than one offence (kein Fall der Idealkonkurrenz). 17. On 25 September 2000 the Constitutional Court granted the applicant's request to transfer the case to the Administrative Court (Verwaltungsgerichtshof). The latter received that request on 16 November 2000. 18. The applicant supplemented his complaint on 9 January 2001. He reiterated his complaint about a violation of the ne bis in idem principle. Moreover, he complained that no oral hearing had been held in the second set of proceedings before the Independent Administrative Panel. Finally, he requested the Administrative Court to hold a hearing. 19. On 18 November 2002 the applicant complaining about the length of the proceedings before the Administrative Court. 20. On 28 February 2003 the Administrative Court, sitting in camera, refused to deal with the applicant's complaint pursuant to Section 33a of the Administrative Court Act (Verwaltungsgerichtshofgesetz) as the fine imposed did not exceed 726 euros and the case did not raise an important legal issue. 21. The decision was served on the applicant's counsel on 22 April 2003. 22. Article 94 § 1 of the Criminal Code (Strafgesetzbuch), provides as follows: “Anyone who fails to assist another person to whom, even if not unlawfully, he has caused bodily injury ... shall be liable to up to one year's imprisonment or up to 360 day-fines.” 23. Section 4 of the Road Traffic Act (Straßenverkehrsordnung) reads as follows: “1. All persons whose conduct at the scene of a traffic accident was causally related to the accident shall (a) if they are driving a vehicle, stop immediately; ... 2. If anyone has been injured in a traffic accident, the persons referred to in subsection 1 above shall provide assistance; if they are not capable of doing so, they shall arrange for assistance without delay. They shall further inform the nearest police station immediately.” 24. Section 99 § 2 (a) of the Road Traffic Act in the version in force at the material time, provided that it was an administrative offence punishable by a fine of not less than ATS 500 and not exceeding ATS 30,000 or, in default of payment, by one day to six weeks' imprisonment, for any driver having caused a traffic accident causing bodily injury to act contrary to Section 4 §§ 1 and 2. 25. Section 99 § 6 provides that proceedings shall not be instituted in respect of an administrative offence that is based on facts that constitute an offence falling within the jurisdiction of the ordinary courts. 26. Section 51e of the Code of Administrative Offences (Verwaltungsstrafgesetz), as far as relevant, reads as follows: “2. In case the appeal is expressly limited to points of law or concerns exclusively the severity of the sentence imposed, a hearing must only be scheduled if this is expressly requested in the appeal.”