FALKNER v. AUSTRIA
Inadmissible
Christos Rozakis
The applicant, Veronika Falkner, is an Austrian national, who was born in Sölden and lives in Wattens. She is represented before the Court by Mr Heiss, a lawyer practising in Innsbruck. On 27 February 2001 the applicant had a road traffic accident. On 2 March 2001 the Innsbruck District Administrative Authority (Bezirkshauptmannschaft) withdrew the applicant's driving licence for 8 months as it found that the applicant had caused an accident under the influence of alcohol and was therefore not reliable as a driver in traffic. On 14 March 2001, the Innsbruck District Administrative Authority found that she had been driving under the influence of alcohol, contrary to sections 5 § 1 and 99 § 1 (b) of the Road Traffic Act 1960 (Straßenverkehrsordnung) and sentenced her to a fine of ATS 12,000 (approximately 872 €). The applicant did not appeal against this decision. On 28 June 2001 the Hall District Court found the applicant guilty of causing bodily harm by negligence “after allowing herself ... to become intoxicated ... through the consumption of alcohol, but not to an extent which excluded her responsibility ...”. It therefore convicted her under Article 88 §§ 1 and 3 of the Penal Code of negligently causing bodily harm under particularly dangerous conditions (fahrlässige Körperverletzung unter besonders gefährlichen Verhältnissen), and sentenced her to a fine of ATS 12, 000. The applicant appealed against the District Court's judgment and submitted that she had already been convicted for drunken driving by the District Administrative Authority. The District's Court's judgment was therefore contrary to Article 4 of Protocol No. 7 to the Convention. On 6 November 2001 the Innsbruck Regional Court partly granted the applicant's appeal. It found the applicant guilty of negligently causing bodily harm and convicted her under Article 88 § 1 of the Penal Code. However, it deleted the reference to the aggravating circumstances of Article 88 § 3 and reduced the fine to ATS 10,000 suspended on probation. The Regional Court held that whereas the District Administrative Authority, on 2 March 2001, had withdrawn the applicant's driving licence and, on 14 March 2001, had sentenced her for driving under the influence of alcohol, the District Court's conviction of driving under the influence of alcohol in particularly dangerous circumstances was in breach of the principle of ne bis in idem under Article 4 of Protocol No.7. On 8 February 2002 the Procurator General's Office (Generalprokuratur) filed a plea of nullity for the preservation of law (Nichtigkeitsbeschwerde zur Wahrung des Gesetzes). On 22 August 2002 the Supreme Court (Oberster Gerichtshof) quashed the District Court's judgment of 28 June 2001 and the Regional Court's judgment of 6 November 2001. It found that the District Administrative Authority had based its decision on the same facts which were considered by the ordinary courts. Thus, the applicant's conviction by the Administrative Authority constituted in principle a technical bar to prosecution (Verfolgungshindernis) of the applicant by the ordinary courts from the point of view of Article 4 of Protocol No. 7. The criminal proceedings before the ordinary courts should therefore be suspended pursuant to Article 412 of the Code of Criminal Procedure (Strafprozeßordnung). Furthermore, the Supreme Court held that the applicant's conduct clearly fell within the jurisdiction of the ordinary courts, as it constituted a criminal offence and not an administrative offence. It referred in this regard to S. 99 subsection (6) (c) of the Road Traffic Act which provides that an administrative offence is not pursued when it is based on facts that constitute an offence falling within the jurisdiction of the ordinary courts. Thus, the Administrative Authority had convicted the applicant although it had not been competent to do so. On 23 September 2002 the Innsbruck District Administrative Authority informed the Hall District Court that the proceedings against the applicant were discontinued and the fine paid by the applicant reimbursed. In a further statement it confirmed that the decision of 14 March 2001 had been annulled. On 15 November 2002 the Hall District Court again convicted the applicant under Article 88 §§ 1 and 3 of the Penal Code of negligently causing bodily harm under particularly dangerous conditions, and sentenced her to a fine of 726 € suspended on probation. As regards the sentence the court referred to the Innsbruck Regional Court's judgment of 6 November 2001 and the principle prohibiting a “reformatio in peius” of the sentence. The applicant appealed and submitted that the proceedings were contrary to Article 4 of Protocol No. 7 as she had been convicted for drunken driving by the District Administrative Authority. The conditions for reopening the case under § 2 of Article 4 of Protocol No. 7 were not met. On 22 August 2003 the Innsbruck Regional Court dismissed the applicant's appeal. It noted that the Administrative Authority had annulled its conviction. Thus, the temporary technical bar to prosecution (Verfolgungshindernis) of the applicant before the ordinary courts did no longer exist. The courts could therefore resume the proceedings in the applicant's case which might be qualified as the re-opening of a case within the meaning of § 2 of Article 4 of Protocol No. 7. S. 5 of the Road Traffic Act 1960 (Straßenverkehrsordnung) provides that it is an offence for a person to drive a vehicle under the influence of alcohol. S. 99 of the 1960 Act provides, so far as relevant, that: “(1b) It shall be an administrative offence (Verwaltungsűbertretung), punishable with a fine of not less than € 581 and not more than € 3 633 or, in default of payment, with one to six weeks' imprisonment, for any person to drive a vehicle when under the influence of drink ...” S. 99 subsection (6) (c) of the Road Traffic Act provides that an administrative offence is not pursued when it is based on facts that constitute an offence falling within the jurisdiction of the ordinary courts Under Article 88 § 1 of the Criminal Code (Strafgesetzbuch), it is an offence, punishable by up to three months' imprisonment or a fine up to 180 day-rates, to cause physical injury by negligence. Article 88 § 3 increases the sentence in respect of causing injury by up to six months' imprisonment and up to 360 day-rates, if the special circumstances of Section 81 § 2 apply. Article 81 § 2 applies where a person commits the offence “after allowing himself, even if only negligently, to become intoxicated ... through the consumption of alcohol ...”. Article 412 of the Code of Criminal Procedure (Strafprozeßordnung) provides that criminal proceedings have to be suspended inter alia when the offender temporarily cannot be prosecuted by the courts. According to Article 451 § 2 proceedings have to be discontinued inter alia when prosecution is not possible.