CASE OF FRANZ FISCHER v. AUSTRIA
Preliminary objection dismissed (victim);Violation of P7-4
Nicolas Bratza
7. On 6 June 1996, the applicant, whilst driving under the influence of drink, knocked down a cyclist who was fatally injured. After hitting the cyclist, the applicant drove off without stopping to give assistance and only gave himself up to the police later that night. 8. On 13 December 1996, the St. Pölten District Administrative Authority (Bezirkshauptmannschaft), finding the applicant guilty of a number of road traffic offences, ordered him to pay a fine of 22,010 Austrian schillings (ATS) with twenty days’ imprisonment in default. This sentence included a fine of ATS 9,000 with nine days’ imprisonment in default imposed for driving under the influence of drink, contrary to sections 5 (1) and 99 (1)(a) of the Road Traffic Act 1960 (Straßenverkehrsordnung). 9. On 18 March 1997 the St. Pölten Regional Court (Landesgericht) convicted the applicant under Article 81 § 2 of the Criminal Code (Strafgesetzbuch) of causing death by negligence “after allowing himself ... to become intoxicated ... through the consumption of alcohol, but not to an extent which exclude[d] his responsibility ...”, and sentenced him to six months’ imprisonment. 10. The applicant’s appeal against conviction and sentence was dismissed by the Vienna Court of Appeal (Oberlandesgericht) on 24 June 1997. The applicant argued that, in the light of the Court’s Gradinger v. Austria judgment (23 October 1995, Series A no. 328-C), the decision of the Regional Court should be quashed. The Court of Appeal recognised that the double conviction violated Article 4 of Protocol No. 7 to the Convention. However, it found that, in spite of the Gradinger case, Austrian law remained unchanged. It distinguished the Gradinger judgment on the ground that in that case the administrative proceedings had been after the criminal proceedings, whereas in the present case, the order was reversed. The Court of Appeal explained that the double punishment was possible because there was no provision of Austrian law which provided for a principle of “subsidiarity” between the administrative and the criminal proceedings in the present circumstances. It concluded that this could not hinder the criminal proceedings which had a much wider scope. The applicant’s conviction was therefore upheld. 11. On 19 May 1999 the sentence of six months’ imprisonment imposed on the applicant was reduced to five months by virtue of the Federal President’s prerogative of pardons. 12. Section 5 (1) of the Road Traffic Act 1960 provides that it is an offence for a 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. 13. Section 99 of the 1960 Act, so far as relevant, provided at the material time, that: “(1) It shall be an administrative offence (Verwaltungsűbertretung), punishable with a fine of not less than ATS 8,000 and not more than ATS 50,000 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 ... (6) An administrative offence is not committed where: ... (c) facts constituting an offence under sub-sections (2), (2a), (2b), (3) or (4) also constitute an offence falling within the jurisdiction of the [ordinary] courts ... .” 14. In its judgment of 5 December 1996 the Constitutional Court had to examine the constitutionality of section 99 subsection (6)(c) of the Road Traffic Act, by virtue of which the administrative offence of driving under the influence of drink was not subsidiary to an offence falling within the jurisdiction of the courts. The Constitutional Court noted that it was not contrary to Article 4 of Protocol No. 7 if a single act constituted more than one offence. This was a feature common to the criminal law of many European countries. However, it was also accepted in criminal law doctrine that sometimes a single act only appeared to constitute more than one offence, whereas interpretation showed that one offence entirely covered the wrong contained in the other so that there was no need for further punishment. Thus, Article 4 of Protocol No. 7 prohibited the trial and punishment of someone for different offences if interpretation showed that one excluded the application of the other. Where, as in the present case, the law explicitly provided that one offence was not subsidiary to another, it had to be guided by Article 4 of Protocol No. 7. The Court’s Gradinger judgment of 23 October 1995 had shown that there was a breach of this Article if an essential aspect of an offence, which had already been tried by the courts, was tried again by the administrative authorities. Section 99 subsections (1)(a) and (6)(c) of the Road Traffic Act, taken together, meant that the criminal administrative offence of drunken driving could be prosecuted even when an offence falling within the competence of the normal criminal courts was also apparent. According to the criminal courts’ constant case-law under section 81 § 2 of the Criminal Code (cited below), drunken driving was also an essential aspect of certain offences tried by these courts. Insofar as section 99 (6)(c) of the Road Traffic Act limited the subsidiarity of administrative offences to those enumerated in subsections (2) to (4) of section 99, thus excluding subsidiarity for the offence of drunken driving contained in section 99 (1)(a), it violated Article 4 of Protocol No. 7. 15. Under Article 80 of the Criminal Code, it is an offence, punishable by up to one year’s imprisonment, to cause death by negligence. Where the special circumstances of Article 81 § 2 apply, the maximum possible sentence is increased to up to three years’ imprisonment. 16. 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, 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”. By virtue of 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 § 2.