CASE OF W.F. v. AUSTRIA
Violation of P7-4;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - domestic proceedings;Costs and expenses award - Convention proceedings
Georg Ress
9. On 21 May 1995 the applicant was involved in a road traffic accident and, on 19 October 1995, he was found by the Braunau District Administrative Authority (Bezirkshauptmannschaft) to have been driving under the influence of alcohol, contrary to sections 5 § 1 and 99 § 1 (a) of the Road Traffic Act 1960 (Straßenverkehrsordnung). He was sentenced to pay a fine of ATS 14,000.00. It does not appear that the applicant appealed against this decision. 10. On 1 August 1996 the Mattighofen District Court convicted him under Article 88 §§ 1 and 3 of the Penal Code of negligently causing bodily harm in particularly dangerous conditions (fahrlässige Körperverletzung unter besonders gefährlichen Verhältnissen), and sentenced him to a fine of ATS 8,000.00. 11. On 2 June 1997 the Ried Regional Court dismissed the applicant’s appeal. The Regional Court distinguished the present case from the Gradinger case of the European Court of Human Rights (Gradinger v. Austria judgment of 23 October 1995, Series A no. 328-C) on the ground that in the Gradinger case the administrative proceedings were after the criminal proceedings, whereas in the present case the order of the criminal and administrative criminal proceedings was reversed. 12. Section 5 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 provides, so far as relevant, 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 ...” 14. Section 99 § 6 of the Road Traffic Act regulates the relation between the offences under section 99 §§ 1-5 of that Act and offences of ordinary criminal law coming within the jurisdiction of the ordinary courts. While in respect of some offences under the Road Traffic Act Section 99 of that Act stipulates a relation of subsidiarity – if the same set of facts might constitute an offence of ordinary criminal law and the Roads Traffic Act only an offence falling within the jurisdiction of the ordinary courts is committed – this is not the case with the offence under the Road Traffic Act of driving a vehicle under the influence of drink. 15. 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 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 Article 81 § 2 of the Criminal Code (cited below), drunken driving was also an essential aspect of certain offences tried by these courts. In so far 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.  16. Under Article 88 § 1 of the Criminal Code, it is an offence, punishable by up to three months’ imprisonment or a fine, to cause physical injury by negligence. 17. Section 88 § 3 increases the sentence in respect of causing injury by up to six months’ imprisonment , if the special circumstances of Section 81 § 2 apply. Section 88 § 4 increases the sentence in respect of causing injury by up to two years’ imprisonment, if the special circumstances of Section 81 § 2 apply and the injury is particularly serious. 18. Section 81 § 2 applies where a person commits the offence “after allowing himself, even if only negligently, to become intoxicated ... through the consumption of alcohol, ...”. 19. 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 section 81 § 2.