Europäischer Gerichtshof für Menschenrechte
Cour européenne des droits de l'homme
Corte europea dei diritti dell'uomo
European Court of Human Rights
AS TO THE ADMISSIBILITY OF
Application No. 25711/94
by C. M. L.-O.
against Switzerland
The European Commission of Human Rights sitting in private on
13 January 1997, the following members being present:
Mrs. J. LIDDY, Acting President
MM. S. TRECHSEL
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H. DANELIUS
F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
J. MUCHA
D. SVÁBY
G. RESS
A. PERENIC
C. BÎRSAN
P. LORENZEN
K. HERNDL
E. BIELIUNAS
E.A. ALKEMA
M. VILA AMIGÓ
Mrs. M. HION
Mr. M. de SALVIA, Deputy Secretary to the Commission
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 22 October 1994
by C. M. L.-O. against Switzerland and registered on 18 November 1994
under file No. 25711/94;
Having regard to:
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the observations submitted by the respondent Government on
21 June 1996 and the observations in reply submitted by the
applicant on 19 August 1996;
Having deliberated;
Decides as follows:
THE FACTS
The applicant, a Portuguese citizen born in 1967, is a secretary
residing at Urdorf in Switzerland. Before the Commission she is
represented by Mr A. von Albertini, a lawyer practising in Zurich.
The facts of the case, as submitted by the parties, may be
summarised as follows:
On 15 December 1990 the applicant was driving her car in Zurich.
The road was covered with ice and snow; her car got onto the other side
of the road where she touched one car and then collided with a second
car driven by M. The latter was seriously injured.
On 19 March 1991 the Zurich Police Judge's Office
(Polizeirichteramt) transmitted the file to the District Attorney's
Office (Bezirksanwaltschaft) for further investigation as to whether
the applicant had committed the offence of negligent serious bodily
injury (fahrlässige schwere Körperverletzung) according to Section 125
para. 2 of the Penal Code (Strafgesetzbuch).
On 5 April 1991 the Zurich District Office (Statthalteramt)
transmitted the file to the District Attorney's Office for further
investigations as to any offences against the Federal Road Act
(Strassenverkehrsgesetz).
On 3 June 1991 the District Attorney's Office transferred the
file back to the Police Judge's Office.
On 13 August 1991 the Zurich Police Judge convicted the applicant
of a breach of traffic rules, namely of not mastering her vehicle as
she had not adapted her speed to the road conditions (Nichtbeherrschen
des Fahrzeuges infolge Nichtanpassens der Geschwindigkeit an die
Strassenverhältnisse); and sentenced her to a fine of 200 SFr. The
decision noted in particular that on 15 December 1990 the road had been
covered with ice and snow; and that the applicant's car had got onto
the other side of the road and first touched one car and then collided
with another.
On 25 January 1993 the District Attorney's Office issued a penal
order (Strafbefehl). In view of the collision with the car driven by
M., resulting in his injury, the applicant was convicted of having
negligently caused the offence of bodily injury (fahrlässige
Körperverletzung) and sentenced to a fine of 2,000 SFr.
The applicant objected thereto whereupon criminal proceedings
were instituted before the Zurich District Court (Bezirksgericht). On
11 March 1993 the Court convicted the applicant of negligent bodily
injury and sentenced her to a fine of 1,500 SFr. The judgment stated,
inter alia:
Translation
"The Police Judge who issued the fine contested by the applicant
had to examine the situation within the context of proceedings
concerning a regulatory offence. Certainly, no second regulatory
offence proceedings may be instituted on the basis of the same
incident and in view of the principle 'ne bis in idem'. The
summary and limited examination of that type of procedure
nevertheless permits the act, which was prosecuted with a mere
fine, once again to be prosecuted and punished as a crime or as
an offence, to the extent that this more severe examination is
factually or legally required. In this case the original fine
order and the concomitant punishment shall be annulled."
German
"Der Polizeirichter, welcher die von der Angeklagten vorgebrachte
Bussenverfügung erliess, hatte den fraglichen Sachverhalt im
Rahmen eines Übertretungsstrafverfahrens zu würdigen, sodass mit
Sicherheit aufgrund des nämlichen Vorfalles und im Sinne des 'ne
bis in idem'-Grundsatzes kein zweites Übertretungsverfahren
eingeleitet werden darf. Die summarische und beschränkte Prüfung
dieser Verfahrensart lässt es hingegen zu, dass die mit einer
blossen Busse geahndete Tat noch einmal als Verbrechen oder
Vergehen verfolgt und bestraft wird, sofern ein rechtlicher oder
tatsächlicher Gesichtspunkt diese erschwerte Beurteilung
verlangt; in diesem Fall wird die ursprüngliche Bussenverfügung
und die mit ihr ausgesprochene Strafe aufgehoben."
The decision further stated, inter alia:
Translation
"The fine of 200 SFr pronounced in the order of the Police
Judge's Office of the Zurich Municipality of 13 August 1991 shall
be annulled and - to the extent that it has already been paid -
shall be deducted from the present fine, the latter therefore
being reduced to 1,300 SFr."
German
"Die mit Verfügung des Polizeirichteramtes der Stadt Zürich vom
13.8.91 ausgefällte Busse von Fr. 200.- wird aufgehoben und -
sofern bereits bezahlt - auf den vorliegenden Bussenbetrag
angerechnet, sodass sich dieser auf Fr. 1,300.- reduziert."
The applicant's appeal was dismissed on 7 October 1993 by the
Zurich Court of Appeal (Obergericht). The Court held, inter alia:
Translation
"The question arises which conclusions must be drawn from the
erroneous conduct of the Police Judge in respect of the question
at issue. It is clear that the Police Judge in his decision of
13 August 1991 only assessed from a criminal law point of view
the fact that the applicant did not master the vehicle, not the
resulting bodily injury of the victim... However, in order to
determine the breach of traffic rules the Police Judge was
entitled and obliged entirely to examine and completely to assess
from a criminal law point of view the facts introduced as the
object of the proceedings; if he nevertheless failed to transmit
the file despite a negligent serious bodily injury which was
apparent, this does not lead to the quashing of the decision of
the Police Judge - the decision still stands. It has not been
claimed, and does not transpire from the file, that the decision
at issue has serious faults which would possibly bring about the
complete nullity."
German
"Es stellt sich die Frage, welche Schlüsse aus dem fehlerhaften
Vorgehen des Polizeirichters für die hier interessierende Frage
zu ziehen sind. Fest steht, dass der Polizeirichter in seiner
Verfügung vom 13. August 1991 nur das Nichtbeherrschen des
Fahrzeuges, nicht aber die dadurch verursachte Körperverletzung
beim Geschädigten strafrechtlich gewürdigt hat... Zwecks
Beurteilung der Verkehrsregelnverletzung war der Polizeirichter
jedoch berechtigt und verpflichtet, die als Prozessgegenstand
eingeführten Tatsachen in strafrechtlicher Hinsicht gänzlich
auszuloten und vollständig zu beurteilen; dass er trotz einer im
Raume stehenden fahrlässigen schweren Körperverletzung die
Überweisung der Akten versäumte, führt daher noch nicht zur
Aufhebung der polizeirichterlichen VerfÜgung - diese hat nach wie
vor Bestand. Irgendwelche schwerwiegende Mängel der fraglichen
Verfügung, die allenfalls die vollständige Nichtigkeit zur Folge
haben könnten, sind weder geltend gemacht noch aus den Akten
ersichtlich."
The Court of Appeal then confirmed the deduction of 200 SFr from
the fine of 1,500 SFr, considering that the applicant should not be
punished more severely than if both offences had been dealt with
together in one set of proceedings.
Against this decision the applicant filed pleas of nullity
(Nichtigkeitsbeschwerden) both with the Court of Cassation
(Kassationsgericht) of the Canton of Zurich and with the Federal Court
(Bundesgericht). The Court of Cassation dismissed the plea of nullity
on 27 April 1994. Against this last decision the applicant also filed
a public law appeal (staatsrechtliche Beschwerde) with the Federal
Court.
On 17 August 1994, the Federal Court dismissed both the
applicant's public law appeal and her plea of nullity, both decisions
being served on 25 August 1994.
According to the Federal Court's decision concerning the
applicant's plea of nullity, it had to be assumed that the Police
Judge, when issuing his fine on 13 August 1991, had not been aware of
M.'s serious injury; otherwise, he would not have been competent to
issue the fine and he would have been obliged to return the file to the
District Attorney's Office. The Federal Court concluded that "the
previous court had avoided the effects of a double punishment by
considering the fine issued by the Police Judge of 200 SFr when
determining the new fine" ("die Wirkungen einer Doppelbestrafung hat
die Vorinstanz dadurch vermieden, dass sie die vom Polizeirichter
ausgesprochene Busse von Fr. 200.- bei der Bemessung der neuen Busse
berücksichtigt hat").
COMPLAINTS
The applicant complains of a breach of Article 4 para. 1 of
Protocol No. 7. She submits that on 13 August 1991 she was convicted
for not mastering her vehicle. Subsequently, further criminal
proceedings were instituted for the same incident. Thus, M.'s injury
was the direct result (kausale Folge) of the applicant disregarding the
traffic regulations. The penal order issued on 25 January 1993
therefore breached the principle of ne bis in idem. The applicant
points out that in its decision of 17 August 1994 the Federal Court
itself confirmed this breach of ne bis in idem by referring to "the new
fine".
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 22 October 1994 and registered
on 18 November 1994.
On 9 April 1996 the Commission decided to communicate the
application to the respondent Government.
The Government's written observations were submitted on 21 June
1996. The applicant replied on 19 August 1996.
THE LAW
The applicant complains of a breach of Article 4 para. 1 of
Protocol No. 7 (P7 1). She submits that on 13 August 1991 she was
convicted for not mastering her vehicle. Subsequently, further
criminal proceedings were instituted for the same incident. The
resulting penal order issued on 25 January 1993 therefore breached the
principle of ne bis in idem.
Article 4 paras. 1 and 2 of Protocol No. 7 (P7 1, P7-4-2)
states:
"1. No one shall be liable to be tried or punished again in
criminal proceedings under the jurisdiction of the same State for
an offence for which he has already been finally acquitted or
convicted in accordance with the law and penal procedure of that
State.
2. The provisions of the preceding paragraph shall not prevent
the reopening of the case in accordance with the law and penal
procedure of the State concerned, if there is evidence of new or
newly discovered facts, or if there has been a fundamental defect
in the previous proceedings, which could affect the outcome of
the case."
The Government submit that the application is inadmissible as
being manifestly ill-founded. The question arises whether Article 4
para. 1 of Protocol No. 7 (P7 1)is already breached if the same set
of facts is examined in two different procedures, or whether it is
breached if a person is punished twice for the same offence. The
latter situation would raise no issue in the present case as the
applicant was convicted on 13 August 1991 for a breach of traffic
rules; and on 25 January 1993 for negligently having committed bodily
injury.
In the Government's opinion, even if Article 4 of Protocol No. 7
(P7 1) required that the same set of facts should not be examined in
different proceedings, this provision would not be breached in the
circumstances of the present case which resulted from a
misunderstanding. Thus, on 19 March 1991 the Zurich Police Judge's
Office transmitted the file to the District Attorney's Office as the
former was not competent to examine a possible offence of bodily
injury. On 3 June 1991, the file was referred back to the Police
Judge's Office as the District Attorney considered that no proceedings
would be instituted against M. It was probably by mistake, therefore,
that the Police Judge's Office not only terminated the proceedings
against M., but also against the applicant.
The Government recall that on 25 January 1993 a penal order was
issued against the applicant since, as the District Court later
confirmed, the offence was sufficiently severe to require prosecution
despite the previous administrative proceedings. In its judgment of
25 January 1993 the District Court nevertheless annulled the fine of
200 SFr previously imposed by the Police Judge's Office. While it is
true that the Zurich Court of Appeal found on 7 October 1993 that the
fine of the Police Judge "still stands", this caused the applicant no
prejudice whatsoever. Indeed, the Court of Appeal also confirmed the
deduction of the fine of 200 SFr. The Court of Appeal found that in
fact the offences committed by the applicant should have been dealt
with in one set of proceedings.
In the Government's submission, the fact that the Court of Appeal
did not formally annul the fine of the Police Judge cannot in itself
breach Article 4 of Protocol No. 7 (P7 1). Thus, the rights
enshrined in the Convention are not intended to be theoretical or
illusory but rights that are practical and effective (see Eur. Court
HR, Artico v. Italy judgment of 13 May 1980, Series A, no. 37, p. 16,
para. 33). The principle ne bis in idem should not be interpreted as
permitting a person to benefit from a procedural error.
The applicant contends that the text of Article 4 para. 1 of
Protocol No. 7 (P7 1) leaves no room for interpretation: it prohibits
trial or punishment for a criminal offence for which the applicant has
already been finally convicted. Thus, the principle ne bis in idem is
violated if the same facts are examined in the course of two separate
proceedings. In the applicant's opinion, her rights are also protected
if the judge in question mistakenly issues a court order. The District
Court judge was competent to issue the decision, and it cannot be said
that there was a fundamental defect in the proceedings, as stated for
instance in para. 2 of Article 4 of Protocol No. 7 (P7 1).
The applicant considers in the light of ne bis in idem that the
fact that a fine has been imposed on a motorist for contravening
traffic regulations will render it impossible for a criminal court to
convict a motorist for manslaughter. The fact that a party benefits
from a procedural error, as submitted by the Government, does not
preclude invocation of ne bis in idem. The applicant further notes
that the Government correctly state that the Zurich Court of Appeal did
not formally set aside the fine imposed by the Police Judge's Office.
The conviction of 13 August 1991 constitutes a "final conviction"
within the meaning of Article 4 para. 1 of Protocol No. 7 (P7 1), and
therefore stands in the way of a further conviction.
Finally, the applicant questions why the Government refer to the
Convention organs' case-law that the Convention rights are intended to
be practical and effective. The purpose of this remark is obviously
to call in question the applicant's interest in her legal rights.
However, after conviction by the Police Judge's Office the applicant
was again involved in a further trial resulting in an additional fine.
It cannot therefore be said that the rights invoked were theoretical
and illusory.
The Commission considers, in the light of the parties'
submissions, that the case raises complex issues of law and of fact
under the Convention which should depend on an examination of the
merits of the application as a whole. The Commission concludes,
therefore, that the application is not manifestly ill-founded, within
the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No
other grounds for declaring it inadmissible have been established.
For these reasons, the Commission, by a majority,
DECLARES THE APPLICATION ADMISSIBLE, without prejudging the
merits of the case.
M. de SALVIA J. LIDDY
Deputy Secretary Acting President
to the Commission of the Commission