OLIVEIRA v. SWITZERLAND

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:

Facts

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:

"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."

"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:

"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."

"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:

"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."

"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.

Considerations

THE LAW

The applicant complains of a breach of Article 4 para. 1 of

Protocol No. 7 (P7-4-1). 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 (P7-4-1, 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 (P7-4-1)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

(P7-4-1) 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 (P7-4-1). 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 (P7-4-1) 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 (P7-4-1).

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 (P7-4-1), 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.

Order

For these reasons, the Commission, by a majority,

DECLARES THE APPLICATION ADMISSIBLE, without prejudging the

merits of the case.

Deputy Secretary Acting President

to the Commission of the Commission