R.T. v. SWITZERLAND

THE FACTS

The applicant, a Swiss citizen born in 1954, is a construction engineer residing in Amriswil in Switzerland. Before the Court he is represented by Mr Dähler, a lawyer practising in St. Gallen.

The facts of the case, as submitted by the applicant, may be summarised as follows.

On 16 March 1993 at 00h35 hours the applicant was driving a car in Gossau in Switzerland when he was stopped by the police. His blood level was checked, disclosing an alcohol level of 1,5 ‰ .

On 11 May 1993 the Road Traffic Office of the Canton of St. Gallen (Strassenverkehrsamt) withdrew the applicant's driving licence for a period of four months.

On 9 June 1993 the Gossau District Office (Bezirksamt) issued a penal order (Strafbescheid) in which it found the applicant guilty of driving under the influence of alcohol. It imposed on him a prison sentence of two weeks suspended on probation for a period of two years as well as a fine of 1,100 Swiss Francs (CHF). No appeal was filed against this penal order which acquired legal force.

Against the decision of the Road Traffic Office of 11 May 1993 the applicant filed an appeal in which he complained of the length of the withdrawal of his driving licence. The appeal was dismissed by the Administrative Appeals Commission (Verwaltungsrekurs-kommission) of the Canton of St. Gallen on 25 May 1994.

The applicant filed an administrative law appeal (Verwaltungsgerichtsbeschwerde) with the Federal Court (Bundesgericht) in which he complained that he had not had a public hearing as required by Article 6 § 1 of the Convention, and that the measure imposed on him was excessive. In its judgment of 11 January 1995 the Court considered, with reference to Swiss doctrine and practice, that Article 6 § 1 of the Convention was applicable to the case concerning the withdrawal of a driving licence. Thus, even if the matter had already been decided by the criminal judge, the authorities withdrawing the driving licence were “determining a criminal charge” within the meaning of this provision. According to Article 6 § 1, the applicant should have had an oral hearing which he did not have. As a result, the Court quashed the decision of the lower court.

Proceedings were resumed before the Administrative Appeals Commission. By letter of 19 May 1995 the President of the Commission informed the applicant of the public hearing (öffentliche Verhandlung) fixed for 31 May 1995 in which the applicant would be questioned and the lawyer would have the opportunity to comment on the evidence. A representative of the Road Traffic Office would also have the possibility to speak.

The applicant's lawyer replied on 22 May 1999 that he intended to plead the case fully and not merely to limit himself to comment on the evidence. Any limitation in this respect would contradict the purpose of an oral hearing.

By letter of 23 May 1995 the President of the Administrative Appeals Commission informed the applicant's lawyer as follows:

“In reply to your letter of 22 May 1995 I can inform you that on 31 May 1995 there shall not be a 'trial' ('Hauptverhandlung') but a public hearing (öffentliche Anhörung) of the appellant, based on Article 6 § 1 of the Convention.

As a lawyer of the appellant you may be present at the hearing and you may thereafter comment thereupon. If at the hearing new legal issues arise you will have the opportunity to express yourself.

I would explain this manner of proceeding essentially as follows. The appeals proceedings continue to be in writing ... Despite a public hearing they are not replaced by oral proceedings. It is therefore not admissible to repeat or to add appeal grounds in open court (an Schranken). In the present case, the exchange of statements has occurred long ago and the content is known to the court.“

By letter of 24 May 1995 the applicant's lawyer replied that the oral hearing should be the same as a trial conducted in criminal proceedings, and that he would speak before the court on his complaint of ne bis in idem.

By letter of 26 May 1995 the President informed the applicant's lawyer of a judgment of the Federal Court according to which the principle ne bis in idem was not breached in the applicant's situation. The letter continued: “it can be left open whether this statement (Vorbringen) is admissible in court”.

The hearing before the Administrative Appeals Commission took place on 31 May 1995. The President prepared notes for this hearing which mentioned its conduct and contained prepared statements for each stage. According to the notes, the applicant was first questioned. The notes continue:

“I now wish to give the floor to [the applicant's lawyer]. He may comment on the duration of the withdrawal of the licence based on the questioning of the appellant. Actual legal explanations which amount to a repetition of the written appeal statement are not admissible. Thus, the exchange of written statements has been closed, the content of the case-file is known to the court. In this sense I now ask (the applicant's lawyer) to take the floor.

(To the extent that [the applicant's lawyer] evidently departs from this topic, he must be admonished. Possibly there should be a reproach (S. 69 of the Court Act) if [the applicant's lawyer] continues along the same lines. A disciplinary fine should only be imposed in last resort.)

..... listen to the statements of [the applicant's lawyer]

..... at the end thank [the applicant's lawyer] for his statement.”

A representative of the Road Traffic Office was heard, and the applicant was given the final word.

On 31 May 1995 the Administrative Appeals Commission gave its judgment in which it dismissed the applicant's appeal. The judgment recalled that the applicant had been questioned at the hearing; that his lawyer had been able to make comments; that the applicant had been given the final word; and that the applicant's lawyer had disagreed with this procedure, requesting a trial corresponding to criminal proceedings.

The judgment continued that the topic of the appeal was limited in that the administrative authority was bound both factually and legally by the result of the criminal proceedings. As a result, the main topic in the applicant's case was the length of the withdrawal of the driving licence. With reference to Article 6 § 1 of the Convention the Administrative Appeals Commission found that the withdrawal of a driving licence resembled in many respects a criminal sanction, but it remained an administrative measure in respect of which written proceedings were in principle called for.

The judgment then dealt with the applicant's complaint of ne bis in idem which he had raised in open court and also in his letter of 24 May 1995. This principle was not breached as the withdrawal of a driving licence was an administrative measure which was distinct from the penal sanction. Both the criminal and the administrative authority were called upon to consider all sanctions in their entirety when meting out the punishment. The judgment concluded that the applicant could not be acquitted on this ground, “independently thereof whether it was admissible to raise this matter at all in open court”.

The applicant filed an administrative law appeal in which he complained, inter alia, of a breach of ne bis in idem and that at the hearing his lawyer had on a number of occasions been interrupted and admonished not to make any pleadings.

The appeal was dismissed by the Federal Court on 5 December 1995. Insofar as the applicant complained that he had not had an oral hearing as required by Article 6 § 1 of the Convention, the Court noted that the applicant was heard orally and publicly before the Administrative Appeals Commission, and the applicant's lawyer was able to comment in court on ne bis in idem. To the extent that the lawyer complained that he had been interrupted when speaking on this matter, he had not claimed that he had been unable to comment on the points relevant for the judgment.

In respect of the applicant's complaint of a breach of ne bis in idem, the Court found that the criminal judge and the administrative authority had different jurisdictions, and this was not called in question by the criminal nature of the withdrawal of the driving licence within the meaning of Article 6 § 1 of the Convention.

COMPLAINTS

1. The applicant complains that the proceedings before the Administrative Appeals Commission did not comply with Article 6 § 1 of the Convention. The oral hearing required by this provision must concern all aspects relevant for the judgment, including legal issues. In the present case the court only heard the applicant, but did not let his lawyer comment comprehensively on all relevant factual and legal issues of the withdrawal of his driving licence, in particular on ne bis in idem. The subsequent explanation in written proceedings before a higher instance cannot heal this breach.

2. Under Article 4 of Protocol No. 7 the applicant complains that that he was punished twice in two separate proceedings for drunken driving. Thus he was first convicted and sentenced by the Gossau District Court and later his driving licence was withdrawn by the Road Traffic Office.