CYIL vol. 8 (2017)

MICHAL PETR CYIL 8 ȍ2017Ȏ car, caused an accident which led to the death of a cyclist; in a criminal proceedings, he was sentenced for causing death by negligence, but as it had also been proved that he was under the influence of alcohol, he was also sentenced, in a separate administrative proceedings, for driving intoxicated, in breach of the Road Traffic Act. The ECtHR concluded that as the two offences of Mr. Gradinger were based on his identical conduct, the ne bis idem principle was breached: “The Court is fully aware that the provisions in question differ not only as regards the designation of the offences but also, more importantly, as regards their nature and purpose. It further observes that the offence provided for in […] the Road Traffic Act represents only one aspect of the offence punished under […] the Criminal Code. Nevertheless, both impugned decisions were based on the same conduct. Accordingly, there has been a breach of Article 4 of Protocol No. 7”. 7 The “same conduct” was nonetheless later replaced by the “same offence” ( même infraction ) approach in the Oliveira judgement. 8 Under similar circumstances, Mrs. Oliveira negligently injured another person while driving, this time not intoxicated but driving too fast on an icy road. She was sentenced under the Criminal Code for negligently causing injury to physical integrity or health of another person and in separate proceedings under the Federal Road Traffic Act for not adapting the vehicle’s speed to road conditions. The ECtHR however concluded that this case is a typical example of a single act constituting various offences ( concours idéal d’infractions ): “The characteristic feature of this notion is that a single criminal act is split up into two separate offences, in this case the failure to control the vehicle and the negligent causing of physical injury. […] There is nothing in that situation which infringes Article 4 of Protocol No. 7 since that provision prohibits people being tried twice for the same offence whereas in cases concerning a single act constituting various offences (concours idéal d’infractions) one criminal act constitutes two separate offences. […] […] Article 4 of Protocol No. 7 […] does not preclude separate offences, even if they are all part of a single criminal act, being tried by different courts , especially where, as in the present case, the penalties were not cumulative, the lesser being absorbed by the greater”. 9 This approach was lately refined in the Franz Fischer case, 10 which was factually very similar to the Gradinger case: Mr. Fischer, while driving intoxicated, negligently killed a cyclist and disappeared without helping him; he was convicted to having breached the Criminal Code by causing death by negligence and the Road Traffic Act by driving under the influence of alcohol. The ECtHR upheld the Oliveira ruling that, in principle, the same conduct may constitute several offences; it however added that there has to be a real, not only nominal difference between the offences, and “essential elements” of the offences thus need to be compared: “[W]hile it is true that the mere fact that a single act constitutes more than one offence is not contrary to this Article , the Court must not limit itself to finding that an applicant

7 Ibid , par. 55, emphasis added. 8 ECtHR judgement of 30 July 1998 Oliveira v. Switzerland , app. no 25711/94. 9 Ibid, par. 26 and 27, emphasis added. 10 ECtHR judgement of 29 May 2001 Franz Fischer v. Austria , app. no. 37950/97.

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