PROCEDURE

The case originated in an application (no. 13471/06) against the Republic of Austria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Austrian national, Mr Alfred Almesberger (“the applicant”), on 24 March 2006.

The applicant was represented by Mr J. Postlmayr, a lawyer practising in Mattighofen. The Austrian Government (“the Government”) were represented by their Agent, Ambassador F. Trauttmansdorff, Head of the International Law Department at the Federal Ministry for Foreign Affairs.

On 13 June 2008 the President of the First Section decided to give notice of the application to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 3).

THE FACTS

THE CIRCUMSTANCES OF THE CASE

The applicant was born in 1956 and lives in Pischelsdorf. He is the manager of a transport company.

On 1 April 1999 the Melk District Administrative Authority (Bezirkshauptmannschaft – DAA) charged the applicant with failing to carry a fire extinguisher while transporting dangerous goods. The applicant did not react.

On 2 June 1999 the DAA issued a penal order (Straferkenntnis). It found the applicant (as responsible person for the Almesberger Transport Company) guilty (i) of failing to carry, as the owner of the truck (Zulassungsbesitzer), a fire extinguisher and (ii) of failing to carry, as the responsible transporter (Befördererer) a fire extinguisher and the necessary documents, contrary to the relevant provisions of the Dangerous Goods Transportation Act (Gefahrgutbeförderungsgesetz). It sentenced the applicant to a fine of 12,100 Austrian schillings (ATS), approximately 880 euros (EUR).

The applicant appealed on 28 June 1999 against the penal order to the Lower Austria Independent Administrative Panel (Unabhängiger Verwaltungssenat – IAP). He maintained that the DAA had not raised the charge against him in time and that the criminal proceedings had therefore become time-barred, that his conviction of the offences under point (i) and (ii) of the penal order infringed the principle of ne bis in idem and that the fine imposed on him was excessive.

At the request of the applicant a hearing scheduled before the IAP on 7 September 2000 was adjourned. On 14 September 2000 the IAP held a hearing in the absence of the applicant.

In a decision of 18 September 2000 the IAP dismissed the applicant's appeal. It found, inter alia, that in his capacity as the managing director of a private limited company the applicant had failed to ensure that the fire extinguisher in the inspected heavy goods vehicle had been regularly checked.

On 10 October 2000 the applicant lodged a complaint with the Constitutional Court. He submitted that the proceedings before the IAP had been unfair, that his conviction under point (i) and (ii) of the penal order of 2 June 1999 infringed the ne bis in idem principle and that the sanctions provided for in the Dangerous Goods Transportation Act were excessively high and thus unconstitutional.

The DAA commented on the applicant's complaint to the Constitutional Court on 1 December 2000.

On 9 February 2001 the comments of the Constitutional Department of the Federal Chancellery were transmitted to the applicant.

Meanwhile proceedings concerning a review of the constitutionality of certain provisions of the Dangerous Goods Transportation Act had been instituted by the Constitutional Court, following requests by several IAPs in the course of administrative criminal proceedings pending before them.

On 27 September 2002 the Constitutional Court gave its ruling following its review of the Dangerous Goods Transportation Act. It rejected a request to strike down provisions concerning the minimum fine that had to be imposed in the event of conviction after finding that they complied with the Austrian Federal Constitution.

Subsequently, on 9 October 2002, the Constitutional Court declined to deal with the applicant's constitutional complaint as it had no prospects of success. It remitted the case to the Administrative Court at his request.

The applicant amended his complaint to the Administrative Court on 28 February 2003. On 27 May 2003 the IAP submitted observations in reply.

On 18 October 2005 the Administrative Court quashed the decision of the IAP on the grounds that the Melk DAA had had no jurisdiction over the case.

On 10 November 2005, in accordance with the finding of the Administrative Court, the IAP quashed the decision of the Melk DAA but did not formally discontinue the administrative criminal proceedings.

On 14 November 2006 the applicant filed a request with the Melk DAA for the proceedings to be discontinued, following which, on 24 November 2006, the proceedings were discontinued.