PROCEDURE

The case originated in an application (no. 18015/03) 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 Roland Schutte (“the applicant”), on 23 May 2003.

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 of Foreign Affairs.

On 15 September 2005 the Court decided to communicate the complaints concerning the length of the proceedings and the lack of remedies in that respect and the complaint about the alleged violation of the ne bis in idem principle to the Government. Applying Article 29 § 3 of the Convention, it decided to rule on the admissibility and merits of the application at the same time. The Government, in their observations, requested the Court to give a separate decision on the admissibility of the application. However, the Court has found no reasons to discontinue the application of Article 29 § 3. It therefore rejects the request.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The applicant was born in 1963 and lives in Ostermiething.

In the early hours of 5 October 1997 the applicant drove a car through a village. Police officers required him to stop by giving a sign with a red light. The applicant disregarded their sign and drove on, obliging the police officers to step aside.

On 21 November 1997 the Ried im Innkreis Public Prosecutor's Office charged the applicant with resisting the exercise of official authority (Widerstand gegen die Staatsgewalt) under Article 269 § 1 of the Criminal Code (Strafgesetzbuch) in that he had prevented the police officers from carrying out a traffic control by driving towards them with his vehicle, thus threatening them with bodily harm.

On 12 December 1997 the Ried im Innkreis Regional Court (Landesgericht), having held a trial, acquitted the applicant of the above charge. As neither party appealed, the judgment became final.

By letter of 29 January 1998 the Braunau District Administrative Authority (Bezirkshauptmannschaft) charged the applicant with failure to comply with a request to stop for the purpose of a traffic control contrary to Section 97 § 5 of the Road Traffic Act (Straßenverkehrsordnung).

The applicant submitted his defence on 4 February 1998, asserting in particular that the conduct of proceedings for the said traffic offence violated Article 4 of Protocol No. 7, given that he had been acquitted of the offence of resisting the exercise of official authority in respect of the same act.

On 11 March 1998 the District Administrative Authority issued a penal order (Straferkenntnis) against the applicant finding him guilty of the offence under Section 97 § 5 in conjunction with Section 99 § 3 (a) of the Road Traffic Act, and imposed a fine of 4,000 Austrian schillings on him (approximately 290 euros) with 6 days' imprisonment in default. Furthermore, it ordered the applicant to pay a contribution to the costs of the proceedings.

Upon the applicant's appeal, the Upper Austria Independent Administrative Panel (Unabhängiger Verwaltungssenat) held a hearing on 17 September 1998 at which it heard the applicant and the three police officers concerned.

By decision of 15 December 1998 the Independent Administrative Panel dismissed the applicant's appeal. It noted that the applicant admitted to having disregarded the police officers' request to stop. It dismissed his argument that his conviction under the Road Traffic Act violated the ne bis in idem principle. The offence under Section 97 § 5 of the Road Traffic Act concerned a simple omission, namely the failure to comply with a request to stop for the purpose of a traffic control whereas Article 269 § 1 of the Criminal Code required the use of dangerous threat or force. It followed from the court file and from the police officers' statements that the applicant had been acquitted of resisting the exercise of official authority, as it had not been shown that he had driven towards the police officers and thus threatened them with bodily harm. In sum, the two offences were distinct and the applicant's acquittal under Article 269 § 1 of the Criminal Code did not hinder his conviction under Section 97 § 5 of the Road Traffic Act.

On 8 February 1999 the applicant lodged a complaint with the Constitutional Court (Verfassungsgerichtshof). The Independent Administrative Panel submitted observations in reply on 24 March 1999.

On 19 June 2000 the Constitutional Court dismissed the applicant's complaint as being unfounded. Referring to the Court's judgment in the case of Oliveira v. Switzerland (30 July 1998, Reports of Judgments and Decisions 1998‑V), it found that the present case concerned an example of a single act constituting more than one offence (Idealkonkurrenz) which was in itself not contrary to Article 4 of Protocol No. 7. Further, it confirmed the Independent Administrative Panel's view that the offences at issue differed in their constituent elements.

Upon the applicant's request the Constitutional Court referred the case to the Administrative Court (Verwaltungsgerichtshof) by decision of 17 August 2000.

The latter requested the applicant to supplement his complaint on 2 October 2000. The applicant complied with that request on 8 November 2000. He reiterated his complaint about a violation of the ne bis in idem principle and requested the Administrative Court to hold a hearing. On 11 April 2002 the Administrative Court requested the Independent Administrative Panel to submit observations. The latter did so on 23 May 2002.

On 20 December 2002 the Administrative Court refused to deal with the applicant's complaint pursuant to Section 33a of the Administrative Court Act (Verwaltungsgerichtshofgesetz) as the fine imposed did not exceed 726 euros and the case did not raise an important legal issue.

The decision was served on the applicant's counsel on 31 January 2003.