THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 4483/02 
by Emin AŞCI 
against Austria

The European Court of Human Rights (Third Section), sitting on 19 October 2006 as a Chamber composed of:

Mr B.M. Zupančič, President
 Mr J. Hedigan
 Mr C. Bîrsan
 Mrs E. Steiner
 Mrs A. Gyulumyan
 Mr E. Myjer, 
 Mr David Thór Björgvinsson, judges,

and Mr V. Berger, Section Registrar,

Having regard to the above application lodged on 11 December 2001,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Emin Aşcı, is a Turkish national who was born in 1963 and lives in Vienna. He was represented before the Court by Mr R. Soyer, a lawyer practising in Vienna. The respondent Government were represented by their Agent, Ambassador F. Trauttmansdorff, Head of the International Law Department at the Federal Ministry for Foreign Affairs.

A.  The circumstances of the case

The facts of the case may be summarised as follows.

On 26 August 2000 the police stopped the applicant, who was driving his car, on account of a minor traffic offence. There followed a violent dispute between the applicant and the police officers Mr P. and Mrs M. The applicant snatched his car documents from the former and bruised the latter with his car keys.

On 31 August 2000 the Vienna Federal Police Directorate (Bundespolizeidirektion) issued a penal order (Straferkenntnis) in which it sentenced the applicant to a fine of 1,000 Austrian schillings ((ATS) – approximately 73 euros (EUR)) under section 82 of the Police Security Act (Sicherheitspolizeigesetz) for aggressive behaviour towards a public officer (Organ öffentlicher Aufsicht). It noted that the applicant had shouted and tried to snatch his driving licence from a police officer. It ordered the applicant to pay two further fines of ATS 500 (approximately EUR 36) for an offence under the Road Traffic Act (Straβenverkehrsordnung) and for having caused undue noise disturbance.

The applicant did not appeal against that decision.

On 2 October 2000 the Vienna Regional Court (Landesgericht), sitting with a single judge, convicted the applicant of having attempted to resist the exercise of official authority (Widerstand gegen die Staatsgewalt), under Article 269 of the Criminal Code (Strafgesetzbuch), and of having caused bodily harm to the police officer Mrs M. while she was on duty, which was to be qualified as grievous bodily harm (schwere Körperverletzung) in accordance with Article 84 § 2 of the Criminal Code. Pursuant to Article 28 § 1 of the Criminal Code, which provides that a person who has committed more than one offence should receive only a single penalty, it sentenced him to four months' imprisonment, suspended on probation, under Article 269 of the Criminal Code. In the operative part (Spruch) of its judgment the court referred to the fact that on 26 August 2000 the applicant had started fighting with Mrs M., in the process bruising her with his car keys, causing skin abrasions on her forearm and kicking her legs.

In the part of the judgment headed “Reasons for the decision” (Entscheidungsgründe), the court observed that the applicant had started to shout and, on being ordered to hand over the keys to the car, had snatched the car documents from the police officer Mr P. He had then started the fight with the other police officer, Mrs M.

The court based its findings as far as the course of the events was concerned on the statements of the police officers concerned. In respect of the injury inflicted by the applicant, it relied on the statement by the officer concerned and an official medical expert opinion.

The applicant appealed against his conviction and sentence. He argued, inter alia, that the Federal Police Directorate had based its penal order against him on the same set of facts. The subsequent court proceedings and his conviction were therefore in breach of the non bis in idem principle. He also requested the preparation of a further expert opinion in order to prove that the police officer concerned had not suffered any injuries which were relevant for the purposes of the Criminal Code.

On 11 May 2001 the Vienna Court of Appeal (Oberlandesgericht), having held a hearing, dismissed the applicant's appeal. Giving extensive reasons and referring to the Court's case-law in the cases of Gradinger v. Austria (judgment of 23 October 1995, Series A no. 328-C) and Oliveira v. Switzerland (judgment of 30 July 1998, Reports of Judgments and Decisions 1998-V), it found that there had been no breach of the applicant's rights under Article 4 of Protocol No. 7 to the Convention. It noted in this regard that the Federal Police Directorate had sentenced the applicant for his aggressive conduct in seeking to impede the performance of an official act by snatching the driving licence from police officer P. and shouting, whereas the subject of the criminal proceedings had been the violent behaviour by which the applicant had subsequently tried to resist police officer M. and had injured her. The Court of Appeal noted that these were different acts motivated by different intentions. In any event, the applicant's criminal conviction by the Federal Police Directorate did not do justice to all of the unlawful aspects (Unrechtsgehalt) of his conduct.

The Court of Appeal lastly noted that in the light of the evidence before it, namely the official medical opinion, there was no need for a further medical opinion. There was no reason to doubt the police officers' version of the events, and the assessment of the facts did not require special knowledge.

The judgment was served on the applicant's counsel on 11 June 2001.

B.  Relevant domestic law

By section 82(1) of the Police Security Act (Sicherheitspolizeigesetz), a person who, notwithstanding a previous warning, behaves aggressively towards a public officer on duty and thereby obstructs the performance of an official act commits an administrative offence and is punishable by a fine of up to ATS 3,000 (approximately EUR 218) (aggressives Verhalten gegenüber Organen der öffentlichen Aufsicht).

Section 85 of the Police Security Act provides that an administrative offence under sections 81 to 84 is not to be prosecuted when it is based on facts that constitute an offence falling within the jurisdiction of the ordinary courts.

Under Article 269 of the Criminal Code (Strafgesetzbuch), it is an offence, punishable by imprisonment of up to three years, to resist forcibly or using dangerous threats a public officer in the performance of an official act (Widerstand gegen die Staatsgewalt).

Article 83 of the Criminal Code applies where a person causes bodily harm and provides for up to one year's imprisonment or up to three hundred and sixty day-fines.

By Article 84 § 2 of the Criminal Code, bodily harm caused to a public officer while on duty qualifies as grievous bodily harm (schwere Körperverletzung) punishable by up to three years' imprisonment.

Article 28 § 1 of the Criminal Code provides that where a person has committed more than one offence, he or she should be punished by a single penalty, on the basis of whichever offence provides for the more severe punishment.

COMPLAINTS

The applicant complained that he had been punished twice in respect of the same facts and alleged a breach of Article 4 of Protocol No. 7. The applicant further complained under Article 6 §§ 1 and 3 of the Convention that the criminal proceedings had been unfair in that the Court of Appeal had refused to order a further medical expert opinion.

THE LAW

1. The applicant complained that he had been punished twice in respect of the same facts and alleged a breach of Article 4 of Protocol No. 7, which, in so far as relevant, reads:

“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.

...”

The Government argued that the applicant had not complied with the six-month time-limit as his application had reached the Court on 14 December 2001, whereas the final domestic decision had been served on him on 11 June 2001. They further contended that there had been no breach of Article 4 of Protocol No. 7 as the penal order by the Vienna Federal Police Directorate and the judgment of the Regional Court had been based on two different offences committed one after the other and, moreover, directed against two different persons. While the penal order had convicted the applicant because he had snatched the car documents from the police officer Mr P., the judgment of the Regional Court related to the subsequent violent scuffle with the police officer Mrs M., in the course of which she had been hurt. The unlawfulness of the applicant's conduct against the female police officer was not covered by the penal order issued by the administrative authority. The Government lastly referred to the “subsidiary principle” as set out in section 85 of the Police Security Act and submitted that, as the applicant's behaviour against the female officer clearly fell within the scope of criminal prosecution, the Federal Police Directorate had not dealt with it.

The applicant contested the Government's arguments. He maintained that the facts covered by the administrative penalty were the same as those on the basis of which he had been convicted by the courts, namely attempted resistance to State authority. The administrative criminal proceedings and the criminal proceedings had concerned the same set of factual circumstances. The applicant referred in this connection to the facts as established by the Regional Court in its “Reason for the decision”, which referred in particular to his snatching the car documents from police officer P. Therefore, the institution of criminal proceedings had been in breach of his rights under Article 4 of Protocol No. 7 to the Convention.

The Court observes at the outset that according to the postmark on the letter, the applicant posted his application on 11 December 2001, exactly six months after the final domestic decision was served on him on 11 June 2001. The Government's argument as to his failure to comply with the six-month rule accordingly fails.

The Court notes that the aim of Article 4 of Protocol No. 7 is to prohibit the repetition of criminal proceedings which have been concluded by means of a final decision (see Gradinger v. Austria, judgment of 23 October 1995, Series A no. 328-C, p. 65, § 53). In the Gradinger case the Court, while emphasising that the offences at issue differed in nature and aim, found a violation of Article 4 of Protocol No. 7 as both domestic decisions were based on the same conduct (ibid., pp. 65-66, §§ 54-55). In the subsequent case of Oliveira v. Switzerland (judgment of 30 July 1998, Reports of Judgments and Decisions 1998-V) it found no violation of Article 4 of Protocol No. 7, considering that the case at issue presented a typical example of a single act constituting various offences (concours idéal d'infractions) which did not infringe Article 4 of Protocol No. 7, since that provision only prohibited people being tried twice for the same offence (ibid., p. 1998, § 26). Finally, in the Franz Fischer v. Austria judgment (no. 37950/97, 29 May 2001), after having analysed the two previous judgments cited above, the Court established a new approach and stated that the mere fact that one act constituted more than one offence was not contrary to Article 4 of Protocol No. 7. However, where different offences based on one act were prosecuted consecutively, one of them after the final decision relating to the other, the Court had to examine whether or not such offences had the same essential elements (ibid., § 25).

Turning to the circumstances of the present case, the Court observes that the Federal Police Directorate convicted the applicant under section 82 of the Police Security Act of aggressive behaviour towards a public officer as the applicant had shouted and tried to snatch his driving licence from the police officer Mr P. The Regional Court subsequently convicted the applicant of having attempted to resist the exercise of official authority, under Article 269 of the Criminal Code, and of having caused grievous bodily harm, under Article 84 § 2 of the Criminal Code. The court explained in this regard that the applicant had started a fight with police officer M., in the course of which he had bruised the officer with his car keys and kicked her legs.

The Court finds that the applicant's case must therefore be distinguished from the Gradinger v. Austria case cited above, as well as the Oliveira v. Switzerland case, where the applicants had committed only one single act constituting different offences. In the present case, however, the Court cannot find that the aggressive behaviour towards police officer P. and the bodily assault against police officer M. constituted one criminal act which was split up into several offences. The Court notes in this connection that the offences at issue were committed separately and successively (see, mutatis mutandis, Kantner v. Austria (dec.), no. 29990/96, 14 December 1999).

In any event, even accepting the applicant's argument that he was punished twice on account of one single act (namely the events occurring during the dispute with both police officers), the Court, applying the test developed in the Franz Fischer judgment cited above, considers that the two offences differed in their essential elements. They were committed one after the other, were directed against different persons and, moreover, differed in their degree of seriousness. Even assuming that it would be more consistent with the principles governing the proper administration of justice for the applicant to have been tried by one single court in one set of proceedings, this is irrelevant as regards compliance with Article 4 of Protocol No. 7 since that provision does not preclude separate offences being tried by different courts (see, mutatis mutandis, Oliveira, cited above, p. 1998, § 27).

Against this background, the Court does not find that the proceedings at issue disclosed any failure to comply with the requirements of Article 4 of Protocol No. 7.

It follows that this part of the application must be rejected as being manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.

2. The applicant further complained under Article 6 of the Convention that the criminal proceedings had been unfair in that the Court of Appeal had refused to order a further medical expert opinion.

Article 6, in so far as relevant, reads as follows:

“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal...

3. Everyone charged with a criminal offence has the following minimum rights:

...

(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

The Court notes at the outset that it is doubtful whether the applicant has exhausted domestic remedies as he did not request a further expert opinion before the Regional Court.

In any event, the Court notes that Article 6 does not grant the accused an unlimited right to have witnesses or experts called. As a general rule, it is for the domestic courts to assess the evidence before them as well as the relevance of the evidence which the defendants seek to adduce. More specifically, Article 6 § 3 (d) leaves it to the domestic courts to assess whether it is appropriate to call witnesses; it does not require the attendance and examination of every witness on the accused's behalf (see Perna v. Italy [GC], no. 48898/99, §§ 29, ECHR 2003-V; Bricmont v. Belgium, judgment of 7 July 1989, Series A no. 158, p. 31, § 89; and Vidal v. Belgium, judgment of 22 April 1992, Series A no. 235-B, pp. 32-33, § 33).

The Court finds that the Court of Appeal, in pointing out that there was no reason to doubt the police officer's version of the events and that the injury inflicted by the applicant had been established in the official expert opinion, gave sufficient reasons as to why it regarded it as unnecessary to order the preparation of a further expert opinion on this subject.

It follows that this part of the application must likewise be rejected as being manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Vincent Berger Boštjan M. Zupančič 
Registrar President

AŞCI v. AUSTRIA DECISION


AŞCI v. AUSTRIA DECISION