OLIVEIRA v. SWITZERLAND (84/1997/868/1080) 30 July 1998: double jeopardy

Switzerland – successive convictions of applicant for failing to control her vehicle and for negligently causing physical injury in respect of a road-traffic accident (sections 31 and 32 of Federal Road Traffic Act and Article 125 of Criminal Code).2


Article 4

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 the State.

2.The provisions of the preceding paragraph shall not prevent the re-opening of the case in accordance with the law and penal procedure of the State concerned, if there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings, which could affect the outcome of the case.

3.No derogation from this Article shall be made under Article 15 of the Convention.

Typical example of single act constituting various offences (concours idéal d’infractions); characterised by fact that single criminal act was split up into two separate offences, in case before Court: failure to control vehicle and negligent causing of physical injury. Article 4 of Protocol No. 7 not infringed since it prohibited people being tried twice for same offence, whereas in cases concerning single act constituting various offences one criminal act constituted two separate offences.

Would have been more consistent with principles governing proper administration of justice for sentence in respect of both offences, which resulted from same criminal act, to have been passed by same court in single set of proceedings. Irrelevant as regards compliance with Article 4 of Protocol No. 7 that that procedure had not been followed in instant case.

Case before Court therefore distinguishable from case of Gradinger v. Austria, in which two different courts had come to inconsistent findings on applicant’s blood alcohol level.

Conclusion : no violation (eight votes to one).

2. Protocol No. 7 to the 1950 European Convention for the Protection of Human Rights and Funamental Freedoms, E.T.S. 117, entered into force Nov. 1, 1988.

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